California Native Plant Society v. City of Rancho Cordova (172 Cal. App. 4th 603, 2009)

Opinion

ROBIE, J.

In this mandamus action brought by plaintiff California Native Plant Society (the Society), the trial court directed defendants City of Rancho Cordova and Rancho Cordova City Council (jointly the City) to set aside two resolutions and two ordinances relating to a residential and commercial development project known as the Preserve at Sunridge (the Project). The trial court found the City’s certification of the environmental impact report (EIR) for the Project and approval of the Project violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.): (1) “by improperly deferring mitigation of impacts on vernal pool and wetland habitat and associated animal species”; (2) because the “findings [in the EIR] that impact on vernal pool and wetland habitat and associated animal species had been mitigated to less than significant levels [we]re not supported by substantial evidence”; and (3) “because the EIR failed to disclose the potentially significant impact of the water supply plans for the project on fish migration in the Cosumnes River.” The trial court also found the approval of the Project violated the Planning and Zoning Law (Gov. Code, § 65000 et seq.) because the Project was “not consistent with, and d[id] not comply with, mandatory requirements of [the City]’s General Plan regarding interconnection of preserved habitat areas that support special-status plant and animal species, and regarding mitigation on such species to ensure that the project does not contribute to the decline of the affected species population.”

On the appeal by the City and real party in interest Jaeger Road 530, LLC (Jaeger), and the cross-appeal by the Society, we will conclude the trial court did not err in finding the approval of the Project violated the Planning and Zoning Law because, as we will explain, the City’s general plan required the City to design mitigation for impacts of the Project on special-status species in coordination with the United States Fish and Wildlife Service (the Service), which the City did not do. The trial court did err, however, in finding the City violated CEQA in preparing the EIR and approving the Project. Accordingly, we will reverse the judgment and instruct the trial court to enter a new and different judgment consistent with our decision.

FACTUAL AND PROCEDURAL BACKGROUND

The Project

The Project involves the development of an approximately 530-acre site in the southeastern portion of the City that is to include “single-family residential, multi-family residential, commercial and office uses, a neighborhood park, an elementary school, detention/water quality basins, an open space/wetland preserve, pedestrian facilities, bikeways, parkways, and drainage corridors.” The Project site lies in the center of a master planned community known as Sunrise Douglas, which was the subject of a community plan (the Sunrise Douglas Community Plan) approved by Sacramento County. (See Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 421-422 [53 Cal.Rptr.3d 821, 150 P.3d 709] (Vineyard).)

The Project site “is located within the Laguna Formation Geological Formation in the Southeastern Sacramento Valley Vernal Pool Region.” Vernal pools are “seasonally inundated shallow depressions underlain by an impermeable layer of soil, generally hardpan or bedrock .... The pools are inundated with water for various periods of times [szc] depending on the depression depth, extent and duration of rainfall, and ambient temperatures.” “The vernal pools on the site are classified as northern hardpan vernal pools” and they “support a variety of invertebrate species that are adapted to seasonal inundation and climatic regime associated by this habitat . . . .”

A large “unnamed ephemeral drainage” way that is “a headwater tributary to Morrison Creek” runs through the Project site. “This drainage typically functions in the collection and transport of stormwater and convey flows during and immediately after storm events.” “Depressional areas occur within the reach of the drainage where water pools and remains after the primary channel is dried. These depressional areas support vernal pool and seasonal wetland vegetation in the spring” and provide habitats for two species of vernal pool crustaceans—vernal pool fairy shrimp and vernal pool tadpole shrimp—that are listed as threatened and endangered (respectively) under the federal Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq.). Vernal pool tadpole shrimp were actually “observed in some of the deeper on-site pools during . . . surveys” in 2002 and 2005, and vernal pool fairy shrimp “have been documented within vernal pools in the immediate project vicinity.”

The Federal Agencies’ “Conceptual-Level Strategy”

In the spring of 2004, three federal agencies—the Service, the United States Environmental Protection Agency (USEPA), and the United States Army Corps of Engineers (the Corps)—“met to formulate a conceptual-level strategy for avoiding, minimizing, and preserving aquatic resource habitat in the Sunrise-Douglas Community Plan Area.” According to the agencies’ strategy document, these meetings resulted in the identification of “preserve areas” within the Sunrise Douglas Community Plan area that were “predicated on ten principles and standards that would be followed by developers and planners as each element of the overall development proceeds.” Further, the agencies’ strategy document provided that “[t]he mapped boundaries [of these preserve areas were] the smallest that would be acceptable to the Agencies . . . .” The document also provided as follows: “The conceptual level strategy should be used by developers and planners to design and plan projects in the [Sunrise Douglas Community Plan area]. The Agencies will use the strategy to aid in the review of proposed development and evaluate the probable individual and cumulative effects on aquatic resources and sensitive species.”

The Notices of Preparation and Initial Comments

In September 2004, the City issued notice of its intent to prepare an EIR for the Project. In response, the Service submitted a comment letter. The Service referred extensively to the conceptual-level strategy document it had developed earlier that year in conjunction with USEPA and the Corps, then stated as follows: “Based on our review of the proposal submitted by the project proponent, the project design for the [Project] is not consistent with our conceptual-level strategy document and the map. The proposal would result in significant impacts to, and loss of, vernal pool tadpole shrimp [and] vernal pool fairy shrimp . . . and the habitats they depend on (grasslands, wetlands and vernal pools). In addition, the proposal would result in the realignment of Morrison Creek for much of its length in the project site. This action will result in significant changes and impacts to the overall hydrology of the area which will, in turn, adversely impact endangered species habitat. We strongly recommend that the . . . [Pjroject, and all future projects, in the [Sunrise Douglas Community Plan area] be designed consistent with the strategy discussed here.”

