United States of America
In this case the Court considered an environmental review process which commenced in 2002. During the course of that process the developers of a residential real estate project prepared an environmental impact report (EIR) which was certified by a county board of supervisors in 2003. The EIR was challenged in a prior writ proceeding and as a result of the challenge a writ was issued compelling the county and the developers to prepare a supplemental EIR (SEIR) which more thoroughly considered the impact of the project on water quality. The SEIR was circulated and certified in 2007. The appellants contend that in this second proceeding under the California Environmental Quality Act (CEQA) they had the right to challenge the developers' and the county's compliance with the prior writ compelling them to prepare and circulate the SEIR which considered the impact of the project on water quality. The Court rejected this contention. An order discharging the earlier writ and determining the 2007 SEIR properly evaluated whether the project's impact on water quality was otherwise adequate was entered in the prior proceeding and became final during the pendency of the instant action. The Draft Supplemental EIR disclosed the presence of the endangered arroyo toad 1.5 miles from the project, but concluded that the project site was not suitable toad habitat, and therefore the project would not have a significant impact on the species. After circulation of the supplemental EIR, a biologist discovered toad larvae a mere 330 feet from the project site. Based on this new information, a U.S. Fish and Wildlife Service biologist concluded that there "was a high likelihood the arroyo toad was present" on the project site. The project proponent's biologist, however, concluded that the new information did not support a conclusion that the toad was present on the project site because the site still provided no suitable toad habitat. The Final Supplemental EIR noted the new observation of toads, but the county did not recirculate the Supplemental EIR before certifying it. In rejecting the demand for another round of review, the two-member majority emphasized the legislative intent (reflected in sections 21092.1 and 21166 of CEQA) to limit "endless rounds of revision and recirculation of EIRs" and that "[r]ecirculation is intended to be the exception, rather than the general rule". The majority reasoned that the public had, in fact, already commented on the potential indirect impacts of the project on toads that the commenters claimed were present, but unobserved, in the immediate vicinity of the project site at the time the 2003 draft EIR was circulated. Thus, the observation of toads within 330 feet of the project site did not constitute new information of "substantial importance" because it merely amplified arguments made with respect to the 2003 EIR.