Filed 5/27/14




                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIFTH APPELLATE DISTRICT

SIERRA CLUB et al.,
                                                                 F066798
   Plaintiffs and Appellants,
                                                     (Super. Ct. Nos. 11CECG00726,
   v.                                                11CECG00706, 11CECG00709)

COUNTY OF FRESNO et al.,
                                                               OPINION
   Defendants and Respondents;

FRIANT RANCH, L.P.,

   Real Party in Interest.



        APPEAL from a judgment of the Superior Court of Fresno County. Rosendo
Pena, Jr., Judge.
        Law Office of Sara Hedgpeth-Harris and Sara Hedgpeth-Harris for Plaintiffs and
Appellants.
        Kevin B. Briggs, County Counsel, Bruce B. Johnson, Deputy County Counsel, for
Defendants and Respondents.
        Remy Moose Manley, James G. Moose, Tiffany K. Wright and Laura M. Harris
for Real Party in Interest.
                                        -ooOoo-
                                    INTRODUCTION
       In February 2011, the County of Fresno (County) approved the Friant Ranch
project, a proposed master-planned community for persons age 55 or older located in
north-central Fresno County (the Project). The Project is located on 942 acres of
unirrigated grazing land adjacent to the unincorporated community of Friant, below
Friant Dam and Millerton Lake, near the San Joaquin River.
       This appeal argues that (1) the Project was inconsistent with land use and traffic
policies in County’s general plan and (2) the environmental impact report (EIR) for the
Project failed to comply with the California Environmental Quality Act (CEQA).1 The
CEQA claims challenge the adequacy of the EIR’s discussion of certain issues involving
(1) treated effluent from the proposed wastewater treatment facilities and (2) air quality
impacts.
       As to the claims of general plan inconsistency, we conclude that the Project is not
inconsistent with the land use element, since the agricultural use designation was
properly changed by amendment, thereby avoiding an inconsistency, and the issues
regarding traffic policy TR-A.2 were not exhausted during the administrative process.
       We conclude the CEQA claims involving wastewater disposal lack merit because
the amount and location of wastewater use and disposal and the hydrogeology of the site
ultimately chosen for the wastewater treatment plant were addressed in sufficient detail
during the environmental review process.
       As to the CEQA claims involving air quality, we conclude that (1) the EIR was
inadequate because it failed to include an analysis that correlated the project’s emission
of air pollutants to its impact on human health; (2) the mitigation measures for the
project’s long-term air quality impacts violate CEQA because they are vague,


1       Public Resources Code, section 21000 et seq. All further statutory references are
to the Public Resources Code unless otherwise indicated.


                                             2.
unenforceable and lack specific performance criteria; and (3) the statement that the air
quality mitigation provisions will substantially reduce air quality impacts is unexplained
and unsupported. These defects must be cured by the preparation of a revised EIR.
       We therefore reverse the judgment.
                                           FACTS
Parties
       Plaintiffs Sierra Club, League of Women Voters of Fresno, and Revive the San
Joaquin (collectively, plaintiffs) alleged that they are nonprofit organizations concerned
with protecting the environment, public participation in the political process, and
protection and restoration of the San Joaquin River, respectively.
       County is the local governmental entity that acted as the lead agency in the
preparation of the EIR for the Project and, through its board of supervisors, issued
approvals necessary for the Project. Real party in interest Friant Ranch, L.P. is the
Project proponent. This opinion refers to County and Friant Ranch, L.P. collectively as
“defendants.”
The Project
       The Project proposes the development of the Central Valley’s first master planned
retirement community for “active adults” (age 55 and older) on a 942-acre site in north
central Fresno County, just south of the San Joaquin River. The development includes
single- and multi-family residential units that are age restricted, some residential units
that are not age restricted, a commercial village center, a recreation center, trails, open
space, and parks and parkways.
       County approved Alternative 3 of the Project, which includes the construction of
approximately 2,500 residential units and 250,000 square feet of commercial space on




                                              3.
482 acres and the dedication of 460 acres to open space.2 The Project’s construction is
divided into five phases with an estimated 10-year build-out.
       The residential and commercial growth envisioned by the Project will require
additional wastewater treatment capacity. The hydrogeology of the site proposed for the
new wastewater treatment facilities, the concerns about the amount and location of the
storage, and the application of the facilities’ treated effluent, are the subject of the CEQA
claims raised in this appeal.
       The initial proposal for the Project placed new wastewater treatment facilities
adjacent to a small existing plant in the Friant Ranch Specific Plan area and indicated that
treated effluent might be discharged from the new plant into the San Joaquin River during
winter months, when demand for irrigation was low.3 County rejected this site and found
that the alternative site for the new wastewater treatment and disposal facilities on land
known as the “Beck Property” was environmentally superior. The Beck Property is
approximately 145 acres located west of Friant Road and south and east of Lost Lake
Park. The site was used by a gravel extraction operation and presently contains highly
disturbed agricultural land and an aggregate mining quarry. The quarry will be used to
create an effluent pond that is capable of storing treated effluent year-round.
Governmental Approvals
       In October 2007, County distributed a notice of preparation regarding the draft
EIR for the Project. Two years later, the draft EIR was released. The 45-day period for
the public to submit comments on the draft EIR and the Project ended on December 15,


2     As initially proposed, the project planned for the development of 667 acres (as
opposed to 482 acres) and the construction of 2,996 residences.
3      The version of the Friant Ranch Specific Plan approved by County’s board of
supervisors eliminated the possibility of discharging the treated effluent into the river and
inserted the following: “No discharge of wastewater into the San Joaquin River from the
wastewater treatment plant will occur.”


                                             4.
2009. The final EIR, which included the comments presented and County’s responses,
was released in August 2010.
       On February 1, 2011, County’s board of supervisors approved the Project by
adopting resolution No. 11-031, which certified the final EIR and approved General Plan
Amendment No. 511, which updated the Friant Community Plan (a component of the
Fresno County General Plan) and authorized the proposed Friant Ranch Specific Plan.
The update to the Friant Community Plan expanded the area covered from the existing
unincorporated community of Friant to include the proposed development—that is, the
area covered by the Friant Ranch Specific Plan. One controversy generated by the board
of supervisors’ approval of the Project and general plan amendment relates to the
redesignation of land in the Project area from agricultural use to commercial, residential,
public facility, and open space uses and whether that redesignation was consistent with
the general plan’s policy of preserving valuable agricultural land. General Plan
Amendment No. 511 did not change any of the land use goals and policies set forth in the
general plan.
       Other County action required for the Project includes amending the Friant
Redevelopment Plan, changing zoning, and entering into a development agreement for
the project. The final EIR states that County will consider issuing conditional use
permits for the wastewater treatment plant and related use of treated wastewater for
irrigation of Lost Lake Park and other disposal sites.
       This appeal concerns primarily the approvals issued by County because County
(1) acted as the lead agency for the CEQA review and (2) approved aspects of the Project
that plaintiffs contend are inconsistent with County’s general plan. Nevertheless, the
Project cannot be completed without approvals from other state and federal agencies.
       One such state agency involved in approving the Project is the Central Valley
Regional Water Quality Control Board. The final EIR states that the Project will require
the Water Quality Control Board to adopt waste discharge and water reclamation

                                             5.
requirements for land disposal of treated effluent, adopt a National Pollutant Discharge
Elimination System (NPDES)4 permit for any discharge of treated effluent to the San
Joaquin River, issue a Clean Water Act section 401 certification, and take other action.
       In addition, the San Joaquin Valley Air Pollution Control District (Air District)
might review certain aspects of the Project. The final EIR states that the proposed Project
might require the Air District to (a) process an air permit application for the wastewater
treatment plant, (b) process an air impact assessment, (c) issue a dust control permit, and
(d) take appropriate action to ensure compliance with Air District’s Rule 9510.
Contents of EIR
       The draft EIR states that the Friant Ranch Specific Plan area was being used for
cattle grazing and the Project did not propose to convert to nonagricultural uses any (1)
prime farmland, (2) farmland of statewide importance, or (3) land designated unique
farmland. Also, no land within the Project area is subject to a Williams Act contract or a
Farmland Security Zone contract. Based on these facts, the draft EIR stated that the
growth proposed by the Project was being directed to “an area that does not include
valuable agricultural land.” Accordingly, the draft EIR concluded that the Project was
consistent with County’s land use policies designed to protect agricultural resources in
Fresno County.
       The majority of the land in the Friant Ranch Specific Plan area was designated
“Agriculture” by County’s general plan. Similarly, most of the land was zoned
“Exclusive Agriculture (AE-20 and AE-40).” The remainder was zoned for trailer parks
(about 35 acres), commercial uses (about 4 acres) or residential (about 2.5 acres). As a



4      The NPDES is part of the federal Clean Water Act, title 33 United States Code
section 1251, et seq., and sets forth the conditions under which a state with an approved
water quality control program may issue permits for the discharge of pollutants in
wastewater. (33 U.S.C. § 1342(b).)


                                             6.
result of County’s approval of the Project, the land previously designated for agriculture
was redesignated for commercial, residential, public facility and open space use.
       The EIR discusses the disposal of effluent resulting from the treatment of
wastewater at the proposed wastewater treatment plant. The discussion of wastewater
issues relevant to this appeal is described later in this opinion. (See part III.A, post.)
Similarly, matters relevant to plaintiffs’ claims that the EIR’s analysis of air quality
impacts was inadequate and the mitigation measures are flawed are also set forth below.
(See part IV.A, post.)
                                      PROCEEDINGS
       Following the Board of Supervisor’s approval of the Project, County filed a notice
of determination for the Project on February 3, 2011, which triggered the 30-day statute
of limitations for bringing a CEQA claim. (§ 21167, subd. (c); Guidelines, § 15112,
subd. (c)(1).)5
       Plaintiffs’ petition for writ of mandate and complaint challenges County’s
approval of the Project and certification of the final EIR and alleged violations of CEQA
and the Planning and Zoning Law requirement that land use decisions be consistent with
the applicable general plan.
       After extensive briefing by the parties, a hearing on the merits was held on
September 21, 2012. On December 14, 2012, the trial court delivered its ruling from the
bench, denying all of the claims and entering judgment in favor of defendants.
       In February 2013, plaintiffs filed a notice of appeal from the judgment entered
against them.




5      The term “Guidelines” refers to the regulations that implement CEQA and are
codified in California Code of Regulations, title 14, section 15000 et seq.


                                              7.
                                      DISCUSSION
I.     PROJECT’S CONSISTENCY WITH GENERAL PLAN
       California’s Planning and Zoning Law requires County’s specific plans, zoning
ordinances, subdivision map approvals and other land use or development actions to be
consistent with County’s general plan. (Gov. Code, §§ 65454 [specific plans], 65860
[zoning ordinances] & 66473.5 [subdivision maps].)
       A.       Standard of Review
       A local governing body’s determination that a project is consistent with a general
plan is subject to judicial review under the abuse of discretion standard. (Families
Unafraid to Uphold Rural etc. County v. Board of Supervisors (1998) 62 Cal.App.4th
1332, 1338 (FUTURE).) An abuse of discretion is established if the governing body did
not proceed as required by law, made a determination that was not supported by findings,
or made findings of fact that were not supported by substantial evidence. (Ibid.) A
finding of fact related to general plan consistency is not supported by substantial
evidence if, based on the evidence before the local governing body, a reasonable person
could not have reached the same conclusion. (Ibid.)
       Defendants argue that the deferential arbitrary and capricious standard of review
should be applied to County’s determination that the project was consistent with the
general plan.
       We believe that the arbitrary and capricious standard and the abuse of discretion
standard are the same in substance. (Endangered Habitats League, Inc. v. County of
Orange (2005) 131 Cal.App.4th 777, 782, fn. 3; cf. Haraguchi v. Superior Court (2008)
43 Cal.4th 706, 711-712 [the abuse of discretion standard of review, in the context of a
motion to recuse a prosecutor, uses an arbitrary and capricious test for the application of
the law to the facts].) Because this court used the abuse of discretion standard in
Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683,



                                             8.
at page 706, we will proceed in this appeal using that formulation of the standard of
review.
       When the particular issue presented on appeal involves the interpretation of an
ambiguous provision of a general plan, appellate courts defer to the local government’s
resolution of that ambiguity so long as the interpretation adopted is reasonable. (Save
Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th
99, 142.) In other words, the local government may adopt any reasonable interpretation;
it is not required to select the most likely interpretation out of the range of possible
reasonable interpretations.
       Lastly, appellate courts review the local government’s consistency determination,
not the decision of the trial court. Consequently, our review is independent of the trial
court’s decision. (See California Native Plant Society v. City of Rancho Cordova (2009)
172 Cal.App.4th 603, 637 [question on appeal is same question presented to trial court].)
       B.     General Plan Land Use Policy LU-A.1
       The agriculture and land use element of County’s general plan states that its goal
regarding agriculture is to promote the long-term conservation of productive and
potentially productive agricultural lands and to accommodate agriculturally related
activities and support services. To achieve this goal, the general plan lists 21 policies.
The first is land use policy LU-A.1 (County Ag Use Policy), which states:

       “The County shall maintain agriculturally-designated areas for agriculture
       use and shall direct urban growth away from valuable agricultural lands to
       cities, unincorporated communities, and other areas planned for such
       development where public facilities and infrastructure are available.”
       The parties disagree about the meaning of the County Ag Use Policy and whether
County violated the policy when it approved the project. We conclude that County
interpreted the policy in a reasonable manner when it determined agricultural land use
designations could be changed by amendment and a project is consistent with the County
Ag Use Policy if some public facilities and infrastructure are available in the Project area.

