Clover Valley Foundation v. City of Rocklin (197 Cal. App. 4th 200, 2011)

Opinion

NICHOLSON, Acting P. J.

INTRODUCTION

This is a case where CEQA worked. The City of Rocklin (the City) in 2007 approved a residential development project for an undeveloped area of the City known as Clover Valley. The approval culminated more than 10 years of planning and environmental review for the site’s development. Since 1981, zoning authorized nearly 1,000 homes for the site. The site’s owners applied to develop a project for that size in 1991, and environmental review began in earnest in 1995. As a result of environmental concerns analyzed since then, the approved project is roughly half the size it could have been. The amount of open space has increased by a factor of five. The project owners have already paid millions of dollars to the City to construct needed infrastructure. The approved project has been redesigned to protect numerous environmental resources on the site, particularly prehistoric Native American artifacts.

Plaintiffs Clover Valley Foundation, the Sierra Club, and the Town of Loomis, however, claim the City has still failed to conduct legally sufficient environmental review. They filed separate petitions for writs of mandate challenging the City’s project approval, claiming the City failed to comply with CEQA and the state Planning and Zoning Law (Gov. Code, § 65000 et seq.).

The trial court denied their petitions, and plaintiffs now appeal those judgments. Plaintiffs argue the City abused its discretion in violation of CEQA by certifying an environmental impact report (EIR) they assert failed on many fronts. It allegedly failed to describe the sites’ cultural resources, consider a sewer pipeline’s growth-inducing effects, consider all oak trees that will be removed, protect a listed species, analyze view and traffic impacts, and document an adequate water supply. Plaintiffs also claim the project, by including road construction within a 50-foot buffer zone, is not consistent with the City’s general plan.

We disagree with each of plaintiffs’ claims and affirm the trial court’s judgments. The EIR complies with all of CEQA’s procedural demands, and its factual conclusions are supported by substantial evidence. All of the impacts raised by plaintiffs were sufficiently described and adequately mitigated in the EIR. In addition, the City did not abuse its discretion in concluding the project was consistent with the City’s general plan.

FACTS

The project at issue, commonly called the Clover Valley Project, is a residential subdivision proposed for the northern end of Clover Valley, a small, narrow valley located in the City’s northeast comer. Presently, this part of Clover Valley is undeveloped. Clover Valley Creek runs through the site from north to south. The area includes grasslands, wooded hillsides, oak woodlands, historic rock walls, and prehistoric cultural and archaeological resources.

As approved by the City, the 622-acre project will create 558 homes, a 5.3-acre neighborhood park, a 5-acre commercial site, a 1-acre site for a future fire station, and related infrastructure and streets. One of those streets would be a new road named Valley View Parkway, a road that had earlier been specified in the City’s general plan. The project would preserve 366 acres of open space.

Planning for developing Clover Valley began years ago. Since at least 1981, the site has been zoned for residential development of as many as 974 homes. In 1991, the owners of the site applied to develop 974 homes with only 69.8 acres of open space, and for annexation of the site into the City. In 1995, the City circulated a draft EIR for this project. The City prepared a final EIR in 1996, and certified it in 1997. This EIR was not challenged.

Based upon this EIR, the site was annexed by the City, and the City approved general plan and zoning amendments along with a development agreement to allow the proposed project to proceed. The development agreement, approved in late 1997 and effective January 9, 1998, required the owners to pay $1.5 million to the City for a public recreation facility, which the owners did. The development agreement’s initial term was 10 years, but the term would automatically be extended for the period of time any litigation challenging any later project approval was pending.

In 2000, the current owners, real parties in interest, submitted an application to begin subdividing the project site into 47 large lots, and the ultimate subdivision of those lots into as many as 933 lots. The City in 2002 circulated a draft EIR for this proposal, which tiered from the earlier annexation EIR certified in 1997.

