King and Gardiner Farms, LLC v. County of Kern (2020) · DecisionDepot

King and Gardiner Farms, LLC v. County of Kern

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Mar 20, 2020 No. F077656MPublished

Filed 3/20/20 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

KING AND GARDINER FARMS, LLC, F077656 Plaintiff and Appellant, (Super. Ct. No. BCV-15-101666) v.

COUNTY OF KERN et al., ORDER MODIFYING OPINION AND Defendants and Respondents; DENYING REHEARING CALIFORNIA INDEPENDENT PETROLEUM [No Change in Judgment] ASSOCIATION et al.,

Real Parties in Interest and Respondents.

COMMITTEE FOR A BETTER ARVIN et al.,

Plaintiffs and Appellants, (Super Ct. No. BCV-15-101679) v.

COUNTY OF KERN et al.,

Defendants and Respondents;

CALIFORNIA INDEPENDENT PETROLEUM ASSOCIATION et al.,

Real Parties in Interest and Respondents.

It is ordered that the following published portions of the opinion filed herein on February 25, 2020, be modified as follows:

1. On page 143, at the end of the first paragraph ending with “aside the ordinances …”, insert the following:

The usual remedy also has been applied by the Courts of Appeal. (See Save Our Big Trees v. City of Santa Cruz (2015) 241 Cal.App.4th 694, 712- 713 [failure to comply with CEQA; trial court directed to issue writ of mandate directing city to set aside ordinance and resolution]; Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156, 1185 [further environmental review required by CEQA; trial court directed to issue writ of mandate directing county to set aside negative declaration and related ordinance].)

2. On page 143, footnote 50, the following is added to the end of footnote 50.

In our view, responsible agencies, such as DOGGR, would be able to rely on the permits issued by County on or before that date without conducting an independent environmental assessment. Because a possible remedy was invalidating all the permits issued under the noncompliant Ordinance, we reject Oil Associations’ argument that setting this deadline improperly accelerates the finality of the opinion and violates their right to seek further review.

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certified an environmental impact report (EIR) as compliant with the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).2 The plaintiffs sued, alleging many CEQA violations. The trial court found the EIR inadequately analyzed the project’s environmental impacts to rangeland and from a road paving mitigation measure, and rejected the other CEQA claims. The plaintiffs appealed. We conclude some of the other CEQA claims have merit. The published parts of this opinion address CEQA violations involving water, agricultural land, and noise. As to water supplies, the mitigation measures for the project’s significant impacts to water supplies inappropriately deferred formulation of the measures or delayed the actual implementation of the measures. Also, the EIR’s disclosures about the mitigation measures were inadequate and, as a result, the adoption of a statement of overriding considerations did not render harmless these failures to comply with CEQA. Also, the finding that the project’s conversion of agricultural land would be mitigated to a less than significant level is not supported by substantial evidence. The finding was based on the use of agricultural conservation easements, which do not actually offset the conversion of farmland. Because the project’s conversion of agricultural land would not have been reduced to a less than significant level, the EIR should have addressed other proposed mitigation measures, including the clustering of wells when feasible, for reducing the project’s conversion of agricultural land. As to the project’s noise impacts, the County determined the significance of those impacts based solely on whether the estimated ambient noise level with the project would exceed the 65 decibels threshold set forth in the County’s general plan. Based on prior case law, we conclude the magnitude of the noise increase must be addressed to determine the significance of change in noise levels. Here, the EIR did not include an

analysis, supported by substantial evidence, explaining why the magnitude of an increase in ambient noise need not be addressed to determine the significance of the project’s noise impact. In the unpublished parts of this opinion, we conclude CEQA violations existed with respect to air quality and related health risks. First, the EIR inadequately addressed air quality impacts because it did not discuss the impact of a mitigation measure on fine particulate matter (PM2.5) emissions or, alternatively, provide an explanation for why there is no separate discussion of the measure’s impact on PM2.5 emissions. In addition, the mitigation measure addressing particulate matter does not provide for enforceable mitigation of PM2.5 emissions and the Board made no finding that mitigation of PM2.5 was not feasible. Second, the Cumulative Health Risk Assessment constituted new information that had been omitted from the draft EIR. In the context of this case, the new information was significant because the draft EIR inadequately addressed the subject and there was no meaningful public review and comment on the new assessment. Consequently, the Cumulative Health Risk Assessment must be included in any revised EIR that is recirculated to correct the other CEQA violations. We also publish our discussion of the appropriate appellate relief for the CEQA violations. We conclude the certification of the EIR and the approval of the new ordinance must be set aside. The writ of mandate issued on remand shall set aside (i.e., invalidate) the ordinance as of 30 days from the date of this opinion. Thus, permits issued before that date may remain in effect and oil and gas activities under those permits may continue. In contrast, if any permit is issued after that date, the writ of mandate’s invalidation of the ordinance also shall invalidate the permit retroactively. Thus, pending CEQA compliance, the County will return to the regulatory scheme in place prior to the ordinance’s adoption. We therefore reverse the judgment and remand for further proceedings.

The Oil Associations’ stated goals in seeking the zoning amendments were to (1) create an effective regulatory and permitting process for oil and gas exploration and production, which could be relied upon by the County, DOGGR and other agencies; (2) achieve an efficient and streamlined environmental review and permitting process for all oil and gas operations covered by the proposed amendment; and (3) develop industry- wide best practices, performance standards, and mitigation measures to ensure adequate protection of public health and safety and the environment. If these efficiencies were attained, Oil Associations believed it would increase oil and gas exploration and production in Kern County, which in turn would benefit the local economy. The proposed amendments required permits for all new oil and gas activities and subjected applications for permits to a ministerial “Oil and Gas Conformity Review.” An important purpose of the proposed amendment was to eliminate time-consuming and costly review of individual well and field development activities by establishing a ministerial4 permit review process that incorporates mitigation measures identified in the project’s EIR. If the County correctly determined the permit review process was ministerial—that is, did not involve the exercise of discretion—the processing of future permit applications by the County will not be subject to additional environmental review under CEQA. Also, the EIR prepared for the adoption of the proposed zoning amendment may be used by other responsible agencies with discretionary authority over individual well or field developments. The final EIR for the zoning amendment stated, “this streamlining may avoid individualized-CEQA review for many projects.” The final EIR also stated the amendment would “significantly increase[] the County’s oversight of oil and gas [activities] that are currently allowed ‘by right,’ without any ministerial or discretionary review, under the County’s Zoning Code.”

be required to fund (1) the preparation of the EIR and (2) the staff time for processing the CEQA documents. On August 30, 2013, the County published a notice of preparation of a draft EIR for the proposed Ordinance. The notice of preparation set four scoping meetings in September 2013. On July 8, 2015, the County released a draft EIR for public comment. From its table of contents in the front to the glossary at its end, the draft EIR is over 1,800 pages. In addition, 23 appendices to the draft EIR contain approximately 6,100 pages. The County set August 24, 2015, as the deadline for submitting comments on the EIR. Also, the public was notified that the County planning and community development department would hold three public workshops before the deadline and that the County’s planning commission would hold a public meeting on October 5, 2015. On September 25, 2015, the County released chapter 7 of the final EIR, “Response to Comments.” That chapter addressed the 71 comment letters received from state agencies, local agencies and other interested parties. The cover letter for chapter 7 referred to the public hearing scheduled for October 5, 2015, before County’s planning commission. One of the appendices listed in chapter 7 was designated M-1, “Revised Health Risk Assessment.” It was prepared by Environmental Compliance Solutions, Inc., was dated September 19, 2015, and contained 18 pages. On November 2, 2015, after the planning commission’s public meeting, the County released chapter 12 of the EIR, “Final Environmental Impact Report Consolidation.” Chapter 12 included revisions to the zoning amendment recommended by staff, clarifications and modifications of the draft EIR, all written comments received by the County after the period for comments to the draft EIR and after the planning commission’s October 5, 2015, hearing on the project, and staff-initiated clarifications and amplifications made following the September 25, 2015, publication of chapter 7.

On December 10, 2015, Committee For A Better Arvin, Committee For A Better Shafter, Greenfield Walking Group, Natural Resources Defense Council, Sierra Club, and Center for Biological Diversity (collectively, Sierra Club) filed a petition for writ of mandate and complaint for declaratory and injunctive relief against the County, the Board, the County’s planning commission, the County’s planning and development department, and the three real parties in interest (Oil Associations). Sierra Club’s pleading alleged violations of CEQA and the State Planning and Zoning Law and was assigned case No. BCV-15-101679 by the Kern County Superior Court. Consolidation Based on a February 2016 stipulation of the parties, the CEQA actions brought by KG Farms and Sierra Club were consolidated with a lawsuit brought by Vaquero Energy, Inc. and a related entity, Hunter Edison Oil Development Limited Partnership (collectively, Vaquero). Vaquero alleged the Ordinance violated the equal protection clause and the due process clause and, as a result, was invalid. Trial and Judgment The trial of the consolidated matters was conducted in June, August and December of 2017. In March 2018, the trial court issued its written ruling resolving all claims and issues. The ruling stated Vaquero had failed to prove the Ordinance was unconstitutional. The ruling also stated the EIR violated CEQA by failing to analyze (1) the Ordinance’s impacts on rangeland and (2) the environmental impacts the road paving mitigation measure intended to reduce dust and the project’s impacts on air quality. The ruling denied all other CEQA claims asserted by KG Farms and Sierra Club. On April 20, 2018, the trial court entered a single, final judgment in the consolidated CEQA actions. The judgment set forth the directions that would be included in a peremptory writ of mandate addressing the deficiencies in the EIR relating to impacts on rangeland and from road paving as an air emissions mitigation measure. The trial court entered a separate judgment addressing its denial of Vaquero’s claims.

2020, because it (1) has been designated as high or medium priority under the CASGEM program and (2) is subject to critical overdraft conditions. Accordingly, to comply with SGMA, a groundwater sustainability plan must be adopted for the Kern County subbasin by January 31, 2020. Where groundwater sustainability plans are required, one or more local groundwater sustainability agencies must be formed to cover the basin and prepare and implement the applicable groundwater sustainability plans. Groundwater sustainability plans will be reviewed by the DWR to ensure that over a period of 20 years, “sustainable groundwater management” is achieved. (See Wat. Code, § 10721, subd. (w).) There are approximately 10 groundwater sustainability agencies in the project area. The EIR states “the County’s authority to regulate subsurface activities relating to oil and gas exploration and production is preempted by state and federal laws and regulations.” Therefore, the EIR states County cannot directly regulate or impose mitigation measures that directly regulate subsurface activities by oil and gas operators, but it retains jurisdiction over activities conducted at the surface, including those that may affect subsurface water quality. 3. EIR’s Analysis of Water Supply Impacts Section 4.9.4 of the EIR addressed impacts to hydrological resources and mitigation measures for the significant impacts. It estimated that by 2035 the use of M&I water, originating from state and federal water projects, in oil and gas exploration and production would increase by 2,983 acre-feet from the 8,778 acre-feet used in 2012. This total increase was allocated across the western (2,493 acre-feet), central (332 acre-feet), and eastern (158 acre-feet) subareas. The EIR also discussed the prospect of increasing the amount of produced water generated by oil and gas activities and increasing the reuse of produced water. The EIR concluded the recommended mitigation measures would encourage the additional reuse of produced water, but “the extent to which oilfield

operators can increase produced water reuse and decrease M&I [water] demand is uncertain. As a result, potential impacts to groundwater levels and aquifer volumes would be significant and unavoidable with mitigation.” Chapter 4.17 of the EIR addressed utilities and service systems, including the systems providing water. Table 4.17-12 summarized the project area water supplies available in 2015 and estimated the amounts available in 2035. The supplies included groundwater, surface water from the Kern River, oilfield produced water, recycled water, and surface water imported from the State Water Project, which is run by the DWR, and from the Central Valley Project, which is run by the Bureau of Reclamation, a federal agency. Table 4.17-22 summarized the project area demands (agricultural, urban, and oil and gas) for water in average, single dry and multiple dry years for 2015 and 2035. Agricultural demand was based on figures from 2006 obtained from the DWR. The EIR assumed agricultural demand would remain constant, despite the reduction in agricultural land by urban development and other factors. Urban demand was based on publicly available information from 19 different water purveyors, and projections were made for 2020, 2025, 2030 and 2035. The demand from oil and gas exploration and production for produced water and M&I water also was estimated for these years. Tables 4.17-27 through 4.17-29 in the EIR show the water demand and supply for the project area and each subarea in average, single dry and multiple dry years at five- year intervals from 2015 to 2035. In average years, the water supply and demand in the project area is approximately the same with surpluses in the eastern and western subareas offsetting deficits in the central subarea, which deficits are caused from extensive agricultural activity and the need for irrigation. In single dry years, surface water imported from the State Water Project would be reduced substantially, resulting in significant supply deficits in the project area. While the eastern subarea would have a surplus, it would not offset the deficits projected for the western and central subareas.