                                              9.
              1.     Plaintiffs’ Contentions
       Plaintiffs’ argument that the Project is inconsistent with the County Ag Use Policy
begins with the contention that the policy is fundamental, mandatory and unambiguous.
Plaintiffs interpret the mandatory language of the policy to mean that County is
prohibited from changing the designation of land that has been designated for agriculture.
Based on this interpretation, plaintiffs conclude that the project is inconsistent with the
County Ag Use Policy because the Project included the redesignation and rezoning of an
agricultural area to allow for intensive urban use.
       Plaintiffs also contend that the Project is inconsistent with the County Ag Use
Policy because the Project is located in an area where public facilities and infrastructure
are not available.
              2.     Defendants’ Contentions
       As to the interpretation of the County Ag Use Policy, defendants contend it does
not prohibit changes in land use designations that are accomplished by amendments to
the general plan. Defendants support this contention by arguing it is unreasonable to
interpret the policy to mean that land designated “Agriculture” must retain that
designation in perpetuity.
       Defendants also contend that the project is consistent with the County Ag Use
Policy because (1) it protects valuable agricultural land by directing growth to less
productive grazing land and (2) it directs growth to the existing community of Friant and
ensures appropriate improvement and expansion of public facilities there.
       C.     Changing Land Use Designations
       The first disagreement over the proper interpretation of the County Ag Use Policy
centers on the phrase “shall maintain agriculturally-designated areas for agricultural
use .…” This phrase is not interpreted in isolation. Consequently, we will discuss other
provisions in the general plan that may shed light on its meaning.



                                             10.
              1.     Other Provisions in General Plan
       Plaintiffs support their view that County is prohibited from redesignating
agriculturally designated areas to other uses by referring to the general plan’s (1)
definition of “policy” as a “[s]pecific statement guiding action and implying clear
commitment” and (2) statement that the “use of the word[s] ‘shall’ in a policy is an
unequivocal directive .…” Because the general plan does not define the word
“maintain,” plaintiffs cite a dictionary that defines “maintain” to mean (1) to cause
something to exist or continue without changing or (2) to keep in an existing state.
       Defendants argue that the “shall maintain” language in the County Ag Use Policy
does not prohibit general plan amendments that change the designation of land that had
been designated “Agriculture.” Defendants refer to the provision in the general plan that
authorizes amendments and County’s history of adopting amendments that change land
use designation. Defendants also quote three other agriculture policies (LU-H.8, LU-
F.39 and LU-A.14) as evidence that the general plan recognized situations could arise
where the redesignation of agricultural land is necessary.
       Amendments to the general plan are addressed in the introduction under the
heading “REVISING AND AMENDING THE GENERAL PLAN.” The first paragraph
under the heading states that the general plan “must be flexible enough to respond to
changing conditions and at the same time specific enough to provide predictability and
consistency in guiding day-to-day land use and development decisions. Over the years,
conditions and community needs change and new opportunities arise; the plan needs to
keep up with these changes and new opportunities.” After mentioning two types of
periodic review of the general plan, the paragraph concludes:

       “From time to time, the County will be asked to consider proposals for
       specific amendments to the plan. The County will initiate some of these
       proposals itself, but most will be initiated by private property owners and
       developers. Most general plan amendments involve changes in land use
       designations for individual parcels.”


                                             11.
              2.     Analysis of General Plan’s Provisions
       The starting point for our examination of the meaning of the general plan is similar
to the analysis used for statutes, contracts and other instruments. The first question is
whether the provision in question is ambiguous. (E.g., Winet v. Price (1992) 4
Cal.App.4th 1159, 1165 [the existence of contractual ambiguity is a threshold question to
the determination of meaning]; Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1494-
1496 [initial examination of statute concerns whether statute is ambiguous].) Generally,
whether language is ambiguous (i.e., susceptible to more than one reasonable
interpretation) presents a question of law. (Winet v. Price, supra, at p. 1165.)
       Where a provision of the general plan is ambiguous, the next and final question is
whether the local governing body adopted a reasonable interpretation when it resolved
that ambiguity. (No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 244
[addressing whether city council’s interpretation of ambiguous term in general plan was
arbitrary, capricious or entirely lacking in evidentiary support].)
       We conclude that the statement in the County Ag Use Policy that “County shall
maintain agriculturally-designated areas for agricultural use” is ambiguous as to whether
County may amend the general plan and change the designation of land that had been
designated “Agriculture.” It is possible to interpret this language to mean that County
may not ever change the agricultural designations made by the general plan.
Alternatively, it is possible to interpret the language to mean, simply, that County shall
allow only agriculture uses on land that is designated “Agriculture.” Under this latter
interpretation, the language does not address the subject of changing land use
designations—it deals only with the designation that exists at the time in question.
       The general plan’s statement that “[m]ost general plan amendments involve
changes in land use designations for individual parcels” clearly indicates that land use
designations are not locked in forever. This reference to “land use designations” is broad
and, because there is no limiting language, it is reasonable to interpret it as covering all

                                             12.
types of land use designations, including the designation “Agriculture.” Therefore,
General Plan Amendment No. 511, which changed the land use designation of the parcels
in the Project area, is a type of general plan amendment authorized by the express
language of the general plan.
       In summary, County’s interpretation of the County Ag Use Policy and the other
provision of the general plan to allow general plan amendments that change a land use
designation from “Agriculture” to another use was one of the interpretations to which the
general plan was reasonably susceptible. Therefore, County did not abuse its discretion
in adopting that interpretation.
       D.     Available Public Facilities and Infrastructure
       The second dispute over the proper interpretation and application of the County
Ag Use Policy relates to the provision that County “shall direct urban growth [to areas]
where public facilities and infrastructure are available.” Plaintiffs cite the EIR’s
statement that the project is consistent with the County Ag Use Policy “in that growth is
being directed in an area that does not include valuable agricultural land and where public
facilities and infrastructure are available or can be expanded.” (Italics added.) In
plaintiffs’ view, the italicized language does not appear in the policy itself and
demonstrates that the project is inconsistent with the wording of the County Ag Use
Policy.
       Defendants argue that plaintiffs’ interpretation of that policy is not reasonable
because it effectively limits growth to areas where the necessary public facilities and
infrastructure are in existence and excludes growth in areas where only some public
facilities and infrastructure are available.
       We conclude that that County reasonably interpreted the County Ag Use Policy to
mean that County could direct growth to an area where an expansion of existing facilities
and the development of new facilities was required. County’s interpretation is supported
by policy PF-A.1, which provides:

                                               13.
       “The County shall ensure through the development review process that
       public facilities and services will be developed, operational, and available
       to serve new development. The County shall not approve new development
       where existing facilities are inadequate unless the applicant can
       demonstrate that all necessary public facilities will be installed or
       adequately financed and maintained (through fees or other means).”
       (Italics added.)6
       The foregoing policy clearly indicates that new development can be approved in
an area where the public facilities need to be expanded. Therefore, County did not abuse
its discretion when it interpreted the County Ag Use Policy to mean that growth was
allowed in areas that needed to expand public facilities and infrastructure.
       E.     Traffic Policy Addressing Levels of Service
              1.     General Plan Provisions
       The general plan’s “Transportation and Circulation Element” addresses various
modes of transportation and their related facilities, including streets and highways. Goal
TR-A is to “plan and provide a unified, coordinated, and cost-efficient countywide street
and highway system that ensures the safe, orderly, and efficient movement of people and
goods.” Policy TR-A.1 addresses standards used in the planning and construction of
streets and roads. Policy TR-A.2 (LOS Policy) provides in full:

       “The County shall plan and design its roadway system in a manner that
       strives to meet Level of Service (LOS) D on urban roadways within the
       spheres of influence of the cities of Fresno and Clovis and LOS C on all
       other roadways in the county.

       “Roadway improvements to increase capacity and maintain LOS standards
       should be planned and programmed based on consideration of the total
       overall needs of the roadway system, recognizing the priority of
       maintenance, rehabilitation, and operation of the existing road system.




6     This policy is part of the “Public Facilities and Services Element” of the general
plan. Goal PF-A is to “ensure the timely development of public facilities and to maintain
an adequate level of service to meet the needs of existing and future development.”


                                            14.
       “The County may, in programming capacity-increasing projects, allow
       exceptions to the level of service standards in this policy where it finds that
       the improvements or other measures required to achieve the LOS policy are
       unacceptable based on established criteria. In addition to consideration of
       the total overall needs of the roadway system, the County shall consider the
       following factors:

       “a. The right-of-way needs and the physical impacts on surrounding
       properties;

       “b. Construction and right-of-way acquisition costs;

       “c. The number of hours that the roadway would operate at conditions
       below the standard;

       “d. The ability of the required improvement to significantly reduce delay
       and improve traffic operations; and

       “e. Environmental impacts upon which the County may base findings to
       allow an exceedance of the standards.

       “In no case should the County plan for worse than LOS D on rural County
       roadways, worse than LOS E on urban roadways within the spheres of
       influence of the cities of Fresno and Clovis, or in cooperation with Caltrans
       and the Council of Fresno County Governments, plan for worse than LOS
       E on State highways in the county.” (Italics added.)
       The first paragraph of the LOS Policy uses the word “shall” and the last paragraph
uses the word “should.” The general plan contrasts the meaning of “should” with the
unequivocal directive “shall” by stating that “the word ‘should’ is a less rigid directive
that will be honored in the absence of compelling and countervailing considerations.”
              2.      Contentions of the Parties
       Plaintiffs contend that the project is inconsistent with the general plan’s LOS
Policy because it plans for roadways and intersections operating at worse than acceptable
levels of service.7
7      “‘Level of service’ is a way of describing relative traffic congestion on a roadway
segment or intersection. LOS is stated as a letter grade ranging from A through F, with A
being the best.” (Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th
807, 820, fn.5.)


                                             15.
        Defendants disagree with this claim of inconsistency and also argue that plaintiffs
are barred by Government Code section 65009, subdivision (b)(1) from pursuing the
claim because they did not exhaust their administrative remedies on the issue.
        Plaintiffs’ reply brief addresses exhaustion by contending the claim that the
project’s contribution to unacceptable levels of service on numerous county roadways
and intersections is inconsistent with the LOS Policy raised during the administrative
proceedings. Plaintiffs support their position by citing a single document—the December
15, 2009, letter in which the City of Fresno set forth its comments to the draft EIR. The
contents of the letter, which are crucial to the exhaustion issue, are described in part I.E.4,
post.
               3.     Legal Principles Governing Exhaustion
        The exhaustion of administrative remedies is required by Government Code
section 65009, which provides in relevant part:

        “(b)(1) In an action or proceeding to attack, review, set aside, void, or annul
        a finding, determination, or decision of a public agency made pursuant to
        this title at a properly noticed public hearing, the issues raised shall be
        limited to those raised in the public hearing or in written correspondence
        delivered to the public agency prior to, or at, the public hearing .…”
        The reference to “this title” means title 7 of the Government Code, which “title
may be cited as the Planning and Zoning Law.” (Gov. Code, § 65000.) Government
Code section 65009, subdivision (b)(1) uses mandatory language that states “the issues
raised [in an action] shall be limited to those raised” administratively. (See Gov. Code, §
14 [“[s]hall” is mandatory].) As a result, judicial enforcement of the exhaustion
requirement is not discretionary. Instead, exhaustion is “a jurisdictional prerequisite to
judicial action challenging a planning decision. [Citations.]” (Friends of Lagoon Valley
v. City of Vacaville, supra, 154 Cal.App.4th at p. 831.)
        The purpose of Government Code section 65009, which also includes a 90-day
statute of limitations, “is to provide certainty for property owners and local governments


                                             16.
regarding decisions made pursuant to this division.” (Gov. Code, § 65009, subd. (a)(3).)
Certainty is increased by the exhaustion requirement because it prevents administrative
agencies from being surprised in court and provides them an opportunity to address
issues and make any necessary findings or changes before the issue is subject to judicial
review. (Friends of Lagoon Valley v. City of Vacaville, supra, 154 Cal.App.4th at p.
831.) The exhaustion requirement also lightens the burden on the court system by
encouraging the development of a complete record before the administrative agency and
allowing the agency to exercise its expertise on the issues raised. (Evans v. City of San
Jose (2005) 128 Cal.App.4th 1123, 1137.)
       The petitioner has the burden of proving an issue was exhausted. (North Coast
Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th
614, 624.) Whether exhaustion occurred is usually deemed a question of law. (Ibid.) As
a result, appellate courts conduct an independent (i.e. de novo) review when evaluating
whether an issue was raised at the administrative level. (Ibid.)
       In the instant case, the primary legal question regarding exhaustion is whether the
objections submitted to County during the administrative process were sufficiently
specific to raise the issue of the project’s alleged inconsistency with the LOS Policy.
       Courts usually begin discussing the specificity required by referring to the
rationale underlying the exhaustion doctrine. In Porterville Citizens for Responsible
Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, we stated that
the objections must be sufficiently specific so that the agency has the opportunity to
evaluate and respond to them. (Id. at p. 909.) Similarly, in Coalition for Student Action
v. City of Fullerton (1984) 153 Cal.App.3d 1194, the Fourth Appellate District stated:
“The essence of the exhaustion doctrine is the public agency’s opportunity to receive and
respond to articulated factual issues and legal theories before its actions are subject to
judicial review. The doctrine is not satisfied by a relatively few bland and general
references ….” (Id. at p. 1198; cf. Sierra Club v. City of Orange (2008) 163 Cal.App.4th

                                             17.
523, 535-536 [isolated and unelaborated comments will not suffice; nor will general
objections to project approval].)
           Some courts have adopted statements that suggest a relatively high degree of
specificity is required. For example, in Mani Brothers Real Estate Group v. City of Los
Angeles (2007) 153 Cal.App.4th 1385, the Second Appellate District stated: “The ‘exact
issue’ must have been presented to the administrative agency to satisfy the exhaustion
requirement. [Citation.]” (Id. at p. 1394.) The rationale given for the “exact issue”
standard is that requiring less would enable litigants to narrow, obscure or even omit
arguments before the final administrative authority in the hope a trial court would reach a
more favorable decision. (North Coast Rivers Alliance v. Marin Municipal Water Dist.
Bd. of Directors, supra, 216 Cal.App.4th at p. 623.)
           Other appellate decisions set forth principles regarding specificity that appear
more moderate. For example, we have stated that less specificity is required to preserve
an issue in an administrative proceeding than to preserve an issue for appeal in a judicial
proceeding because citizens are not expected to bring legal expertise to the administrative
proceeding. (Woodward Park Homeowners Assn., Inc. v. City of Fresno, supra, 150
Cal.App.4th at p. 712.)
                  4.     Comments Presented During Administrative Process
           Plaintiffs attempt to prove exhaustion of the claim that the project is inconsistent
with the general plan’s LOS Policy by referring to language in the 26-page comment
letter the city manager of the City of Fresno submitted on the draft EIR. We will discuss
the portions of that letter that address (1) inconsistencies with the general plan and (2)
traffic.
           The letter contains six paragraphs of comments under the heading “Chapter 3.9
Land Use and Planning.” The first sentence of the comments states the objection in
broad terms: “The Project presents fundamental inconsistencies with the land use and
planning policies in the County of Fresno General Plan and the General Plans of

                                                 18.
surrounding cities.” The letter then describes alleged inconsistencies in more detail,
which include (1) the project’s development of intense urban uses on agricultural land
and (2) the failure to direct urban development to areas with existing services that support
development. None of the inconsistencies raised in this portion of the letter mention
“roadways,” “roads,” “streets,” “highways,” “intersections,” “levels of service,” or
“traffic.” Furthermore, this portion of the letter makes no reference to transportation
policies in general or to the LOS Policy in particular.
       The City of Fresno’s comments to “Chapter 3.13 Transportation/Traffic” of the
draft EIR are set forth at pages 14 through 21 of the letter. The first and third paragraph
of that discussion states:

       “The EIRs traffic and transportation impacts analysis, and Appendix D
       (Traffic Impact Study, or TIS) is inadequate in many respects.

