Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 148210, Ronald W. Hansen, Judge.
Law Offices of Donald B. Mooney, Donald B. Mooney and Marsha A. Burch, for Plaintiffs and Appellants.
Ruben E. Castillo, County Counsel, James Fincher, Deputy County Counsel and Walter W. Wall, Deputy County; Law Offices of Antonio Rossmann, Antonio Rossmann, Roger B. Moore and David R. Owen, for Defendants and Respondents.
Ellman, Burke, Hoffman & Johnson, and Howard N. Ellman for Intervener and Respondent LWH Farms. Bingham McCutchen, Stephen L. Kostka and Marc R. Bruner, for Intervenor and Respondent University Community Land Company.
OPINION
Ardaiz, P.J.
In December of 2004 the County of Merced certified an environmental impact report (“EIR”) for the University Community Plan (“UCP”), an amendment to the County’s general plan. The University Community Plan is described in the EIR as “a new chapter of the Merced County General Plan, which provides for the development of an integrated community of housing, business, commercial, cultural, civic, and open space uses and infrastructures systems to support the successful development and growth of the adjacent UC Merced campus.” On this appeal, the appellants contend that the superior court erred in denying their petition for writ of mandate challenging the adequacy of the County’s environmental review of the UCP under CEQA.
“CEQA” is the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) “This division shall be known and may be cited as the California Environmental Quality Act.” (Pub. Resources Code, § 21050.) CEQA cases have a unique and somewhat expansive alphabetical nomenclature. A “FEIR” is a final environmental impact report. It results after changes have been made to a draft environmental impact report (DEIR). An “EIR” is usually the final environmental impact report (FEIR), but the term can sometimes in context refer to the draft environmental impact report (DEIR) (e.g., “changes were made to the EIR before it was certified by the agency”). This case also involves a supplement to the draft environmental impact report (SDEIR). The SDEIR was a compilation of changes made to the draft environmental impact report (DEIR) after the DEIR was circulated for public review and comment. The SDEIR was then treated like a draft environmental impact report (DEIR) and was also circulated for public review and comment before being adopted along with the unchanged portions of the DEIR as part of the FEIR. Later in this opinion we briefly also mention the “EIS.” An EIS is an environmental impact statement prepared pursuant to the federal National Environmental Policy Act (“NEPA”). An EIS prepared pursuant to NEPA is similar to, but not identical in all respects to, an EIR prepared pursuant to CEQA.
After we briefly describe the project, we will set forth in more detail each of appellants’ contentions of error. We will then explain why we have concluded that appellants’ contentions are without merit. We will affirm the superior court’s order denying appellants’ petition for writ of mandate.
THE PROJECT
The UCP area consists of approximately 2,133 acres of land located just to the south of the University campus. The anticipated development of the UCP area is correlated with the planned enrollment and staffing of the new UC Merced. The UCP area will ultimately contain 11,616 residential units, 716,000 square feet of retail space, 1.3 million square feet of office/research and development space, and seven public schools. The UCP states that its purpose is “to provide more definitive guidance than the County General Plan for how lands are developed and natural resources conserved in anticipation of the population, employment, and supporting uses induced by the proposed development of the University of California Merced.” The adjacent University is expected at buildout to have 25,000 students, 1,420 faculty members, and an additional staff of 4,828 persons for a total “direct campus population” of 31,248. The UCP is a 174-page document listing goals, objectives and policies to guide development and resource conservation in the UCP area, and providing an implementation plan defining the manner in which each policy shall be implemented.
The UCP area will ultimately include four residential villages with a mix of housing densities. Each village will integrate a mix of uses that constitute a complete neighborhood, including a mix of housing types at varying densities and a village center that includes a school, park, local retail, and/or other services or civic uses. The UCP calls for a mixed-use town center at the northernmost portion of the UCP area to serve as a transition into the adjacent campus. A variety of land uses would be included in the town center, including retail, office, research and development, entertainment, civic, cultural, and residential. The UCP area would also include a system of open space amenities, including a centralized “village green,” parks, trails, and natural drainage corridors. An open space greenbelt would link the town center and residential villages within the UCP area.
In its pre-development state, the UCP area has been primarily agricultural land, except for its northernmost portion, which fell within the boundaries of a golf course. A recurring theme in appellants’ briefing is that appellants would have preferred preservation of this agricultural land, and would have preferred that the growth generated by the new University be absorbed by the nearby city of Merced and town of At water rather than by the development of a University Community directly adjacent to the University campus.
THE ENVIRONMENTAL IMPACT REPORT
The EIR for the project concluded that development of the UCP area would result in significant environmental impacts categorized in five general “areas.” These are impacts to: (1) aesthetics; (2) agricultural resources; (3) land use; (4) recreation; and (5) transportation.
With regard to aesthetics, the EIR concluded that the proposed UCP: (a) would alter the visual character of the UCP area and could be visually incompatible with surrounding land uses; (b) could intrude into major view corridors and adversely affect scenic resources; and (c) would create a new source of nighttime light and glare in the UCP area.
With regard to agricultural resources, the EIR concluded that development of the UCP area could result in a loss of farmland.
With regard to land use, the EIR concluded that the proposed UCP would include land use designations that could result in the establishment of incompatible land uses adjacent to and within the UCP area.
With regard to recreation, the EIR concluded that the proposed UCP: (a) would eliminate a portion of the Merced Hills Golf Course (and, in combination with the neighboring UC Merced campus, would eliminate the entire Merced Hills Golf Course); and (b) in combination with other development in Merced County, including UC Merced, would contribute to the cumulative increase in the use of Lake Yosemite Regional Park and could result in the physical deterioration of the Park.