During the review of this proposal, real parties in interest repeatedly agreed to reduce the size of the project. In October 2003, they reduced the number of homes to 753. In April 2004, they reduced the number to 710 homes. In August 2004, they reduced the number to 689 homes. They ultimately reduced the number to the 558 ultimately approved by the City. As part of this revision, real parties in interest agreed to increase the amount of open space from 69.9 acres to 366 acres, and to reduce Valley View Parkway from a four-lane road to two lanes.

As part of the revised project, the City and real parties in interest negotiated an amendment to the 1997 development agreement. This amendment extended the agreement’s term by 10 years, limited the number of homes that could be built to 558, required real parties in interest to pay the City $1 million towards construction of a new fire station, and committed real parties in interest to transfer certain cultural sites on the land to the United Auburn Indian Community for preservation.

The revised project necessitated general plan and zoning amendments to account for the reduced acreage and number of housing units, the increased acreage of open space, and the other project revisions. Rather than use the 2002 draft EIR for the revised and reduced project, City staff determined to prepare a new draft EIR to analyze the revised project. This draft EIR, referred to as the recirculated draft EIR (RDEIR), was publicly circulated during the first quarter of 2006.

The RDEIR generated 196 comment letters and 74 sets of oral comments. It took the City 15 months, until June 2007, to prepare responses to all of the comments and to release the final EIR (FEIR).

The June 2007 FEIR included 49 pages of “Master Responses” addressing the primary comments that had been raised. The FEIR also included revisions to the RDEIR text and a mitigation monitoring plan.

Members of the public submitted additional comments to the FEIR. As a result, although not required by CEQA, City staff prepared “Responses to Additional Public Comments” (Additional Responses), dated August 20, 2007. The Additional Responses stated they were intended to be incorporated into the FEIR and were to be read together with the Master Responses.

Prior to the release of the Additional Responses, the City’s planning commission on July 30 and 31, 2007, held a public hearing and unanimously recommended that the city council certify the EIR and approve the project.

On August 27 and 28, 2007, the city council held a public hearing on the project. At the close of the hearing, the city council certified the EIR (which included the RDEIR, the FEIR and its Master Responses, and the Additional Responses), adopted CEQA findings, and unanimously approved the project, the necessary general plan and zoning code amendments and subdivision maps, and the negotiated amendment to the development agreement.

Plaintiffs Clover Valley Foundation and the Sierra Club (collectively, the Foundation), and plaintiff Town of Loomis (Loomis) filed separate petitions for writs of mandate challenging the City’s approval of the EIR and the project. The parties agreed to consolidate the two petitions and to change venue to Sacramento County Superior Court.

On February 6, 2009, the trial court issued a ruling denying the consolidated petitions. On February 27, 2009, the court entered judgment in favor of the City and real parties in interest.

The Foundation and Loomis appeal from the trial court’s judgment.

The Foundation alleges the City violated CEQA by failing to:

1. include in the EIR identifying and descriptive information of cultural resources on the project site;

2. consider a proposed sewer pipeline’s growth-inducing impacts;

3. evaluate and mitigate for all of the oak trees that will be removed for the project; and

4. adopt legally enforceable mitigation measures to protect the California black rail, a bird species listed as threatened under the California Endangered Species Act (Fish & G. Code, § 2050 et seq.).

The Foundation also claims the City violated the state Planning and Zoning Law (Gov. Code, § 65000 et seq.) by approving a development project that allegedly was inconsistent with the City’s general plan, specifically the general plan’s policy prohibiting development within 50 feet of streambanks.

Loomis alleges the City violated CEQA by failing to:

1. adequately analyze the project’s impacts on views from Loomis or to discuss possible mitigation measures to avoid or reduce those visual impacts;

2. adequately analyze the project’s impacts to transportation and circulation; and

3. identify a legally adequate long-term water supply for the project.

We address each contention below, providing more detailed factual information relevant to each argument.