The Draft EIR

The City released the draft EIR for comment in October 2005. In its assessment of impacts on biological resources, the draft EIR noted the Project would “result in the direct loss of 14.1 acres of vernal pool fairy shrimp habitat” and “15.65 acres of vernal pool tadpole shrimp habitat.”* ** The draft EIR deemed the loss of this habitat significant. The draft EIR further provided that these direct impacts would be mitigated “in such a manner that there will be no net loss of habitat (acreage and function) for these species in the Laguna Formation following implementation of the project.” To achieve this and thereby reduce the impact of the Project to less than significant, the applicant would be required to “complete and implement a habitat mitigation and monitoring plan that will compensate for the loss of acreage, function and value of the impacted resources.” (This mitigation requirement is referred to as mitigation measure 4.9.1b.) Generally, the plan would require the applicant to preserve two acres of existing habitat or create one acre of new habitat for each acre of habitat impacted by the Project. The plan would have to include “[tjarget areas for creation, restoration and preservation,” “[a] complete biological assessment of the existing resources on the target areas,” “[s]pecific creation and restoration plans for each target area,” and “[performance standards for success that will illustrate that the compensation ratios are met.”

In addition to noting the direct loss of habitat for both species of vernal pool shrimp, the draft EIR also noted the Project would have indirect adverse effects on the habitat for these species, both “in the on-site preserve and adjacent off-site habitat areas,” which would be significant. Specifically, “Alternation of current inundation and desiccation regimes due to altered hydrology [resulting from the creation of impervious surfaces and the redirection of stormwater flows] could substantially alter the characteristics of vernal pool habitat, resulting in [the] loss or degradation of [that] habitat.” To mitigate these indirect effects, the applicant would be required (among other things) to adhere to the same 2-1/1-1 preservation/creation requirement under the same mitigation and monitoring plan imposed to mitigate the direct loss of habitat from the Project. (This mitigation requirement is referred to as mitigation measure 4.9.2a.)

The draft EIR noted the Project would result in a significant impact to the northern hardpan vernal pool community, consisting of a direct loss of 10.46 acres of such pools as well as indirect effects on such pools. The draft EIR noted that implementation of several already-identified mitigation measures, including 4.9.1b and 4.9.2a, would reduce the impact to less than significant.

The draft EIR also noted the Project would result in a significant impact due to the loss of 15.65 acres of “waters of the US.” This impact was to be mitigated by “plans for the creation of jurisdictional waters at a mitigation ratio no less than 1:1 acres of created waters to each acre filled.” This mitigation measure (4.9.5a) could be satisfied by the vernal pool and seasonal wetland mitigation pursuant to mitigation measure 4.9.1b.

Comments on the Draft EIR

The Service submitted a comment letter on the draft EIR directing the City’s attention back to the Service’s letter of October 2004 in response to the notice of preparation of the EIR. The Service noted that with respect to the vernal pool fairy and tadpole shrimp (and two special-status species of grass), “we cannot discern any changes to the proposal which would reduce impacts to these species, thus our previous comments are pertinent.”

In its own comment letter on the draft EIR, the Society asserted the mitigation and monitoring plan proposed as mitigation measure 4.9.1b would “also have environmental impacts but these are not addressed in the DEIR. Additionally, committing to the preparation of a document does not constitute mitigation. In order for the public to be fully informed of the environmental consequences (both positive and negative) of this proposed project, the DEIR should identify the proposed mitigation site and discuss the. environmental impacts associated with the proposed mitigation and monitoring plan.” The Society also asserted its belief “that creation of artificial vernal pools within an existing intact vernal pool grassland ecosystem is actually a negative environmental impact upon that natural system. Additionally, we are concerned that creation or restoration of mitigation vernal pools could have significant negative impacts upon the ecosystem as a whole.” The Society offered a similar comment to mitigation measure 4.9.5a.

The Final EIR and Approval of the Project

In response to the Society’s comments, the City added a new mitigation measure (4.9.2c) in the final EIR. The purpose of this new measure was to “address[] the potential impacts of the proposed off-site creation activities” so as to “ensure that the biological impacts are reduced to less than significant.” Among other things, this new measure required the applicant to submit a wetland “Avoidance/Mitigation Plan,” which would include “[t]he location of the proposed vernal pool and seasonal wetland habitat site(s) ... to be created to ensure no net loss in wetland habitat acreage, values and functions,” “a monitoring plan to assess whether the compensation wetlands are functioning as intended,” and “a maintenance plan for the wetland preservation/mitigation areas describing the measures to be implemented to assure that they are maintained as wetland habitat in perpetuity.”

In July 2006, the City adopted resolutions certifying the EIR for the Project and approving an amendment to certain mitigation measures in the Sunrise Douglas Community Plan. The City specifically found the Project was consistent with its new general plan.

In August 2006, the City adopted a resolution approving a tentative subdivision map for the Project, an ordinance amending the zoning for the area of the Project, and an ordinance approving the development agreement between the City and Jaeger. The City specifically found the tentative map, the rezoning, and the development agreement were consistent with the City’s general plan.

Proceedings in the Trial Court

In September 2006, the Society filed a petition for writ of mandate alleging violation of CEQA. In November, the Society filed an amended petition alleging violations of CEQA and the Planning and Zoning Law. Later, the Society filed a second amended petition that contained four causes of action asserting violations of CEQA and one cause of action asserting violation of the Planning and Zoning Law.

The Society’s arguments in support of its petition, and the City’s responses to those arguments, will be described in detail in the discussion to come. For now, suffice it to say that while the trial court rejected some of the Society’s arguments and found some were not preserved for review by the exhaustion of administrative remedies, the court nonetheless granted judgment in favor of the Society, finding that the City’s approval of the Project and certification of the EIR violated CEQA and that the approval of the Project also violated the Planning and Zoning Law. The City and Jaeger filed a timely appeal, and the Society filed a timely cross-appeal.