With regard to transportation, the EIR concluded that the proposed UCP, in combination with the UC Merced and other development in Merced County, would increase congestion on local and regional roads.
APPELLANTS’ CONTENTIONS
Appellants contend that the trial court erred in failing to find what appellants contend are seven violations of CEQA. These are: (1) the administrative record for the project is inadequate and insufficient to support meaningful judicial review; (2) the level of detail in the EIR is insufficient; (3) the EIR fails to consider and evaluate a reasonable range of alternatives that would avoid or reduce the project’s significant environmental impacts; (4) the County abused its discretion in failing to provide adequate mitigation of the project’s significant impacts; (5) the EIR fails to provide a legally adequate discussion of cumulative impacts; (6) the County violated CEQA in refusing to coordinate preparation of the CEQA and NEPA review for the project; and (7) the County failed to recirculate the EIR despite the emergence of significant new information. We will address each of these contentions and will explain why we agree with the superior court that appellants have demonstrated no violation of CEQA.
Appellants also raise an argument that “the project is inconsistent with the general plan.” In support of this argument they cite authority for the undisputed proposition that “[n]o specific plan may be adopted or amended unless the proposed plan or amendment is inconsistent with the general plan.” (Gov. Code, § 65454; in accord, see also Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1260.) The project here is the UCP. The UCP is not a specific plan. It is an amendment to the general plan. A general plan is a “charter for future development” within a city or county. (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540; see also Gov. Code, §§ 65350 et seq.) A general plan “embodies fundamental policy decisions to guide future growth and development.” (Federation of Hillside & Canyon Associations, supra, 83 Cal.App.4th at p. 1259.) “A city can adopt a specific plan to implement its general plan in a particular geographical area.” (Id. at p. 1260.) Appellants cite no authority for the proposition that a general plan can never be amended. No such authority exists. “Cities and counties shall prepare, adopt, and amend general plans and elements of those general plans in the manner provided in this article. (Gov. Code, § 6535, italics added.) Also, appellants’ petition for writ of mandate contained one cause of action for “Violations of CEQA.” Appellants make no attempt to explain how their argument that “the project is inconsistent with the general plan” alleges any violation of CEQA. We therefore find this argument to be without merit.
STANDARD OF REVIEW
“[T]he appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQA is de novo.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 427.) The standard for review of the adequacy of an EIR was explained in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, as follows:
“The EIR is the primary means of achieving the Legislature’s considered declaration that it is the policy of this state to ‘take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.’ (§ 21001, subd. (a).) The EIR is therefore ‘the heart of CEQA.’ (Guidelines, § 15003, subd. (a); County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810.) An EIR is an ‘environmental “alarm bell” whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.’ (Ibid.; Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 822.) The EIR is also intended ‘to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.’ (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 86 [hereafter No Oil]; Guidelines, § 15003, subd. (d).) Because the EIR must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees. (People v. County of Kern (1974) 39 Cal.App.3d 930, 842; Guidelines, § 15003, subd. (e).) The EIR process protects not only the environment but also informed self-government.
“Section 21168.5 provides that a court’s inquiry in an action to set aside an agency’s decision under CEQA ‘shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ As a result of this standard, ‘The court does not pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.’ (County of Inyo v. City of Los Angeles (1977) 71 Cal.Ap.3d 185, 189.)
“This standard of review is consistent with the requirement that the agency’s approval of an EIR ‘shall be supported by substantial evidence in the record.’ (Guidelines, § 15091, subd. (b).) In applying the substantial evidence standard, ‘the reviewing court must resolve reasonable doubts in favor of the administrative finding and decision.’ (Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514.) The Guidelines define ‘substantial evidence’ as ‘enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.’ (Guidelines, § 15384, subd. (a).)
“A court may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. (Greenebaum v. City of Los Angeles (1984) 153 Cal.App.3d 391, 401-402.) A court’s task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. We have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so. Our limited function is consistent with the principle that ‘The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.’ (Bozung [v. Local Agency Formation Com. (1975)] 13 Cal.3d 263, 283.)” (Id, at pp. 392-393, fn. omitted; see also Vineyard Area Citizens, supra, 40 Cal.4th at p. 4.)
An appellate court’s review of an agency’s procedural compliance with CEQA is de novo. “[A]n agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. (§ 21168.5.) Judicial review of these two types of error differs significantly: while we determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’ [citation], we accord greater deference to the agency’s substantive factual conclusions.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 435.)
I.
THE ADMINISTRATIVE RECORD
In this case the 22-volume, 25,000-plus page administrative record includes draft and final versions of the UCP, the draft, supplemental and final EIRs, the County’s legally required findings, the minutes and transcripts from all of the County’s project-related meetings, and references and source materials too numerous to count. When the County lodged the administrative record with the superior court, the County’s index to that administrative record candidly acknowledged that the County had misplaced about 30 documents it had intended to include in the record. Appellants contend that the administrative record for the project is “inadequate under CEQA and insufficient to support meaningful judicial review.” The superior court concluded that in this case any error with respect to record omissions was harmless. As we shall explain, in our exercise of our own de novo review of the agency’s compliance with CEQA (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 427), we too conclude that in this case the record omissions were harmless error.