DISCUSSION

I

CEQA Standard of Review

Before addressing the parties’ arguments, we review the standard of review we are to apply in a CEQA appeal. Our Supreme Court recently explained the standard of review as follows:

“In reviewing an agency’s compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether there was a prejudicial abuse of discretion.’ (Pub. Resources Code, § 21168.5.) Such an abuse is established ‘if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ (§ 21168.5; see Western States Petroleum Assn. v. Superior Court [(1995)] 9 Cal.4th [559,] 568 [38 Cal.Rptr.2d 139, 888 P.2d 1268]; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392-393 [253 Cal.Rptr. 426, 764 P.2d 278] (Laurel Heights I).)

“An appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court’s: 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. [Citations.] We therefore resolve the substantive CEQA issues . . . by independently determining whether the administrative record demonstrates any legal error by the [City] and whether it contains substantial evidence to support the [City’s] factual determinations.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427 [53 Cal.Rptr.3d 821, 150 P.3d 709], fns. omitted (Vineyard Area Citizens).)

“[A]n agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. ([Pub. Resources Code,] § 21168.5.) Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforcing] all legislatively mandated CEQA requirements’ (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 [276 Cal.Rptr. 410, 801 P.2d 1161]), we accord greater deference to the agency’s substantive factual conclusions. In reviewing for substantial evidence, the reviewing court ‘may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable,’ for, on factual questions, our task ‘is not to weigh conflicting evidence and determine who has the better argument.’ (Laurel Heights I, supra, 47 Cal.3d at p. 393.)

“In evaluating an EIR for CEQA compliance, then, a reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts. For example, where an agency failed to require an applicant to provide certain information mandated by CEQA and to include that information in its environmental analysis, we held the agency ‘failed to proceed in the manner prescribed by CEQA.’ (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236 [32 Cal.Rptr.2d 19, 876 P.2d 505]; see also Santiago County Water Dist. v. County of Orange [(1981)] 118 Cal.App.3d [818,] 829 [173 Cal.Rptr. 602] [EIR legally inadequate because of lack of water supply and facilities analysis].) In contrast, in a factual dispute over ‘whether adverse effects have been mitigated or could be better mitigated’ (Laurel Heights I, supra, 47 Cal.3d at p. 393), the agency’s conclusion would be reviewed only for substantial evidence. Thus, in Laurel Heights I, we rejected as a matter of law the agency’s contention that the EIR did not need to evaluate the impacts of the project’s foreseeable future uses because there had not yet been a formal decision on those uses (id. at pp. 393-399), but upheld as supported by substantial evidence the agency’s finding that the project impacts described in the EIR were adequately mitigated (id. at pp. 407-408).” (Vineyard Area Citizens, supra, 40 Cal.4th at p. 435.)

We proceed to apply these standards to plaintiffs’ CEQA allegations.

II

The Foundation’s Appeal

A. Description of cultural resources

The Foundation claims the EIR failed to properly describe the cultural resources existing on the site and, in particular, eight cultural sites that, despite project redesigns, are in harm’s way. It asserts the EIR failed to provide an adequate description of the existing cultural resources and failed to identify any mitigation measures to remedy impacts to the resources. It also fáults the City for not providing detailed information about the sites to the State Historic Preservation Officer upon the latter’s request.

The Foundation acknowledges the City provided information and proposed mitigation measures regarding the eight affected cultural sites in the City’s Additional Responses, but it claims this information came too late. CEQA, the Foundation argues, required this information to be included in the publicly circulated RDEIR, and the City allegedly abused its discretion by failing to comply with this directive.

We disagree with the Foundation’s argument. The City’s description of the existing cultural resources in all of the documents that comprise the EIR satisfied CEQA’s requirement to make a good faith effort at describing the existing conditions, particularly in light of conflicting requirements that prohibited the City from disclosing detailed information about the location and type of cultural resources on the site.