DISCUSSION

I

CEQA Issues

A

Standard and Scope of Review

In CEQA cases a court decides whether “the agency has not proceeded in a manner required by law” and “the act or decision is supported by substantial evidence in the light of the whole record.” (CEQA, §§ 21168.5, 21168; see Neighbors of Cavitt Ranch v. County of Placer (2003) 106 Cal.App.4th 1092, 1099-1100 [131 Cal.Rptr.2d 379].) “The agency is the finder of fact and we must indulge all reasonable inferences from the evidence that would support the agency’s determinations and resolve all conflicts in the evidence in favor of the agency’s decision.” (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117 [104 Cal.Rptr.2d 326].) Accordingly, the burden is on the challenger. (Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1617 [45 Cal.Rptr.2d 688].) “The appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQA is de novo.” (Vineyard, supra, 40 Cal.4th at p. 427.)

B

Offsite Mitigation

In the trial court, the Society argued the EIR violated CEQA because it “failed to describe . . . where off-site vernal pool and wetland creation may occur, or how such activities may affect these undescribed off-site environments.” The Society contended that by failing to identify where the offsite mitigation might occur, the EIR (1) failed to establish an accurate, stable, and finite description of the Project; and (2) failed to describe the environment that might be affected by the offsite mitigation. The Society also contended the new mitigation measure (4.9.2c) added in the final EIR “unlawfully segments, or ‘piecemeals,’ environmental review for the ‘whole’ of the . . . project.” In addition, the Society contended the City had “unlawfully deferred development and adoption of mitigation measures until after project approval” by failing to describe where the offsite mitigation might occur and failing to analyze or disclose the impacts of that mitigation. Finally, the Society contended the City had violated CEQA by failing to recirculate the draft EIR after adding the new mitigation measure.

The Society also argued the City’s finding, that the vernal pool and seasonal wetland mitigation measures provided for in the EIR would reduce the impact of the Project on these habitats to less than significant, was not supported by the evidence.

In its opposition, the City argued (among other things) that the Society had failed to exhaust its administrative remedies because it had failed to raise any of these arguments in the administrative proceedings.

The trial court determined the Society’s letter commenting on the draft EIR was sufficient to exhaust administrative remedies on two of the arguments relating to offsite mitigation: (1) “whether mitigation of impacts on vernal pools, wetlands, and associated animal species, improperly [were] deferred” and (2) “whether the finding that proposed off-site mitigation measures would reduce the impacts on vernal pools to a ‘less than significant level’ was supported by substantial evidence.” The court further concluded, however, that administrative remedies had not been exhausted on the issues of whether the City was required to recirculate the draft EIR after adding the new mitigation measure and whether the City’s “handling of proposed off-site mitigation made the EIR deficient in its description of the project, in its description of the environmental background of the project, or in the sense that the project was being improperly ‘piecemealed.’ ”

On the merits of the issues the trial court found were properly raised, the court agreed with the Society. The court concluded the “proposed mitigation plan for addressing the loss of vernal pool and wetlands habitat on the project site . . . suffers from flaws in two areas which prevent it from complying with the rules for acceptable deferred mitigation.” First, “the mitigation plan does not identify any particular locations in the Laguna Formation Area at which replacement vernal pools and wetlands may be constructed, or give any reasonable assurance, or even expectation, that such locations can and will be acquired and used for such purposes.” Second, “the mitigation plan lacks appropriate standards and criteria applicable to its goal of replacing lost habitat with functioning new vernal pools and wetlands. . . . The mitigation plan as it stands thus lacks the kind of specific performance criteria that are necessary for proper deferred mitigation.” As a consequence of its finding of improper deferred mitigation measures, the trial court also concluded the City’s “findings that impacts have been reduced to the level of ‘less than significant’ based on those measures are not supported by substantial evidence.”

On appeal, the City and Jaeger contend the trial court erred in concluding the City improperly deferred mitigation and that substantial evidence does not support the City’s finding that offsite mitigation will reduce the impact of the Project on the vernal pool and seasonal wetland habitats to less than significant.

In its cross-appeal, the Society asserts the trial court erred in concluding administrative remedies were not exhausted on the Society’s four other arguments relating to offsite mitigation.

We begin with the exhaustion issue.

1. Exhaustion of Administrative Remedies

“ ‘Exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance of a CEQA action.’ [Citation.] Subdivision (a) of CEQA section 21177 sets forth the exhaustion requirement [the trial court applied] here. That requirement is satisfied if ‘the alleged grounds for noncompliance with [CEQA] were presented ... by any person during the public comment period provided by [CEQA] or prior to the close of the public hearing on the project before the issuance of the notice of determination.’ ” (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 791-792 [39 Cal.Rptr.3d 189], fn. & italics omitted.)

“The purpose of the rule of exhaustion of administrative remedies is to provide an administrative agency with the opportunity to decide matters in its area of expertise prior to judicial review. [Citation.] The decisionmaking body ‘ “is entitled to learn the contentions of interested parties before litigation is instituted.” ’ ” (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 384 [110 Cal.Rptr.2d 579].)

To exhaust administrative remedies, “[m]ore is obviously required” than “generalized environmental comments at public hearings.” (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197 [200 Cal.Rptr. 855].) “On the other hand, less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding. This is because ‘ “[i]n administrative proceedings, [parties] generally are not represented by counsel. To hold such parties to knowledge of the technical rules of evidence and to the penalty of waiver for failure to make a timely and specific objection would be unfair to them.” [Citation.] It is no hardship, however, to require a layman to make known what facts are contested.’ ” (Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 163 [217 Cal.Rptr. 893].)