The required content of an administrative record in CEQA cases is prescribed by statute. (See Pub. Resources Code, § 21167.6.) Presumably the missing documents fall within the parameters of the statute because the County listed descriptions of them in the administrative record’s index and intended to include them in the administrative record. But because appellants are project opponents (not project proponents) and attack the sufficiency of the EIR, any deficiency in the administrative record would only help appellants and not hurt them. “[W]hen it comes to the administrative record in a CEQA case, any reduction in its contents is presumptively prejudicial to project proponents. [Citation.] It is, after all, the project proponents who will be saddled with the task of pointing to things in the record to refute asserted inadequacies in the EIR.… [P]roject opponents … have the most to gain from any under inclusion. [Citation.]’ (County of Orange v. Superior Court (2003) 113 Cal.App.4th 1, 13.) Furthermore, “[i]t is the intent of the Legislature that, in undertaking judicial review pursuant to Sections 21168 and 21168.5, courts shall continue to follow the established principle that there is no presumption that error is prejudicial.” (Pub. Resources Code, § 21005, subd. (b).) In this case, there is no contention that appellants or anyone else ever sought to review any particular document prior to approval of the project and were denied the opportunity to do so. The issue of the missing documents appears to have arisen only after appellants filed their superior court action and the County informed appellants of the missing documents by way of the County’s index to the administrative record. Were we to reverse the superior court judgment, and require the EIR process to begin anew, the parties would just eventually end up with the exact same EIR all over again. “Some litigants complain that the scope of the record set forth in Pub. Res. C. §21167.6(e) is too broad, requiring agencies to include (and petitioners to pay for) volumes of documents that are irrelevant to the CEQA issues before the court.” (Kostka & Zischke, Practice Under the California Environmental Quality Act, §23.69, p. 1208.) Under appellants’ view, the inadvertent loss of even one apparently insignificant document in an administrative record of 25,000 plus pages would obliterate the results of years of planning and environmental study and analysis.
Appellants cite this court’s decision in Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, but we find Protect Our Water to be distinguishable. In Protect Our Water the appellants argued that the County had improperly approved a project despite the existence of feasible alternatives. (Protect Our Water, supra, 110 Cal.App.4th at p. 368.) This court stated “we reviewed the record for written findings pertaining to the lack of feasibility of the project alternatives and the reasons for rejecting those alternatives” but it was “impossible to determine from this record what those findings are.” (Id. at p. 373.) We stated that “[b]ecause we cannot discern the required findings under CEQA, we reverse the judgment. [Citations.]” (Ibid.; see also Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, 495-496.) In the present case, there is no contention that the record is missing any required finding that appellants are asking us to review. Appellants simply fail to explain how the missing documents affect in any way the substantive arguments (i.e., all of the other arguments) they raise on this appeal. Nor is there any contention that the missing documents are the result of any intentional or bad faith conduct on the part of the County.
In Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383 we stated: “As frequently occurs, many of the disputes in this case center on the question whether relevant information was omitted from the FEIR. Noncompliance with CEQA’s information disclosure requirements is not per se reversible; prejudice must be shown. [Pub. Resources Code, § 21005, subd. (b).] This court has previously explained, ‘[a] prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.’” (Association of Irritated Residents, supra, 107 Cal.App.4th at p. 1391, citing Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712, and San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 722; see also Guidelines, § 15002, subd. (a)(1) (one of the “basic purposes of CEQA” is to “[i]nform governmental decision makers and the public about the potential, significant environmental effects of proposed activities”).) Appellants have made no showing that the misplaced documents precluded informed decisionmaking or informed public participation. Appellants do not explain how a remand of this case would provide them with any viable relief. Given that we have no basis to conclude the documents are substantive or can be recapitulated, that they contain anything adverse to the findings made by the County, that their loss was anything other than inadvertent, and that reversal on this ground would provide appellants with any viable relief, we conclude that the loss of the documents was harmless.
Appellants’ other complaint about the administrative record is that it has an awkward indexing system. In order to find any given document, the user must scan the index located at the beginning of volume 1 (an identical copy of this index is also located at the beginning of each volume) to see which section of the administrative record the document can be found in. The user must then scan the side bindings of the volumes to see which volume that particular section is located in. The index itself does not identify the volume in which any particular section can be found. Nor does each page of the administrative record have its own unique page number. Instead, each volume begins with a page number “1” and is consecutively paginated. So to specify the location of any particular page in the administrative record, one must cite to both a volume number and a page number, rather than just a page number alone. Nothing in CEQA prescribes only one way to organize and index an administrative record. Although we agree with appellants that having an index which would identify each document or category of documents by its own particular page numbers would be preferable to an index of the type the County utilized here, nothing in CEQA prescribes a particular manner in which an administrative record must be indexed and paginated. The superior court noted that all parties, and the court itself, were able to locate relevant portions of the record, and that the indexing of the record therefore did not deprive appellants of meaningful judicial review. As to the indexing of the record, appellants have therefore shown no error.
II.
THE EIR’S “LEVEL OF DETAIL”
Appellants contend that “the level of detail included in the EIR is insufficient.” Chapter 4 of the EIR examines the project’s effects on aesthetics, agricultural resources, air quality, biological resources, cultural resources, geology, soils, seismicity, mineral resources, hazards and hazardous materials, hydrology and water quality, land use and planning, noise, population and housing, public services, recreation, transportation and circulation, and utilities. Completely ignoring the draft EIR’s 578 pages addressing these topics, and the additional analysis contained in the supplemental EIR and in the County’s responses to comments on the draft EIR, appellants cite three pages of the EIR and argue that the EIR improperly “deferred study and analysis.” For what environmental impact was study and analysis deferred? Appellants do not say. The three pages cited by appellants are not environmental analysis at all, but rather part of the “Project Description” chapter of the EIR.
Appellants then assert that “the level of review in the FEIR does not account for the entire amount of development approved by the County.” The very first page of the “Environmental Analysis” chapter of the EIR (chapter four) states, however, that the EIR “analyzes the ‘ultimate’ future use of the UCP area, which is assumed to be full buildout of the UCP area” and that “[f]ull buildout is considered to represent maximum likely adverse, and thus considers the full potential environmental impacts of the UCP on issues addressed in Chapter 4 of this EIR.”