irrigation exceeds the oil and gas industry’s 2035 M&I water demand by 26,898 [acre- feet per year].” (Fn. omitted.) Table 7-15 in the final EIR states that in 2012, oil and gas exploration and production activities used 8,778 acre-feet of M&I water and 38,658 acre-feet of its produced water was used for agricultural purposes. Based on these figures, the net effect in the baseline year of 2012 was a positive 29,880 acre-feet (38,658 minus 8,778). Comparing the figure of 29,880 acre-feet to Oil Associations’ calculation of the net effect in 2035 (26,898 acre-feet) results in an estimated decrease in the positive net water supply impact to 2,982 acre-feet in 2035. This reduction of a positive net effect on water supply is an adverse environmental impact. Thus, Oil Associations attempt to justify the absence of a localized water supply impact analysis based on the projections that oil and gas activities will supply agriculture with more irrigation water than the M&I water used by oil and gas activities in 2035 is beside the point. Baseline conditions are projected to change for the worse. Thus, Oil Associations’ contention is devoid of merit. 4. Speculation on Groundwater Supplies and What’s Reasonably Possible Third, Oil Associations contend uncertainties in future water supplies and in the way supplies will be allocated render a more detailed analysis speculative and of no useful purpose. Part of this uncertainty arises from how SGMA and the new groundwater sustainability plans it mandates for the Kern County subbasin will be implemented. KG Farms contends CEQA does not allow the County to simply label the uncertainties about water supplies as speculative and then move on. KG Farms argues SGMA sets specific long-term goals for required groundwater plans that are similar to those in existing groundwater management plans and, therefore, the County could readily make informed judgments regarding near- and long-term impacts on local water supplies. The EIR stated the WSA analyzed groundwater extraction using an historical mean average as the best information available prior to the implementation of the

“The determination of whether a project may have a significant effect on the environment calls for careful judgment on the part of the public agency involved, based to the extent possible on scientific and factual data. An ironclad definition of a significant effect is not always possible because the significance of an activity may vary with the setting.” (Guidelines, former § 15064, subd. (b), italics added.) KG Farms interprets the phrase “to the extent possible on scientific and factual data” to mean the County was required to use the updated state projections of imported water that were published before the release of the final EIR in September 2015. The text of the provision in the Guidelines does not expressly refer to the age of the information used. Guidelines former section 15125, subdivision (a) specifically addresses the disclosure of information about the environmental setting and the appropriate timeframe for the data used. It states the EIR must describe “the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published.” (Guidelines, former § 15125, subd. (a).) The County published the notice of preparation for the draft EIR on August 30, 2013. The draft EIR used the information that was available at that time to describe the water supply conditions, which included the drought and its consequences. Therefore, we conclude the draft EIR’s description of the environmental setting was not “inaccurate, incomplete and misleading” (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 729) and the EIR does not violate Guidelines sections 15064 or 15125. Instead, the EIR complied with the timing requirement contained in Guidelines section 15125, subdivision (a). 3. Significant New Information and Recirculation “Once a draft EIR has been circulated for public review, CEQA does not require any additional public review of the document before the lead agency may certify the EIR except in circumstances requiring recirculation.” (Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, 223.) Recirculation of an EIR is addressed in

§ 1, pp. 5888–5889.) The Legislature also declared CEQA’s procedures, which include the preparation of an EIR, “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.” (§ 21002.) 2. Describing Mitigation Measures Once an EIR has identified a potentially significant environmental effect, it must propose and describe mitigation measures. (§§ 21002.1, subd. (a), 21100, subd. (b).) Specifically, CEQA requires the EIR to “include a detailed statement setting forth … [¶] … [¶] [m]itigation measures proposed to minimize significant effects on the environment, including, but not limited to, measures to reduce the wasteful, inefficient, and unnecessary consumption of energy.” (§ 21100, subd. (b)(3).) Mitigation is defined as an action that minimizes, reduces, or avoids a significant environmental impact or that rectifies or compensates for the impact. (Guidelines, § 15370 [definition of mitigation].) The mitigation measures discussed in the EIR should be feasible. (Guidelines, § 15126.4, subd. (a); see Guidelines, § 15364 [definition of feasible].) CEQA defines the term “ ‘[f]easible’ ” as meaning “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (§ 21061.1; see § 21081, subd. (a)(3) [necessary findings relating to mitigation measures or alternatives].) The guidelines add “legal” factors to the list. (Guidelines, § 15364; see City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 356.) The role of the EIR, as an informational document, is to identify and describe potentially significant environmental effects and feasible alternatives or mitigation measures. In comparison, the role of the lead agency is to make ultimate findings as to whether potential environmental effects will be significant and to adopt feasible

mitigation measures. (1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed. 2019) § 14.3, p. 14-5 (Kostka).) 3. Adoption of Mitigation Measures Generally, “the lead agency must adopt feasible mitigation measures or project alternatives to reduce the effect to insignificance.” (Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 231 (Center for Biological Diversity).) If the reductions and offsets achieved by feasible mitigation measures is insufficient to render the environmental impact insignificant, the lead agency still may approve the project if it adopts a statement of overriding considerations. (Ibid.; § 21081, subd. (b).) However, adopting a statement of overriding considerations does not negate the statutory obligation to implement feasible mitigation measures. “Even when a project’s benefits outweigh its unmitigated effects, agencies are still required to implement all mitigation measures unless those measures are truly infeasible.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at pp. 524–525.) Stated another way, “if the County were to approve a project that did not include a feasible mitigation measure, such approval would amount to an abuse of discretion.” (Id. at p. 526.) 4. Enforcement Requirements for Mitigation Measures CEQA imposes several requirements on mitigation measures. Section 21081.6, subdivision (b) provides: “A public agency shall provide that measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures. Conditions of project approval may be set forth in referenced documents which address required mitigation measures .…” Similarly, Guidelines section 15126.4, subdivision (a)(2) states: “Mitigation measures must be fully enforceable through permit conditions, agreements, or other legally-binding instruments.” The responsibility of the public agency does not end with simply imposing enforceable mitigation measures. “The public agency shall adopt a reporting or

C. Board Findings The Board’s findings relating to water addressed the project’s impact on the supply and recharge of groundwater and, more broadly, its impact on available water supplies. 1. Groundwater The Board found that, without mitigation, the project has the potential to substantially deplete groundwater supplies or interfere with groundwater recharge. The Board stated this impact would be mitigated to less than significant levels if sufficient amounts of “produced water” otherwise subject to disposal could be treated and reused to offset the consumption of M&I water. The Board found the feasibility of additional reuse of produced water in the project area depended on several factors, “including produced water quality, treatment costs and requirements, the availability of conveyance capacity to route produced water to and from treatment facilities, and the availability of institutional mechanisms for managing produced water treatment and distribution.” The Board also found: “At present, the extent to which oilfield operators can increase produced water reuse and decrease M&I demand is uncertain. As a result, potential impacts to groundwater levels and aquifer volumes would be significant and unavoidable with mitigation.” (Italics added.) In addition to this general finding, the Board specifically addressed Mitigation Measures (MM) 4.17-2, 4.17-3 and 4.17-4, stating that while the measures “would encourage the additional reuse of produced water, the extent to which oilfield operators can increase produced water reuse and decrease M&I [water] demand is uncertain. As a result, potential impacts to groundwater levels and aquifer volumes would be significant and unavoidable with mitigation.” (Italics added.) 2. Water Supplies The Board’s findings addressed another water-related impact by stating “[t]he Project could cause significant impacts to existing water supply entitlements and resources”; this impact “will be reduced with implementation of the feasible mitigation

measures”; and the “measures cannot reduce this impact to a less than significant level.” In the Board’s view, “CEQA requires that all feasible and reasonable mitigation be applied to reduce the Project’s potential to cause significant impacts to existing water supply entitlements and resources.” The feasible mitigation measures referred to in the Board’s findings were MM 4.17-2, 4.17-3 and 4.17-4. The Board stated these measures “will be incorporated into the Project to reduce its water supply impacts.” The Board explained the inability to mitigate the impacts to less than significant levels by stating “the allocation of water supplies and water demands, the complex laws affecting water rights, the many water districts that have legal jurisdiction over one or more sources of water in the Project Area, the varied technical feasibility of treating produced water, and the produced water reuse opportunities, all present complex variables that fall outside the scope of the County’s jurisdiction or control under CEQA.” The Board concluded: “Because of significant ongoing regional uncertainties regarding water supplies, and the need for agencies other than Kern County to take action to improve management of regional water supplies to meet existing and reasonabl[y] foreseeable demand, Project impacts to water supplies would remain significant and unavoidable.” D. Contentions Sierra Club contends the County violated CEQA by failing to adequately mitigate the project water supply impacts. More specifically, Sierra Club contends the County unlawfully deferred mitigation measures for the project’s significant impact on M&I water by (1) adopting so-called mitigation measures that lacked specific, mandatory performance criteria and (2) failing to implement mitigation measures before the oil and gas activities began creating environmental impacts. In response, Oil Associations contend MM 4.17-2, 4.17-3 and 4.17-4 will reduce the use of M&I water and increase the reuse of treated produced water. Oil Associations argue the measures need not include precise quantitative performance standards; and

impact does not allow the measure to qualify for the exception to the general rule against the deferred formulation of mitigation measures. In Gray v. County of Madera (2008) 167 Cal.App.4th 1099 (Gray), the project proponent wished to develop a hard rock quarry and applied to the county for a conditional use permit. (Id. at p. 1105.) The EIR concluded the project could cause the water levels in adjacent private wells to decline during the operational life of the quarry. (Id. at p. 1112.) A mitigation measure required monitoring of the wells and, if an impact was found, the replacement of water for nonconsumptive use from existing wells on the proponent’s property. As to consumptive use, the measure required the proponent to “ ‘provide the affected party, or parties, with bottled water or potable water from some other source that is verified to meet state and federal drinking water standards.’ ” (Ibid.) On the question of improper deferral of the formulation of mitigation measures, the proponent argued the county had committed to a mitigation goal of remedying the decline in water levels in the private well and had listed various ways the problem could be addressed. (Id. at p. 1118.) We concluded the county had not committed itself to a specific performance standard and, as a result, did not qualify for the exception to the general rule against deferral. (Id. at p. 1119.) We stated that “the County has committed itself to a specific mitigation goal—the replacement of water lost by neighboring landowners because of mine operations” and concluded the goal was not a specific performance standard. (Ibid.) Here, we conclude the requirement that applicants shall increase or maximize their use of produced water and decrease or minimize their use of M&I water suffers from the same defect as the measures in POET I and Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70 (Better Environment-Richmond). In Better Environment-Richmond, the “EIR merely proposes a generalized goal of no net increase in greenhouse gas emissions and then sets out a handful of cursorily described mitigation measures for future consideration.” (Id. at p. 93, italics added.)

In POET I, the project was a statewide regulation containing low carbon fuel standards. (POET I, supra, 218 Cal.App.4th at pp. 700–701.) Among other things, the regulation created incentives for increased biodiesel production and use. (Id. at p. 704.) The mitigation in question related to the potential increase in NOx emissions caused by increased biodiesel production and use. (Id. at pp. 704–705.) In responding to public comments, the lead agency stated that “it would ‘ensure that biodiesel fuel use does not increase NOx emissions significantly by promulgating a new motor vehicle fuel specification for biodiesel.’ ” (Id. at p. 705.) In POET I, this court relied on Gray and Better Environment-Richmond to “conclude that ‘no increase in NOx’ is not a specific performance criterion” and, therefore, the agency’s statement that its future rulemaking would establish specifications to ensure there was no increase in NOx improperly deferred the formulation of mitigation. (POET I, supra, 218 Cal.App.4th at pp. 739– 740.) Applying the principles addressing the deferred formulation of mitigation measures to MM 4.17-2’s requirement that applicants increase or maximize the reuse of produced water and reduce or minimize the use of M&I water to the extent feasible, we conclude it defers the formulation of the mitigation measures and lacks specific performance standards. The deferral exists because the measures will not be determined until the applicant requests a permit and receives an approval from the County. The terms “increase” and “reduce”—even though preceded by the mandatory term “shall” and modified by the phrase “to the extent feasible”—are not specific performance standards. Feasible means capable of being accomplished in a successful manner within a reasonable time, taking into account various factors. (§ 21061.1; Guidelines, § 15364.) It addresses whether a measure would be employed, but does not address the performance of the measure. In other words, it does not provide a standard relating to performance for any increase in use of produced water or reduction use of M&I water.