       “[¶] … [¶]

       “Appendix D indentifies Friant Road and Willow Avenue as the major
       routes providing access to the Project site. Yet the EIR identifies multiple
       road segments and intersections on both Friant Road and Willow Avenue
       as operating at unacceptable levels of service either now or by 2030.
       Furthermore, the EIR concludes that no mitigation can feasibly result in
       either of these two major access routes operating at acceptable levels of
       service. Yet the EIR’s traffic analysis concludes that development under
       the Friant Ranch Specific Plan, on property served by these two
       unacceptably impeded roadways will have absolutely ‘no impact’ to
       emergency services access. The EIR … must explain how it determines
       that access for necessary medical services will not be significantly affected
       by the unacceptable traffic conditions on Friant Road and Willow Avenue.”
       The italicized language was quoted in plaintiffs’ reply brief to support their
position that the issue regarding the project’s inconsistency with the LOS Policy was
presented to County during the administrative proceedings and, as a result, the
administrative remedies were exhausted.




                                             19.
              5.     Application of Exhaustion Requirement
       Our analysis of whether the contents of the letter satisfy the exhaustion
requirement starts from the perspective of what the letter omits and what it contains.
       First, the portion of the letter cited by plaintiffs, omits any mention of (1) the
general plan, (2) the requirement for consistency with the general plan, or (3) any
statutory provision that requires consistency with the general plan (e.g., Gov. Code, §
65454).8 In addition, the letter does not cite the LOS Policy or reference the text of that
policy, either verbatim or in a summarized form.
       Second, the portion of the letter cited by plaintiffs includes the factual assertion,
which is accurate, that “the EIR identifies multiple road segments and intersections on
both Friant Road and Willow Avenue as operating at unacceptable levels of service .…”
This factual assertion appears to provide part of the foundation for the objection the City
of Fresno set forth in the last sentence of the paragraph. That objection states: “The EIR
… must explain how it determines that access for necessary [i.e., emergency] medical




8      This court has concluded that it is possible to exhaust a claim—that is, apprise the
agency of the relevant facts and issues—without identifying the precise statute at issue.
(Building Industry Assn. of Central California v. County of Stanislaus (2010) 190
Cal.App.4th 582, 597-598 (BIA); accord, McPherson v. City of Manhattan Beach (2000)
78 Cal.App.4th 1252, 1264.)
        In BIA, supra, 190 Cal.App.4th 582, the petitioner’s administrative challenge to a
farmland mitigation program added to a county’s general plan included the contention
that the county did not have the authority to require involuntary agricultural conservation
easements. (Id. at p. 597.) The petitioner did not refer to Civil Code section 815.3,
subdivision (b)—the statute that prohibited conditioning the issuance of a land use
entitlement on the granting of such an easement. (BIA, supra, at p. 597.) In BIA, we
concluded the exhaustion requirement was satisfied because the petitioner’s challenge at
the administrative level adequately raised the issue concerning the county’s authority to
require such easements. (Id. at p. 598.) Therefore, in the instant appeal, the omission of
the statutory provision containing the consistency requirement from the City of Fresno’s
comment letter does not resolve the exhaustion question presented.


                                             20.
services will not be significantly affected by the unacceptable traffic conditions on Friant
Road and Willow Avenue.”
       The paragraph that includes the language quoted by plaintiffs to prove exhaustion
stands in contrast to other portions of the letter that (1) explicitly mention the general
plan, (2) articulate an allegation of inconsistency and (3) refer to the requirements of the
policy in question. As discussed earlier, the section of the letter that addresses land use
and planning makes the broad assertion that the project presents fundamental
inconsistencies with the general plan and then sets forth the following specific claim:
“The policies of directing urban development to incorporated areas with existing services
to support development and away from agricultural land are contradicted by the Project.”
This language illustrates that when the City of Fresno wished to raise the question of
general plan inconsistency it was capable of doing so with direct language. The absence
of any comparable language in the portion of the letter relied upon by plaintiffs would
lead an objectively reasonable person reading that part of the letter to infer that the claim
of general plan inconsistency regarding levels of service for traffic was not being raised
by the letter.
       As a result, the letter’s reference to unacceptable levels of service on certain road
segments and intersections did not inform County that it should address whether those
levels of service were consistent with the general plan’s traffic policies. Thus, County
was not put on notice that it should explain how it resolved various issues concerning the
application of the traffic policies to the facts of this case. In particular, County had no
reason to (1) set forth its interpretation of the LOS Policy, (2) explain how it applied that
interpretation to the facts of the case, and (3) make any findings of fact that might have
been necessary to establish that one of the exceptions articulated in the LOS Policy
applied.
       Accordingly, we conclude the City of Fresno’s comment letter was not specific
enough to satisfy the exhaustion requirement on the issue of the project’s inconsistency

                                             21.
with the general plan LOS Policy. For example, plaintiffs now interpret the language that
“[i]n no case should the County plan for worse than LOS D on rural County roadways”
(italics added) to be a clear prohibition. If a claim of inconsistency had been articulated
during the administrative process, County’s personnel who responded to the public
comment would have been alerted to the need to set forth their interpretation of the LOS
Policy, including the meaning of the word “should” and other phrases.9 Because the
question of general plan consistency was not raised in connection with general comments
about traffic and levels of service or in connection with specific comment about the LOS
Policy, County had no reason to set forth its interpretation of that policy or explain how it
applied the policy to the facts of this case. Consequently, we do not know how County’s
personnel would have interpreted the policy’s language and whether, if necessary under
that interpretation, they would have treated this project as an allowable exception to the
stated levels of service. In short, County was not given an opportunity to respond to the
factual and legal issues related to the application of the LOS Policy before its actions
were subject to judicial review. (Coalition for Student Action v. City of Fullerton, supra,
153 Cal.App.3d at p. 1198.) Therefore, we conclude that the issue of the project’s
inconsistency with the general plan’s LOS Policy was not exhausted at the administrative
level.
II.      CEQA PRINCIPLES
         A.    Standard of Review
         The parties agree that the CEQA claims are reviewed on appeal under the abuse of
discretion standard set forth in section 21168.5. We concur. Our “inquiry shall extend
only to whether there was a prejudicial abuse of discretion. Abuse of discretion is



9      One such phrase is “shall plan … in a manner that strives to meet” the stated levels
of service.


                                             22.
established if the agency has not proceeded in a manner required by law or if the
determination or decision is not supported by substantial evidence.” (§ 21168.5.)
       Under this abuse of discretion standard, we independently review claims that a
public agency committed legal error (i.e., did not proceed in the manner required by law)
in the preparation of an EIR. (Vineyard Area Citizens for Responsible Growth, Inc. v.
City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427 (Vineyard Area Citizens).) In
comparison, we review claims that an agency committed factual errors under the
substantial evidence standard. (Id. at p. 426.)
       B.     Rules of Law Governing Adequacy of EIR’s Discussion
       Generally, claims that the information presented in an EIR is legally inadequate
under CEQA can be divided into two types. The first type involves a situation where the
EIR does not discuss a topic that a statute, regulation or judicial opinion says must be
discussed. This type of claim is relatively easy to decide—either the required
information was in the EIR or it was omitted. (E.g., Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal.3d 376, 404 [EIR concluded there were
no feasible alternative sites for relocation of biomedical research facilities; EIR’s
discussion was insufficient because it contained no analysis of alternative locations].)
       The second type of claim, which is presented in this case, is more complex. It
involves an EIR that has at least addressed the required topic and a claim by the plaintiff
that the information provided about that topic is insufficient. Conceptually, this type of
claim involves reviewing courts drawing a line that divides sufficient discussions from
those that are insufficient. Drawing this line and determining whether the EIR complies
with CEQA’s information disclosure requirements presents a question of law subject to
independent review by the courts. (Madera Oversight Coalition, Inc. v. County of
Madera (2011) 199 Cal.App.4th 48, 102.) The terms themselves—sufficient and
insufficient—provide little, if any, guidance as to where the line should be drawn. They
are simply labels applied once the court has completed its analysis.

                                             23.
       In Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th
1383 (AIR), this court set forth the following general principles to help define the line
between sufficient and insufficient discussions in an EIR:

       “When assessing the legal sufficiency of an EIR, the reviewing court
       focuses on adequacy, completeness and a good faith effort at full
       disclosure. [Citation.] ‘The EIR must contain facts and analysis, not just
       the bare conclusions of the agency.’ [Citation.] ‘An EIR must include
       detail sufficient to enable those who did not participate in its preparation to
       understand and to consider meaningfully the issues raised by the proposed
       project.’ [Citation.] Analysis of environmental effects need not be
       exhaustive, but will be judged in light of what was reasonably feasible.”
       (Id. at p. 1390; see Guidelines, § 15151 [standards of adequacy].)
       This court has also recognized that a good faith effort at full disclosure does not
mandate perfection and does not require an analysis to be exhaustive. (San Joaquin
Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 653.)
       Because the standard of review established by section 21168.5 refers to a
prejudicial abuse of discretion, plaintiffs claiming the information in an EIR was
insufficient must demonstrate that the failure to include relevant information precluded
informed decisionmaking by the lead agency or informed participation by the public.
(Madera Oversight Coalition, Inc. v. County of Madera, supra, 199 Cal.App.4th at pp.
76-77; AIR, supra, 107 Cal.App.4th at p. 1391.) Plaintiffs need not show that the
outcome of the administrative process would have been different if the lead agency had
complied with CEQA’s disclosure requirements. (San Joaquin Raptor Rescue Center v.
County of Merced, supra, 149 Cal.App.4th at p. 653.)
III.   ADEQUACY OF EIR’s DISCUSSION OF WASTEWATER IMPACTS
       Plaintiffs contend that the EIR’s discussion of wastewater generated by the
proposed treatment plant lacks sufficient information about (1) the amount and location
of wastewater application and (2) the hydrogeology of the Beck Property, the site
selected for the proposed treatment plant and storage pond.



                                             24.
       A.     Disclosures Regarding Amount of Effluent Produced and Recycled
              1.     Draft EIR
       Section 3.14 (“Utilities and Service Systems”) of the draft EIR described the
existing water, wastewater treatment, effluent disposal, storm drainage and solid waste
service in the project area. As to wastewater treatment and effluent disposal, the draft
EIR set forth various state and federal laws, regulations and other standards that affect
wastewater service. Then, the draft EIR described the existing facilities for handling
wastewater in the project area as follows:

       “Nearly all of the buildings in the Friant Community are currently serviced
       by individual septic systems. The Millerton Lake Village Mobile Home
       Park is the only portion of the Friant Community that is currently served by
       a small sewer system package treatment plant. A new wastewater treatment
       plant is needed to provide adequate service levels and accommodate new
       development within the existing Friant Community.”
       The draft EIR addressed the project’s need for a new wastewater treatment plant
by discussing the possibility of locating a new wastewater treatment facility immediately
adjacent to the small existing plant. This location is east of Friant Road and north of
much of the proposed development.
       The draft EIR stated that the proposed wastewater facilities would be built in three
phases, as the development project is built out. When completed, the facilities would be
able to handle approximately 800,000 gallons of wastewater per day (roughly 900 acre-
feet per year). The wastewater would be treated to achieve tertiary quality effluent that
would meet the state water quality standards for unrestricted use.10


10     “Tertiary” refers is the third stage of treatment. It means “a wastewater treatment
process that goes beyond secondary treatment, which may include filtration, coagulation,
and nutrient removal.” (Cal. Code Regs., tit. 23, § 3671 [definitions of “primary
treatment,” “secondary treatment” and “tertiary treatment].) Similarly, secondary
treatment is more extensive that primary treatment, which is a minimum level of
treatment concerned with separating substances that readily settle or float from the water
being treated. (Ibid.) The standards for use of recycled water are contained in title 22 of


                                             25.
       The draft EIR, in six paragraphs at pages 3-368 and 3-369, discussed the use or
disposal of the wastewater once it has been treated by the new plant. During the summer
months, all treated effluent was to be used irrigating landscape within the Project and turf
at Lost Lake Park. During the winter months, when plants and grasses are dormant, the
treated effluent could not be applied to land at the same rates as summer and, therefore, it
was to be stored or disposed of in another way. The draft EIR stated that it was doubtful
that storage ponds could be provided within the Friant Ranch development and proposed
disposal of the treated effluent by discharge into the San Joaquin River, such discharges
being limited to the months of October through April. If the requisite approval for the
proposed discharge could not be obtained, the draft EIR stated that alternative disposal
options would be considered, “such as storage or percolation at locations in the
immediate vicinity (see Figure 3.14-4 for Beck Property effluent storage option).” Figure
3.14-4 presents an aerial view of the Beck Property and Lost Lake Park that includes a
superimposed outline of a proposed 25-acre storage on the Beck Property.
       A controversial part of the draft EIR’s discussion of effluent disposal and use
relates to the calculations regarding (1) the amount of treated effluent that would be
generated by the proposed wastewater treatment plant, (2) potential applications of that
treated effluent, and (3) the volume of treated effluent that could not be applied and,
therefore, would have to be stored or discharged. The draft EIR addressed the
controversy by stating:

       “Water balance calculations have been prepared, demonstrating a balance
       between effluent production and available reclamation areas, allowing
       application of all effluent in a manner that does not exceed the agronomic
       demand of the receiving lands. The calculations take into account the
       effects of a wet (100-year recurrence interval) rainfall year.”


the California Code of Regulations. (E.g., Cal. Code Regs., tit. 22, § 60304 [use of
recycled water for irrigation].)