Section 15146 of the CEQA Guidelines provides: “The degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the EIR. [¶] (a) An EIR on a construction project will necessarily be more detailed in the specific effects of a project than will be an EIR on the adoption of a local general plan or a comprehensive zoning ordinance because the effects of the construction can be predicted with greater accuracy. [¶ ] (b) An EIR on a project such as the adoption or amendment of a comprehensive zoning ordinance or a local general plan should focus on the secondary effects that can be expected to follow from the adoption, or amendment, but the EIR need not be as detailed as an EIR on the specific construction projects that might follow.” (In accord, see also Atherton v. Board of Supervisors (1983) 146 Cal.App.3d 346, 350-351 [involving an amendment to a county’s general plan].)
Appellants’ argument that the level of detail in the EIR is insufficient is conclusory. It is perfunctorily asserted, without any attempt to identify what significant environmental effect has not been adequately addressed, or what any purported deficiency is in the analysis of any the environmental effects actually addressed in the EIR. It is therefore without merit. Nor do any of the authorities cited by appellant demonstrate any deficiency in this EIR. In Christward Ministry v. Superior Court (1986) 184 Cal.App.3d 180, for example, the City of San Marcos adopted a general plan amendment creating a solid waste management facilities designation. It did so without preparing an EIR. The superior court agreed that no EIR was required, but the appellate court reversed. “[I]t is apparent the City impermissibly ‘chopped up’ the project into at least three separate projects – a general plan amendment, a trash-to-energy or resource recovery project and a methane extraction project. This is exactly the type of piecemeal environmental review prohibited by CEQA.” (Id. at p. 195.) In the case presently before us, however, the County did prepare an EIR. Appellants’ fail to point out any flaw in that EIR.
III.
ALTERNATIVES
“The purpose of an environmental impact report is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided.” (Pub. Resources Code, § 21002.1, sub. (a); in accord, see also Pub. Resources Code, § 21061.) “[I]t is the policy of the state to: … (g) Require governmental agencies at all levels … to consider alternatives to proposed actions affecting the environment.” (Pub. Resources Code, § 21001.) “The Legislature finds and declares that it is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects, and that the procedures required by this division are intended to assist public agencies in systematically identifying both the significant effects of proposed projects and the feasible alternatives or feasible mitigation measures which will avoid or substantially lessen such significant effects. The Legislature further finds and declares that in the event specific economic, social, or other conditions make infeasible such project alternatives or such mitigation measures, individual projects may be approved in spite of one or more significant effects thereof.” (Pub. Resources Code, § 21002.)
“CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR.” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 566.) “‘[T]he statutory requirements for consideration of alternatives must be judged against a rule of reason.’” (Id. at p. 565, quoting in turn from Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco (1980) 106 Cal. App.3d 893, 910.)
“An EIR shall describe a range of reasonable alternatives to the project, or to the location of a project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives. An EIR need not consider every conceivable alternative to a project. Rather it must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation. An EIR is not required to consider alternatives which are infeasible. The Lead Agency is responsible for selecting a range of project alternatives for examination and must publicly disclose its reasoning for selecting those alternatives. There is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason.” (Guidelines, § 15126.6, subd. (a).) “The range of alternatives required in an EIR is governed by a ‘rule of reason’ that requires the EIR to set forth only those alternatives necessary to permit a reasoned choice. The alternatives shall be limited to ones that would avoid or substantially lessen any of the significant effects of the project. Of those alternatives, the EIR need examine in detail only the ones that the Lead Agency determines could feasibly attain most of the basic objectives of the project. The range of feasible alternatives shall be selected and discussed in a manner to foster meaningful public participation and informed decision making.” (Guidelines, § 15126.6, subd. (f).)
The EIR analyzes 18 alternatives to the project. These include the required “ ‘No project’ alternative” (see Guidelines, § 15126.6, subd. (e)), six “on-site alternatives,” five “off-site alternatives,” and six “other off-site alternatives.”
The six on-site alternatives are described in the EIR as representing “various configurations of the UCP site that would achieve the basic project objectives and would lessen impacts related to farmlands, biological resources, transportation-related effects, and impacts to public utilities and services.” They are called the “No Loss of Prime Farmland Alternative,” the “No Loss of Prime Farmland/Reduced Community Size Alternative,” the “Limited Loss of Prime Farmland Alternative,” the “Reduced Community Size Alternative,” the “Reduced Residential Density Alternative,” and the “Increased Community Size and Population Alternative.”
The five off-site alternatives are called the “Refined Concept Plan Alternative,” the “Two Village Alternative,” the “Lakefront Alternative,” the “Relocated Campus Alternative,” and the “Campus Designer Preferred Southwest Alternative.”
The remaining six “other off-site alternatives” are located farther away from the campus than all of the other alternatives. They are called the “North Merced Belleview/Ranch Alternative,” the “Castle Airport Alternative,” the “South Merced City Infill Alternative,” the “North Merced Rangeland Alternative,” the “Southern Highway 99 Alternative” and the “Delhi Area Alternative.”