In reaching its conclusion that administrative remedies were not exhausted on the Society’s four other arguments relating to offsite mitigation, the trial court offered this explanation:

“[The Society]’s comments [did not] alert [the City] to the contention that its handling of proposed off-site mitigation made the EIR deficient in its description of the project, in its description of the environmental background of the project, or in the sense that the project was being improperly ‘piecemealed’. These claimed deficiencies are more than merely alternative legal theories arising from the allegation that off-site mitigation was being deferred improperly or would not actually reduce the impact of the project on vernal pools to ‘less than significant’; they are also separate factual issues that, if accepted and acted upon, would have required restructuring and rewriting sections of the EIR entirely distinct from those addressing the mitigation measures at issue here. Nothing in [the Society]’s comments made that clear in a way that would have given [the City] the opportunity to address the issue prior to approval of the project.

“Finally, nothing in [the Society]’s comments alerted [the City] to the contention that it was required to recirculate the Draft EIR because significant new information regarding the environmental impacts of the proposed off-site mitigation measures, and a corresponding new mitigation measure to address them, allegedly had been added after circulation of the Draft EIR. Of course, [the Society’s comment] letter could not have addressed these issues, because the new environmental impact and the new mitigation measures . . . related to off-site mitigation were announced in the responses to [the Society]’s comment. . . . But [the Society] still could have addressed the issue prior to [the City]’s final decision to certify the Final EIR and approve the project. No evidence is cited that it did so.”

The trial court’s analysis of the exhaustion issue is well reasoned and persuasive, and nothing in the Society’s argument on appeal convinces us the trial court erred. The core of the Society’s comments on the draft EIR was that the mitigation measures proposed in the EIR to reduce the impact of the Project on the vernal pool and seasonal wetland habitats were inadequate because the EIR did not “identify the proposed mitigation site and discuss the environmental impacts associated with the proposed mitigation and monitoring plan” and “committing to the preparation of a document does not constitute mitigation.” Nothing in these comments called into question the description of the Project or its environmental background or suggested the Project was being improperly “piecemealed.” Also, the Society still has not cited any evidence that it ever attempted to raise in the administrative proceedings the issue of recirculation of the EIR.

On appeal, the Society attempts to draw support for its challenge to the trial court’s conclusions on the exhaustion issue from two cases, but neither case is helpful to the Society. In Save Our Residential Environment v. City of West Hollywood (1992) 9 Cal.App.4th 1745 [12 Cal.Rptr.2d 308] (SORE), a nonprofit association of property owners and residents (SORE) challenged the adequacy of an EIR relating to a five-story residential care facility for senior citizens to be built in the City of West Hollywood. (Id. at p. 1748.) The ultimate issue was “whether the EIR for the Project was required to examine alternative sites outside the territorial limits of the City, since the EIR found no feasible alternative sites within the City.” (Ibid.) The City contended SORE had not exhausted its administrative remedies on that issue because “SORE did not specifically object to the legal adequacy of the EIR’s alternative site analysis . . . .” (Id. at p. 1750.) The appellate court rejected that argument, concluding “that SORE’s objections to the Project, while not identifying the precise legal inadequacy upon which the trial court’s ruling ultimately rested, fairly apprised the City and Rossmoor [the developer] that SORE believed the environmental impacts of developing the Project on the Rossmoor site would be deleterious to the surrounding community.” (Ibid.)

Given that the appellate court in SORE failed to identify what SORE’s actual “objections to the Project” were, the SORE case is of little assistance here, as we cannot determine exactly what comments the court found were sufficient to exhaust administrative remedies on the adequacy of the EIR’s alternative site analysis and thus cannot extrapolate from the facts of that case a legal principle we can apply to the facts of this case. Without that detail, SORE at best stands for the proposition that complaints a project will be deleterious to the surrounding community may be sufficient to exhaust administrative remedies on the EIR’s failure to adequately examine alternative sites. But the Society fails to explain how that proposition has any bearing here. The Society’s comments that the EIR here did not “identify the proposed mitigation site and discuss the environmental impacts associated with the proposed mitigation and monitoring plan” and that “committing to the preparation of a document does not constitute mitigation” did not fairly apprise the City that the draft EIR was inadequate in its description of the Project and its environmental background, that environmental review of the Project was being improperly “piecemealed,” or that the EIR would need to be recirculated.

In the second case the Society cites—East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. (1989) 210 Cal.App.3d 155 [258 Cal.Rptr. 147]—a school district, in determining that its decision to close a high school and transfer the students to other schools was exempt from CEQA, failed to consider “all physical changes caused by the transfer, including the cumulative impacts of the transfer and related past and reasonably foreseeable future closings and transfers” and instead considered “only . . . specified physical changes at the receptor schools.” (East Peninsula, at pp. 159, 162, 165.) On appeal, the district asserted that the plaintiff had failed to exhaust administrative remedies on the issue of cumulative impacts, but the appellate court disagreed, concluding various comments were sufficient to alert the school district “to the fact that its method of analysis was faulty and should be expanded to include analysis of long-term impacts, traffic and safety.” (Id. at p. 176.) The specific comments mentioned in the appellate opinion are set forth in the following footnote.

Like the SORE case, East Peninsula is of little assistance to the Society here. While the comments in East Peninsula fairly apprised the school district of the need to address cumulative impacts of the school closure and transfer, including impacts to traffic and safety, the comments of the Society here did not fairly apprise the City that the draft EIR was inadequate in its description of the Project and its environmental background, that environmental review of the Project was being improperly “piecemealed,” or that the EIR would need to be recirculated.

For the foregoing reasons, we agree with the trial court that the Society did not exhaust its administrative remedies on the four other arguments relating to offsite mitigation. Accordingly, we turn to our analysis of the two arguments the trial court concluded were raised in the administrative proceeding.

2. Improper Deferral of Mitigation

As we have noted, the Society argued in the trial court that by failing to describe where the offsite mitigation might occur and failing to analyze or disclose the impacts of that mitigation, the City had “unlawfully deferred development and adoption of mitigation measures until after project approval.” In support of this argument, the Society relied on Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1394-1395 [43 Cal.Rptr.2d 170], which in turn discussed two earlier cases involving claims of improperly deferred mitigation: Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296 [248 Cal.Rptr. 352] and Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011 [280 Cal.Rptr. 478] (SOCA). We begin our discussion of this issue with an analysis of this trio of cases.

