WWP alleges that the EIR is inadequate because its mitigation measures do not specify the amount of "compensation habitat" that will be acquired for the desert tortoise and "other species" that will suffer habitat loss. (WWP Application at p. 5; Cf., Pub. Util. Code § 1732.) With respect to the desert tortoise, the EIR disclosed that:

the project would cause adverse impacts on the desert tortoise and its habitat. These impacts would be both short term and long term, and both localized and extensive.

The EIR goes on to detail impacts caused by death and injury from contact with project vehicles, vegetation clearance, hazardous material spills, infectious disease, and increased predation from birds and feral dogs attracted to human activity, among other effects. (EIR at p. 3.4-85.) Additionally, the EIR discussed the extent of habitat loss caused by the project, and the extent of temporary disturbance of land. (EIR at
p. 3.4-85.) The EIR considered the measures SCE proposed to take during construction and concluded that even if those measures were taken, the effects on the tortoise would be "adverse and moderate." (EIR at p. 3.4-88.) The EIR then proposed, in addition to the measures put forth by SCE, its own mitigation measures designed to reduce impacts on the tortoise. (See EIR at pp. 3.4-107 to 3.4 108.) However, even with these measures in place, the EIR determined that the impacts to the desert tortoise would be significant. (EIR at p. 3.4-127.) The Decision acknowledged that the EITP would have significant adverse environmental effects, "in particular resulting in unmitigable significant and unavoidable impacts to the desert tortoise." (D.10-12-052, p. 42.)

The mitigation measures proposed in the EIR included many specific requirements detailing how any tortoises encountered during construction would be treated. For example, no tortoise may be moved or captured, or "purposely caused to leave its burrow" when the air temperature is above 95 degrees. Qualified biologists are required to monitor construction activities and prepare daily reports. (EIR at p. 3.4-108.) In addition, construction may not commence until: (i) the United States Fish and Wildlife Service issues a Biological Opinion, (ii) the California Department of Fish and Game issues a 2081 permit, (iii) authorization is issued by the Nevada Department of Wildlife, and (iv) SCE accepts the provisions of those permits. For the ISEGS part of the overall project, a translocation plan is required that is consistent with federal guidelines and meets with the approval of federal and state agencies. (EIR at p. 3.4-123.) The EIR summarizes regulations controlling federal and state agencies that will issue permits at pages 3-67 to 3-74.

The claim that certain elements of "compensation" have not been specified appears to address the permits and approvals that will be drawn up and issued after the EIR was issued. For example, the provisions of the biological opinion required for the EITP have not been developed yet, but could require SCE to provide compensation. (EIR, Appendix G, at p. G-48.) A Biological Opinion is issued only after a lengthy and detailed consultation and study process, governed by federal law. (See 50 C.F.R.
§ 402.1-402.16 (2010).) Relying on federal and state officials to develop conditions that will mitigate harm to the tortoise is not contrary to any provision of CEQA, and WWP's rehearing application cites no law to support its claim. (See Guidelines, § 15126.4, subd. (a)(1)(B); Gentry v. City of Murietta (1995) 36 Cal.App.4th 1359.) WWP's rehearing application further states no reason why the criteria applied by the United States Fish and Wildlife Service, the California Department of Fish and Game and the Nevada Department of Wildlife are not specific enough to meet CEQA's requirements.

In addition, even though the EIR adopted an extensive set of mitigation measures in an attempt to reduce impacts to the desert tortoise, it nevertheless concluded that the effect on the tortoise would be significant, despite the adopted mitigation. The impacts to the desert tortoise were fully disclosed and addressed by the statement of overriding considerations, which determined the EITP should be built despite these effects. (D.10-12-052, p. 42.) The Decision did not rely on mitigation, and particularly not the issuance of the biological opinion, to approve the project. Consequently, the Decision did not approve the EITP on the basis of improperly deferred mitigation. As the court in Fairview Neighbors et al. v. County of Ventura (1999) 70 Cal.App.4th 238 pointed out, when mitigation will not reduce the significance of an impact, the disclosure of that impact and the adoption of the project along with a statement of overriding considerations is the correct approach.

It is not clear what WWP means to allege when it claims that the EIR is also inadequate because it does not require compensatory habitat for unidentified "other species[.]" This claim is simply too vague to analyze. Many different mitigation measures are adopted for a variety of species in the EIR. Each measure takes a different approach, specific to the species it affects. For example, measures relating to the burrowing owl establish the amount of compensatory habitat. (EIR at p. 3.4-111.) On the other hand, the measures for the American badger involved re-location of burrows and reduction of night lighting. (EIR at p. 3.4-109.)

These measures are all consistent with the legal authority discussed above, and without any information explaining why WWP believes a particular measure does not properly address the concerns related to a specific species, WWP's rehearing application is impermissibly vague. (Pub. Util. Code, § 1732.) Similarly, CBD's allegation that the EIR fails "to consider minimization and mitigation measures to reduce impacts that cannot be avoided[,]" is both vague and inaccurate. The EIR proposes a large number of mitigation measures, which the Decision adopted. (D.10-12-052, p. 66 (Ordering Paragraph 3).) CBD's allegation provides no information allowing us to determine which particular aspects of the EIR's approach underlie its claim of error.

Previous PageTop Of PageNext PageGo To First Page