Appellants contend that “the EIR failed to consider and evaluate a reasonable range of alternatives that would avoid or reduce the project’s significant environmental impacts.” They make no mention, however, of the 18 alternatives evaluated in the EIR or of anything in the more than 130 pages of analysis of those 18 alternatives. Instead, appellants’ argument that the EIR did not consider a reasonable range of alternatives goes like this: (1) two of the project objectives were (a) to provide a community that is physically contiguous to the University campus and (b) to absorb the equivalent of 100 percent of the new growth demand generated by UC Merced over time; (2) none of the 18 alternatives described in the EIR satisfied both of these objectives; and (3) the alternatives analysis was therefore not “meaningful.” This argument is without merit for at least two reasons. First, CEQA does not require that every alternative analyzed must satisfy all of a project’s objectives. (See Guidelines, § 15126.6, subd. (a).) Second, at least two of the alternatives analyzed (the “No Loss of Prime Farmland Alternative” and the “Limited Loss of Prime Farmland Alternative”) appear to have satisfied both of these objectives. As their names imply, these two alternatives “would avoid or substantially lessen” a significant effect of the project. (Guidelines, § 15126.6, subd. (a).) Specifically, the No Loss of Prime Farmland Alternative would have reduced the amount of prime farmland lost from 650 acres to zero acres, and the Limited Loss of Prime Farmland Alternative would have reduced the amount of prime farmland lost from 650 acres to 411 acres. Notably absent from appellant’s argument is any suggestion as to what “meaningful” alternatives the County’s EIR could have considered but did not. The EIR considered several alternative locations for the project (see Guidelines, § 15126.6, subd. (a) & Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 566). Some of these alternative locations were contiguous to the university campus and some were not. The EIR also considered alternatives smaller in size than the project ultimately approved. The fact that the County ultimately approved the proposed project rather than one of the alternatives does not lead to the conclusion that the EIR’s alternatives were “meaningless” or that the EIR did not “describe a range of reasonable alternatives to the project.” (Guidelines, § 15126.6, subd. (a).)
Appellants call our attention to City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438 and to our opinion in Kings County Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d 692. We see nothing in these cases which lends any support to appellants’ contention that the alternatives analysis in the EIR in the case before us failed to comply with CEQA. Appellants point to language in Kings County Farm Bureau, supra, where we stated “[a]n environmentally superior alternative cannot be deemed infeasible absent evidence the additional costs or lost profits are so severe the project would become impractical.” (Kings County Farm Bureau, supra, at p. 736.) Appellants point to no environmentally superior alternative which the County refused to consider in its alternatives analysis.
IV.
MITIGATION
Under CEQA “no public agency shall approve or carry out a project for which an environmental impact report has been certified which identifies one or more significant effects on the environment that would occur if the project is approved or carried out unless [¶] … [¶] [c]hanges or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects on the environment.” (Pub. Resources Code, § 21081.) These changes or alterations are called “mitigation measures.” (Pub. Resources Code, § 21081, subd. (a)(2) & (3)) and are excused only when either (1) they are “within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency” or (2) “[s]pecific economic, legal, social, technological, or other considerations … make infeasible the mitigation measures … identified in the environmental impact report.” (Pub. Resources Code, § 21081, subd. (a)(3); in accord, see also Guidelines, § 15091.) “‘Mitigation’ includes: [¶] (a) Avoiding the impact altogether by not taking a certain action or parts of an action. [¶] (b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.[¶] (c) Rectifying the impact by repairing, rehabilitating, or restoring the impacted environment. [¶] (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action. [¶] (e) Compensating for the impact by replacing or providing substitute resources or environments.” (Guidelines, § 15370.) “Mitigation measures must be fully enforceable through permit conditions, agreements, or other legally-binding instruments. In the case of the adoption of a plan, policy, regulation, or other public project, mitigation measures can be incorporated into the plan, policy, regulation, or project design.” (Guidelines, § 15126.4, subd. (a)(2); in accord, see also Pub. Resources Code, § 21081.6, subd. (b).)
Appellants contend that the County failed to adopt feasible mitigation measures to lessen the project’s impacts to (1) agricultural resources, (2) water supply and hydrology, and (3) traffic and circulation. We find this contention to be without merit.
Agricultural Resources
As to agricultural resources, appellants argue that the County “refused to adopt any specific measures to mitigate the adverse environmental impact of eliminating prime and Important Farmland.” In fact, the County expressly adopted such a measure. Policy “A 2.1” of the UCP itself appears under the subheading “Mitigating for the Loss of Agricultural Lands” and states:
“Participate in a program, if adopted, that may be established by the County of Merced and the City of Merced for the full mitigation of the loss of agricultural lands in the north Merced area. In the event that such a program is not adopted prior to approval of any sub-area specific plan, require implementation of such measures that would achieve the equivalent protection of comparable farmland at a ratio of 1:1 for Important Farmland converted with the subject specific plan area; examples of measures include acquisition of conservation easements, payment of in-lieu fees to the County (or an appropriate third party designated by the County) that would protect such lands through fee title, easement, or other measures.”
Appellants argue that Policy A 2.1 of the UCP “does not create an enforceable legally binding mitigation measure as required under Guidelines section 15126.4(a)(1)(D)(2).” To the contrary, that section states “[i]n the case of the adoption of a plan, … mitigation measures can be incorporated into the plan ….” (Guidelines, § 15126.4, subd. (a)(1)(D)(2).) That is exactly what occurred here. Policy A 2.1 is part of the UCP and thus is part of the County’s general plan. As part of the general plan, it is thus binding on any future development. “No specific plan may be adopted or amended unless the proposed plan or amendment is consistent with the general plan.” (Gov. Code, § 65454.) “The general plan has been aptly described as the ‘constitution for all future developments’ within the city or county. [Citations.]” (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 570.) If there was any doubt about what the term “full mitigation” in the first sentence of Policy A 2.1 means, the County expressly stated in its findings of fact adopting this mitigation measure that “[f]ull mitigation would achieve the equivalent protection of comparable farmland at a ratio of 1:1 for Important Farmland converted within the subject specific plan area.”