Sundstrom involved the granting of a use permit for a private sewage treatment plant based on a negative declaration. (Sundstrom v. County of Mendocino, supra, 202 Cal.App.3d at pp. 301-303.) The use permit included conditions requiring the applicant to obtain hydrological studies analyzing the effect of the project on “ ‘adjacent sewage disposal systems and surface and ground water hydrology,’ ” as well as “ ‘soil stability, erosion, sediment transport, and the flooding of downslope properties’ ” and (implicitly) requiring the applicant to mitigate any such effects the studies identified. (Id. at p. 306.)

On appeal from the denial of a petition for a writ of mandate requiring the preparation of an EIR, Division One of the First Appellate District concluded, “The requirement that the applicant adopt mitigation measures recommended in a future study is in direct conflict with the guidelines implementing CEQA. ...[][] By deferring environmental assessment to a future date, the conditions run counter to that policy of CEQA which requires environmental review at the earliest feasible stage in the planning process. . . . [f] It is also clear that the conditions improperly delegate the County’s legal responsibility to assess environmental impact by directing the applicant himself to conduct the hydrological studies subject to the approval of the planning commission staff.” (Sundstrom v. County of Mendocino, supra, 202 Cal.App.3d at pp. 303, 306-307.)

SOCA involved a challenge to the adequacy of an EIR addressing the mitigation of traffic and parking impacts of the expansion of the downtown Sacramento Convention Center complex and the construction of a nearby office tower. (SOCA, supra, 229 Cal.App.3d at p. 1015.) The EIR determined that, “under the worst case scenario, . . . parking spaces would ... be needed for 2,621 cars.” (Id. at p. 1020.) The plaintiffs complained the EIR was “defective because the City failed to describe and examine ‘true’ mitigation measures and failed to analyze the potential environmental impacts of implementing such measures.” (Id. at p. 1026.) More specifically, the plaintiffs complained the EIR contained “no specific mitigation measures for the parking impacts, but instead offer[ed] a list of ‘seven general measures of the sort that might be included in [the City’s] unformulated “Transportation Management Plan.” ’ ” (Ibid., italics omitted.) In support of their argument, the plaintiffs relied on Sundstrom. (SOCA, at p. 1027.)

On appeal from the denial of a petition for a writ of mandate, this court found Sundstrom distinguishable and concluded the “proposed mitigation measures satisfied CEQA.” (SOCA, supra, 229 Cal.App.3d at p. 1030.) The court explained that “in Sundstrom the county had determined, before the required studies were even performed, that the project would not have a significant impact on the environment. In contrast, the City in the present case acknowledged traffic and parking have the potential, particularly under the worst case scenario, of causing serious environmental problems. The City did not minimize or ignore the impacts in reliance on some future parking study. [][] Moreover, the county in Sundstrom approved the project without considering or addressing any mitigation measures. In the present case, the City has set forth a list of alternatives to be considered in the formulation of a transportation management plan, a plan the City itself, not the developer, will prepare, [f ] ... [][].. . The range of alternatives includes scheduling changes for the expanded center’s activities, satellite parking locations; public transit, carpooling; and construction of new parking or expanded use of existing parking.” (SOCA, at pp. 1028-1030, italics omitted.) Moreover, the City had “committed itself to mitigating the impacts of parking and traffic” and had “approved funds for a major study of downtown transportation.” (Id. at p. 1029.)

Gentry involved the approval of a residential development based on a mitigated negative declaration. (Gentry v. City of Murrieta, supra, 36 Cal.App.4th at p. 1367.) Among other things, the plaintiff complained, “some conditions [placed on the project] improperly deferred the determination of appropriate mitigation into the future.” (Id. at p. 1393.) On appeal from the denial of a petition for a writ of mandate, Division Two of the Fourth Appellate District concluded most of the challenged conditions did not improperly defer mitigation. (Id. at pp. 1359, 1394-1396.) The only condition the court found “improperly deferred] the formulation of mitigation” was a condition that allowed the developer “to obtain a biological report regarding the Stephens’ kangaroo rat” and “comply with any recommendations in the report.” (Id. at p. 1396.) The Gentry court concluded this condition was “on all fours with the condition in Sundstrom which required the applicant to comply with any recommendations of a report that had yet to be performed.” (Gentry, at p. 1396.)

The principles of deferred mitigation expressed in Sundstrom, SOCA, and Gentry are succinctly summarized in the California Code of Regulations, title 14, section 15126.4, subd. (a)(1)(B), which provides that “[flormulation of mitigation measures should not be deferred until some future time. However, measures may specify performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way.”

Unlike the trial court, we do not agree with the Society that the City violated the principles expressed in Sundstrom, SOCA, and Gentry regarding improper deferral of mitigation. Sundstrom and Gentry stand for the proposition that it is improper to defer the formulation of mitigation measures until after project approval; instead, the determination of whether a project will have significant environmental impacts, and the formulation of measures to mitigate those impacts, must occur before the project is approved. On the other hand, SOCA stands for the proposition that when a public agency has evaluated the potentially significant impacts of a project and has identified measures that will mitigate those impacts, the agency does not have to commit to any particular mitigation measure in the EIR, as long as it commits to mitigating the significant impacts of the project. Moreover, under SOCA, the details of exactly how mitigation will be achieved under the identified measures can be deferred pending completion of a future study.