                                            26.
       The water balance calculations referred to were included in the draft EIR as an
appendix to an appendix. “Appendix L—Water Quality Impact Analysis” of the draft
EIR contained three reports. One such report was dated December 2007 and titled “Anti-
Degradation Analysis—Part 1.” This report assessed wastewater discharge into the San
Joaquin River and wastewater reclamation for project landscaping and irrigation at Lost
Lake Park. It had six appendices of its own, including Appendix E, which was labeled
“Friant Ranch Alternatives Water Balance” (Appendix E).
       Appendix E is a one-page table providing six categories of information for three
alternatives for the disposal of treated wastewater. The alternatives were described as (1)
“Irrigate in Summer/Store in Winter,” (2) “Irrigate in Summer/Discharge in Winter,” and
(3) “Irrigate Year Round/Store on Rainy Days.” The first alternative listed the phase-one
irrigation area as 85 acres, the build-out irrigation area as 225 acres, and the requisite
storage volume and storage area as 113,100,000 gallons and 35 acres, respectively.
       The data in Appendix E, together with other information in the draft EIR, can be
analyzed mathematically to derive additional information about the “Irrigate in
Summer/Store in Winter” alternative. First, the treatment plant’s expected annual
production of 900 acre-feet of treated wastewater can be divided by the irrigation area of
225 acres to conclude that, not factoring in losses from evaporation, each acre in the
irrigation area would receive 4 acre-feet of treated wastewater per year. Second, the
information about (1) the amount of treated wastewater that needs to be stored and (2) the
amount of wastewater produced each day can be used to calculate the number of days
that wastewater will be stored. When the 113.1 million gallons of stored effluent is
divided by 800,000 gallons of effluent per day, the resulting figure is approximately 141
days. Because a year contains 365 days, the 141 days of storage implies an irrigation
season of 224 days.
       Another report in Appendix L to the draft EIR is titled “Anti-Degradation
Analysis—Part II” (Part II) and was completed in April 2009, 16 months after the first

                                             27.
part. It contained a two-paragraph section of text labeled “Seasonal Storage with
Irrigation” that stated:

       “Because irrigation demand is seasonal, recycled water produced during the
       winter, when demand is neglible, must be stored for future use or disposed
       of in some manner. Seasonal storage of wintertime flows for subsequent
       irrigation requires physical space for the storage facility. For example, a
       preliminary water balance reveals that a storage pond would need to
       provide approximately 370 acre-ft of storage and would occupy an area of
       approximately 42 acres.”
       Part II then discussed possible locations for such a storage facility and concluded
that, with the exception of the Beck Property, no available site was suitable for such a
storage pond. It is unclear whether Part II’s reference to the “preliminary water balance”
meant the same water balance set forth in Appendix E. The numbers presented in Part
II—42 acres and 370 acre-feet—do not appear in Appendix E, which lists 35 acres as the
storage area needed for approximately 113.1 million gallons (i.e., 347 acre-feet) of
wastewater.11 The larger storage volume mentioned in Part II implies more days of
storage are needed, which implies a shorter irrigation season. The calculations show
storage for approximately 151 days of the plant’s output, which is the number of days
from November 1st to March 31st, inclusive (nonleap year).
       A reader of the draft EIR and its attachments would be confused about the number
of acres needed for the effluent storage pond because the numbers provided are not
consistent. Figure 3.14-4 (October 2009) in the draft EIR shows a proposed 25-acre
storage pond on the Beck Property. Yet, Appendix E indicates that 35 acres of storage is
needed for the “Irrigate in Summer/Store in Winter” alternative. Also, the discussion in



11    Because one acre-foot equals 325,851 gallons (see O.W.L. Foundation v. City of
Rohnert Park (2008) 168 Cal.App.4th 568, 576, fn. 2), 113.1 million gallons equal
approximately 347 acre-feet. The 370 acre-feet referenced in Part II equals
approximately 120 million gallons.


                                            28.
Part II of the anti-degradation analysis indicates that a 42-acre storage pond would be
needed.
              2.     Final EIR
       The final EIR was released in August 2010. Section 2.4 contained the project
description and addressed the treatment and disposal of wastewater as envisioned at that
time. The project description stated that permits were required from the Regional Water
Quality Control Board for “irrigation with treated effluent of Specific Plan landscaping
and off-site disposal of treated effluent on suitable nearby lands such as the Beck
Property (identified in Figure 2-6) and/or Lost Lake Park (and, if sufficient winter land
disposal areas are not available, seasonal discharge to the San Joaquin River) .…” (Fn.
omitted.) The footnote described the Beck Property as the location of an effluent storage
pond, but not as an alternate site for the treatment plant. The footnote also provided
information about the proposed storage pond and how the stored effluent would be used,
stating that (1) the mining pit at the north end of the Beck Property would be used as the
storage pond for seasonal irrigation of the remaining irrigable land on the Beck Property,
(2) a maximum of approximately 100 days of effluent would be stored, (3) a pipeline
would carry the effluent from the wastewater treatment plant to the Beck Property, and
(4) the recycled wastewater would be applied to the Beck Property at agronomic rates.
       The final EIR also contained comments to the draft EIR and County’s responses.
One comment criticized the generality of the water balance information in the draft EIR
and stated it was difficult to ascertain the precise water balance for the project. In
addition, the comment asserted that Friant Ranch, L.P. “should prepare a water balance
that compares recycled water produced and recycled water demand on a monthly basis.”
(Italics omitted.) County’s response provided in part:

       “A water supply balance has been conducted for the Project to determine
       and plan for expected effluent supply and demand. Effluent will be applied
       to landscape irrigation use as needed (during irrigation season from spring
       to fall) and excess effluent (e.g., effluent during winter months not

                                             29.
         otherwise disposed of) would be stored in tanks or ponds located onsite or
         at the off-site disposal sites for subsequent use onsite (see e.g., DEIR page
         366). The Beck property disposal option includes over-winter storage,
         where effluent would be held until it could be used for irrigation. The
         water balance shows the Beck Property has capacity to provide 100 days
         storage, which is sufficient to accommodate wastewater generated by the
         Project, with enough remaining land to use the balance of reclaimed water
         for agriculture irrigation after supplying 400 acre-feet to the development
         areas of the Specific Plan Area for landscape irrigation.… The excess
         effluent will be used off-site, once the on-site demand is met.”
         The final EIR included a March 2009 memorandum prepared by Live Oak
Associates, Inc., an ecological consulting firm, that analyzed the biological resources
associated with the Beck Property. The memorandum was designated as Appendix Q to
the final EIR. It set forth the conclusion that the use of tertiary treated effluent to irrigate
crops on the Beck Property during the spring, summer, and fall, and the storage of
effluent in the existing mining pit, would have a negligible impact on the San Joaquin
River. This conclusion was based on the factual assertion that effluent applied to the
Beck Property to irrigate crops and the effluent stored in the pond would not reach the
river.
                3.     Planning Commission Recommendation
         After the final EIR was distributed in August 2010, County’s planning
commission reviewed the project and the final EIR and issued a staff report. The staff
report was dated October 7, 2010, and recommended the Beck Property as the
environmentally superior location for the wastewater treatment plant. In addition, the
planning commission recommended that there be no discharge of treated wastewater
from the plant into the San Joaquin River. As a result of these two recommendations,
more scrutiny was placed on whether there was enough storage capacity at the Beck
Property to hold the treated effluent during the winter months and what, if anything,
would happen to the treated effluent while it was stored. For example, one concern was
whether the stored effluent would seep into the river.



                                              30.
              4.     Infrastructure Master Plan
       Some of the concerns about the Beck Property and the winter storage of effluent
were addressed in the Friant Ranch Infrastructure Master Plan dated September 2010
(IMP). The IMP addressed a smaller version (i.e., fewer residences) of the Friant Ranch
Specific Plan than initially proposed. Under the scaled-down version, the expected
wastewater production from the residences at Friant Ranch, commercial and industrial
flows, and the existing and future uses in the Friant Community Plan area was estimated
at 625,000 to 725,000 gallons per day or up to 815 acre-feet per year. This volume of
effluent is about 10 percent less than the 900 acre-feet per year discussed in the draft EIR.
       The IMP stated that the preferred alternative for winter effluent disposal was
storage in the existing pond at the Beck Property and that the existing size of the pond
was “more than adequate to provide 100-day storage of over-winter effluent” and “[w]ith
a total available capacity of approximately 600 ac-ft, at project build-out, this pond
actually provides for over a year of storage of effluent.”12 Figure 7 in the IMP is a map
of the Beck Property that shows the location of the proposed treatment plant and an
outline of the effluent storage pond, which is significantly larger than the outline of the
25-acre storage pond shown on a map in the draft EIR. Figure 7 helps resolve any
confusion about the size of the proposed storage pond that might have been created by
the various descriptions in the draft EIR and its attachments.
       The IMP also addressed the project’s water balance, which is a broader water issue
than balancing wastewater production with application and storage. Effluent

12      This statement that the 600 acre-feet of storage represents over a year of effluent
storage, when read in context, is referring to the effluent production of the development
proposed, not the total production (i.e., 815 acre-feet per year) of the wastewater
treatment plant, which included contributions from the Friant Community Plan area, not
just the development within the Friant Ranch Specific Plan area.
       The IMP identifies an alternate plan for disposal of winter effluent that involves
the discharge to the San Joaquin River during the months of October through April.


                                             31.
reclamation—that is, use of recycled water for irrigation—is a part of the project’s
overall water balance. The IMP stated that, at project build-out, about 575 acre-feet of
recycled water per year13 would be available for irrigation on the project site and the
Beck Property, which amount would be sufficient to irrigate approximately 120 to 150
acres. The project’s roadways, landscaped slopes, parks, parkways, and commercial and
activity centers contains about 85 irrigation acres and the remaining 35 to 65 acres would
be located on the Beck Property.
       The IMP does not discuss in specific terms how the remainder of the effluent from
the treatment plant would be used. Instead, it includes a general statement (much like the
statement in the draft EIR) that water balance calculations have been prepared and those
calculations demonstrate “a balance between effluent production and available
reclamation areas, allowing application of all effluent in a manner that does not exceed
agronomic demand of the receiving lands.” Whether this general statement is intended to
cover the 815 acre-feet of total effluent production or just the effluent attributable to
Friant Ranch is not clear.
              5.     Two Hearings by the Board of Supervisors
       On December 7, 2010, County’s board of supervisors held a public hearing where
one of the agenda items was the consideration of the Project and the final EIR. At the
hearing, concerns on many topics were expressed, including locating the proposed
wastewater treatment plant and storage pond in the San Joaquin River bottom. A vote on
the approval of the Project was not taken at that hearing. Instead, the board of
supervisors decided that issues raised at the hearing should be clarified. Accordingly,

13     The estimate of 575 acre-feet per year is based upon a combined residential and
commercial flow of approximately 510,000 gallons per day. This number does not
include the 165,000 gallons per day of projected peak flow from the Friant Community
Plan area. Thus, the project’s water balance, as discussed in the IMP, does not address
how all of the treated effluent (i.e., 815 acre-feet per year) produced by the treatment
plant would be used.