Viewed from a broad perspective, our conclusions about the deficiencies of the measure contained in the first sentence of MM 4.17-2 can be characterized as the interpretation and application of CEQA. A basic principle of statutory construction states that when the meaning of statutory language is uncertain, courts should consider the consequences that will flow from a particular interpretation. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387; see Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, 1252.) Applying that principle here, we consider the consequences that would flow from establishing precedent stating (1) CEQA compliance is achieved by a mitigation measure that requires a permit applicant to reduce or offset (i.e., mitigate) a particular environmental impact to the extent feasible and (2) more specifically, such a measure does not impermissibly defer the formulation of mitigation. If such a measure satisfied CEQA, lead agencies and project proponents—aware of this precedent—would have little incentive to define the mitigation measures for other projects in more specific terms. Instead, the planning documents or ordinance adopted by local governments would simply say permit applicants must adopt all feasible mitigation measures for a list of significant environmental impacts. Allowing such an approach would undermine CEQA’s purpose of “systematically identifying … feasible mitigation measures which will avoid or substantially lessen such significant effects” (§ 21002) and having EIR’s provide “a detailed statement” of the “[m]itigation measures proposed to minimize the significant effects on the environment.” (§ 21100, subd. (b)(3).) To summarize, the first sentence of MM 4.17-2 does not qualify for the exception allowing the deferred formulation of mitigation measures. As a result, it violates CEQA’s general rule against the deferred formulation. However, it does not automatically follow that the adoption of that portion of MM 4.17-2 constitutes a prejudicial abuse of discretion. The County and Oil Associations have argued that other aspects of the EIR and the Board’s findings (particularly, the adoption of a statement of overriding considerations) prevent the adoption of MM 4.17-2 through MM 4.17-4 from

“By the end of 2016, the Applicants shall work with the County to review water use data submitted to Division of Oil Gas and Geothermal Resources under Senate Bill 1281 and identify the five biggest oil industry users of municipal and industrial water by volume. The five biggest oil industry users of municipal and industrial water shall work together to develop and implement a plan identifying new measures to reduce municipal and industrial water use by 2020. The plan shall address the following activities, as appropriate: steam generation; drilling and completions (including hydraulic fracturing); dust control; compaction activities related to construction; and landscaping. Through the KernFLOWS initiative or other efforts (e.g., Groundwater Sustainability Agency), the five biggest oil industry users of municipal-and-industrial water shall also work with local agricultural producers and water districts to identify new opportunities to increase the use of produced water for agricultural irrigation and other activities, as appropriate. Any produced water treated and used for agricultural irrigation or other activities shall be tested and monitored to assure compliance with applicable standards for such agricultural irrigation or other uses.” To the extent the plan to be developed by the five biggest oil industry users of M&I water is regarded a mitigation measure, there is no question its formulation was deferred. Consequently, we consider whether the plan falls within the exception to the general rule against deferred formulation of mitigation measures. The exception requires the County, as lead agency, to commit itself to specific performance criteria for evaluating the efficacy of the measures implemented. (POET I, supra, 218 Cal.App.4th 738.) We conclude the measure does not qualify for the exception. First, MM 4.17-2 lacks specific performance standards for the “plan identifying new measures to reduce municipal and industrial water use by 2020.” Second, nowhere in MM 4.17-2 did the

County commit itself to the measures ultimately included in the plan. Instead, the measure states the five biggest oil industry users of M&I water “shall work together to … implement a plan.” Thus, implementation was assigned to unidentified third parties— parties that may or may not agree to participate in the task and, if they do participate, may or may not act in good faith. Furthermore, assuming the five biggest oil industry users successfully develop the plan and are able to implement it, the County did not commit itself to adopting the plan and requiring applicants for permits to comply with the plan’s measures. Consequently, the provision relating to M&I water does not include the commitment necessary to qualify for the exception allowing deferred formulation of mitigation measures. Similarly, the provision in MM 4.17-2 requiring the five biggest users of M&I water to work with local agricultural producers and water districts “to identify new opportunities” to use produced water also lack specific performance standards and commits no one to adopting or implementing anything to take advantage of those opportunities. The absence of specific performance criteria and a commitment by the County leads to the conclusion that the provisions in MM 4.17-2 relating to the five biggest oil industry users of M&I water are not “fully enforceable through permit conditions, agreements, or other legally-binding instruments.” (Guidelines, § 15126.4, subd. (a)(2).) In addition to the deferred formulation and related lack of enforceability, the provisions in MM 4.17-2 relating to the five biggest oil industry users of M&I water suffer from another defect—delayed implementation. The Ordinance became effective on December 9, 2015. Yet, any measures prescribed by the plan would not be implemented until sometime in 2020. Consequently, the Ordinance and MM 4.17-2 allowed permits for oil and gas activity to be issued (and wells to be drilled) without being subject to the measures contained in the plan. The delayed implementation of

The mitigation monitoring and reporting program contains a box labeled “Time Frame for Implementation.” The box for MM 4.17-3 states: “Provide with Application Package; During construction and operation.” The “Steps to Compliance” for MM 4.17- 3 are the same as the steps for MM 4.17-2. The permit applicant “shall implement measures as specified in the mitigation measure[]” and the County’s planning and community development department “will verify.” 2. Failures to Comply with CEQA’s Requirements Sierra Club challenges MM 4.17-3 on several grounds. Sierra Club contends “best practices” is a subjective and imprecise term that lacks enforceability. Also, Sierra Club contends the “goal” of re-using 30,000 acre-feet of produced water is not a commitment to a specific performance standard. Sierra Club supports this contention by referring to the EIR, which states “the extent to which the G[roundwater Sustainability Plan] process could be used to enhance produced water reuse in the Project Area is uncertain.” More generally, the EIR stated “[t]he extent to which oilfield operators can feasibly increase produced water reuse and decrease M&I demand is uncertain.” Sierra Club also contends MM 4.17-3 does not identify what, if anything, individual applicants must contribute to the aggregate goal. We conclude MM 4.17-3 does not comply with the requirements CEQA imposes on mitigation measures. According to the EIR, the groundwater sustainability plan mentioned must be adopted by January 31, 2020. Thus, the EIR and MM 4.17-3 referred to a nonexistent plan intended to be adopted over four years later. As a result, MM 4.17- 3 and the groundwater sustainability plan violated the general rule against the deferred formulation of mitigation measures. Furthermore, the exception to this general rule does not apply because the County did not commit itself to specific performance criteria. While the goal of reusing 30,000 acre-feet per year of produced water is specific, it is merely a goal and not a commitment that third parties could enforce in “in a court

MM 4.17-4 requires the applicant to “work with the County on the Groundwater Sustainability Plan” to attain increases and reductions. As stated in our discussion of MM 4.17-3, to the extent the groundwater sustainability plan is considered a mitigation measure, it violates the general rule against deferred formulation and does not qualify for the exception to the general rule because the County did not commit itself to specific performance standards. (See Guidelines, § 15126.4, subd. (a)(1)(B) [deferred formulation].) Also, it violates the principle prohibiting delayed implementation. (POET I, supra, 218 Cal.App.4th at p. 738.) The foregoing conclusions about MM 4.17-2 through 4.17-4 are consistent with the statement in Endangered Habitats about mitigation measures adopted for a zoning amendment. The court stated that if mitigation is feasible but it is impractical to define in specific terms at the time of a zoning amendment, “it is sufficient to articulate specific performance criteria and make further approvals contingent on finding a way to meet them.” (Endangered Habitats, supra, 131 Cal.App.4th at p. 793; see Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1028–1029.) In this case, MM 4.17-2 through 4.17-4 do not contain specific performance criteria and make the approval of permit applications contingent on finding a way to meet those performance standards. Accordingly, MM 4.17-2 through 4.17-4 do not satisfy these and other requirements CEQA imposes on mitigation measures. H. Consequences of Defects in Mitigation Measures The parties disagree about the consequences that flow from the failure of MM 4.17-2 through 4.17-4 to satisfy the requirements CEQA imposes on mitigation measures. In its broadest terms, the issue could be cast as whether failures of the mitigation measures to comply with CEQA’s requirements “constitute a prejudicial abuse of discretion.” (§ 21005, subd. (a).) There is no presumption that noncompliance with CEQA is prejudicial. (§ 21005, subd. (b).)

The prejudice inquiry would be relatively straightforward if the County had relied on MM 4.17-2 through 4.17-4 to find the project’s significant effects on water supply had been mitigated to less than significant levels. Had that been the case, the failures of the measures to comply with CEQA’s requirements would have constituted reversible error. (E.g., Better Environment-Richmond, supra, 184 Cal.App.4th at pp. 78, 90–91 [EIR stated all project impacts would be reduced to less than significant levels by mitigation measures; improper deferral of greenhouse gas mitigation measures resulted in reversal and remand].) Here, the County did not find the impacts on water supply would be mitigated to less than significant levels. Consequently, our inquiry into prejudice is more detailed. 1. Contentions Oil Associations note “the County concluded that the effectiveness of MMs 4.17- 2, 4.17-3 and 4.17-4 was uncertain, found water supply impacts to be significant and unavoidable, and approved the Project based on overriding economic and other benefits.” (Fn. omitted.) Oil Associations contend CEQA does not require the adoption of additional mitigation measures when a lead agency (1) finds all feasible mitigation has been adopted, (2) makes an informed decision that an impact is still significant and unavoidable, and (3) adopts a statement of overriding considerations. Oil Associations support their claim that all feasible mitigation measures have been adopted by asserting Sierra Club “has not suggested any mitigation measure to feasibly mitigate water supply impacts to a less-than-significant level.” They address the sufficiency of the disclosures in the EIR by stating Sierra Club “does not claim the County failed to ‘fully disclose’ Project impacts.” Sierra Club responds by contending the County’s adoption of a statement of overriding considerations did not cure its unlawful deferral of mitigation. Sierra Club also contends the EIR is analytically deficient because it “neglects to address how and to

what degree water supply mitigation is feasible because it generically instructs applicants to do what is ‘feasible’ (MM 4.17-2 … ) but defers the formulation of specific measures to a future, uncertain planning process.” 2. Measures of Uncertain Effect—Issues and Our Legal Conclusions The Board’s findings addressed MM 4.17-2, 4.17-3 and 4.17-4 by stating that while the measures “would encourage the additional reuse of produced water, the extent to which oilfield operators can increase produced water reuse and decrease M&I [water] demand is uncertain.” This finding and the contentions of the parties raise the following legal question: Does CEQA allow a lead agency to adopt measures of uncertain effectiveness and label them mitigation measures? We conclude the answer is “yes,” provided (1) the lead agency has made certain findings, (2) the lead agency has adopted a statement of overriding considerations and (3) the EIR satisfies certain requirements. The lead agency must find (1) the measures are at least partially effective, (2) all feasible mitigation measures have been adopted, and (3) the environmental impacts will not be mitigated to less than significant levels. The findings must be supported by substantial evidence. (§ 21168.5.) Partial effectiveness is necessary for the measure to be labeled a “mitigation measure.” While the extent of the mitigation may be uncertain, there must be some reductions or offsets for the label “mitigation measure” to be accurate. The partial effectiveness requirement is derived from the mandatory language in our Supreme Court’s statement that “[m]itigation measures need not include precise quantitative performance standards, but they must be at least partially effective, even if they cannot mitigate significant impacts to less than significant levels.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 523, italics added.) The need for a finding that all feasible mitigation has been adopted (when impacts have not been mitigated to less than significant levels) is not a disputed issue in this case.