The City satisfied these requirements here. The City did not defer a determination of whether the Project would have a significant impact on the vernal pool and seasonal wetland habitats or defer the identification of measures calculated to mitigate that impact. Rather, the City determined the impact the Project would have—habitat loss—and identified a specific measure to mitigate that impact—preservation or creation of replacement habitat offsite in a specific ratio to the habitat lost as a result of the Project. While it is true the City did not identify any specific proposed mitigation site, there is nothing in Sundstrom, SOCA, or Gentry that required it to do so. Just as the City of Sacramento in SOCA did not have to choose in the EIR exactly which of the mitigation measures it had identified would ultimately be used to mitigate the impact of the convention center project on downtown parking, the City here did not have to identify exactly where in the Laguna Formation Area any offsite mitigation site would be located. In both instances, the agency was entitled to rely on the results of a future study to fix the exact details of the implementation of the mitigation measures the agency identified in the EIR.

In accepting the Society’s argument that the City improperly deferred mitigation relating to the loss of vernal pool and seasonal wetland habitat, the trial court expressed its belief that “in order to be valid, a proposed mitigation measure that is intended to be carried out at some time after project approval must be sufficiently detailed that the public and the approving agency may make an informed decision about whether it will actually work as advertised, and that it must be realistically foreseeable that the measure will actually be carried out as outlined. If the success of a proposed mitigation measure is uncertain, the approving agency cannot reasonably determine that significant effects will be mitigated below the level of significance. [Citation.] And if there is no information at hand demonstrating that a proposed mitigation solution can or will be carried out, the approving agency does not have meaningful information reasonably justifying an expectation of compliance with the condition.”

We agree with the City that, in part, these comments evidence a confusion of two distinct CEQA concepts: (1) whether the agency has improperly deferred the formulation of mitigation measures; and (2) whether the mitigation measures the agency has formulated are feasible. A mitigation measure is feasible if it is “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (CEQA, § 21061.1.) Under this definition, concerns about whether a specific mitigation measure “will actually work as advertised,” whether it “can ... be carried out,” and whether its “success ... is uncertain” go to the feasibility of the mitigation measure, not to whether its formulation has been improperly deferred. Similarly, concerns about whether it is “realistically foreseeable that [a mitigation] measure will actually be carried out as outlined” do not raise an issue of improper deferral. If the agency has identified one or more mitigation measures and has committed to mitigating the impact those measures address, then the principles forbidding deferral of mitigation are not implicated.

In its challenge to the EIR in the trial court (as well as in its comments on the EIR), the Society did not argue that the offsite mitigation measures the City proposed were not feasible or that the City had not fully committed to implementing those measures. Instead, as the trial court described it, the issue the Society raised was “whether mitigation of impacts on vernal pools, wetlands, and associated animal species, improperly [were] deferred.” Under the case law on which the Society relied, the answer to that question is “no.”

The Society argues that regardless of Sundstrom, SOCA, and Gentry, the City improperly deferred mitigation of the loss of vernal pool and seasonal wetland habitat in violation of principles the California Supreme Court recently set out in Vineyard. We are not persuaded.

Vineyard involved the EIR relating to the Sunrise Douglas Community Plan, which contemplates the development of a master planned community (of which the Project here is a part) with “more than 22,000 residential units, housing as many as 60,000 people, together with schools and parks, as well as office and commercial uses occupying about 480 acres of land.” (Vineyard, supra, 40 Cal.4th at pp. 421-422.) The primary issue the Supreme Court addressed on review was the adequacy of the EIR’s water supply analysis. (Id. at pp. 427-447.) The plaintiffs in Vineyard complained the EIR was “deficient in that it ‘fail[ed] to identify the actual source of most of the water needed to fill the project’s long-term demand,’ an analytical gap that ‘serve[d] to obscure the undisclosed environmental impacts of the project.’ ” (Id. at p. 427.) As the Supreme Court put it, “The principal disputed issue [wa]s how firmly future water supplies for a proposed project must be identified or, to put the question in reverse, what level of uncertainty regarding the availability of water supplies can be tolerated in an EIR for a land use plan.” (Id. at p. 428.)

In addressing this issue, the Supreme Court discussed “several [Court of Appeal] decisions [that] specifically addressed the sufficiency of an EIR’s analysis of future water supplies” and from which the Supreme Court distilled “certain principles for analytical adequacy under CEQA” of an “analysis of future water supplies.” (Vineyard, supra, 40 Cal.4th at pp. 428-430.) One of the cases the Supreme Court discussed was Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182 [55 Cal.Rptr.2d 625], As relevant here, the Supreme Court offered this summary of the Stanislaus decision: “Before approving a specific plan for an entire development, the decision makers must be informed of the intended source or sources of water for the project, ‘what the impact will be if supplied from a particular source or possible sources and if that impact is adverse how it will be addressed.’ [Citation.] CEQA, the court recognized, permits the environmental analysis for long-term, multipart projects to be ‘tiered,’ so that the broad overall impacts analyzed in an EIR at the first-tier programmatic level need not be reassessed as each of the project’s subsequent, narrower phases is approved, but tiering ‘is not a device for deferring the identification of significant environmental impacts that the adoption of a specific plan can be expected to cause.’ [Citation.] Nor can the unanalyzed impacts of unknown water sources be mitigated by providing that if water proves unavailable, the project’s future phases will not be built: ‘While it might be argued that not building a portion of the project is the ultimate mitigation, it must be borne in mind that the EIR must address the project and assumes the project will be built.’ ” (Vineyard, at p. 429, fn. omitted, quoting Stanislaus Natural Heritage Project v. County of Stanislaus, supra, 48 Cal.App.4th at pp. 199, 206.)

Without further discussing the Vineyard decision, the Society sets out the Supreme Court’s summary of the Stanislaus decision and relies on that summary to argue that “[t]he Supreme Court ruled in Vineyard that a failure to identify and disclose with specificity 1) likely sources of off-site environmental resources that may be required to fully implement a proposed project, and 2) how the use of those resources in furtherance of the Project may, in turn, result in significant, adverse environmental effects, constitutes a violation of CEQA’s mandatory procedures.”