CEQA, federal law, and other state laws uniformly require the City to protect the confidentiality of Native American cultural resources to preserve them from harm. The Foundation’s argument, purportedly in the guise of protecting the environment, actually would defeat the confidentiality and expose the resources to possible destruction. This would turn CEQA on its head.

1. Additional background information

a. RDEIR’s description and analysis of cultural sites and proposed mitigation measures

The RDEIR begins its analysis of the project’s impacts on cultural resources by providing a 20-page overview of the prehistoric and historic settlement of the Sierra Nevada and the Central Valley, and the archeological and ethnographic studies that have documented that settlement. The discussion emphasizes studies that were performed in areas near the project site. Prehistoric Native American sites and artifacts have been found and are well documented in areas around Rocklin, Newcastle, and Auburn. The discussion also relates the history of the area since Americans of European descent arrived in the 1800’s.

Regarding the project site, the RDEIR states record searches and field surveys resulted in locating 34 prehistoric period resources and one historic period resource within the project site. Test excavations at some of these sites encountered Native American remains.

The RDEIR noted that in 2002, the United States Army Corps of Engineers and the State Historic Preservation Officer (SHPO) determined these resources formed an archaeological district eligible for listing on the National Register of Historic Places under the National Historic Preservation Act (16 U.S.C. § 470 et seq.) (NHPA). This determination was based on a study prepared by Peak & Associates referred to as a DOE, an acronym for “A Determination of Eligibility and Effect on Cultural Resources within the Clover Valley Lakes Project Area.”

The RDEIR stated that because the Army Corps of Engineers and the SHPO had determined the proposed project could adversely affect the resources in this archaeological district, the Army Corps of Engineers had initiated a process under section 106 of the NHPA to develop a management plan known as a historic properties management plan (HPMP) to mitigate the project’s adverse effects on the cultural resources. (The HPMP was submitted to the Army Corps of Engineers and the SHPO for review and approval in July 2007.)

The RDEIR identifies the resources located in the project site by a number on a chart, and for each resource it notes whether the resource contains bedrock mortars, a midden, circular-shaped depressions, human remains, projectile points, ground stone, lithic tools, and obsidian debitage. The RDEIR does not provide any further identification or description of the resources, such as their location, size, or significance. It does not do so because that information is contained in the proposed HPMP, and that document is confidential and not available for public review in order to protect against vandalism and artifact collecting.

The RDEIR concluded the project could result in a potentially significant impact to these historic and cultural resources. The RDEIR explained: “Although project site design has been revised a number of times to avoid and protect resources, not all of the resources can be avoided through project design. A program of mitigation has been designed to satisfy the federal requirements for this undertaking in the [HPMP] that require[s] approval by the U.S. Army Corps of Engineers and the State Office of Historic Preservation. Due to the sensitive nature of information contained in the [HPMP], the HPMP is not available for public review. Implementation measures for the cultural resources sites include installation of temporary construction fencing to avoid short-term impacts, as well as the use of monitors during construction to ensure that sites are not damaged or disturbed during construction. However, for some cultural sites, data recovery excavations may not occur prior to the initiation of construction; therefore, the proposed project would result in a potentially significant impact.” (Original boldface & italics.)

To reduce this impact to a less-than-significant level, the RDEIR proposed a number of mitigation measures. Prior to receiving a grading permit, real parties in interest must hire an archaeologist who will assist in providing “cultural resource sensitivity training” to all construction personnel. Real parties in interest must monitor all earthmoving activities, and place construction fencing around cultural resource sites.

Despite project redesigns, eight resource sites could not be protected. The RDEIR required “data recovery excavations” to occur at those sites, as detailed in the confidential HPMP. Project construction was not to commence until the Army Corps of Engineers accepted a preliminary report from the testing done at those sites.

In addition, to protect against vandalism and artifact collecting resulting from additional people living near the resource sites, those sites identified in the HPMP to be preserved are to be permanently fenced prior to the issuance of a grading permit to minimize access. Also, monitoring and checking of the sites will occur throughout each year.