The Board’s findings repeatedly state “CEQA requires that all feasible and reasonable mitigation be applied to reduce the Project’s [significant] impacts” to the environment. This statement is based on the provisions in section 21081 stating no public agency shall approve a project with significant effects on the environment unless specific requirements are met. The agency must find (1) changes or alterations in the project have been required to mitigate or avoid the significant environmental effects; (2) another agency has jurisdiction and responsibility over the adoption of such changes or alteration; or (3) “[s]pecific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in the environmental impact report.” (§ 21081, subd. (a).) If the agency makes the latter infeasibility finding, the project can be approved only if “the public agency finds that specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment.” (§ 21081, subd. (b).) These provisions are summarized in the principle that an agency must have adopted all feasible mitigation measures before approving a project with significant environmental effects based on overriding considerations. Other requirements related to the adoption of mitigation measures of uncertain effectiveness address the contents of the EIR and whether its disclosures and analysis of the mitigation measures are adequate. The EIR’s discussion must justify the adoption of mitigation measures of uncertain effect and support the adoption of the statement of overriding considerations. To do so, the EIR must (1) describe the mitigation measures that are available (i.e., currently feasible) and (2) identify and explain the uncertainty in the effectiveness of those measures. The requirement for a description of the mitigation is based on the general rule that “an EIR is required to provide the information needed to alert the public and the decision makers of the significant problems a project would create and to discuss

currently feasible mitigation measures.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 523.) The discussion provided must contain facts and analysis, rather than the agency’s bare conclusions or opinions. (Id. at p. 522.) Whether the facts and analysis included in the EIR’s discussion of currently feasible mitigation measures are sufficient to comply with CEQA depends on “whether the EIR includes enough detail ‘to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ [Citations.] The inquiry presents a mixed question of law and fact. As such, it is generally subject to independent review.” (Sierra Club v. County of Fresno, supra, at p. 516.) However, when factual questions predominate, review under the more deferential substantial evidence standard is warranted. (Ibid.) Our conclusions that the EIR must identify and explain the uncertainty in the effectiveness of the mitigation measures proposed is a specific application of the general principles governing the discussion of mitigation measures. To fulfill its informational role, an “EIR must contain facts and analysis” (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935). Uncertainty in the extent a measure will be effective, as well as the reasons for that uncertainty, are important facts that should be disclosed to the public and decision makers. 3. Application of Conclusions of Law to Facts of this Case The foregoing conclusions of law identify the circumstances in which CEQA allows a lead agency to adopt measures of uncertain effectiveness and label them mitigation measures. The next step of our analysis is to determine if those circumstances are present in this case. First, we consider whether the Board found the mitigation measures were at least partially effective. Having reviewed the findings, we conclude the Board’s statements about the effectiveness of the measures are not clear. The Board’s findings acknowledge

CEQA requires all feasible mitigation be applied to the significant impacts to water supply and then state: “Mitigation Measures MM 4.17-2 and MM 4.17-3, described above, and MM 4.17-4, described below, will be incorporated into the Project to reduce its water supply impacts, but … [there are many] complex variables that fall outside the scope of the County’s jurisdiction or control under CEQA.” Read in context, one of the reasonable inferences drawn from this language is that MM 4.17-2 through MM 4.17-4 actually will reduce water supply impacts. In comparison, the Board found that “while MM 4.17-2 through 4.17-4 would encourage the additional reuse of produced water, the extent to which oilfield operators can increase produced water reuse and decrease M&I demand is uncertain.” (Italics added.) This finding is ambiguous because it does not address how applicants would react to the encouragement. In its findings relating to overriding considerations, the Board stated: “12. Implementation of MM 4.17-2 to MM 4.17-4 could reduce water supply impacts, but … [there are] complex variables that fall outside the scope of the County’s jurisdiction or control under CEQA.” (Italics added.) The use of the word “could” suggests the possibility of reductions without eliminating the possibility there might not be any reductions. Stated another way, it is not a finding that reductions actually will occur and only the amount is uncertain (i.e., not reasonably foreseeable and, therefore, not subject to being forecasted). (See Guidelines, §§ 15144 [forecasting], 15145 [speculation].) In summary, the Board’s findings are ambiguous on the question of whether MM 4.17-2 through 4.17-4 will be at least partially effective in reducing the project’s significant water supply impacts. For purposes of this appeal, we need not adopt an interpretation that resolves the ambiguity; it is described here so the County can avoid repeating it in any proceedings it conducts on remand. (See § 21168.9, subd. (c).) Second, we consider whether the Board found all feasible mitigation measures had been adopted. The Board did not make this finding explicit, but it is reasonably implied from the statements made in the Board’s findings. The Board acknowledged CEQA

This challenge appears to have two aspects. It could be claiming the discussion of the feasibility of the mitigation measure was inadequate or insufficient and, therefore, did not comply with CEQA. Alternatively, it could be claiming the finding that MM 4.3-8 was feasible is erroneous because it is not supported by substantial evidence. 1. Adequacy of the EIR’s Discussion Initially, we note that CEQA and the Guidelines do not explicitly require an EIR’s discussion of a fee-based mitigation program to describe the availability of impact reducing or offsetting projects. (See generally, § 21083.1 [interpretation of CEQA and Guidelines].) Therefore, Sierra Club’s challenge does not involve a situation where the EIR fails to discuss a matter that CEQA, the Guidelines or case law says must be discussed. Under general principles that govern whether an EIR’s discussion is adequate or sufficient, reviewing courts consider “ ‘whether the EIR reflects a reasonable, good faith effort to … identify and describe mitigation measures and alternatives.’ ” (City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 898.) “The determination whether a discussion [in an EIR] is sufficient is not solely a matter of discerning whether there is substantial evidence to support the agency’s factual conclusions. [¶] The ultimate inquiry … is whether the EIR includes enough detail ‘to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ [Citations.] The inquiry presents a mixed question of law and fact. As such, it is generally subject to independent review.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516.) However, when factual questions predominate, review under the more deferential substantial evidence standard is warranted. (Ibid.) Here, we conclude the inquiry into the adequacy or sufficiency of the EIR’s discussion presents a mixed question of law and fact subject to our independent review.

In conducting this inquiry, we assess whether the EIR provides enough detail about MM 4.3-8 to enable decisionmakers and the public to understand and consider meaningfully the feasibility of MM 4.3-8—the issue Sierra Club claims the County failed to assess. Section 7.2, “Responses to Comments,” of the final EIR addressed MM 4.3-8 and the oil and gas emission reduction agreement between the County and Air District at pages 7-185 through 7-212. Many of those pages contain tables estimating emissions and emission reductions. One aspect of the fee-based mitigation program is described as follows: “If the applicant fails to either pay the fee or provide the necessary validation of emissions reductions, the proposed site plan will be disapproved.” In short, the fee must be paid up front. Whether the County and Air District would be able to spend the fees collected from applicants was addressed by describing Air District’s experience in administering air emission fees to achieve emission reductions. Based on this experience, the final EIR stated it was reasonable to expect the administration of the fees collected to achieve effective emission reduction. Based on the anticipated volume of fees, the final EIR stated the magnitude of the funds offered economies of scale not previously available to Air District in its other fee-based programs and addressed the expenditure of the funds by stating “it is expected that the fund[s] will be able to advance larger projects requiring substantially more capital than was available in the past.” In addressing the expenditure of the fees paid by applicants, the final EIR made no attempt to identify specific projects that could be funded during the period analyzed—that is, through the year 2035. We conclude specific information about projects that might be funded in the future is not required to enable persons reading the EIR to understand and consider meaningfully the issues raised by MM 4.3-8. An objectively reasonable person reading the EIR would realize the difficulty in predicting or estimating what will happen in the future, including the opportunities for reducing emissions and the technology available to achieve reductions. Bluntly stated, the reader would understand the EIR predicts Air

District will be able to identify opportunities and spend the funds in a manner that achieves the required emission reductions. Contrary to Sierra Club’s arguments, this was not an assumption. Moreover, Sierra Club has not established the County failed to “disclose all that it reasonably can” about the future opportunities that might arise under the fee-based mitigation program or the technologies that might be relevant to the existence of those opportunities. (Guidelines, § 15144 [when forecasting, an agency must disclose all that it reasonably can]; see Guidelines §§ 15145 [speculation], 15146 [degree of specificity].) In sum, remanding with instructions for the County to provide a more detailed description of the difficulties in forecasting the future opportunities available would not significantly improve the EIR as an informative document. 2. Substantial Evidence Supports Feasibility Finding Sierra Club might be challenging the finding that MM 4.3-8 is feasible on the ground substantial evidence does not support a finding that future opportunities will be available and will be adequate to offset the emissions from drilling wells and related operations. “In applying the substantial evidence standard, ‘the reviewing court must resolve reasonable doubts in favor of the administrative finding and decision.’ ” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393; see Guidelines, § 15384, subd. (a) [definition of substantial evidence].) Our Supreme Court has described this standard as “deferential.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516.) Here, the EIR’s statements that MM 4.3-8 is enforceable and will generate real, quantifiable emission reductions is the equivalent of a finding that it is “feasible.” Moreover, the Board’s findings list it among the feasible and reasonable mitigation that will reduce the emission of criteria pollutants. The EIR’s statements and the Board’s findings contradict Sierra Club’s claim that the County failed to assess whether MM 4.3- 8 was feasible.

determination was made.” (Id. at p. 890; see 2 Kostka, supra, § 23.73, pp. 23-85 to 23-86.) Nearly four years later, this court, weary of CEQA appeals that included ill- founded requests for judicial notice and motions to augment the record, attempted to provide guidance to practitioners on how to preserve and present evidentiary issues in a CEQA appeal. (Madera Oversight Coalition, Inc. v. County of Madera, supra, 199 Cal.App.4th at p. 61.) We identified two basic categories of evidence—that which belongs in the administrative record in accordance with the provisions of subdivision (e) of section 21167.6 and that which is admissible as extra-record evidence. (Madera Oversight, supra, at p. 62.) These two categories are important because they involve different tests for admissibility. (Ibid.) According to our guidance, practitioners should address whether an item is part of the administrative record pursuant to subdivision (e) of section 21167.6 and, if not, then address its admissibility under the rules applicable to extra-record evidence. (See 2 Kostka, supra, §§ 23.56-23.58, pp. 23-64 to 23-67.) In this appeal, Sierra Club has ignored this guidance and has failed to identify the test for admissibility it believes applies. Because the documents were generated after the Board adopted the Ordinance and certified the EIR and, therefore, were not part of the documentation prepared and considered by the Board, we infer Sierra Club believes it has presented admissible extra-record evidence. In any event, like the appellants in Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, Sierra Club has failed to show the materials submitted qualify for consideration by this court under the rules governing the administrative record, the admissibility of extra- record evidence, or the consideration of other evidence. (Id. at p. 367; see 2 Kostka, supra, § 23.58, p. 23-67 [other evidence].) Consequently, we deny Sierra Club’s request for judicial notice. Based on the record properly before this court, we conclude MM 4.3-8 does not violate CEQA based on deferred formulation. The text of the measure is set forth in the

2. Contentions Sierra Club contends the EIR failed to adequately mitigate a significant increase in PM2.5. In addition, Sierra Club contends (1) the EIR failed to explain the omission of PM2.5 from MM 4.3-8 and (2) substantial evidence does not support an implied finding that offsetting PM10 emissions would fully offset PM2.5 emissions. Sierra Club also addresses the possibility that the County may have intended for PM2.5 and PM10 to be separately analyzed and offset during the implementation of MM 4.3-8. Sierra Club contends such an intent would not save MM 4.3-8 from violating CEQA because mitigation is not valid unless it is enforceable, and it cannot be enforced if it is not explicit. Counsel for the County prepared responses to Sierra Club’s comments and sent those responses to the Board in a letter dated November 8, 2015. In addressing the comment that offsets should be required for permitted source emissions of PM2.5 that are not otherwise required to be offset under Air District Rule 2201, the letter stated: “PM2.5 emissions are a subset of PM10, for which offsets must be provided, and so need not be addressed separately.” On appeal, Oil Associations argue the EIR adequately mitigates for PM2.5 emissions via multiple pathways, directly and indirectly. With respect to direct emissions, Oil Associations argue (1) PM2.5 is a key target of MM 4.3-1 through 4.3-4 and (2) MM 4.3-8 refers to PM10 because of Air District policy. As to MM 4.3-8’s direct effect, Oil Associations set forth a multiple-step argument. First, PM2.5 constitutes only 35 percent of the project’s total estimated PM10 emissions. Second, the record demonstrates almost all identified emission-reduction-agreement projects would reduce PM2.5 far more than PM10. Third, based on these facts, it is reasonable to expect that Air District would select emission reduction projects that directly offset most, if not all, of the project’s PM2.5 emissions. Accordingly, Oil Associations conclude there is