This argument is deficient for several reasons. First, the portion of the Vineyard case the Society quotes does not contain any holding or ruling by the Supreme Court; rather, it contains the Supreme Court’s summary of an earlier Court of Appeal decision. Furthermore, the Society makes no attempt to show that the Supreme Court’s ruling in Vineyard was consistent with its summary of the Stanislaus decision. Second, even if we assume such consistency, the Society makes no attempt to show or explain why the reasoning in Vineyard and Stanislaus—both of which dealt specifically with the sufficiency of an EIR’s analysis of future water supplies—can or should be extended to the sufficiency of an EIR’s formulation of mitigation measures involving offsite habitat replacement. Because the Society’s abbreviated discussion of Vineyard does not include any attempt to identify the underlying principles that drove either the Vineyard decision or the Stanislaus decision, we cannot discern whether those principles compel an extension of the holding of those cases from the water supply context to the offsite mitigation context.

In summary, the Society has failed to persuade us that the Vineyard decision on the adequacy of an EIR’s analysis of future water supplies supplants or in any way alters the principles of deferred mitigation set forth in Sundstrom, SOCA, and Gentry. And because we have concluded already that the EIR here did not violate those principles, we likewise conclude the trial court erred when it determined otherwise.

The question remains, however, whether the trial court’s ultimate ruling regarding the EIR as it relates to the issue of offsite mitigation can nonetheless be sustained on the alternate ground the trial court decided the Society had properly raised in the administrative proceedings, namely, “whether the finding that proposed off-site mitigation measures would reduce the impacts on vernal pools to a ‘less than significant level’ was supported by substantial evidence.” We turn our attention to that issue.

3. Sufficiency of the Evidence

Under CEQA, “If the agency decides to approve a project despite its significant adverse impacts, the agency must issue findings which specifically state how the agency has responded to the significant impacts identified in the EIR.” (SOCA, supra, 229 Cal.App.3d at p. 1034; see CEQA, § 21081; CEQA Guidelines, § 15091.) One such finding is that “[cjhanges or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects on the environment.” (CEQA, § 21081, subd. (a)(1); see CEQA Guidelines, § 15091, subd. (a)(1).) Any such finding must be supported by substantial evidence in the record. (CEQA Guidelines, § 15091, subd. (b).)

Here, the Society argued in the trial court that “the evidence in the certified record of proceedings does not support the City’s findings that the project’s potentially significant, adverse environmental effects will be reduced to ‘less than significant’ levels.” More specifically, the Society argued the City’s finding of mitigation was not supported by the evidence in the record because “[t]he state and federal agencies with the requisite expertise, and jurisdiction by law, over these resources (USFWS, USAGE, USEPA and CDFG)[] reviewed and commented (several times) on the mitigation measures proposed in the EIR and adopted in the City’s findings” and “unanimously informed the City that, in their professional judgment, and based on their expertise and the facts before them, adoption of the EIR’s proposed mitigation measures, would ‘result in significant impacts to, and loss of’ listed species and the habitats upon which they depend.” The Society repeats these arguments nearly verbatim in its brief on appeal.

Pointing out that other agencies disagreed with the City’s finding that its chosen mitigation measures would reduce the adverse impacts of the Project on the vernal pool and seasonal wetland habitats to less than significant does not show there was insufficient evidence in the record to support the City’s finding. As we have noted, the burden is on the party challenging the EIR to show it is inadequate. (Barthelemy v. Chino Basin Mun. Water Dist., supra, 38 Cal.App.4th at p. 1617.) Given that “[substantial evidence challenges [under CEQA] are resolved much as substantial evidence claims in any other setting . . .” (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 945 [91 Cal.Rptr.2d 66]), the burden was on the Society to affirmatively show there was no substantial evidence in the record to support the City’s findings, and the Society could not carry that burden by simply pointing to portions of the administrative record that favored its position. (See, e.g., People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573-1574 [43 Cal.Rptr.3d 741] [apply rules of substantial evidence review in criminal case].) Rather, the Society needed to set forth in its challenge to the EIR all of the evidence material to the City’s finding, then show that that evidence could not reasonably support the finding. (See id. at p. 1574.) The Society did not do this.

As the City points out, “The main premise of [the Society’s] argument is . . . that the federal agencies disagree with the City’s evidence and conclusions and have a different vision for the area. . . . [T]his disagreement does not constitute a basis for overturning the City’s decision.” We would add only this: Pointing to evidence of a disagreement with other agencies is not enough to carry the burden of showing a lack of substantial evidence to support the City’s finding. Thus, the Society’s challenge to the sufficiency of the evidence fails.

C

Incorporation of the Sunrise Douglas Community Plan EIR

The EIR here noted that “the City, through incorporation by reference, is using the Master EIR [i.e., the EIR for the Sunrise Douglas Community Plan] in a manner similar to what would be accomplished through tiering: relying largely on existing information about broad, area wide or regional issues and impacts, while updating that information where necessary and focusing on site specific issues not addressed previously.”

When this action was commenced in the trial court in September 2006, the Vineyard case, which involved challenges to the Sunrise Douglas Community Plan EIR, was pending in the California Supreme Court. Anticipating that the Supreme Court’s ruling in Vineyard might have a bearing on the validity of the EIR here, the Society asserted generally in its statement of issues (CEQA, § 21167.8, subd. (f)) in January 2007 that the City’s approval of the Project “must be set aside because the [EIR] incorporates and relies upon analysis and conclusions in the overlying Sunrise Douglas Community Plan EIR that may be invalidated by the Supreme Court.”

After the Vineyard decision came out in February 2007, the Society included more specific arguments in its opening brief (filed in March 2007) based on that decision. Specifically, the Society argued the Project EIR had incorporated the “discussion and analysis” in “two key portions of the [Sunrise Douglas Community Plan] EIR”: specifically, “long-term water supply impacts” and “impacts to the Cosumnes River.” The Society contended that because the Supreme Court had invalidated the Sunrise Douglas Community Plan EIR for failure to adequately consider these impacts, the Project EIR had to be invalidated on this basis as well.