If during constmction an archeological or historical resource is discovered, all work will immediately stop within 100 feet of the find until Native American representatives and archaeologists can determine whether the resource qualifies for protection and mitigation measures can be recommended and implemented. If human remains are found, all work will be halted until the coroner makes final disposition of the remains.

b. Comments to RDEIR analysis and City’s response

After it circulated the RDEIR for public comment, the City received numerous requests to disclose the location and character of the cultural resources. In the Master Responses included in the FEIR, the City explained its refusal to provide additional identifying information. It feared disclosure would result in vandalism to the resources. It also claimed its refusal was consistent with the NHPA, which required a federal agency not to disclose to the public information about a historical resource’s location and character if disclosure would harm the resource. The City in the RDEIR had disclosed the archaeologically important elements of each cultural site within the context of an extensive discussion of the ethnographic context. That description, the City stated, was adequate to meet the disclosure purposes of CEQA while protecting the resources from harm. Personnel with a need to know had access to the DOE and the draft HPMP, which in the federal permit process would be reviewed by the Army Corps of Engineers and the SHPO. The City claimed the federal process was much more stringent than the CEQA process and would develop the best possible preservation and mitigation measures for the cultural sites.

One of the requests for additional information came from the SHPO. Following his review of the RDEIR, the SHPO wrote to the City and requested copies of the DOE and the draft HPMP. The City responded by giving the SHPO a copy of the DOE. The City noted that the SHPO had already received the DOE as part of determining the cultural resources on the site qualified as an archeological district under the NHPA.

The City, however, refused to give the SHPO a copy of the draft HPMP as part of the CEQA review process for the reasons already mentioned. However, the SHPO would obtain a copy of the HPMP as part of its requirement under the NHPA to consult with the Army Corps of Engineers before the Army Corps of Engineers grants permits for the project. This consultation would occur after the CEQA process was completed. The City included copies of this correspondence in the FEIR.

c. Comments to FEIR and City’s response in its Additional Responses

Following its release of the FEIR, the City received additional comments criticizing its refusal to disclose the location and character of the cultural sites. The SHPO criticized the RDEIR and the FEIR for not providing an adequate description of the archeological sites and their significance because the DOE and the draft HPMP were not made available to the public. The SHPO claimed that “[wjhile sensitive information such as archeological site records, sacred sites or maps by law should not be made available, a redacted, but complete version of the reports used in the preparation of a [draft EIR] is required to either be circulated or made available.”

The SHPO also claimed the RDEIR and the FEIR failed to include any mitigation measures for the project’s impacts to the cultural resources. He faulted the City for deferring to mitigation measures that would eventually be developed under the HPMP process as fulfilling the CEQA requirement to include mitigation measures in the EIR.

The Foundation made similar complaints against the FEIR. It also noted the City, in the original draft EIR prepared in 2002, had provided a narrative description of the cultural sites. It argued the City was required to do the same in the RDEIR.

The City responded to these criticisms in its Additional Responses. The City recognized CEQA’s demand to make a good faith effort at full disclosure, but noted it was also bound to follow legal requirements that prohibited full disclosure of information concerning cultural resources. CEQA prohibits the disclosure of information about the location of archaeological sites and sacred lands, or any other information subject to disclosure restrictions under the state Public Records Act (Gov. Code, § 6254). (CEQA Guidelines, Cal. Code Regs., tit. 14, § 15120, subd. (d).) The Public Records Act, in turn, does not require disclosure of any records of Native American graves, cemeteries, places, features, and objects in the possession of a local agency. (Gov. Code, § 6254, subd. (r).)

Moreover, as already mentioned, the NHPA authorized federal agencies not to disclose information regarding the location and character of a historic resource. The City stated its refusal to disclose more information than it did in the RDEIR was in compliance with the federal law’s intent.