4. Adequacy of the Discussion of Mitigation Measure 4.3-8 and PM2.5 Sierra Club challenges the adequacy of the EIR’s discussion of the effect of MM 4.3-8 on PM2.5, arguing the EIR fails to offer any explanation for the omission of PM2.5 from the measure. The respondents’ briefs of the County and Oil Associations do not directly address the adequacy of a discussion and explain how the EIR meets the applicable legal standard. The applicable legal standard asks, “whether the EIR includes enough detail ‘to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ [Citations.] The inquiry presents a mixed question of law and fact.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516.) In the context of this case, factual questions do not predominate and, therefore, we conduct an independent review when applying this standard and determining the adequacy of the discussion. (Ibid.) We conclude the EIR’s discussion is legally inadequate because it did not provide enough information to enable decisionmakers and the public to understand and consider meaningfully how implementing MM 4.3-8 would impact PM2.5 emissions. Specifically, the EIR does not (1) discuss the impact of the measure on PM2.5 emissions and (2) does not explain why there is no separate discussion of PM2.5 emissions. Stated in statutory terms, the EIR does not “include a detailed statement setting forth” how MM 4.3-8 proposes to mitigate the significant effect on the environment of the project’s PM2.5 emissions. (§ 21100, subd. (b)(3); see Guidelines, § 15126.4, subd. (a) [EIR discussion of mitigation measures].) The statement in the November 8, 2015, letter that “PM2.5 emissions are a subset of PM10, for which offsets must be provided, and so need not be addressed separately” is not a legally adequate explanation. The fact the smaller particulate matter is encompassed by the category for larger particulate matter does not change the fact the two categories are subject to separate federal and state ambient air quality standards and

separate thresholds of significance. Lumping them together would cause objectively reasonable persons who did not participate in drafting the EIR to wonder why the distinction was abandoned in MM 4.3-8 and the discussion of that measure. Without an explanation of why the two categories were lumped together, the EIR is inadequate as an informative document. In addition, the fact that other mitigation measures treat PM2.5 as a key target undermines any argument that it was “not scientifically feasible at the time of drafting to provide” a measure in MM 4.3-8 that addresses PM2.5. (See Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 527.) 5. Enforcing Mitigation Measure 4.3-8 to Offset PM2.5 Emissions Sierra Club also challenges MM 4.3-8 on the ground it cannot be enforced to require the offset of the project’s PM2.5 emissions. Section 21081.6, subdivision (b): “A public agency shall provide that measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures.” Guidelines section 15126.4, subdivision (a)(2) states: “Mitigation measures must be fully enforceable through permit conditions, agreements, or other legally-binding instruments.” Here, the County and Oil Associations predict that the implementation of emission-offset projects under the fee-based mitigation program created under MM 4.3-8 will offset the PM2.5 emissions attributed to the Ordinance. Oil Associations argue “there is substantial evidence in the record to support a conclusion that offsetting PM10 emissions will offset PM2.5 emissions.” Yet, the County and Oil Associations have not described how the oil and gas emission reduction agreement between the County and Air District could be enforced to require the offset of PM2.5 emissions. It is not possible to interpret the oil and gas emission reduction agreement as providing a “fully enforceable” mitigation measure for PM2.5 because that agreement treats PM2.5 as a subset of PM10 and, as a result, PM2.5 is not subject to any particular requirement. Therefore, we

conclude MM 4.3-8 and the related oil and gas emission reduction agreement between the County and Air District does not provide enforceable mitigation of the project’s PM2.5 emissions. Because the emissions of PM2.5 exceed the threshold of significance, the mitigation measures must address this air quality impact. Because MM 4.3-8 does not address PM2.5 separately and the EIR does not provide an explanation for why it is infeasible for that measure to address PM2.5, MM 4.3-8 does not comply with the CEQA requirement for fully enforceable mitigation measures where feasible. (See § 21081.6, subd. (b); Guidelines, § 15126.4, subd. (a)(2).) In summary, the County violated CEQA in two ways related to MM 4.3-8. First, the EIR did not discuss the impact of the measure on PM2.5 emissions or, alternatively, provide a rational explanation for why there is no separate discussion of the measure’s impact on PM2.5 emissions. Second, MM 4.3-8 does not provide for enforceable mitigation of PM2.5 emissions, and there is no finding that mitigation of this specific pollutant was not feasible. These deficiencies must be remedied on remand. We need not address the question of whether substantial evidence supports the Board’s findings relating to MM 4.3-8 because, after proceedings on remand, the EIR’s discussion of that measure will be revised and it is uncertain what findings of fact the Board will make based on the revised discussion and any revisions to MM 4.3-8. VI. CONVERSION OF AGRICULTURAL LAND A. Discussion in EIR Chapter 4.2 of the EIR addressed agricultural and forest resources and section 4.2.4 addressed specific impacts to those resources and mitigation measures. The project area contains approximately 2.1 million acres zoned for agricultural use. Based on information obtained from a statewide farmland mapping and monitoring program, the EIR stated the Tier 2 (zoned and used for agriculture) part of the project area contained 540,446 acres of prime farmland, 84,935 acres of unique farmland, and 203,591 acres of

counties of San Joaquin and Stanislaus, Tri–Valley Conservancy (Livermore/Alameda County).’ ” (Ibid.) On appeal, the citizen group argued the rejection of the higher mitigation ratio was not supported by substantial evidence and, under applicable law, the city could refuse to adopt the higher ratio only if it was infeasible or ineffective. (Citizens-Lodi, supra, 205 Cal.App.4th at p. 323.) The Third District rejected this argument, concluding the legal principles relied upon by the citizen groups did not apply because “the city has specifically found mitigation measures infeasible and therefore adopted a statement of overriding considerations.” (Ibid.) The court concluded the EIR properly identified the loss of farmland would be a significant environmental impact and complied with Guidelines section 15091, subdivision (a)(3) by stating no mitigation measures were feasible. (Citizens-Lodi, supra, at p. 323.) Furthermore, the city adopted a statement of overriding consideration as to the significant impact on farmland before it approved the project. (Ibid.) Consequently, the court determined the question presented was “whether the finding there were no feasible mitigation measures was supported by substantial evidence.” (Ibid.) The court then concluded “substantial evidence supported the finding there were no feasible mitigation measures.” (Ibid.) The foregoing discussion of Citizens-Lodi is included here because the city found obtaining an agricultural conservation easement at a 1:1 ratio would not mitigate the conversion of 40 acres of agricultural land to urban purposes. This finding directly contradicts the County’s finding that the measures in MM 4.2-1 (which include agricultural conservation easements) would reduce a significant impact on agricultural land to less than significant under the thresholds identified in the EIR. In light of this conflict between the findings in Citizens-Lodi and the findings of the County in this case, we must consider whether the County’s finding is (1) supported by sufficient evidence and (2) consistent with applicable law. These questions are related to KG Farms’

significant environmental effect. Therefore, we agree with KG Farms’ contention that MM 4.2-1.a does not provide effective mitigation for the conversion of agricultural land. 2. Restoration of Agricultural Lands MM 4.2-1.c provides for “[r]estoring agricultural lands to productive use through the removal of legacy oil and gas production equipment.” This measure stands in contrast to the use of agricultural conservation easements because its implementation would offset the conversion of agricultural land to oil and gas activities by returning previously converted land to agricultural use. If this were the sole method authorized, compliance with MM 4.2-1.c would result in no net loss of agricultural land. This restoration of agricultural land is comparable to one of the mitigation measures adopted in Friends of Kings River v. County of Fresno (2014) 232 Cal.App.4th 105, a case in which the plaintiffs raised CEQA challenges to the validity of an EIR for a project that included a new surface mine for aggregate and related processing plants. (Id. at p. 109.) One of the mitigation measures involved saving the topsoil and overburden from areas converted from agricultural production to mining and using that material to reclaim some of the mined land to farmland. (Id. at p. 124.) The final EIR for the project noted “that mitigation measure AG–2 preserves farmland at a 1:1 ratio for the life of the Project, which is 100 years.” (Ibid.) This mitigation measure for the reclamation of mined land is similar to the mitigation measure that provides for the restoration of agricultural land. Such measures “[c]ompensat[e] for the impact by replacing or providing substitute resources or environments.” (Guidelines, § 15370, subd. (e).) Here, the restoration of agricultural land to productive use would offset the loss of agricultural land caused by the County’s approval of a permit for oil and gas activity. Furthermore, the use of the 1:1 ratio would result in full compensation for the loss of agricultural land. As a result, the net change in the amount of agricultural land would be zero—that is, the

equivalent agricultural farmland preservation program” are linked to a reasonable plan for mitigation. Oil Associations have cited to nothing in the record establishing such banks or programs exist. Moreover, Oil Associations have not addressed whether any such bank or program constitutes a reasonable plan for mitigation. Instead, Oil Associations argue “the other options under MM 4.2-1 ensure mitigation even if the County never adopts an agricultural land banking program.” In effect, Oil Associations contend the unavailability of MM 4.2-1.b is not fatal because permit applicants simply would be required to implement other options until a land banking program is up and running. We conclude the record does not contain substantial evidence showing the mitigation banks or preservation programs referred to in MM 4.2-1.b were available. It follows that the record does not contain substantial evidence to support a finding that participation in a banking or preservation program actually would offset the conversion of agricultural land to oil and gas activities like MM 4.2-1.c. Any such programs might operate like the agricultural conservation easements specified in MM 4.2-1.a, which do not actually offset the applicant’s conversion of agricultural land. Consequently, we conclude MM 4.2-1.b does not provide effective mitigation for the project’s conversion of agricultural land. 4. Other Measures MM 4.2-1.d provides for “[p]articipating in any agricultural land mitigation program adopted by Kern County that provides equal or more effective mitigation than the measures listed above.” KG Farms contends this open-ended measure does not commit to reducing the loss of agricultural land. We agree. A future program might have an effect equivalent to the agricultural conservation easements specified in MM 4.2- 1.a. In that case, the future program would not reduce the impact on agricultural land because agricultural conservation easements do not actually offset the conversion of

agricultural land. Alternatively, a future program might have an effect equivalent to the restoration described in MM 4.2-1.c. In that situation, the conversion of agricultural land would be offset, reducing the significance of the conversion. Because the record does not identify any program that qualifies as an “agricultural land mitigation program adopted by Kern County” for purposes of MM 4.2-1.d, we conclude that option does not provide available, effective mitigation for the project’s conversion of agricultural land. 5. Noncompliance with CEQA The Board applied the thresholds of significance described in the EIR to the Ordinance’s estimated conversion of agricultural land and found “this impact is considered significant.” This finding as to significance is supported by substantial evidence. The Board also found the estimated “[i]mpacts would be less than significant with mitigation.” This finding as to the effectiveness of MM 4.2-1 is not supported by substantial evidence and is based on a legally incorrect view of the operation of agricultural conservation easements—one of the two options available under MM 4.2-1. As described earlier, the EIR did not identify any programs fitting the descriptions set forth in MM 4.2-1.b and MM 4.2-1.d. Consequently, the finding the impact would be mitigated to a less than significant level must be based on the options that were available to permit applicants when the EIR was certified—namely, the agricultural conservation easements of MM 4.2-1.a and the agricultural land restoration described in MM 4.2-1.c. Because permit applicants could rely on an agricultural conservation easement under MM 4.2-1.a and because such easements do not actually offset the conversion of farmland, the Board erred when it found the impact to agricultural land would be less than significant with mitigation. Therefore, we conclude the EIR and the Board’s finding as to the mitigation of a significant impact on agricultural land do not comply with CEQA.