                                             32.
they continued the matter to the February 1, 2011, hearing and allowed further comments
and rebuttal.
       At the February 1, 2011, hearing of County’s board of supervisors, the wastewater
treatment plant and associated issues were addressed again. Travis Crawford from the
Quad Knopf consulting firm testified that the Beck Property, a former gravel quarry, was
identified as the environmentally superior site for the plant and effluent storage and
disposal. He also stated that, at full build-out, there was enough area at the Beck
Property and the open spaces areas of the Friant Ranch Specific Plan to use the
wastewater without discharging into the San Joaquin River.
       Joe Glicker works for CH2M Hill, the company designated to design, build and
operate the proposed wastewater treatment plant. He testified about the plant and the
storage capabilities planned for the Beck Property. The slides Glicker used at the hearing
were printed out and included in the administrative record. Glicker addressed a scenario
of 240 to 250 million gallons of sewage being delivered to the treatment plant and
producing 240 to 250 million gallons of effluent—that is, recycled water. He stated “at
full capacity of the plant, you would get between 240 to 250 million gallons of sewage
that goes into the plant that all comes out as recycled water and would go into the
pond .…” These figures, when reduced to gallons per day, equal approximately 675,000
to 685,000 gallons per day, which is in the middle of the range of 625,000 to 725,000
gallons per day discussed in the IMP.
       Glicker presented a slide showing that all effluent would be reused for irrigation
and none would be discharged into the river. His figures included 15 million gallons
(about 46 acre-feet) being added to the storage pond by rainfall and losses of 75 million
gallons (about 230 acre-feet) to evaporation and 3 to 4 million gallons (about 9 to 12
acre-feet) to percolation. The other two uses were Friant Ranch irrigation at 110 to 120
million gallons and farm reuse at 65 million gallons.
       As to storage capacity and the system in general, Glicker stated:

                                            33.
       “The reuse system as we’ve looked at it is very well thought out. The pond
       is an oversized pond, a large amount of storage. In a typical year, there’s
       about a year and a half of storage in the pond. The kinds of landscape and
       agricultural uses and the crops that ha[ve] been selected to be used on the
       Beck property are the kinds of crops that use reused water well. So it is a
       system that we feel adequately balances the water and the water that’s
       going into the plant will get used in the reuse operations.”
       Glicker’s slide about the uses of the effluent appears to be the only document in
the administrative record that provides figures for all inflows into the pond and for all the
ways that water in the pond could leave.
       B.     Adequacy of Disclosures Concerning Wastewater
              1.     Contentions of the Parties
       Plaintiffs contend that the EIR lacked sufficient detail about the amount and
location of wastewater discharge and use. The lack of detail, they argue, makes it
impossible to ascertain how it was determined that there could be a balance between
effluent production and its subsequent storage and disposal.
       Defendants contend that they provided more than adequate information about the
wastewater treatment plant and its environmental impacts because (1) even if treated
wastewater reached the San Joaquin River, the wastewater would not cause significant
impacts; (2) the EIR provided adequate detail regarding the amount and location of
wastewater discharge; (3) the issue regarding the amount and location of wastewater
discharge and use was not administratively exhausted; and (4) the issue was not raised in
the trial court and thus should not be addressed on appeal.
              2.     Sufficient Detail Was Provided
       We disagree with plaintiffs’ argument that the draft EIR did not show how effluent
production, storage and disposal could be balanced.
       When the information in Appendix E is considered with information disclosed in
the text of the draft EIR and a few mathematical calculations are performed, the reader is
able to understand how a year’s production of effluent will be handled over the course of


                                             34.
a year and the amount of land on which it will be applied for irrigation. In particular,
under the irrigate-in-summer-and-store-in-winter alternative, the 900 acre-feet of effluent
expected to be produced by the plant at project build-out would require winter storage of
113.1 million gallons (i.e., 347 acre-feet) of effluent. Also, Appendix E’s reference to the
irrigation of 225 acres can be compared to the 900 acre-feet of treated effluent generated
per year to deduce that, on average, four acre-feet of effluent would be applied to each
acre of land during the irrigation season.14
       As to the location of the effluent application, the draft EIR indicates that “the
Project proposes to use all effluent for a combination of irrigation of landscape features
within the Friant Ranch Specific Plan development and turf at Lost Lake Park or other
suitable disposal area in the immediate vicinity.” While this statement about location is
general in nature, we conclude that it is legally sufficient for a draft EIR because it
provides enough detail to enable members of the public to present comments during the
administrative review process about the location of effluent application and its potential
environmental impacts. (See AIR, supra, 107 Cal.App.4th at p. 1390.)
       Moreover, the final EIR provided more specific information, which eliminated
some of the generality of the disclosure in the draft EIR. In particular, the final EIR
included the response to comment No. 28.14, which stated that the Beck Property had
“enough remaining land to use the balance of reclaimed water for agriculture irrigation
after supplying 400 acre-feet to the development areas of the Specific Plan Area for
landscape irrigation. The Project is not relying on 100% of the anticipated effluent to
contribute towards onsite landscaping within the Specific Plan Area throughout the year.



14      This estimate of four acre-feet per acre does not account for losses due to
evaporation and percolation and gains from rainfall. Glicker’s figures indicated a net loss
of approximately 25 percent of the effluent produced, which, if applied to the four acre-
feet estimate, would reduce it to three acre-feet.


                                               35.
The excess effluent will be used off-site, once the on-site demand is met.”15 We
conclude that this disclosure provides sufficient detail about the location of the effluent
application—namely, the Beck Property and the Specific Plan area—to enable the public
and decision makers to understand the location of the proposed effluent application and
consider its potential impacts. (See AIR, supra, 107 Cal.App.4th at p. 1390; Guidelines,
§ 15151 [evaluation in EIR need not be exhaustive].)
       Plaintiffs’ opening brief argues that the statement about the project’s use of 400
acre-feet annually “fails to account for the entire 900 AFY of wastewater that the Project
will generate.” First, this argument does not reflect the wastewater production of
Alternative 3, the smaller version of the project that was approved. Under Alternative 3,
the treatment plant’s wastewater production is not expected to exceed 815 acre-feet per
year. Second, the final EIR states that the excess effluent will be applied to the Beck
Property, which has enough remaining land (i.e., land besides that used for the
wastewater treatment plant and storage pond) to use the balance of the effluent for
agriculture irrigation. Therefore, the final EIR does account for the application of all of
the effluent produced by the wastewater treatment plant over the course of a year.
       Plaintiff also argues that the draft EIR does not indicate that the Beck Property has
the capacity to store all of the effluent generated during the nonirrigation season. This
alleged shortcoming has some merit because the draft EIR referred to a 25-acre storage
pond on the Beck Property and Appendix E indicated that a storage pond of 32 acres was




15      The conclusion that the Beck Property and Specific Plan area were sufficient to
use all recycled water was confirmed by the additional detail provided by Glicker at the
board of supervisors’ February hearing. His slide addressed farm use at the Beck
Property, irrigation in the Specific Plan area, losses to evaporation and percolation, and
gains from rainfall.


                                             36.
needed for the irrigate-in-summer-and-store-in-winter alternative.16 In addition, the final
EIR and IMP refer to 100-day storage capacity, which is unfortunate in view of the
statements that the months of no irrigation demand typically are October through April, a
period much longer than 100 days. However, the concerns generated by the discrepancy
in pond acreage, and the possibility that 100 days of storage was insufficient, might be
viewed as being addressed by the general assurance in the final EIR that the Beck
Property storage capacity was sufficient to accommodate the wastewater generated by the
project. Also, concerns are addressed by the maps included in the IMP and its statements
that (1) the existing size of the pond on the Beck Property was more than adequate to
provide 100-day storage of effluent produced during the winter and (2) at project build-
out, the pond’s total available capacity would be approximately 600 acre-feet. Because
the upper limit of estimated wastewater production was 815 acre-feet per year, a storage
pond with a capacity of 600 acre-feet storage is adequate to accommodate the effluent
produced by the treatment plant during the winter. Therefore, any shortcomings in the
draft EIR about storage capacity were addressed in sufficient detail during the
environmental review process. Also, the record contains substantial evidence to support
the final EIR’s statement that adequate storage capacity exists at the Beck Property.
       Plaintiffs also argue that the final EIR added to the confusion about wastewater
balance by deleting the draft EIR’s explanation of plans for disposal during the winter
months. We conclude that the final EIR was not confusing on this point because the
irrigate-in-summer-and-store-in-winter alternative was recommended to the board of
supervisors and approved by them. This alternative provides for winter storage rather
than winter disposal. Therefore, the discussion of possible methods of winter disposal,
such as discharge into the San Joaquin River, was not relevant to the recommendations

16     Appendix E also listed 113.1 million gallons as the volume of effluent to be stored
under the irrigate-in-summer-and-store-in-winter alternative, a volume equal to
approximately 347 acre-feet.


                                            37.
being made or approved and the continued inclusion of that information was unnecessary.
In short, deleting the reference from the final EIR was consistent with the board of
supervisors’ decision to prohibit the discharge of effluent into the San Joaquin River and
simplified matters by eliminating the discussion of an alternative that was being
abandoned. Consequently, we reject plaintiffs’ argument that County violated CEQA by
approving a final EIR that deleted a discussion contained in the draft EIR.
       In summary, we conclude that the various arguments presented by plaintiffs have
not established that the CEQA documents provided insufficient detail regarding the
amount and location of wastewater disposal.
              3.     Other Issues
       For purposes of creating a full record, we will address briefly other issues raised
by defendants. First, we conclude that the issue regarding the adequacy of the disclosures
about the amount and location of wastewater disposal was exhausted during the
administrative process by comment No. 28.14 and a letter from plaintiff Revive the San
Joaquin River.17 Second, because (1) issues concerning the adequacy of a CEQA
disclosure present questions of law and (2) matters involving disposal of wastewater
affect the public interest, we have exercised our discretion and considered plaintiffs’
argument on appeal even though it was not presented to the trial court. (See Woodward
Park Homeowners Assn., Inc. v. City of Fresno, supra, 150 Cal.App.4th at pp. 712-714
[issue concerning legal adequacy of EIR allowed to be raised for first time on appeal].)
Third, defendants’ argument that their disclosure was legally adequate because the
opinions provided by experts constitute substantial evidence is off point. The existence


17     The undated comment letter raised concerns about wastewater and stormwater and
appears to have been presented at or shortly after the December 7, 2010, board of
supervisors meeting. The letter asked for the identification of lands capable of accepting
the recycled water applications and an assessment of impacts “so that application of
recycled water [is] consistent with potential irrigable acreage.”


                                            38.
of substantial evidence in the record does not mean that sufficient information was
disclosed—they are separate legal issues. Fourth, we are not persuaded by defendants’
argument that plaintiffs failed to demonstrate prejudice because the EIR asserted that
there would be no significant adverse environmental impact if tertiary treated effluent
reached the San Joaquin River. The board of supervisors did not necessarily agree with
that particular assertion when they certified the EIR—they could have been convinced by
the alternate position that it was improbable that any effluent would reach the river.
       C.     Hydrogeology of Beck Property
              1.     Arguments Made to the Trial Court
       The opening brief plaintiffs filed in the trial court contained (1) a heading that
asserted the EIR’s analysis of the water quality impacts associated with the proposed
wastewater treatment facility was inadequate and (2) one related subheading that asserted
the “EIR fails to adequately analyze potential discharge of effluent to the River.”
(Underscoring omitted.) Plaintiffs argued that an adequate analysis would have described
the hydrogeology of the Beck Property and analyzed the hydrological connection
between the proposed effluent storage pond and the San Joaquin River.
       Plaintiffs acknowledged a discussion in the final EIR (which relied upon a 2009
memorandum by Provost & Pritchard) that concluded: “[D]ue to the impermeable soil
conditions and the direction of groundwater flow underlying the site, it is unlikely that a
hydrologic connection exists between the groundwater and the San Joaquin River such
that later groundwater seepage of treated wastewater into the San Joaquin River from the
[Beck] Property would occur.”18 Plaintiffs argued to the trial court that this assessment


18      The final EIR also stated that lateral migration of water held in the storage pond
on the Beck Property to the river would be precluded by the nature of the lateral soils and
the distance to the river. As the downward migration, the final EIR stated that was not a
possibility because the 25-acre storage pond has been excavated to hard, resistant and
impermeable granitic bedrock. The absolute nature of this statement was contradicted by


                                             39.
“was put in serious doubt by [(1)] the testimony and expert opinion of Dr. Robert D.
Merrill,” a geology professor, and (2) a study that was included in an earlier EIR.
       Defendants responded to plaintiffs’ arguments by filing a joint opposition brief
that asserted substantial evidence supported County’s conclusion that operating a
wastewater treatment plant on the Beck Property would not adversely affect the San
Joaquin River. Defendants referred to studies and testimony of its expert that recycled
water stored in the pond on the Beck Property would not reach the river. As an
alternative, defendants also argued the EIR determined that even a direct discharge of the
treated effluent would have no significant impact on the river and, therefore, seepage
could not have a significant adverse impact.
       The trial court rejected plaintiffs’ claims, stating that a battle-of-the-experts
situation existed and the court could not substitute its decision for County’s decision
where that decision was supported by substantial evidence.
              2.     Plaintiffs’ Contentions on Appeal
       On appeal, plaintiffs have focused their argument on the adequacy of the draft
EIR, rather than the final EIR. They argue that the “failure to disclose and discuss
information about the hydrogeology of the Beck Property in the DEIR precluded
informed public review and scrutiny of the decision to approve wastewater treatment,
storage, and discharge on the Beck Property.”
       Plaintiffs rely on this court’s decision in San Joaquin Raptor/Wildlife Rescue
Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, a case in which the plaintiffs
challenged the adequacy of a final EIR prepared for a residential and commercial
development project. The rescue center argued the inadequate description of the existing
environmental setting of the site and surrounding areas made it impossible to determine


Glicker, who estimated three to four million gallons of treated effluent would be lost
from the pond each year due to percolation.


                                              40.
from the final EIR whether wetlands existed on the site. (Id. at p. 722.) The trial court
rejected the claim, but this court reversed and directed the trial court to require the
preparation of an EIR that accurately described the site and surrounding environs. (Id. at
pp. 742-743.)
                3.    Analysis
       The challenge presented in San Joaquin Raptor/Wildlife Rescue Center v. County
of Stanislaus, supra, 27 Cal.App.4th 713, concerned the adequacy of the final EIR
description of the existing environmental setting. In discussing that challenge, this court
discussed the contents of the draft EIR at length. (Id. at pp. 723-728.) Our discussion
demonstrated that the draft EIR’s description of the environmental setting site of the
project site and surrounding area was “inaccurate, incomplete and misleading” (id. at p.
729) and that wetlands were an important aspect of the environment that should have
been described and analyzed (id. at pp. 724-725). Our discussion, however, did not
establish new rules of law heightening the disclosure required in a draft EIR or
preventing a final EIR from curing a draft EIR’s omission of information. Indeed, the
discussion of the draft EIR preceded our resolution of the ultimate question—whether the
final EIR was legally adequate. (Id. at pp. 728-729.) In resolving that question, we
stated that the final EIR “does not reflect even minimal investigation into the exact
location and extent of riparian habitats either adjacent to or within the site.” (Id. at p.
728.) Our holding referred to the final EIR, not the draft:

       “Without accurate and complete information pertaining to the setting of the
       project and surrounding uses, it cannot be found that the FEIR adequately
       investigated and discussed the environmental impacts of the development
       project. The failure to provide clear and definite analysis of the location,
       extent and character of wetlands possibly within and definitely adjacent to
       the development project and the failure to discuss [San Joaquin Wetlands
       Farm], precludes this court from concluding that all the environmental
       impacts of the development project were identified and analyzed in the
       FEIR.” (Id. at p. 729.)