The City rejected the Foundation’s criticism that it should have-provided a narrative description of the cultural resources in the RDEIR instead of providing the information in a summary table. The City argues its use of the summary table was “merely a different way to communicate nearly the same information.”

Despite its claim that it had complied with the demands of CEQA regarding disclosure of cultural resources, the City nonetheless provided as part of its Additional Responses more information concerning the eight cultural resource sites the project would impact. The information, depicted in a table called the Clover Valley Cultural Resources Description, Treatment and Management Table, was derived from redacted site descriptions contained in the DOE and the draft HPMP. The City provided the table “as a clarification or explanation and [it] does not represent any new environmental effects.”

This table provided more information than the summary table used in the RDEIR. The table named each of the eight affected cultural sites by number, and for each site recited a brief site description, the amount of the site that would be affected by the project, the reason for the effect, and the management and treatment actions planned to mitigate the effect.

For example, for the cultural site designated as No. CVL-7, the table described the site as “Bedrock mortar features. Associated deposit of cultural material. Relatively deep (70 centimeter) deposit of cultural material in the central portion and a much shallower and less dense deposit in the western portion. Three projectile points; two are large. The third point is a Rose Springs Contracting Stem point.”

The portion of the resource site area affected by the project equaled 3,082.9 square meters, or roughly three-quarters of an acre. The impact would arise from construction activities, permanent infrastructure, and house pads. To mitigate the impact, the City would require permanent fencing around the site area not directly affected by construction, biannual monitoring, and data recovery excavations. Similar descriptions were made for each of the eight affected sites.

Regarding the claim that the City was wrongfully deferring mitigation until the federal HPMP process was completed, the City in its Additional Responses reminded the Foundation that the RDEIR included a number of mitigation measures to reduce impacts to a less-than-significant level independent of the HPMP process. The City claimed its mitigation regime satisfied the demands of CEQA.

d. Trial court’s ruling

At the hearing on the petitions, the trial court ordered the parties to submit supplemental briefing on whether the EIR adequately disclosed information about the cultural sites, the timeliness of the disclosures made in the Additional Responses, and the effect the NHPA section 106 process would have on the project. On the issue of adequacy, the court wondered why the information about the sites contained in the Additional Responses was not also made available for the other cultural sites. On the issue of timing, the court inquired whether CEQA’s policy of affording decision makers and the public an opportunity to comment was fulfilled by including the additional information in the Additional Responses prior to the city council’s hearing on the project.

After reviewing the additional briefing, the trial court determined the EIR’s analysis of cultural resources, contained in the RDEIR, the FEIR, the Master Responses, and the Additional Responses, satisfied CEQA’s requirements. The trial court determined the EIR sufficiently identified the characteristics of the cultural resources, identified the adverse impacts the project would cause to those resources, and specified feasible mitigation measures to mitigate those impacts.

Regarding the level of disclosure made in the EIR, the trial court ruled: “In short, the EIR provides sufficiently clear, comprehensible and comprehensive information to permit decisionmakers and members of the public to intelligently assess potential adverse project impacts to cultural resources and the effectiveness of the specified mitigation measures in avoiding or reducing the impacts to insignificance. The omission of details from the DOE and HPMP does not preclude accurate assessment about the cultural significance of the contents of the documented cultural resources, about the risk of damage and destruction posed to the cultural significance of the resource contents by project construction, and about the feasibility of the specified mitigation measures to preserve documented and accidentally discovered cultural resources in place while recovering data from those portions of cultural resources that will be damaged or destroyed by project construction. [The City’s] withholding of details from the DOE and HPMP in accordance with CEQA Guideline 15120(d) and NHPA regulations has not impaired the EIR as an informational document enabling informed public participation in the CEQA review process.” (Fn. omitted.)