The Board rejected Alternative 3 on the grounds it was environmentally inferior in some respect and was economically and legally infeasible. The Board found Alternative 3 “would achieve some environmental benefits,” but would incentivize horizontal and directional subsurface drilling “that would generate greater air quality, greenhouse gas, and toxic air contaminant emissions,” compared to the proposed project. To support its finding that Alternative 3 was legally and economically infeasible, the Board found “its adoption would conflict with applicable regulatory limitations, would have a significant adverse economic impact on a key County economic sector, and would imprudently expose the County to significant and unreasonable legal liability, as explained below.” 4. Application of Principles to the County’s Responses The first question we address in our analysis of KG Farms’ claim that the County failed to comply with CEQA in responding to the comment proposing the clustering of wells is whether clustering qualifies as a mitigation measure for the conversion of agricultural land. (See Guidelines, § 15370.) Although clustering would not allow the project to avoid the impact altogether, it would “[m]inimiz[e] impacts by limiting the degree or magnitude of the action and its implementation.” (Guidelines, § 15370, subd. (b).) Therefore, we conclude the proposal for clustering presented a type of mitigation that would lessen, but not eliminate, a significant environmental impact. As a result, the comment addressed a “major environmental issue[]” as that phrase was used in Guidelines section 15088, subdivision (c). The second question we address is whether County’s response to the comments proposing clustering of wells and other infrastructure provided the details and reasoned analysis required by Guidelines section 15088, subdivision (c). Response number 0044- 158, which was quoted in part earlier, addressed whether clustering was required by the County’s general plan and stated that the competing policies were, on balance better served by the proposed project than by Alternative 3. The response did not separately

disturbance, which resulted in a drastic and systematic underestimation of impacts to species. In addition, Sierra Club contends a mitigation measure was inadequate because it allows destroyed or degraded habitat to be replaced by habitat of a completely different quality or type, rendering the replacement meaningless for the impacted species. In response, the County contends the EIR’s analysis and mitigation of impacts to biological resources is reasonable and supported by substantial evidence. The County asserts the EIR considered habitat outside the footprint of development at every stage, including the discussion of environmental setting, regulatory setting, impacts, and formulation of mitigation measures. With respect to mitigation, the County argues that when the various mitigation measures are viewed together, substantial evidence supports its finding that the impacts to biological resources will be mitigated to less than significant levels. Sierra Club’s reply brief reiterates the argument that the EIR ignored adverse edge effects to species and habitat and vastly understated the potential harm to wildlife. Sierra Club claims the EIR’s analysis of edge effects was not meaningful and violated CEQA. B. Legal Principles CEQA and the Guidelines do not use the term “edge effect” and, thus, contain no specific legal requirements for discussing edge effects. Sierra Club characterizes edge effects as indirect effects or impacts to the environment. Several provisions in CEQA and the Guidelines refer to indirect environmental effects. Section 21065 defines “ ‘[p]roject’ ” to mean an activity that might cause “either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment.” (§ 21065, italics added.) “ ‘Project-specific effect’ means all the direct or indirect environmental effects of a project other than cumulative effects and growth-inducing effects.” (§ 21065.3; Guidelines, § 15191, subd. (j) [same].)

presents a mixed question of law and fact. As such it is generally subject to independent review. However, underlying factual determinations—including, for example, an agency’s decision as to which methodologies to employ for analyzing an environmental effect—may warrant deference.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516.) When factual questions predominate, the more deferential substantial evidence standard of review applies. (Ibid.) When factual questions do not predominate, courts conduct an independent review when determining the adequacy of the EIR’s discussion. (Ibid.) To determine whether factual questions predominate, we must examine the discussion provided in the EIR. 2. EIR’s Discussion Chapter 4.4 of the EIR addresses biological resources. Section 4.4.2 describes the project’s environmental setting for biological resources using approximately 134 pages. Section 4.4.3 describes the federal, state, regional and local biological resource policies and regulations applicable to the project area. Included in this description are recovery plans developed by the United States Fish and Wildlife Service. One such plan is the “Recovery Plan for Upland Species of the San Joaquin Valley,” which the EIR states “recommends the protection of land in large blocks to minimize edge effects, increase the likelihood that ecosystem functions will remain intact, and facilitate management.” Section 4.4.4 of the EIR describes “potential impacts related to biological resources that could occur as a result of the Project, and proposed mitigation measures.” It discusses the potential impacts most likely to be associated with construction and operation of the project. The EIR states construction and operational impacts would “include both direct and indirect impacts to biological resources” and “[o]perational impacts would remain an ongoing source of disturbance for many plants and wildlife species that occur within the facility perimeter and in adjacent habitat.” (Italics added.)

Direct construction impacts include the permanent removal or temporary disturbance of native vegetation, dust, noise and vibration, lighting, increased human activity, increases in nonnative and invasive species, and loss or degradation of native habitat. In turn, these physical changes in the environment could impact plants and wildlife. Dust can decrease the vigor and productivity of vegetation. Loss of vegetation can decrease the food and shade available to wildlife. Also, noise, vibration and lighting can affect the behavior of wildlife in several ways, including the abandonment of nests or burrows. Other indirect impacts include alterations to topographical conditions through erosion and sediment transport and changes to hydrological conditions. As “Impact 4.4-1,” the EIR considered whether the project would have a substantial adverse effect, either directly or through habitat modifications, on species identified as candidate, sensitive or special status in local or regional plans, policies or regulations by the Department of Fish and Wildlife or the United States Fish and Wildlife Service. The EIR concluded “potential project impacts to special status plants and wildlife would be significant without mitigation.” The EIR specified 16 mitigation measures and concluded the impact would be less than significant after mitigation. The EIR’s analysis of Impact 4.4-1 began with an estimate of the annual number of future production wells subject to the Ordinance and allocated that total (2,697 wells) by subarea (western, central and eastern) and by tier (1 through 5). The estimates were set forth in Table 4.4-70. These estimates of the number of wells was multiplied by the average historical disturbance area per production well to get the potential disturbance acreage for each subarea and tier. The results were set forth in Table 4.4-71, which was labeled “Assumed New Disturbance Acres per Year by Tier and Subarea.” The total amount of new disturbance was estimated to be 4,856 acres per year, of which 4,400 acres (91 percent) would be in Tier 1 areas—that is, areas where oil and gas activities predominate. Of the estimated disturbance acreage, approximately 71 percent would occur in the western subarea (3,460 acres), 21 percent in the eastern subarea (1,003

acres), and 8 percent in the central subarea (393 acres). The estimates of disturbance acreage were based on the assumption that all future oil and gas exploration and production subject to the Ordinance’s review process would occur on land undisturbed by existing oil and gas activity, urban development or agriculture. The EIR stated this assumption made the estimates conservatively high because some future oil and gas activities would utilize existing actively disturbed areas, such as existing well pads, access roads, pipelines, tanks and other facilities. The estimates of disturbance acreage were used in both a modeled species analysis approach and a nonmodeled species analysis approach. The estimates of disturbance acreage do not include acres that could experience edge effects. 3. Evaluation of the Adequacy of the Discussion As background to our evaluation of the adequacy of the discussion of impacts on biological resources, we note that CEQA, the Guidelines and existing case law do not require areas that experience edge effects to be included in areas that are identified in the EIR as disturbed. Therefore, the County did not violate an established principle of law when it chose to exclude edge-effect acreage for its estimates of disturbed acreage. Next, Sierra Club’s claim about the adequacy of the EIR’s discussion could be interpreted as a challenge to the methodology chosen by the County. In other words, Sierra Club may be contending the method of analysis used to determine the significance of the impacts on biological species was legally flawed and an appropriate (i.e., adequate) method would include edge-effect acreage with disturbed acreage. Our Supreme Court has concluded that an agency’s decision as to which methodologies to employ for analyzing an environmental effect may be a factual determination entitled to deference under the substantial evidence standard of review. (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516.) Here, Sierra Club has not attempted to demonstrate the absence of substantial evidence supporting the County’s choice of methodologies for

analyzing the significance of the impacts on biological species. Consequently, we conclude Sierra Club has not established an abuse of discretion based on that choice. Based on these preliminary conclusions, our inquiry boils down to whether the EIR includes enough detail to enable decisionmakers and the public to understand and to consider meaningfully the project’s potential impacts on biological species—that is, vegetation and wildlife. (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516 [ultimate inquiry].) As described below, we conclude the EIR provided enough detail to satisfy this standard. First, the discussion of impacts in section 4.4.4 of the EIR included a description of indirect impacts. Using broad language, the EIR stated construction and operational impacts would “include both direct and indirect impacts to biological resources.” It also stated operations would disturb “many plants and wildlife species that occur within the facility perimeter and in adjacent habitat.” Providing more detail, the EIR stated the increase of oil and gas operations will increase vehicular traffic on access roads and this increase in traffic will increase the “risk of injury or mortality” to wildlife. The indirect impacts mentioned in the EIR are the harms arising from edge effects. Therefore, we disagree with Sierra Club’s contention that the EIR “refused to analyze the harms arising from edge effects.” Consequently, the EIR cannot be deemed inadequate on this ground. Second, under the method of analysis chosen, the EIR determined the impacts to modeled and nonmodeled species would be significant without mitigation. With these species, it cannot be argued that the failure to include edge-effect acreage with disturbed acreage resulted in an erroneous determination as to the significance of the potential impacts. Third, the chosen method of analysis has not been shown to have influenced the formulation of mitigation measures and caused them to overlook the indirect impacts that might occur beyond the site of the oil and gas activity. For instance, the mitigation measures refer to exclusion barriers or buffers and setback distances.

We conclude factual questions predominate in determining whether the EIR’s discussion of impacts to biological resources was inadequate as a result of using estimates of disturbance acreage that excluded acres that could experience edge effects. Consequently, the substantial evidence standard of review applies to the question of whether the EIR’s discussion of direct and indirect impacts to biological resources was adequate. Based on our review of the record, we conclude substantial evidence supports the adequacy of the analysis provided. Therefore, we reject Sierra Club’s claim the EIR provided no meaningful analysis of edge effects. D. Mitigation Measure: Replacing Habitat Mitigation measure 4.4-16 provides that ground disturbance shall be mitigated at a 1:1 ratio, except a 1:0.5 ratio shall be used in Tier 1 areas that contain existing disturbance of 70 percent or greater. The ratio compares the acres of new disturbance to the acres subject to the mitigation measure. The requirement for disturbance mitigation acreage may be satisfied by one or a combination of (1) conservation easements, (2) land preservation credits from a mitigation bank, (3) removal of legacy oil and gas equipment and restoration of the surface (including reseeding with native species), and (4) enhancement or restoration of existing habitat on lands already subject to a conservation easement or similar agreement. Sierra Club contends the EIR does not ensure adequate compensation for disturbed habitat because MM 4.4-16 attempts to mitigate disturbed habitat by requiring applicants to conserve 0.5 to 1.0 acre for every acre of habitat disturbed and fails to require the disturbed habitat to be replaced with habitat of the same quality or type. Consequently, Sierra Club asserts MM 4.4-16 allows habitat important to a particular species to be offset by preserving habitat of an entirely different species. This approach, in Sierra Club’s view, is flawed because it treats habitat of any quality or type as an adequate substitute for disturbed habitat.

or potentially substantial, adverse change in the environment.” (§ 21068.) Thus, for purposes of CEQA, the noise caused by a project can result in a significant effect on the environment. The Legislature declared it is the policy of California to “[t]ake all action necessary to provide the people of this state with … freedom from excessive noise.” (§ 21001, subd. (b).) In addition, it is the policy of California to “[r]equire governmental agencies at all levels to consider qualitative factors as well as economic and technical factors .…” (§ 21001, subd. (g), italics added.) The concept of a “threshold of significance” is defined in the Guidelines as “identifiable quantitative, qualitative or performance level of a particular environmental effect, noncompliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant.” (Guidelines, § 15064.7, subd. (a).) CEQA does not include a particular threshold for determining the significance of an increase in ambient noise. Similarly, the Guidelines do not mandate the use of a specific threshold of significance for evaluating an increase in noise. Appendix G, which is printed following Guidelines section 15387, is an environmental checklist that includes questions about various aspects of the environment, including noise. The questions about noise in the version of Appendix G in effect in 2015 asked if the project would result in (1) “[e]xposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or other applicable standards of other agencies”; (2) “[a] substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project”; and (3) “[a] substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project.”35 Each question is answered by checking a box to indicate whether

Generally, agencies are encouraged to develop and publish thresholds of significance to use in determining whether a project has a significant environmental effect. (Guidelines, § 15064.7, subd. (a).) When an agency has not published a threshold of significance for a particular impact, it must adopt a threshold of significance during its evaluation of the project. This flexibility is allowed because “[a]n ironclad definition of significant effect is not always possible because the significance of an activity may vary with the setting.” (Guidelines, § 15064, subd. (b)(1).) B. Case Law Many CEQA cases have discussed a project’s noise impacts and the thresholds of significance used to evaluate the impacts. The usefulness of a particular decision in analyzing the issues presented in this appeal depends in part on the judicial stage of the environmental review process addressed in the decision. As described by this court in Citizens for the Restoration of L Street v. City of Fresno, supra, 229 Cal.App.4th 340, CEQA provides for three stages of environmental review. (Citizens, supra, at pp. 363– 364.) First, a preliminary review is conducted to determine if the proposed activity is a CEQA project and, if so, whether it is exempt from CEQA. (Citizens, supra, at p. 363.) Second, an initial study is undertaken to inform the lead agency whether the environmental review can be concluded with the adoption of a negative declaration or, alternatively, the agency must prepare an EIR. (Id. at pp. 363–364.) Under the fair argument standard applied when conducting an initial study, an EIR is required if substantial evidence supports a fair argument that the proposed project may have a significant adverse effect on the environment. (Id. at p. 364.) The third stage of the environmental review process is the preparation of an EIR. (Ibid.) Here, we consider cases involving an initial study and the application of the fair argument standard. Then we address a case where an EIR used a single threshold for determining the significance of the project’s noise impacts.