                                              41.
        The instant case is distinguishable from San Joaquin Raptor/Wildlife Rescue
Center v. County of Stanislaus, supra, 27 Cal.App.4th 713, in at least two important
ways.
        First, the draft EIR for the Project actually mentioned the point in dispute—that is,
the possibility of seepage of wastewater from the Beck Property to San Joaquin River. At
page 3-210, the draft EIR states: “Due to impermeable soil conditions, it is unlikely that
a hydrological connection exists between the groundwater and the surface water such that
wastewater applied to irrigate onsite landscaping, the Beck Property, Lost Lake Park, or
similarly situated lands would seep into the San Joaquin River through groundwater.”
This disclosure set forth the position that a hydrological connection was unlikely and, as
a result, allowed those who disagreed to challenge that conclusion during the subsequent
environmental review process.
        Second, after the release of the draft EIR for the Project, the environmental review
process (which included the submission of public comments, the publication of responses
in a final EIR, and further public hearings) produced further information and analysis
regarding the possible hydrologic connection between the Beck Property and the river.
The documents generated, which are included in the administrative record before this
court, directly contradict plaintiffs’ claim that the inadequacy of the draft EIR precluded
public review and scrutiny of the use of the Beck Property as a wastewater storage and
application site.
        Therefore, unlike the circumstances in San Joaquin Raptor/Wildlife Rescue Center
v. County of Stanislaus, supra, 27 Cal.App.4th 713 that led to our conclusion that the
final EIR was inadequate, the circumstances of the instant case show that the subject of
the alleged inadequacy was mentioned in the draft EIR and expanded upon in the final
EIR. Accordingly, we reject plaintiffs’ position that the disclosures in the draft EIR
regarding the hydrogeology of the Beck Property were prejudicially inadequate and



                                             42.
require this matter be remanded with directions for County to prepare a further analysis
of the subject.
IV.    ADEQUACY OF EIR’s DISCUSSION OF AIR QUALITY IMPACTS
       A.     Overview of EIR’s Air Quality Discussion
       Chapter 3 of the EIR addresses the project’s setting, impacts and mitigation
measures. Air quality is addressed in section 3.3.
       Subsection 3.3.1 of the EIR describes the regulatory setting—that is, the federal
and state agencies that regulate air quality and the applicable statutes, regulations,
policies and plans. Among other things, subsection 3.3.1 contains a table of the National
Ambient Air Quality Standards (NAAQS) and corresponding California standards for
certain pollutants, including ozone, particulate matter 10 microns in diameter or smaller
(PM10), fine particulate matter (PM2.5), carbon monoxide, nitrogen dioxide, sulfur
dioxide and lead.19
       Subsection 3.3.2 describes the project’s physical setting in a manner relevant to
the air quality issues, including the fact that the project is located in the San Joaquin
Valley Air Basin, which is the lower half of California's Central Valley. The EIR states
that (1) the basin’s ozone problem ranks among the most severe in California and (2)
under the NAAQS and California’s standards, Fresno County is designated a severe non-
attainment area for ozone and a non-attainment area for PM10. Subsection 3.3.2 also
provides a general description of the criteria air pollutants; these descriptions usually
include a paragraph addressing the adverse health effects associated with exposure to the
pollutant.




19     The EIR states that these pollutants are commonly referred to as “criteria air
pollutants” because they “are the most prevalent air pollutants known to be deleterious to
human health and extensive health-effects criteria documents are available ….”


                                              43.
       Subsection 3.3.3 describes the criteria used to evaluate the air quality impacts.
They include the “thresholds of significance”20 adopted by the Air District and the
criteria in CEQA Appendix G. Also, a software program, URBEMIS, was used to
estimate the amount of air emissions the development would generate. These estimates,
and the thresholds of significance, are stated in tons per year.
       Subsection 3.3.4 contains the impact analysis. The short-term construction
emissions are analyzed separately from the long-term, ongoing area and operational
emissions.21 Specifically, Impact #3.3.1 addresses construction emissions and Impact
#3.3.2 addresses the long-term emissions primarily related to the activities that will occur
indefinitely as a result of the new development. The primary source of the latter type of
emissions is vehicular traffic.
       The estimate of the project’s long-term emissions and the application of the Air
District’s thresholds of significance produced the conclusion that the project would have
a significant adverse effect on air quality. As a result, the EIR proposed Mitigation
Measure #3.3.2 and stated that the measures would reduce the impacts, but not below the
thresholds of significance. Whether Mitigation Measure #3.3.2 complies with various
CEQA requirements is among the issues raised on appeal; the actual mitigation
provisions are discussed below.




20     Guidelines section 15064.7, subdivision (a) encourages public agencies to develop
and publish thresholds of significance, which are “an identifiable quantitative, qualitative
or performance level of a particular environmental effect ….” Noncompliance with the
threshold usually means that the environmental effect will be deemed to be significant for
purposes of CEQA. (Ibid.)
21     The final EIR also states the analysis is divided into (1) a project level analysis for
the Friant Ranch Specific Plan and Depot Parcel and (2) programmatic level analysis for
the Friant Community Plan area outside the development proposed in the specific plan.


                                             44.
       B.     Discussion of Impact of Project-Related Emissions on Health
       Plaintiffs’ first CEQA air quality challenge asserts that the EIR’s discussion of air
quality impacts failed to explain in adequate detail how the air pollutants emitted by this
project would impact public health. We agree.
              1.     EIR’s Discussion of Air Pollutants
       The EIR’s discussion of Impact #3.3.2, the long-term area and operational
emissions, estimated that, at build-out, the proposed Friant Community Plan would emit
approximately 117.38 tons per year of PM10, 109.52 tons per year of reactive organic
gases (ROG), and 102.19 tons per year of nitrogen oxides (NOx). Estimates were made
for ROG and NOx because they are precursors to ozone, which is formed when ROG and
NOx undergo chemical reactions in the presence of sunlight.
       The Air District’s thresholds of significance are 15, 10 and 10 tons per year for
PM10, ROG and NOx, respectively. Because the project’s estimated emission of PM10,
ROG and NOx were from seven to 10 times larger than that of the thresholds of
significance, the EIR concluded these air pollutants would have a significant adverse
effect on air quality. Because Mitigation Measure #3.3.2 could not reduce these
emissions below the Air District’s thresholds of significance, the EIR concluded that the
significant impacts were unavoidable.
       The draft EIR included a page of background information about ozone and nearly
a page of background information about PM10. Each included a paragraph about the
adverse health effects associated with the pollutant. The discussion of the adverse health
effects, however, was not connected to the levels of the pollutant that would be emitted
by the completed project. Instead, the discussion of adverse health effects was general in
nature. For example, the description of the health effects of ozone noted that the effects
were primarily to the respiratory system and stated:

       “Exposure to ambient levels of ozone ranging from 0.10 to 0.40 ppm for 1
       to 2 hours has been found to significantly alter lung functions by increasing


                                            45.
       respiratory rates and pulmonary resistance, decreasing tidal volumes, and
       impairing respiratory mechanics.”
       As to PM10, the EIR stated its adverse health effects depended upon “the specific
composition of the particulate matter.” The EIR, however, provided no information
about the composition of the particulate matter that was expected to be produced by the
project.
              2.      Contentions of the Parties
       Plaintiffs contend the discussion of air quality impact was inadequate because (1)
the EIR did not explain what it meant to exceed the thresholds of significance by tens of
tons per year and (2) provided no meaningful analysis of the adverse health effects that
would be associated with the project’s estimated emissions, which were far above the
thresholds. Plaintiffs argue that anyone reading the EIR would not be able to understand
how to translate the bare numbers of tons of estimated emissions and the thresholds of
significance into adverse health impacts. To illustrate this point, plaintiffs assert that a
reader would not understand how, from the perspective of human health, exceeding an
Air District threshold by 20 tons would differ from exceeding the threshold by 100 tons.
Plaintiffs support their position by citing Bakersfield Citizens for Local Control v. City of
Bakersfield (2004) 124 Cal.App.4th 1184, 1219-1220 (Bakersfield Citizens), a case in
which this court held an EIR was inadequate because it failed to correlate adverse air
quality impacts to resulting adverse health impacts.
       Defendants contend the EIR was adequate because it informed readers that (1)
Friant Ranch’s operational emissions would exceed the thresholds of significance set by
the Air District, which are based on standards necessary for public health; (2) the
project’s exceedance of the thresholds was a significant and unavoidable consequence of
the project; (3) the project’s emissions will make it more difficult for the Central Valley
to reach attainment status, which means the health of valley residents may be impacted;
and (4) certain types of health impacts can occur from unsafe levels of ozone and PM10.
Defendants contend that the “reader can infer from this information that the more tons per

                                              46.
year of these emissions that a project adds to the air, the worse the project is for air
quality and human health, generally.” Defendants also contend that if anyone had
requested additional information regarding the magnitude of the significant impact in a
comment to the EIR, County would have responded.
              3.      Identification and Analysis of Health Impacts from Air Pollutants
       In Bakersfield Citizens, supra, 124 Cal.App.4th 1184, a local citizens group filed a
CEQA petition challenging the EIR’s for two retail shopping centers planned for the
southwestern portion of Bakersfield, California. (Id. at p. 1193.) Each shopping center
featured a Wal-Mart Supercenter as its primary anchor tenant. (Id. at p. 1194.) One of
the arguments raised by the citizens group was “that both EIR’s omitted relevant
information when they failed to correlate the identified adverse air quality impacts to
resultant adverse health effects.” (Id. at p. 1219.)
       Both EIR’s in Bakersfield Citizens, supra, 124 Cal.App.4th 1184 concluded that
the shopping center projects would have significant and unavoidable adverse impacts on
air quality. (Id. at p. 1219.) “Yet, neither EIR acknowledges the health consequences
that necessarily result from the identified adverse air quality impacts. Buried in the
description of some of the various substances that make up the soup known as ‘air
pollution’ are brief references to respiratory illnesses. However, there is no
acknowledgement or analysis of the well-known connection between reduction in air
quality and increases in specific respiratory conditions and illnesses. After reading the
EIR’s, the public would have no idea of the health consequences that result when more
pollutants are added to a nonattainment basin.” (Id. at p. 1220.) We concluded that the
disclosures were inadequate and stated that, on remand, the health impacts resulting from




                                              47.
the adverse air quality impacts must be identified and analyzed in the new EIR’s.
(Ibid.)22
       We will discuss these two action verbs—identify and analyze—separately. With
respect to identification, the EIR in the present case goes much further than the EIR’s in
Bakersfield Citizens, supra, 124 Cal.App.4th 1184, because it (1) lists many types of air
pollutants that the project will produce; (2) identifies the tons per year of PM10, ROG,
NOx and other pollutants that the project is expected to generate; and (3) provides a
general description of each pollutant that acknowledges how it affects human health.
Therefore, the Friant Ranch EIR has identified, in a general manner, the adverse health
impacts that could result from the project’s effect on air quality.
       Despite the inclusion of this information, the Friant Ranch EIR was short on
analysis. It did not correlate the additional tons per year of emission that would be
generated by the project (i.e., the adverse air quality impacts) to adverse human health
impacts that could be expected to result from those emissions. As defendants have
pointed out, the reader can infer from the provided information that the project will make
air quality and human health worse. Although the better/worse dichotomy is a useful
starting point for analyzing adverse environmental impacts, including those to human
health, more information is needed to understand that adverse impact.
       To illustrate this point, we will use extreme examples from the continuum of
potential human health impacts. The information provided does not enable a reader to
determine whether the 100-plus tons per year of PM10, ROG and NOx will require
people with respiratory difficulties to wear filtering devices when they go outdoors in the

22    The regulatory basis for this conclusion was Guidelines section 15126.2,
subdivision (a), which provides that an “EIR shall identify and focus on the significant
environmental effects of the proposed project.” Direct and indirect significant
environmental effects of the project “shall be clearly identified and described .…” (Ibid.)
The EIR’s “discussion should include relevant specifics of the … health and safety
problems caused by the physical changes” resulting from the project. (Ibid.)


                                             48.
project area or nonattainment basis or, in contrast, will be no more than a drop in the
bucket to those people breathing the air containing the additional pollutants.
       The lack of information about the potential magnitude of the impact on human
health23 also can be demonstrated by referring to quantitative information in the EIR.
For instance, Table 3.3-2 in the draft EIR sets forth the days each year that pollutants, as
measured at three monitoring stations in the Fresno area, exceeded federal and state
standards. If an estimate of the project’s impact on the “days exceeding standards” had
been provided, the public and decision makers might have some idea of the magnitude of
the air pollutant impact on human health. As presently written, the final EIR does not
inform the reader what impact, if any, the project is likely to have on the days of
nonattainment per year—it might double those days or it might not even add a single a
day per year. Similarly, no connection or correlation is made between (1) the EIR’s
statement that exposure to ambient levels of ozone ranging from 0.10 to 0.40 parts per
million for one to two hours has been found to significantly alter lung functions and (2)
the emissions that the project is expected to produce.
       The foregoing references to the data provided in the EIR should not be interpreted
to mean that County must connect the project’s levels of emissions to the standards
involving days of nonattainment or parts per million. County has discretion in choosing
what type of analysis to provide and we will not direct County on how to exercise that
discretion. (§ 21168.5.) Nonetheless, there must be some analysis of the correlation


23     In this case, information about the magnitude of the human health impacts is
relevant to the board of supervisors’ value judgment about whether other considerations
override the adverse health impacts. In other words, a disclosure of respiratory health
impacts that is limited to the better/worse dichotomy does not allow the decision makers
to perform the required balancing of economic, legal, social, technological and other
benefits of the project against the adverse impacts to human health because they have not
been informed of the weight to place on the adverse impact side of the scales. (See
Guidelines, § 15093, subd. (a) [statement of overriding considerations].)