Appellants call our attention to Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011 and Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, 83 Cal.App.4th 1252. We see nothing in these cases to support any contention that Policy A 2.1 somehow fails to comply with CEQA. In Sacramento Old City Assn. the court stated: “[F]or kinds of impacts for which mitigation is known to be feasible, but where practical considerations prohibit devising such measures early in the planning process (e.g., at the general plan amendment or rezone stage), the agency can commit itself to eventually devising measures that will satisfy specific performance criteria articulated at the time of project approval. Where future action to carry a project forward is contingent on devising means to satisfy such criteria, the agency should be able to rely on its commitment as evidence that significant impacts will in fact be mitigated.” (Sacramento Old City Assn., supra, 229 Cal.App.3d at pp. 1028-1029; see also Federation of Hillside & Canyon Associations, supra, 83 Cal.App.4th at pp. 1261-1262.) Policy A 2.1 of the UCP meets this standard.
Water Supply and Hydrology
The July 2004 Supplement to the August 2001 draft EIR (the July 2004 “DSEIR”) stated:
“In response to the NOP and DEIR, the County received numerous public comments regarding the hydrologic impacts of the project. The County decided to address those comments by conducting further technical studies. To assess the potential effect of drawdown from the use of future wells and potential changes to local groundwater recharge due to land use changes on the UCP site, the County engaged in on-site well testing, geohydrologic studies and groundwater modeling.
“The study results indicate that, assuming successful implementation of the Merced Water Supply Plan, groundwater withdrawals associated with the project would not overdraft the regional aquifer, would not limit other local land uses, and would not have any environmental effects other than lowering the local groundwater table by 25-35 feet in areas immediately west of the UCP area and west of Lake Road. That increased drawdown would not result in any other environmental consequences, and the economic consequences of the increased drawdown would be minor. The County therefore has concluded that the environmental impact of groundwater pumping will be less than significant, and no additional mitigation is required.”
Appellants make a conclusory assertion that the County “failed to adopt feasible mitigation measures to lessen the project’s impacts to water supply and hydrology.” If this is an assertion that the County adopted no mitigation measures at all, it is inaccurate. We counted 41 mitigation measures pertaining to hydrology and water quality listed in the County’s findings of fact. These are identified as Water Infrastructure (“IW”) measures 1.1, 1.2, 1.9, 1.10, 1.14, 2.1, 2.2, 4.1, 4.3, 4.6, 4.7, 5.1, 5.2, 5.4, 5.5, 5.6, 8.1, 8.2, 8.3, 8.4, 8.6, 8.7, 8.8, 8.9, 8.10, 9.2, 10.2, 11.1, 11.2, 11.3, 11.4, 11.10, 11.11, 12.3, 12.4, 12.6, 12.7, 13.3, and 13.6, and Public Safety (“S”) measures 2.1 and 2.2. If appellants are contending that these mitigation measures are not “feasible” or somehow do not comply with CEQA, they fail to identify even a single one of them by number or by text and fail to attempt to explain what is deficient about any given mitigation measure.
Appellants assert that the County estimated water consumption per dwelling in the UCP area to be 327 gallons per day, that the average per dwelling unit in the County is 853 gallons per day, that the County “underestimated annual water consumption by more than fifty percent,” that the County “disregarded this information in favor of being able to come to the positive, albeit false, conclusion that impacts to water supply would be insignificant.” Our response to this is as follows. First, it is unclear why appellants make this assertion at all because it does not appear to have anything to do with the legal sufficiency or insufficiency of any mitigation measure. Second, in support of this assertion appellants cite a September 2001 letter from California Department of Resources District Chief Paula J. Landis. Subsequent to that time, the entire Hydrology and Water Quality section of the EIR (section “4.8”) was revised and recirculated in the July 2004 Supplement to the DEIR. The revised section 4.8 included a discussion of the results of hydrologic studies conducted by County consultants after the publication of the DEIR. After reviewing the July 2004 Supplement to the DEIR, District Chief Landis wrote in a September 14, 2004, letter to the County (a letter not mentioned by appellants) “[w]e agree that the proposed project will have only minimal environmental impacts to the groundwater resources of the area surrounding the proposed development.” Thus even if appellants had raised a substantial evidence argument, it would have been unsuccessful.
Traffic and Circulation
The County stated in its findings of fact:
“The UCP and the UC Merced Campus, in combination with other development in Merced County, would increase congestion on local and regional roads. Implementation of the UCP Policy designating the backbone circulation system for the UCP community would lessen these impacts, but not to less-than-significant levels. Implementation of Mitigation Measure 4.14-8(a) and (b), requiring fair share contribution to improvements, would further reduce these impacts, but still not to less-than-significant levels. Accordingly, these cumulative impacts are identified as significant and unavoidable.”
Notwithstanding its conclusion that increased traffic congestion was an unavoidable impact, the County nevertheless adopted many measures to mitigate this impact. These included mitigation measures denominated as measure T1.1 and measures 4.14-7(a), 4.14-7(b), 4.14-7(c), 4.14-7(d) and 4.14-8(a) and 4.14-8(b). Appellants do not call our attention to any particular mitigation measure by number or by text of the mitigation measure. Nor do they attempt to call our attention to any proposed mitigation measure that may have been proposed but not adopted. Appellants state “[t]he proposed mitigation measures include payment of ‘fair share’ fees for monitoring and implementation of interim improvements ‘as warranted.’” The words “fair share” appear in measure 4.14-7(a), which states in pertinent part: “UCP development shall contribute its fair share toward the total cost of regional improvements identified in this EIR as mitigation for significant project impacts, as listed below … for which existing and future funding from local, regional and State sources falls short of the full project cost.” This measure then goes on to list, with specificity, particular improvements to be made to named roads, including Highway 59, Yosemite Avenue, Bellevue Road, R Street, Parsons Avenue, Gardner Avenue, Mission Avenue and Childs Avenue.