Mountains Quiet set forth the principal that “the lead agency should consider both the increase in noise level and the absolute noise level associated with a project.” (Id. at p. 733.) 2. An EIR’s Use of a Single Threshold for Noise Impacts Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344 (Berkeley Jets) is a case where an EIR was prepared for a proposed expansion of the Oakland Airport and the lead agency determined the significance of the noise impacts based solely on whether the estimated level of sound with the project would exceed 65 dB CNEL. (Id. at p. 1373.) As explained in the lead agency’s responses to public comments, this significance standard automatically excluded “ ‘all residential uses within the 65 CNEL contour regardless of the change in noise’ ” due to the airport expansion. (Id. at p. 1381.) “Consequently, implementation of the [expansion] could increase a community’s nighttime noise level to 64.9 CNEL, and under the sole criterion of the CNEL metric, this increase would not create a significant impact for purposes of CEQA.” (Ibid.) On appeal, the petitioners challenged the use of the cumulative CNEL metric as the sole indicator of significant effects from noise. (Berkeley Jets, supra, 91 Cal.App.4th at p. 1377.) They argued the EIR’s noise analysis was flawed because it did not provide “ ‘the most fundamental information about the project’s noise impacts, specifically the number of additional nighttime flights that will occur under the [airport expansion], the frequency of those flights, and their effect on sleep.’ ” (Ibid.) The court agreed. Citing Oro Fino, the court concluded “the fact that residential uses are considered compatible with a noise level of 65 decibels for purposes of land use planning is not determinative in setting a threshold of significance under CEQA.” (Berkeley Jets, supra, at p. 1381.) The court determined the EIR did not provide a meaningful analysis of, among other things, the “degree single overflights will create noise levels over and above the existing ambient

DNL was used as the established standard under the first threshold of significance, which considered only the estimated noise level with the project. The threshold did not consider the magnitude of the increases caused by the project. 3. Thresholds for Substantial Increases in Noise As Impact 4.12-3, the EIR also discussed a permanent increase in ambient noise levels in the project vicinity above levels existing without the project. The threshold of significance for this type of increase was described as follows: “A substantial permanent increase in ambient noise levels would occur if noise levels increase in excess of 65 dBA CNEL.” The EIR concluded that this noise impact would be less than significant with the implementation of MM 4.12-2, which specifies setback distances from sensitive receptors. The same threshold of significance was adopted for temporary increases in ambient noise (i.e., construction noise). Comments to the draft EIR raised questions about the threshold of significance selected by the County for temporary and permanent increases in ambient noise levels. The response to the comments stated the County had “exercised its discretion to formulate significance thresholds by using language from Appendix G of the CEQA Guidelines” and referred to the general description of the thresholds that stated a “substantial” increase in temporary or permanent noise levels would be significant. The response stated: “While these two thresholds qualitatively assess temporary or permanent increases over ambient noise without the project, the lead agency—Kern County—maintains discretion to determine the quantitative threshold applicable to each project.” (Italics added.) Next, it stated: “For this project, the County applied a quantitative threshold of 65 dB DNL/CNEL, which represents the exterior noise levels the County has deemed to be acceptable for noise sensitive areas.” In practical effect, the County adopted a single threshold of significance for noise impacts because it used the same threshold for evaluating (1) the noise level after the

2. Single Threshold of Significance for Noise Impacts Based on the principles adopted in Berkeley Jets and Keep Our Mountains Quiet, we conclude the question presented in this appeal is whether the County violated CEQA by using a single standard relating to the absolute noise level as a threshold of significance for evaluating all ambient noise impacts. In Berkeley Jets, the lead agency adopted a single, fixed threshold of 65 dB CNEL for determining whether the project’s noise impacts would be significant. (Berkeley Jets, supra, 91 Cal.App.4th at p. 1373.) Similarly, in Keep Our Mountains Quiet, the lead agency deemed any increase in noise to be insignificant so long as the absolute noise level did not exceed the standards set forth in the County’s general plan and noise ordinance. (Keep Our Mountains Quiet, supra, 236 Cal.App.4th at p. 732.) In each case, the use of an absolute noise level as the threshold of significance was determined to violate CEQA. We reach the same conclusion here. The EIR’s exclusive reliance on the cumulative DNL metric does not provide a complete picture of the noise impacts that may result from the project. The cumulative noise level of 65 dBA DNL does not provide a complete and reasonable method of evaluating the significance of noise impacts because an increase in ambient noise of 20 dBA at monitoring site number 12, which was recorded as being 44.8 dBA, would not be a significant, adverse change in the noise environment. In contrast, a 2 dBA increase at monitoring site number 2, which was recorded as being 63.9 dBA, would be considered a significant adverse change in the noise environment. The EIR does not provide a rational explanation for this approach to environmental change. Simply saying the cumulative noise level would not be exceeded at site number 12 and would be exceeded at site number 2 does not provide a rational explanation for why a 20- dBA increase is an insignificant increase at site 12. The County’s justification for this result is based primarily on a self-serving legal analysis of its discretionary authority to select thresholds of significance. The legal analysis in County’s responses to comments is self-serving in the sense it refers to

authority that supports the County’s position and ignores cases like Oro Fino, Berkeley Jets and Keep Our Mountains Quiet and the principles set forth in those cases. For instance, the County’s justification for applying only the cumulative metric contained in its general plan did not directly explain why the principle that “ ‘ “conformity with a general plan does not insulate a project from EIR review where it can be fairly argued that the project will generate significant environmental effects” ’ ” had no application to the project. (Keep Our Mountains Quiet, supra, 236 Cal.App.4th at p. 732.) Similarly, the EIR did not explain why “the magnitude of the increase in ambient noise levels caused by the Project” played no role in determining whether the change was significant. (Ibid.) We recognize our Supreme Court has described the discretion to choose thresholds of significance as “substantial,” but that discretionary authority is not unlimited or absolute. (Center for Biological Diversity, supra, 62 Cal.4th at p. 228.) In Center for Biological Diversity, the Supreme Court concluded the lead agency was required “to support its chosen quantitative method for analyzing significance with evidence and reasoned argument.” (Ibid.) Thus, “when the agency chooses to rely completely on a single quantitative method to justify a no-significance finding, CEQA demands the agency research and document the quantitative parameters essential to that method.” (Ibid.) Here, the County has not documented how the single quantitative method, which does not consider the magnitude of the increase in noise, accurately describes how changes in noise levels affect human beings. The County also attempted to justify its use of the cumulative noise level of 65 dBA DNL as the sole threshold of significance by stating a 5-dBA increase is not a threshold of significance required by law. This is an accurate statement of California environmental law, but it does not justify the extrapolation that the magnitude of noise increases need not be evaluated. Had the EIR acknowledged the principle that “the lead agency should consider both the increase in noise level and the absolute noise level associated with a project” (Keep Our Mountains Quiet, supra, 236 Cal.App.4th at p.

“An EIR shall describe a range of reasonable alternatives to the 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. [Citations]” The rule of reason, as described in subdivision (f) of Guidelines section 15126.6, “requires the EIR to set forth only those alternatives necessary to permit a reasoned choice” and to “examine in detail only the ones that the lead agency determines could feasibly attain most of the basic objectives of the project.” (Ibid.) A lead agency’s first step in selecting the alternatives to be included in the EIR is the establishment of project objectives. (North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 666–667.) “A clearly written statement of objectives will help the lead agency develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision makers in preparing findings.… The statement of objectives should include the underlying purpose of the project.” (Guidelines, § 15124, subd. (b).) After the project’s objectives have been selected—an element necessary to making feasibility determinations—there are two points during the environmental review process when the feasibility of project alternatives is addressed. (San Diego Citizenry Group v.

County of San Diego (2013) 219 Cal.App.4th 1, 18.) “First, alternatives are determined to be potentially feasible in the EIR. [Citation.] Second, in deciding whether to approve the project, the decision maker determines whether an alternative is actually feasible. [Citatiton.] ‘At that juncture, the decision makers may reject as infeasible alternatives that were identified in the EIR as potentially feasible.’ [Citation.]” (Ibid.) “Broader considerations of policy thus come into play when the decisionmaking body is considering actual feasibility than when the EIR preparer is assessing potential feasibility of the alternatives.” (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 1000.) In Jones v. Regents of University of California (2010) 183 Cal.App.4th 818, the court concluded substantial evidence supported the determination that an alternative would not achieve the project’s objectives. (Id. at p. 829; see In re Bay-Delta etc., supra, 43 Cal.4th at p. 1167.) “[A] lead agency may reject an alternative as infeasible because it cannot meet project objectives, as long as the finding is supported by substantial evidence in the record.” (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 948.) Accordingly, we apply the substantial evidence test to the determination whether an alternative could feasibly achieve the project’s objectives. D. Objectives and Feasibility of CUP Alternative 1. Project Objectives Sections 1.4.3 and 3.6 of the EIR set forth the project objectives by listing the objectives of the County in its role as lead agency and the objectives of Oil Associations in their capacity as the proponents of the project. The County’s objectives included (1) updating its zoning ordinance to include additional procedures and compliance standards for the purpose of reducing significant environmental impacts of future oil and gas activities; (2) encourage economic development by the oil and gas industry; (3) continuing to improve and streamline

current energy regulations; (4) protect areas of important mineral, petroleum and agricultural resource potential for future use by promoting sustainability and by encouraging best management practices; and (5) ensure the protection of environmental resources. The stated objectives of Oil Associations proposal to amend the zoning ordinance were to (1) create an effective regulatory and permitting process for oil and gas exploration and production, which could be relied upon by the County, DOGGR and other agencies; (2) achieve an efficient and streamlined environmental review and permitting process for all oil and gas operations covered by the proposed amendment; and (3) develop industry-wide best practices, performance standards, and mitigation measures to ensure adequate protection of public health and safety and the environment. If these efficiencies were attained, Oil Associations believed it would increase oil and gas exploration and production in Kern County, which in turn would benefit the local economy. The Board’s findings addressed each proposed alternative to the Ordinance. The Board explicitly rejected the CUP Alternative, finding it would “not achieve the Project’s basic objective and is environmentally inferior to the proposed Project.” The Board supported its determination that the CUP Alternative was environmentally inferior by finding the project’s mitigation program would provide mitigation in excess of that which would occur if new wells were subject to discretionary approval following individual environmental review. The County’s appellate brief expands on this finding by stating Oil Associations, the project applicants, agreed to the conservative mitigation measures in exchange for streamlined processing and regulatory certainty and without these benefits, the project applicants would not have supported amending the zoning ordinance. The Board’s findings also addressed the implications of conducting an individualized review if every oil and gas well drilled within Kern County required a conditional use permit. The Board found there were approximately 75 active oil and gas