In its opposition, the City argued that administrative remedies had not been exhausted on this issue because “the record does not disclose so much as a statement of concern over the EIR’s water supply analysis or over potential impacts on the Cosumnes River by anyone during the administrative proceedings,” let alone any “claim that the EIR was defective because it improperly incorporated or relied too extensively upon the [Sunrise Douglas Community Plan] EIR.”

The trial court first observed that “[t]he essence of the exhaustion doctrine is notice” and thus “[t]he key issue here ... is whether [the City] had notice that the [Project] EIR . . . was questionable insofar as it relied upon portions of the EIR for the [Sunrise Douglas Community Plan] that were in litigation and might eventually be ruled invalid.” The court relied on the fact that when the City certified the Project EIR and approved the Project, the action involving the validity of the Sunrise Douglas Community Plan EIR was already pending before the California Supreme Court and the City was a party to that action. In the trial court’s view, by virtue of these facts the City “had actual notice that, to the extent that the [Project] EIR expressly relied upon portions of the earlier EIR that were the subject of litigation, such reliance was questionable” and the City “had the opportunity to avoid any problems arising out of such reliance before approving the [Project] and its EIR.” Thus, the court found, “the purpose of the exhaustion doctrine has been served in this case.”

On the merits, the trial court determined the EIR was not invalid based on its discussion of long-term water supply impacts of the Project because “the discussion of cumulative water supply impacts in the project EIR does not appear to be based on the discussion of that issue in the [Sunrise Douglas Community Plan] EIR” and because the “contribution [of the Project] to the impacts of long-term water supplies might even be described as essentially non-existent.”

The trial court reached a different conclusion, however, with respect to impacts on the Cosumnes River. The court noted that the Supreme Court had invalidated the Sunrise Douglas Community Plan EIR in part because the final EIR had disclosed for the first time a potentially substantial new impact on salmon in the Cosumnes River. (Vineyard, supra, 40 Cal.4th at p. 449.) The Supreme Court concluded in Vineyard that the Sunrise Douglas Community Plan EIR had to be recirculated for public comment on this issue. {Ibid.) The trial court here noted that the Project EIR did “not include the disclosure of the potential impact on the Cosumnes River that appeared in the [Sunrise Douglas Community Plan] EIR” and thus “suffers from the same defect that was found in the Vineyard . . . case, that of failing to disclose this impact to the public for comment.” Thus, the court directed the issuance of a writ of mandate “to require the Draft EIR to be revised and recirculated with regard to this issue.”

On appeal, the City and Jaeger contend the trial court erred in determining that the Society was not required to exhaust administrative remedies on its arguments related to the Project EIR’s reliance on the Sunrise Douglas Community Plan EIR. In the alternative, they contend the court erred in invalidating the Project EIR based on its failure to disclose the potential impact of the Project on the salmon in the Cosumnes River because, based in part on information that was not available when the Sunrise Douglas Community Plan EIR was prepared, there was substantial evidence in the record that the Project would not have any such impact.

For its part, in its cross-appeal, the Society contends the trial court erred in determining the EIR was not invalid based on its discussion of long-term water supply impacts of the Project.

Once again, we begin our discussion with the exhaustion issue. As will be seen, since the exhaustion issue is dispositive of these challenges to the EIR, we need not reach either side’s arguments on the merits of the challenges related to the Project EIR’s reliance on the Sunrise Douglas Community Plan EIR.

We have explained the fundamental principles of the exhaustion doctrine already. What is most important in applying that doctrine here is the language of subdivision (a) of CEQA section 21177, which expressly provides that “[n]o action or proceeding may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.” By its plain language, this statute requires that the alleged grounds for noncompliance with CEQA a party seeks to raise in a CEQA action must have been presented to the public agency by someone during the administrative proceeding.

The purpose of the exhaustion doctrine is to ensure the administrative agency “will have had an opportunity to act and render the litigation unnecessary.” (Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894 [236 Cal.Rptr. 794].) That is why CEQA section 21177 requires someone to have presented to the administrative agency in the administrative proceeding the alleged ground for noncompliance with CEQA that a litigant later seeks to raise in a CEQA action—so the agency knows about the claimed problem and has an opportunity to fix it before legal action is commenced. To satisfy the exhaustion requirement, objections a party seeks to raise in a CEQA action must have been made “known in some fashion, however unsophisticated^ in the administrative proceeding]. Otherwise, the [agency] would have no opportunity to respond to those objections prior to judicial review—which is the ‘essence of the exhaustion doctrine.’ ” (Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1449 [35 Cal.Rptr.2d 334].)

Here, in the trial court the Society challenged the Project EIR’s reliance on and incorporation of the Sunrise Douglas Community Plan EIR’s discussion and analysis of “long-term water supply impacts” and “impacts to the Cosumnes River,” which the Supreme Court found were inadequate in Vineyard. To satisfy the exhaustion doctrine, someone had to have raised these challenges—or something like them at least—in front of the City during the administrative proceeding. That did not happen.

To the extent the Society relies on the Project EIR’s incorporation by reference of the Sunrise Douglas Community Plan EIR and the fact that the administrative record includes a copy of the latter EIR to satisfy the exhaustion doctrine, that reliance is misplaced. The Society offers no authority for its argument that, by incorporating the analyses of “long-term water supply” and “impacts to biological resources in the Cosumnes River” from the Sunrise Douglas Community Plan EIR into the Project EIR, “The City, by definition, incorporated the objections that were raised to the adequacy of’ these analyses in comments on the Sunrise Douglas Community Plan EIR. The suggestion that an agency must treat as a comment on a current EIR any comment received on an earlier EIR that the current EIR relies on or incorporates by reference has no support in the law, as far as we can determine, presumably because an agency is entitled to know exactly what objections members of the public have to the current EIR. If one of those objections is that the current EIR incorporates a faulty or insufficient analysis from an earlier EIR, then the agency is entitled to not