Appellants do not say with any clarity what they contend any legal deficiency is with the adopted traffic mitigation measures. “Fee-based mitigation programs for cumulative traffic impacts – based on fair share-infrastructure contributions by individual projects – have been found to be adequate mitigation measures under CEQA. [Citation.]” (Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1188.) So far as we can tell, appellants do not view the mitigation measure 4.14-7(a) to be “enforceable” (see Guidelines, §15126.4, subd. (a)(2)) because it contains no guarantee that any “fair share fee” will actually be assessed or collected from any developer. But the text of measure 4.14-7(a) makes clear that “fair share” fees to cover costs of the road mitigation projects will only be needed to the extent that “future funding from local, regional and State sources falls short” of what is needed to fund the mitigation. As the County explained in the EIR in response to a comment letter, “[s]everal of the potential funding sources are discretionary, and State, federal and local highway funding situations may change over time.” By expressly adopting traffic mitigation measures as a condition of approval of this project (i.e., as a condition of adoption of the UCP), the traffic mitigation measures “have been required in, or incorporated into, the project.” (Pub. Resources Code, § 21081, subd. (a)(1).) The County also adopted a mitigation monitoring plan under which the County has obligated itself to ensure fair share fees are paid.
Appellants appear to rely on Federation of Hillside & Canyon Associations v. City of Los Angeles, supra, a case which we find to be distinguishable. In that case, traffic mitigation measures for a city’s proposed general plan amendment were compiled in a so-called “Transportation Improvement Mitigation Plan (TIMP).” (Federation of Hillside & Canyon Associations, supra, 83 Cal.App.4th at p. 1255.) “Petitioners contend there is no substantial evidence to support the city’s finding that the mitigation measures identified in the final EIR will mitigate the significant effects on transportation. They base their contention on the statements in the TIMP that to implement the measures would require the cooperative efforts of various public agencies, together with the city, and that the city’s portion of the cost will exceed its anticipated revenues. In light of those statements, they contend funding for the mitigation measures is highly speculative and the measures therefore are infeasible. The gravamen of Petitioners’ contention is that there is no assurance that the mitigation measures will be implemented.” (Id. at p. 1260, fn. omitted.) The appellate court agreed that because “there was great uncertainty as to whether the mitigation measures would ever be funded or implemented,” there was “no substantial evidence in the record to support a finding that the mitigation measures have been ‘required in, or incorporated into’ (§ 21081, subd. (a)(1)) the [general plan amendment] in the manner contemplated by CEQA, and the city failed to provide that the mitigation measures would actually be implemented under the [general plan amendment] (§21081.6, subd. (b)).” (Federation of Hillside & Association Canyons, supra, 83 Cal.App.4th at p. 1261, fn. omitted.)
In the case before us, however the County has absolutely committed itself to funding the road improvements needed to mitigate traffic impacts. It has done this by expressly adopting mitigation measures and a mitigation monitoring plan which require that if adequate funding is not available from other sources, “development shall contribute its fair share toward the total cost of” specifically identified improvements “for which existing and future funding from local, regional and State sources falls short ….” The County has thus committed itself to funding the required improvements, and has committed itself to obtaining that funding through the use of fair share fees if the funding is not available from other sources. Appellants have demonstrated no violation of any CEQA provision pertaining to mitigation measures.
V.
CUMULATIVE IMPACTS
“[A] proposed project may have a ‘significant effect on the environment.’ … if one or more of the following conditions exist: [¶] … [¶] (2) The possible effects of a project are individually limited but cumulatively considerable. As used in this paragraph, ‘cumulatively considerable’ means that the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” (Pub. Resources Code, § 21083, subd. (b); in accord, see also Guidelines, § 15065, subd. (a)(3).) “[A] cumulative impact consists of an impact which is created as a result of the combination of the project evaluated in the EIR together with other projects causing related impacts.” (Guidelines, § 15130, subd. (a)(1); in accord, see also Guidelines, § 15355.)
An EIR’s discussion of the “cumulative impacts of a project” (Guidelines, § 15130, subd. (a)) is governed by section 15130 of the Guidelines. “The discussion of cumulative impacts shall reflect the severity of the impacts and their likelihood of occurrence, but the discussion need not provide as great detail as is provided for the effects attributable to the project alone. The discussion should be guided by the standards of practicality and reasonableness ….” (Guidelines, § 15130, subd. (b).) A “‘good faith and reasonable disclosure of such impacts is sufficient.’” (Association of Irritated Residents v. County of Madera, supra, 107 Cal.App.4th at p. 1403.)
The five “elements … necessary to an adequate discussion of significant cumulative impacts” are listed in section 15130 of the Guidelines. One of these elements is:
“(1) Either:
“(A) A list of past, present, and probable future projects producing related or cumulative impacts, including, if necessary, those projects outside the control of the agency, or
“(B) A summary of projections contained in an adopted general plan or related planning document, or in a prior environmental document which has been adopted or certified, which described or evaluated regional or area wide conditions contributing to the cumulative impact. Any such planning document shall be referenced and made available to the public at a location specified by the Lead Agency.” (Guidelines, § 15130, subd. (b)(1).)