fields in the project area and over 2,500 wells are drilled every year. The Board stated the County lacked the resources to process this volume of oil and gas negative declarations or EIR’s each year. The Board found “the basic objective of the Project and this EIR is to eliminate time-consuming and costly discretionary reviews of individual well and field development activities by establishing a ministerial site plan review process which incorporates mitigation identified in th[e] EIR.” The Board also found adoption of the Ordinance and certification of the EIR often would eliminate the need for other responsible agencies to conduct additional environmental review. The Board relied on San Diego Citizenry Group v. County of San Diego, supra, 219 Cal.App.4th 1 to conclude streamlining the permitting process is a permissible objective reflecting land use policy decisions within its authority as a county board of supervisors. 2. Analysis of CUP Alternative KG Farms contends the Board’s finding that the project was environmentally superior to the CUP Alternative is not supported by the law or the evidence in the record. KG Farms argues the Board erred in finding the mitigation measures adopted with the Ordinance could not be implemented as part of the CUP Alternative. KG Farms’ argument challenges the Board’s determination that the CUP Alternative was not practical (i.e., feasible) because it was not supported by Oil Associations. The record supports the finding that project applications did not support the CUP Alternative. The record includes statements made by a representative of Western States Petroleum Association at the November 9, 2015, hearing before the Board. The representative stated its members were willing to undertake the many new mitigation measures “in order to obtain the economic certainty of a streamlined permitting process.” Similarly, the representative’s October 5, 2015, letter to the Board and the County’s planning commission opposed the CUP Alternative on the ground it would impose “substantial delays and costs without further protection of the

environment.” Consequently, the record contains substantial evidence to support the finding that Oil Associations would not support the CUP Alternative. The next question is whether this lack of support rendered infeasible the CUP Alternative with the mitigation measures proposed for the Ordinance. The County argues the views of all affected parties were considered in crafting the Ordinance and many parties worked together and found common ground so that the Ordinance would balance fairly diverse interests. The County notes the Ordinance was opposed by parties advocating more onerous requirements and by parties seeking more lenient treatment of members of the oil and gas industry. As a result, the County asserts the Ordinance reflects the Board’s legislative decision to strike a compromise between the extreme positions presented. We conclude the record contains sufficient evidence to support the Board’s finding that the lack of support from Oil Associations was among the factors that rendered infeasible the CUP Alternative with the mitigation measures proposed for the Ordinance. Another factor underlying the Board’s finding that the CUP Alternative with the mitigation measures proposed for the Ordinance would be infeasible relates to the objective of implementing a streamlined permitting process, which was intended to promote economic development. We conclude streamlining a permitting process is a legally appropriate objective. (San Diego Citizenry Group v. County of San Diego, supra, 219 Cal.App.4th 1, 18 [core objective of amending zoning ordinance was streamlining the approval process and permitting boutique wineries by right, which would encourage growth of agriculture and the wine industry].) Furthermore, we conclude the Board’s finding that adopting the CUP Alternative would not achieve the streamlining objective is supported by substantial evidence. This evidence includes, without limitation, the forecasts of the volume of permits that the County would need to process under the CUP Alternative and the greater level of attention that type of review would entail.

Chapter 12 also described the conclusions resulting from the change in methodology for modeling health risks: “The results of the cumulative modeling study indicate results of a 9.3 in one million potential cancer risk. This result is less than half of the 20 in one million risk significance threshold established by San Joaquin Valley Air Pollution Control District. This quantitative Cumulative HRA further confirms the earlier qualitative conclusions reached in the EIR.” 5. Board’s Findings Section VII of the Board’s findings addressed whether the EIR needed to be recirculated. The Board did not specifically address the Multi-Well Health Risk Assessment, but found “no documentation produced by, or submitted to, the County and relied on by the County after publication of the Final EIR, including but not limited to the Late Comments described above, identifies any new significant effect; substantial increase in the severity of any environmental effect, or feasible project alternatives that would clearly lessen the environmental effects of the project.” Based on this and other findings, the Board concluded “recirculation of the EIR is not required.” 6. Analysis First, we conclude the Multi-Well Health Risk Assessment qualifies as “information” as that term is defined in Guidelines section 15088.5, subdivision (a) because the assessment includes “additional data” and additional analysis. Second, it constitutes “new” information because the additional data and analysis was not included in the draft EIR or in the County’s responses to comments—that is, Chapter 7 of the final EIR. Based on these two conclusions, the dispositive issue is whether the new information provided by the Multi-Well Health Risk Assessment was “significant.” KG Farms contends the new information meets the relevant significance standard because the draft EIR, as updated by the County’s responses to comments, was inadequate in a way that precluded “meaningful public review and comment.”

other existing uses, such as highways, homes and hospitals; (2) the drilling and production activity must conform to all applicable fire and safety regulations; and (3) the applicant must comply with all required federal, state and county rules and regulations. (Ordinance, § 19.98.060(A), (B), (C).) Section 19.98.060(D) also provides: “The applicant shall demonstrate compliance with all applicable Mitigation Measures as listed in the approved Mitigation Monitoring and Reporting Program (MMRP) for the Revisions of the Zoning Ordinance (C) – 2015.” To summarize, when deciding whether to approve a permit application, the County must determine whether the proposed activity conforms to all applicable fire and safety regulations, complies with all required federal, state and county rules and regulations, and complies with all applicable mitigation measures. These are the determinations the Ordinance has classified as ministerial. 3. Sierra Club’s Request for Declaratory Relief Sierra Club labeled its pleading a “VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF.” The caption referred to Code of Civil Procedure sections 1060, 1085, 1094.5, CEQA, and the Planning and Zoning Law (Gov. Code, § 65000 et seq.). Sierra Club’s prayer for relief requested (1) a writ of mandate to address the CEQA violations alleged and (2) permanent injunctions restraining the approval of permits and other activity under the Ordinance pending full compliance with CEQA, the Guidelines and the Planning and Zoning Law. Sierra Club also sought a judgment declaring the Ordinance “[d]oes not, within in the meaning of CEQA, establish a ministerial, nondiscretionary permitting scheme for approving future oil and gas activities such that the County’s decisions under the Ordinance are exempt from further CEQA review.” On appeal, Sierra Club contends the text of the Ordinance establishes that the County chooses the mitigation measures it believes are applicable to each new permit

application and includes them in its final permit approval letter. Sierra Club refers to provisions stating that, upon issuance of a permit, the approval letter shall include (1) a “list of applicable conditions and mitigation measures”; (2) a determination that the permit falls within the scope of the EIR; and (3) a determination that other state, regional, and local agencies are responsible agencies under CEQA. (Ordinance, §§ 19.98.090(H)(1), 19.98.100(I)(1).) Sierra Club contends the Ordinance does not describe or circumscribe the County’s authority to decide which among the EIR’s 88 mitigation measures apply to a new site. Sierra Club interprets the absence of express language of delineating the County’s authority to mean the County necessarily must deliberate and exercise judgment in deciding to approve a new permit and list the applicable mitigation measures. Consequently, Sierra Club contends the Ordinance incorrectly labels future permit approvals as ministerial and impermissibly seeks to foreclose CEQA review of those approvals. Sierra Club argues declaratory relief is appropriate in the circumstances presented. 4. Declaratory Relief Statute Sierra Club’s request for declaratory relief is governed by Code of Civil Procedure section 1060, which authorizes a superior court to issue a declaratory judgment. “Any person … who desires a declaration of his or her rights or duties with respect to another … may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties.” (Code Civ. Proc., § 1060.) The request for a declaration of rights or duties may be made alone or with other relief and “the court may make a binding declaration of these rights or duties.” (Ibid.) B. Availability of Declaratory Relief Sierra Club’s request for a judgment declaring the Ordinance’s permitting scheme is not ministerial raises questions about (1) whether the approval of permits is

2. Application of Standards for Granting Declaratory Relief Declaratory relief is appropriate when the controversy is “ ‘ “of a character which admits of specific and conclusive relief by judgment within the field of judicial determination, as distinguished from an advisory opinion upon a particular or hypothetical state of facts.” ’ ” (Redwood Coast, supra, 70 Cal.App.4th at p. 968.) In light of this principle and the reference in Code of Civil Procedure section 1060 to “cases of actual controversy,” we consider whether Sierra Club has demonstrated there was an actual controversy that would render declaratory relief appropriate. Sierra Club’s claim for declaratory relief sought to address how the Ordinance would be applied to future permit applications. An “actual controversy” for purposes of Code of Civil Procedure section 1060 includes “a probable future controversy relating to the legal rights and duties of the parties” provided that the controversy is “ripe.” (Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 885 (Sierra).) The ripeness requirement is satisfied when the dispute has reached the point where the facts have sufficiently congealed to allow the court to make an intelligent and useful decision. (Ibid.) Ripeness and the broader “actual controversy” issue are questions of law subject to de novo review. (Ibid.) Here, Sierra Club cites Sierra as a case in which “declaratory relief interpreting zoning ordinance was appropriate when there was no question about how county would implement zoning.” In Sierra, the plaintiff challenged a so-called “ ‘streamlined zoning process’ ” on the ground it did not comport with notice provisions in the Planning and Zoning Law. (Sierra, supra, 158 Cal.App.4th at p. 881.) The dispute about the interpretation of the Planning and Zoning Law arose “in the context of a landowner’s request for a zoning ordinance amendment to remove a prohibition on the subdivision of his land.” (Ibid.) The plaintiff filed a motion for summary judgment requesting declaratory relief that the Planning and Zoning Law required the county to give 10 days’ notice of a public hearing on zoning matters after it had received the planning

commission’s recommendation. The trial court determined the issue was ripe for review and granted summary judgment based on its interpretation that the Planning and Zoning Law required the notice of hearing on a proposed zoning change be given after the planning commission had issued its recommendation. (Id. at pp. 883–884.) The Third District upheld the summary judgment and issuance of declaratory relief. (Id. at p. 884.) In Sierra, the appellate court considered whether there was an actual controversy between the parties on the question of whether the streamlined zoning process established by the ordinance violated the Planning and Zoning Law. (Sierra, supra, 158 Cal.App.4th at p. 886.) The court distinguished a Supreme Court case that held a facial challenge to guidelines adopted by the California Coastal Commission relating to beach access was not a ripe controversy, stating “we do not have to guess how the county will interpret and carry out the notice provisions in [the statute].” (Id. at pp. 886–887, discussing Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158.) No guessing was required in Sierra because the streamlined zoning process actually had been applied to a request by a landowner for a zoning amendment. In contrast to the circumstances presented in Sierra, we must guess (1) what future permit applications will contain and (2) how the County will apply the various mitigation measures incorporated into the Ordinance to those applications. Accordingly, we conclude the request for declaratory relief does not present an “actual controversy” within the meaning of Code of Civil Procedure section 1060. How particular mitigation measures will be applied to a permit application cannot be determined on the face of the Ordinance and the mitigation measures. As a result, we are not presented with a purely legal question. (See Farm Sanctuary, Inc. v. Department of Food & Agriculture (1998) 63 Cal.App.4th 495, 502 [whether regulation allowing ritualistic slaughter of poultry was invalid on its face due to inconsistency with California’s Human Slaughter Law presented a purely legal question and was ripe for decision].)

fails to consider whether the magnitude of changes in noise levels is significant. Fifth, when a revised EIR correcting the foregoing CEQA violations is circulated, it must include the Multi-Well Health Risk Assessment and subject that assessment to public review and comment. B. Judicial Remedies Provided in Section 21168.9 Section 21168.9 governs the judicial remedies for CEQA violations. (POET I, supra, 218 Cal.App.4th at p. 756.) The statute requires the courts to issue a peremptory writ of mandate to remedy each failure to comply with CEQA. (Ibid.; see § 21168.9, subd. (b).) Section 21168.9 provides that the writ of mandate may direct “the determination, finding, or decision be voided by the public agency, in whole or in part” (§ 21168.9, subd. (a)(1)) and, when certain conditions exist, may direct the public agency and real parties in interest to “suspend any or all specific project activity or activities.” (§ 21168.9, subd. (a)(2).) The phrases “in whole or in part” and “any or all” allows some parts of the approvals and the project to be severed from other parts with only the severed parts being invalidated or suspended. (POET, LLC v. State Air Resources Bd. (2017) 12 Cal.App.5th 52, 91 (POET II).) Courts must consider severance. “Any order pursuant to subdivision (a) shall include only those mandates which are necessary to achieve compliance with [CEQA] and only those specific project activities in noncompliance with [CEQA].” (§ 21168.9, subd. (b), italics added.) However, a suspension limited to noncompliant project activities is allowed “only if a court finds that (1) the portion or specific project activity or activities are severable, (2) severance will not prejudice complete and full compliance with [CEQA], and (3) the court has not found the remainder of the project to be in noncompliance with [CEQA].” (§ 21168.9, subd. (b).) “In most cases, when a court finds that an agency has violated CEQA in approving a project, it issues a writ of mandate requiring the agency to set aside its CEQA

King and Gardiner Farms, LLC v. County of Kern

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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