                                             49.
between the project’s emissions and human health impacts. (Bakersfield Citizens, supra,
124 Cal.App.4th at pp. 1219-1220.) In other words, we agree with plaintiffs that it is not
possible to translate the bare numbers provided into adverse health impacts resulting from
this project.
       Therefore, we conclude that the Friant Ranch EIR is inadequate under CEQA
because it does not analyze the adverse human health impacts that are likely to result
from the air quality impacts identified in the EIR. The simple statement in an EIR that
the significant adverse air quality impacts will have an adverse impact on human health
fails to comply with the CEQA standards we discussed in Bakersfield Citizens, supra,
124 Cal.App.4th at pages 1219 through 1220.
                4.    Administrative Exhaustion
       Defendants argue that the issue regarding the correlation between the project’s
emission of air pollutants and adverse health impacts was not exhausted during the
administrative process. (See § 21177, subd. (a) [issue exhaustion].)
       We conclude the City of Fresno’s letter adequately raised the issue during the
administrative process by asserting that “under CEQA, the EIR must disclose the human
health related effects of the Project’s air pollution impacts. (CEQA Guidelines section
15126.2(a).) The EIR fails completely in this area.” This assertion apprised County that
the discussion of human health impacts could not be general in nature, but was required
to be connected to “the Project’s air pollutions impacts.” Therefore, County was alerted
and provided an opportunity to correct the deficiency now raised on appeal.
       Also, we conclude that the issue was raised before the trial court. Plaintiffs’
opening brief in the trial court asserted that the EIR failed “to discuss the health effects of
the Project’s significant air quality impacts” and cited Bakersfield Citizens, supra, 124
Cal.App.4th 1184.




                                              50.
       C.     Air Quality Mitigation Measure #3.3.2
       Plaintiffs’ second CEQA challenge involving air quality asserts that the EIR fails
to provide sufficient detail about the measures that comprise Mitigation Measure #3.3.2.
We agree.
              1.     Legal Requirements for EIR’s Discussion of Mitigation Measures
       The statutory basis for plaintiffs’ challenge is section 21100, subdivision (b)(3),
which states that the EIR “shall include a detailed statement setting forth” the
“[m]itigation measures proposed to minimize significant effects on the environment .…”
This informational requirement is designed to fulfill one of the purposes of an EIR, which
is “to indicate the manner in which [the identified] significant effects [on the
environment] can be mitigated or avoided.” (§ 21002.1, subd. (a).)
       The statutory requirement for a detailed statement about mitigation measures is
expanded upon by Guidelines section 15126.4, which addresses the consideration and
discussion of mitigation measures that must be included in an EIR. Plaintiffs’ appellate
briefs referred to the following three provisions. First, subdivision (a)(1) of Guidelines
section 15126.4 states that an “EIR shall describe feasible measures which could
minimize significant adverse impacts .…” Second, Guidelines section 15126.4,
subdivision (a)(1)(B) provides: “Where several measures are available to mitigate an
impact, each should be discussed and the basis for selecting a particular measure should
be indentified.”
       The third provision plaintiffs cite mandates a substantive requirement for
mitigation measures. Guidelines section 15126.4, subdivision (a)(2) states that
“[m]itigation measures must be fully enforceable through permit conditions, agreements,
or other legally-binding instruments.” The statutory basis for this regulatory provision is
section 21081.6, subdivision (b): “A public agency shall provide the measures to
mitigate or avoid significant effects on the environment are fully enforceable through
permit conditions, agreements, or other measures.” The use of permit conditions to


                                             51.
satisfy the enforceability requirement is illustrated by Gray v. County of Madera (2008)
167 Cal.App.4th 1099, a case in which the mitigation measures were incorporated as part
of the conditional approval of the hard rock mining permit issued by the board of
supervisors. (Id. at p. 1116.)
                 2.     Overview of Mitigation Measure #3.3.2
          Mitigation Measure #3.3.2 is not a single measure, but a dozen separate provisions
that address (1) nonresidential development, (2) reducing residential energy consumption,
(3) promoting bicycle usage and (4) transportation emissions. To avoid repetition, the
terms of those provisions are set forth where relevant to our discussion of the issues
raised.
          The effectiveness of the proposed mitigation is addressed by the draft EIR’s
statement that Mitigation Measure #3.3.2 would reduce project air quality impacts, but
not below the Air District’s thresholds of significance. In comparison, the lead paragraph
of Mitigation Measure #3.3.2 goes further, stating that implementation of the measures
would substantially reduce air quality impacts related to human activity within the project
area, but not to a level that is less than significant.
          The final paragraph of Mitigation Measure #3.3.2 provides County with some
flexibility by indicating that the mitigation measures are subject to change:

          “The County and [Air District] may substitute different air pollution control
          measures for individual projects, that are equally effective or superior to
          those proposed herein, as new technology and/or other feasible measures
          become available in the course of build-out within the Friant Community
          Plan boundary.”
          This paragraph is among those challenged by plaintiffs in this appeal.
                 3.     Statement that Policies Will Lessen Impact
          Plaintiffs’ first claim of insufficient detail concerns a statement made in the
paragraph labeled “Conclusion” at the end of the EIR’s discussion of Impact #3.3.2 and
immediately before the terms of Mitigation Measure #3.3.2 were set forth. The third


                                                52.
sentence of the conclusion stated: “The impact will be lessened by policies of the
proposed Specific Plan and Community Plan, as mentioned above, which will promote
the use of alternative transportation, air quality mitigation for new developments, and
strategies to minimize the number and length of vehicle trips.”
       Plaintiffs argue that “it is unclear what ‘impact’ the policies will ‘lessen.’ To the
extent the objective is to minimize emissions from Project-related traffic, the EIR fails to
explain how the policies of the proposed plans will minimize these emissions or to what
extent they would minimize the emissions.”
       We disagree with plaintiffs’ assertion that it is unclear what “impact” will be
lessened. The statement is part of the discussion of Impact #3.3.2, which addresses air
pollutants from area and operational emissions at build-out of the project. Thus, the
“impact” referred to is the “increase [in] criteria air pollutants in the area” that is
mentioned in the first paragraph of the EIR’s discussion of Impact #3.3.2. Furthermore,
the goals and policies from the specific plan and community plan that are set forth in the
EIR are not part of the mitigation measures, despite the fact that the implementation of
the policies would appear to reduce emissions. Because the goals and policies are not
part of Mitigation Measure #3.3.2, the rules of law governing the adequacy of an EIR’s
discussion of mitigation measures do not require the EIR to (1) explain how those
policies would minimize emissions or (2) quantify, or otherwise describe, the extent that
the policies would minimize emissions.
       Plaintiffs’ argument about the statement that the impact will be lessened by the
plans’ policies also includes the contention that “a mitigation measure cannot be used as a
device to avoid disclosing project impacts.” (San Joaquin Raptor Rescue Center v.
County of Merced, supra, 149 Cal.App.4th at pp. 663-664.) This legal principle does not
apply to the instant case because (1) the policies are not mitigation measures and (2) the
EIR, in fact, does disclose the air quality impacts by setting forth estimates of the
operational and area emissions at build-out produced by the URBEMIS software. The

                                              53.
estimates in the final EIR are 117.38 tons per year of PM10, 109.52 tons per year of
ROG, and 102.19 tons per year of NOx.
       Therefore, the EIR’s statement that the impact will be lessened by the plans’
policies does not violate the informational requirements applicable to mitigation
measures.
               4.     Guidelines for Nonresidential Development
       Plaintiffs’ second claim of insufficient detail in the discussion of the mitigation
measures concerns the part of Mitigation Measure #3.3.2 that addresses nonresidential
development:

       “The following guidelines shall be used by the County during review of
       future project-specific submittals for non-residential development with the
       Specific Plan area and within the Community Plan boundary in order to
       reduce generation of air pollutants with the intent that specified measures
       be required where feasible and appropriate:

               “Trees shall be carefully selected and located to protect building(s)
               from energy consuming environmental conditions, and to shade
               paved areas. Trees selected to shade paved areas should be
               varieties that will shade 25% of the paved area within 20 years;

               “Equip HVAC units with a PremAir or similar catalyst system, if
               reasonably available and economically feasible at the time building
               permits are issued. Catalyst systems are considered feasible if the
               additional cost is less than 10% of the base HVAC unit cost;

               “Install two 110/208 volt power outlets for every two loading
               docks.” (Original italics.)
                      a.     Contentions of the Parties
       Plaintiffs’ argument regarding the inadequacy of this discussion is built, in part, on
two related flaws in the mitigation provisions themselves. Plaintiffs assert the mitigation
measures (1) are merely amorphous guidelines and (2) are not enforceable. Plaintiffs
appear to argue that these flaws (and the uncertainty they create) are not cured by the
discussion in the EIR because there is no explanation of how it will be determined


                                             54.
whether a measure is both “feasible and appropriate” and the person making this
determination is not identified.
       Defendants contend that the measures concerning nonresidential development are
specific, enforceable and adequately described in the EIR. Defendants interpret these
measures to mean that during review of future project-specific submittals, County shall
require that the three provisions be followed. Defendants acknowledge the use of the
term “guidelines” in the introductory language, but note the use of the word “shall” and
contend the requirements in the italicized text are quite specific. As to enforceability,
defendants interpret plaintiffs’ argument as being limited to the phrase “feasible and
appropriate” and arguing that feasibility is inherent in every mitigation measure adopted
under CEQA and, alternatively, the three italicized mitigation measures are repeated in
Mitigation Measures #3.15.1a and #3.15.1d without an introductory clause that states
they will be implemented only if feasible and appropriate. Based on these arguments,
defendants conclude that the CEQA requirements are satisfied because County is
“committed” to the listed mitigation.
                     b.     Vagueness and Enforceability
       Our scrutiny of plaintiffs’ claim begins by examining whether the mitigation
measures in question are vague or unenforceable. For purposes of this case, we will treat
the question of vagueness as being part of our inquiry into enforceability because
vagueness makes it difficult to identify the who-what-when essential to enforcement.24


24     Although we are not applying the due process vagueness doctrine here, the cases
discussing that doctrine illustrate the relationship between vagueness in a legal
requirement or prohibition and its enforceability. A vague provision can make persons of
common intelligence guess at its meaning and cause them to differ as to its application,
which may result in arbitrary decisions by judges or others enforcing the requirement or
prohibition. Accordingly, one aspect of the vagueness doctrine examines whether the
requirement or prohibition in question “provides reasonably adequate standards to guide
enforcement. [Citations.]” (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 702.)


                                             55.
       Under CEQA, County “shall provide” that the mitigation measures “are fully
enforceable through permit conditions, agreements or other measures.” (§ 21081.6,
subd. (b); Guidelines, § 15126.4, subd. (a)(2).) The mitigation provisions in question do
not expressly identify the means by which County will make the measures enforceable.
The provision about equipping HVAC units with a catalyst system refers to availability
and feasibility at the time building permits are issued. One implication of this language
is that the inclusion of a catalyst system will be made a permit condition, but other
interpretations are possible. Because the mitigation provisions themselves do not state
expressly what County is required to do to render the measures enforceable, we turn to
the discussion in the EIR to see if it explains how the provisions will be made
enforceable.25 No such explanation is given in the EIR. Additional uncertainty about
enforcement arises from the fact that the provisions do not clearly state who is to do what
and when that action must be taken. For example, the provision that trees “shall be
carefully selected and located” (italics omitted) to protect buildings from energy
consuming environmental conditions uses the passive voice to hide the identity of the
actor—that is, the person or entity selecting and locating the trees.26 Thus, the reader is


25     Because the measures concerning nonresidential development concern future
submittals, the enforceability question has two layers. First, if County fails to require the
mitigation at a future date, can a legal proceeding be brought against County to force it to
impose the mitigation? (See Morris v. Harper (2001) 94 Cal.App.4th 52, 62 [ordinary
mandamus generally is available only to compel performance of a duty that is purely
ministerial and cannot be invoked to compel an official to exercise discretion in a
particular way].) Second, if County requires mitigation, can a legal proceeding be
brought against the developer to require the developer to perform the action required in
the mitigation measure?
26     None of the 12 mitigation provisions in Mitigation Measure #3.3.2 identify the
person or entity that will perform the mitigation and some measures, such as the
transportation related mitigation measures, even lack a verb (e.g., equip or install) that
indicates the action to be taken. For example, the 12th measure simply provides:
“Information regarding [Air District’s] programs to reduce county-wide emissions.”


                                             56.
left to speculate whether County or the developer will perform the selection. Similarly,
the provision about equipping HVAC units with a catalyst system does not identify who
will determine if the system is “reasonably available and economically feasible.” Based
on the foregoing, we conclude that the provisions in Mitigation Measure #3.3.2 are vague
on matters essential to enforceability and, therefore, County has violated the requirement
in CEQA that it “shall provide” mitigation measures that “are fully enforceable through
permit conditions, agreements or other measures.” (§ 21081.6, subd. (b).)
       As to defendants’ argument that the phrase “where feasible and appropriate”27
does not create vague, unenforceable standards because the same measures are restated
elsewhere without that limitation, we conclude that this internal inconsistency in the
language of the mitigation measures does not solve the vagueness problem, but adds to it.
For example, in a subsequent lawsuit over compliance with the mitigation measures,
County could argue the inconsistency creates an ambiguity and the courts should defer to
the interpretation County adopts to resolve that ambiguity because it adopted the
provisions in the first place and understands the underlying intent. (See Gray v. County
of Madera, supra, 167 Cal.App.4th 1099 [county entitled to considerable deference when


27     While the regulatory definition of “feasible” in Guidelines section 15364 has been
addressed and applied in many cases, the term “appropriate” is not defined in CEQA or
the Guidelines. Consequently, use of the term could be interpreted as granting County a
wide range of discretionary authority with regard to the imposition of future mitigation.
One dictionary defines “appropriate” as “especially suitable or compatible: fitting.”
(Merriam-Webster’s Collegiate Dictionary (10th ed. 1999) p. 57, col. 2.) Therefore, the
use of the term “appropriate” adds to the vagueness of the mitigation provisions for
nonresidential development.
       Also, we do not join in defendants’ interpretation of plaintiffs’ argument about the
lack of enforceability as concerning only the phrase stating that the specified measures
will “be required where feasible and appropriate.” Plaintiffs expressly argued that “there
is nothing in MM 3.3.2 that appears to be a commitment to enforceable mitigation” and
we interpret this argument as addressing more than just the phrase “feasible and
appropriate.”