Appellants contend that this element was not complied with. We disagree. The County utilized the option “(B)” approach, and the EIR so stated on the third page of chapter 4. For some impacts, the EIR also addressed specific past, present and probable future projects. Notably, the County’s opening brief fails to specifically identify even one particular cumulative impact that is not addressed in compliance with the Guideline, even though the EIR contains a cumulative impacts discussion of each of the 15 impacts addressed in chapter 4 of the EIR, and even though the planning documents utilized in each subsection of chapter 4 are listed at the end of each such subsection. Appellants’ contention does not merit further discussion.
VI.
COORDINATION OF CEQA AND NEPA REVIEW
Appellants contend that the County “violated CEQA in refusing to coordinate preparation of the CEQA and NEPA review for the project.” “NEPA” is the National Environmental Policy Act. They cite no provision of CEQA requiring “coordination” of CEQA and NEPA review of any project. Nor are we aware of any such provision. Nor do appellants cite any law making a County’s amendment of the County’s general plan a project that requires NEPA review at all. We think that is all we really need to say about appellant’s contention to explain our conclusion that the contention is without merit. But we will add a bit more.
Article 14 of the CEQA Guidelines “applies to projects that are subject to both CEQA and NEPA.” (Guidelines, § 15220.) An “environmental impact statement” or “EIS” is “an environmental impact document prepared pursuant to the National Environmental Policy Act (NEPA).” (Guidelines, § 15363.) Although an EIS prepared under NEPA is functionally similar to an EIR prepared pursuant to CEQA, the required contents of each document are not identical. (See, e.g., Guidelines, § 15221.) When an EIS already exists for a project that is also subject to CEQA, the CEQA Guidelines allow the state agency to use the EIS as an EIR when the EIS is supplemented with additional information required by CEQA in an EIR. (See Guidelines, § 15221.) Otherwise the lead agency would have to prepare from scratch an EIR that is largely duplicative of the already existing EIS.
When no EIS already exists, “the lead agency should try to prepare a combined EIR-EIS ….” (Guidelines, § 15222.) “A lead agency under CEQA may work with a federal agency to prepare a joint document which will meet the requirements of both CEQA and NEPA.” (Guidelines, § 15170.) Again, the objective is to relieve the federal agency from having to prepare a largely duplicative environmental document if the state EIR is prepared before the federal EIS. The Guideline also explains why the lead agency “should try” to prepare a combined EIR-EIS. Although a state agency can take a federal EIS, add to it, and then use the supplemented EIS as an EIR, a federal agency is not permitted under NEPA to take a state EIR, add to it, and use the supplemented EIR as an EIS. “To avoid the need for the federal agency to prepare a second document for the same project, the lead agency must involve the federal agency in the preparation of the joint document. This involvement is necessary because federal law generally prohibits a federal agency from using an EIR prepared by a state agency unless the federal agency was involved in the preparation of the document.” (Guidelines, § 15222.)
Apparently there were specific projects following the adoption of the UCP which would require a federal EIS, even though the UCP itself (a general plan amendment) did not. The County could have prepared a more comprehensive document addressing the UCP and the subsequent more specific projects, but this would have delayed the completion of the environmental review needed for approval of the UCP. The EIR explained this in its “Master Response 2” to comments on the DEIR.
VII.
RECIRCULATION
After the County decided to make some changes to the proposed UCP, it prepared the July 2004 Supplement to the DEIR which presented and explained those changes. As the Supplement itself states, the document also “analyzes whether, in light of those changes, the impacts analyzed in the DEIR have been substantially changed ….”
“If the lead agency adds ‘significant new information’ to the EIR subsequent to the close of the public comment period but prior to certification of the final EIR, CEQA requires that the lead agency provide a new public comment period. ([Pub. Resources Code,] § 21092.1.)” (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 6 Cal.4th at pp. 1124-1125, fn. omitted.) This providing of a new public comment period is commonly referred to as “recirculating” the EIR. (See Guidelines, § 15088.5.) “If the revision is limited to a few chapters or portions of the EIR, the lead agency need only recirculate the chapters or portions that have been modified.” (Guidelines, § 15088.5, subd. (c).)
In the present case, the very purpose of the Supplement to the DEIR was to provide the new public comment period for significant new information as required by CEQA and as explained in Laurel Heights, supra. The Supplement to the DEIR included a summary of changes to the project involving mitigation of the loss of agricultural lands. Chapter 3 of the Supplement explains these changes at pages 3-30 through 3-32 of the Supplement. The environmental impacts of these changes are evaluated in chapter 4 of the Supplement at pages 4-4 through 4-7. Appellants argue that recirculation was required because there was an “abandonment of policies designed to mitigate impacts to agricultural lands.” Recirculation is exactly what occurred. The deleted policies were listed and the reasons for the deletions explained in chapter 3 of the Supplement. The impacts of these changes were addressed in chapter 4 of the Supplement.
The County appears to view appellants’ argument as an argument that the original DEIR had to be recirculated, even though the changes were explained and evaluated in the Supplement. Recirculating the DEIR would have been recirculating the exact same document that had already circulated once. Unlike the County, we do not so read the appellants’ argument. In any event, recirculation of the entire DEIR was not required. (Guidelines,§ 15088.5, subd. (c).)
DISPOSITION
The superior court’s order denying appellants’ petition for writ of mandate is affirmed. Costs on appeal to respondents.
WE CONCUR: Harris, J. Hill, J.
Throughout this opinion we also refer to the “Guidelines.” “The CEQA Guidelines, promulgated by the state’s Resources Agency, are authorized by Public Resources Code section 21083. In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous. [Citations.]” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428, fn. 5.) The Guidelines are found at Title 14 of the California Code of Regulations.