                                            57.
interpreting its general plan or its zoning ordinances].) Therefore, on remand, the
additional vagueness created by the inclusion of the phrase “where feasible and
appropriate” in Mitigation Measure #3.3.2 should be resolved.
              5.     Substantial Reduction in Air Quality Impacts
       Plaintiffs’ third claim of insufficient detail in the discussion of the mitigation
measures concerns the first sentence in Mitigation Measure #3.3.2, which states that
“[i]mplementation of the following mitigation measures will substantially reduce air
quality impacts related to human activity within the entire Project area .…” (Italics
added.) Plaintiffs argue there was no explanation of how it was determined that the
proposed measures would substantially reduce air quality impacts and the bare
conclusion about a substantial reduction does not satisfy CEQA’s disclosure
requirements. (See AIR, supra, 107 Cal.App.4th at p. 1390 [EIR must contain facts and
analysis, not just bare conclusions].)
       Defendants argue that the EIR is adequate because it enables the public to discern
the analytical route County traveled from evidence to action and, furthermore, plaintiffs
have cited no legal authority requiring an EIR to disclose the extent that mitigation would
reduce emissions.
       The statement that air quality impacts will be reduced substantially by Mitigation
Measure #3.3.2 implies that someone has quantified the expected reductions to the tons
of emissions disclosed earlier in the EIR and concluded that those expected reductions
would be substantial. This implication is not supported by the discussion in the EIR nor
explained in defendants’ appellate brief. Thus, we are unable to discern whether the use
of the term “substantially reduce” is supported by any evidence or, alternatively, is
unsupported by the evidence and was included in Mitigation Measure #3.3.2
inadvertently or as an intentional attempt to mislead the reader. Regardless of how the
phrase came to be used, we agree with plaintiffs that the statement that the measure will
substantially reduce air quality impacts is a bare conclusion and, in this case, is not

                                             58.
supported by facts or analysis as required by the disclosure principles set forth in AIR,
supra, 107 Cal.App.4th at pages 1390 through 1391. On remand, if County reasserts its
position that the reductions in emissions will be substantial, it should include enough
facts and analysis in the EIR to allow a reviewing court to determine whether that finding
of fact is supported by substantial evidence. For example, if the URBEMIS software
program used to estimate the development’s emissions contains variables that are
affected by the mitigation measures, it may be that the software program was used to
analyze a development scenario that included the mitigation measures. If that is the case,
then the use of URBEMIS to quantify the emission reductions should be disclosed.
Alternatively, if no quantitative assessment was performed, then (1) the claim of a
substantial reduction should not be made or (2) the nonquantitative basis for the claim
should be disclosed.
       In summary, on remand, the assertion of fact in Mitigation Measure #3.3.2 that the
reduction in air quality impacts will be substantial should be either explained or deleted.
       D.     Impermissible Deferral of Formulation of Mitigation Measures
       Plaintiffs argue that Mitigation Measure #3.3.2 constitutes an impermissible
deferral of the formulation of mitigation measures because (1) it provides for future
mitigation measures without a commitment to any performance standards and (2) it
defers the task of formulating mitigation to the Air District.
              1.       Arguments Made to Trial Court
       Defendants contend the issue of deferred formulation of mitigation was not raised
in the trial court. Plaintiffs did argue to the trial court that the mitigation measures were
vague and undefined, which made it impossible to gauge their effectiveness. This
vagueness argument is similar to the claim that the mitigation measures failed to contain
specific performance criteria—the test used to determine whether the formulation of a
mitigation measure may be deferred. In addition, the improper deferral of the
formulation of a mitigation measure for a project of this size presents a question of law

                                             59.
involving the public interest. Therefore, in the exercise of our discretion, we will
consider the question whether County improperly deferred the formulation of mitigation
measures. (See Woodward Park Homeowners Assn., Inc. v. City of Fresno, supra, 150
Cal.App.4th at pp. 712-714 [this court exercised its discretion to consider issues
regarding adequacy of EIR not raised below].)
              2.     Rules Concerning Deferral and Performance Criteria
       Generally, it is improper to defer the formulation of mitigation measures.
(Guidelines, § 15126.4, subd. (a)(1)(B); POET, LLC v. State Air Resources Bd. (2013)
218 Cal.App.4th 681, 735 (POET).) An exception to this general rule applies when the
agency has committed itself to specific performance criteria for evaluating the efficacy of
the measures to be implemented in the future, and the future mitigation measures are
formulated and operational before the project activity that they regulate begins. (POET,
supra, at p. 738.)
              3.     Substitution of New Measures
       Our analysis of the deferral issue begins with the last paragraph of Mitigation
Measure #3.3.2 because of its overarching effect, which provides that all the mitigation
provisions are subject to change. Specifically, the final paragraph provides that “County
and [Air District] may substitute different air pollution control measures for individual
projects, that are equally effective or superior to those proposed herein .…” The contents
of the substitute provisions are unknown at present and, therefore, must be created (i.e.,
formulated) in the future. Because the formulation of the substitute provisions is
deferred, they must qualify for an exception to the general rule that prohibits the deferred
formulation of mitigation measures—that is, there must be specific performance
standards so that the substitute measures may be evaluated to determine whether, in fact,
they are equally effective or superior to the measure they replaced.
       Many of the specific provisions in Mitigation Measure #3.3.2 lack performance
standards that would allow either County or the public to determine whether the

                                            60.
substitute measure works as well as the original provisions. The 12th measure, which is
supposed to address transportation, states: “Information regarding [Air District’s]
programs to reduce county-wide emissions.” When this provision is construed with the
substitution clause, there is no basis for determining whether any potential substitute
measure is equally effective or superior. Therefore, the substitution clause, when read
together with the 12th measure, violates CEQA because it allows for the deferred
formulation of mitigation measures when there are no specific performance standards to
evaluate the effectiveness of the substitute measure.
              4.     Application of Specificity Requirement
       The foregoing conclusion leads us to an analysis of each of the 12 mitigation
provisions contained in Mitigation Measure #3.3.2. If the original provision contains
specific performance criteria, then the possibility that a substitute measure might be
formulated in the future does not violate CEQA because the substitute’s performance
could be measured objectively under those criteria and a determination reached as to
whether the substitute is as effective as the measure being replaced.
       The first mitigation measure, which concerns the use of trees in nonresidential
development, fails to contain any performance standard as to the trees selected and
located to protect buildings from energy consuming environmental conditions, but does
contain a performance standard for trees selected to shade paved areas. The latter
category of trees “should be varieties that will shade 25% of the paved area within 20
years” (italics omitted). The absence of any performance criteria for the trees selected to
protect buildings leads us to conclude that part of the provision violates CEQA’s rule
against the deferred formulation of mitigation measures.
       The second mitigation measure concerning nonresidential development states:
“Equip HVAC units with a PremAir or similar catalyst system, if reasonably available
and economically feasible at the time building permits are issued.…” In addition to the
vagueness problem discussed earlier, the phrase “PremAir or similar catalyst system”

                                            61.
does not identify the relevant performance characteristics of a PremAir system and,
therefore, fails to set forth specific performance criteria. As a result, the person tasked
with determining whether another catalyst system is similar to or better than a PremAir
has not been provided with objective criteria for measuring whether the stated goal is
met. (See POET, supra, 218 Cal.App.4th at p. 741.) Therefore, the measure concerning
HVAC units violates CEQA because it lacks sufficiently specific performance standards
for determining when another catalyst system is “similar” to the PremAir.
       The third mitigation provision calls for the installation of “two 110/208 volt power
outlets for every two loading docks.” Plaintiffs do not contend this measure lacks the
requisite specificity.
       The fourth through seventh mitigation provisions in Mitigation Measure #3.3.2
shall be used to “accomplish an overall reduction of 10 to 20% in residential energy
consumption relative to the requirements of the 2008 State of California Title 24 .…”28
The percentage reduction appears to be a specific performance standard. Plaintiffs have
not addressed this 10 to 20 percent reduction and, therefore, have not shown the energy
efficiency standard cannot be measured objectively. Therefore, we conclude that the
provisions that concern residential energy consumption set forth a standard with the
requisite specificity.
       The eighth and ninth provisions are designed to promote bicycle usage by
requiring (1) nonresidential projects to have bike lockers or racks and (2) apartments and
condominiums to provide “at least two Class I bicycle storage spaces per unit.” (Italics
omitted.) The eighth provision lacks any performance standard. The ninth provision is
specific only about the amount of storage required. There is no basis for evaluating the
emissions reductions achieved by the measure. Therefore, a substitute that addresses

28    This reference to title 24 presumably means title 24 of the California Code of
Regulations—part 6 of this title contains the California Building Energy Efficiency
Standards. (See Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912, 932-933.)


                                             62.
storage of bicycles could be evaluated under objective criteria, but a substitute pertaining
to another subject matter could not be evaluated.
       The tenth through 12th mitigation provisions, which are transportation related
mitigation, are not enforceable because of vagueness and, also, lack the specific
performance criteria necessary for the evaluation of a substitute measure.
       On remand, the CEQA violations involving the substitution clause and the lack of
specific performance standards in the mitigation provisions should be addressed.
       E.     Off-Site Emission Reductions
       Plaintiffs requested County to consider how air quality impacts could be mitigated
impacts through off-site emission reduction programs such as Air District’s Voluntary
Emission Reduction Agreement (VERA). Plaintiffs contend that County’s response to
their comment was not in good faith and does not provide a reasoned analysis for not
requiring a VERA as a condition of project approval.
       Defendants contend County’s response to the comments were adequate because
they correctly explained that the suggestion for off-site emission reductions, including a
VERA, would be considered during the Air District’s indirect source review (ISR)
process.29
       The lead agency’s obligation regarding comments to the draft EIR is discussed in
CEQA and Guidelines section 15088. The agency must evaluate the comments and
prepare a written response. (§ 21091, subd. (d)(2)(A); Guidelines, § 15088, subd. (a).)
The written response shall describe the disposition of significant environmental issues

29     The ISR process is defined by Air District’s Rules 3180 and 9510. (See Coalition
for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 415, fn. 5.) Rule 9510
requires a certain amount of emission reductions from each new development project and
those reductions may be achieved through on-site emission reductions, payment of a fee
to fund off-site emission reducing projects, or a combination of the two. (California
Building Industry Assn. v. San Joaquin Valley Air Pollution Control Dist. (2009) 178
Cal.App.4th 120, 127.)


                                            63.
raised in the comments. When the lead agency’s position on a major environmental issue
is at variance with the recommendations and objections raised in the comments, the
response must address in detail why the specific comments and suggestions were not
accepted. (Guidelines, § 15088, subd. (c).) “There must be good faith, reasoned analysis
in response. Conclusory statements unsupported by factual information will not suffice.”
(Ibid.) Responses to comments need not be exhaustive. (Eureka Citizens for Responsible
Government v. City of Eureka (2007) 147 Cal.App.4th 357, 378.) The level of detail
required in a response is judged by the level of detail in the comment—that is, a general
response to a general comment is sufficient. (Ibid.)
       Applying the foregoing legal standards, we conclude that County’s response to
plaintiffs’ written comments provided a reasoned analysis that meets an objective good
faith standard.30 County’s response to comment No. 32.24 stated: “[A] VERA is a
voluntary agreement and therefore is not a mitigation measure that is enforceable by the
County. In addition, VERAs are typically handled prior to issuance of a tentative map.
However, the application will also be subject to an [ISR], at which time the application
will discuss a VERA with the [Air District.]” County’s response to comment No. 32.25
stated that the Air District had jurisdiction over various project-related approvals,
including the action to ensure compliance with Rule 9510.
       We conclude that these responses adequately served the disclosure purpose that is
central to the EIR process. (Twain Harte Homeowners Assn. v. County of Tuolumne
(1982) 138 Cal.App.3d 664, 686.) County clearly indicated that the consideration of a
VERA would occur at a later stage and explained that process.



30     We conclude an objective standard, which is based on reasonableness, rather than
a subjective standard, which is based on the actor’s state of mind or motives, is the
correct standard in this context. (See Madera Oversight Coalition, Inc. v. County of
Madera, supra, 199 Cal.App.4th at p. 103, fn. 32.)


                                             64.
       Besides claiming that County’s response to the comment about VERA was
inadequate, plaintiffs also appear to disagree with County’s substantive decision to have
the consideration of a VERA addressed later rather than accelerating the consideration of
a VERA. Under the abuse of discretion standard of review, it can be difficult for a
plaintiff to show that an agency’s substantive decision constitutes reversible error. To
establish reversible error, the plaintiffs must show that the agency “has not proceeded in a
manner required by law .…” (§ 21168.5.) In the present case, plaintiffs have identified
no statute, regulations or case law that requires the consideration of VERA at this point in
the administrative process. Therefore, plaintiffs have not shown that County failed to
proceed in a manner required by law when it decided not to accelerate the consideration
of a VERA.
                                      DISPOSITION
       The judgment is reversed and the matter remanded for further proceedings. The
superior court is directed (1) to vacate its decision denying the petition for writ of
mandate and (2) to enter a new order that grants the petition for writ of mandate.
       The superior court shall issue a peremptory writ of mandate that compels County
to vacate or set aside it approval of the Friant Ranch project and directs County not to
approve the project before preparing a revised EIR that (1) contains an analysis of the
adverse human health impacts that are likely to result from the air quality impacts
identified in the EIR; (2) addresses the deficiencies concerning vagueness, enforceability
and lack of specific performance standards in Mitigation Measure #3.3.2; and (3)
addresses the issues related to the statement that those mitigation provisions will
substantially reduce air quality impacts.
       The superior court shall retain jurisdiction over the proceedings by way of a return
to the writ. Whether the superior court requires County to file an initial return explaining
the action it intends to take to satisfy the writ’s requirements is a matter committed to the
court’s discretion.

                                             65.
     Costs on appeal are awarded to plaintiffs.



                                                  _____________________
                                                               Franson, J.
WE CONCUR:


 _____________________
Cornell, Acting P.J.


 _____________________
Kane, J.




                                          66.