Before us, the Foundation claims the trial court erred. It asserts the City prejudicially abused its discretion when it refused to provide in the RDEBR redacted versions of the DOE and HPMP to describe the cultural sites and proposed mitigation measures for each. Omitting this information, the Foundation argues, subverted CEQA’s public review purpose.

2. Analysis

We must determine whether the EIR contains a sufficient description of the historical and cultural resources existing on the project site. “An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time . . . environmental analysis is commenced, from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant. The description of the environmental setting shall be no longer than is necessary to an understanding of the significant effects of the proposed project and its alternatives.” (Guidelines, § 15125, subd. (a).)

“Guidelines section 15151 requires an EIR to be prepared ‘with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. . . . [T]he sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. . . . The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.’ (See also San Francisco Ecology Center v. City and County of San Francisco (1975) 48 Cal.App.3d 584, 594 [122 Cal.Rptr. 100].)” (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 954 [91 Cal.Rptr.2d 66].)

“If the description of the environmental setting of the project site and surrounding area is inaccurate, incomplete or misleading, the EIR does not comply with CEQA. (San Joaquin Raptor[/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713,] 729 [32 Cal.Rptr.2d 704].) ‘Without accurate and complete information pertaining to the setting of the project and surrounding uses, it cannot be found that the [EIR] adequately investigated and discussed the environmental impacts of the development project.’ (Ibid.)” (Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 87 [99 Cal.Rptr.2d 378].)

This case presents a paradoxical twist on the issue of good faith effort at full disclosure, as CEQA and the Public Records Act actually restrict the amount of information regarding cultural resources that can be disclosed in an EIR. The Guidelines prohibit an EIR from including “information about the location of archaeological sites and sacred lands, or any other information that is subject to the disclosure restrictions of Section 6254 of the Government Code [(part of the Public Records Act)].” (Guidelines, § 15120, subd. (d).) In turn, Government Code section 6254 of the Public Records Act lists as exempt from public disclosure any records “of Native American graves, cemeteries, and sacred places and records of Native American places, features, and objects described in Sections 5097.9 and 5097.993 of the Public Resources Code maintained by, or in the possession of, the Native American Heritage Commission, another state agency, or a local agency.” (Gov. Code, § 6254, subd. (r).)

Public Resources Code sections 5097.9 and 5097.993 list the Native American places, features, and objects, the records of which are not to be publicly disclosed under the Public Records Act: “any Native American sanctified cemetery, place of worship, religious or ceremonial site, or sacred shrine located on public property” (§ 5097.9) and any “Native American historic, cultural, or sacred site, that is listed or may be eligible for listing in the California Register of Historic Resources . . . , including any historic or prehistoric ruins, any burial ground, any archaeological or historic site, any inscriptions made by Native Americans at such a site, any archaeological or historic Native American rock art, or any archaeological or historic feature of a Native American historic, cultural, or sacred site . . . .” (§ 5097.993, subd. (a)(1).),

These Guidelines and statutes prohibited the City from disclosing records and information concerning the project site’s archeological resources in the EIR, including the records demanded by the SHPO. The archaeological resources, comprising as they do an archaeological district eligible for listing on the National Register of Historic Places under the NHPA, are Native American objects, the records of which in the City’s possession are not subject to disclosure under the Public Records Act. Thus, information about those objects contained in those records, including the DOE and the draft HPMP, are to be excluded under Guidelines section 15120 from publication in the EIR.

In an effort to make full disclosure of the existing physical conditions while also trying to comply with the prohibitions on disclosing information on archeological resources, the City in the RDEER provided a chart noting the types of archaeological resources and recommended mitigation measures to mitigate impacts to those resources. In the Additional Comments, the City provided more detailed information of the resources that could not be protected and recommended specific mitigation measures for each. In this effort, the City provided more information about the cultural sites than CEQA required.

CEQA’s exclusion of archaeological site information from an EIR reflects the state’s strong policy in protecting Native American artifacts. Indeed, state law now requires a city or county prior to amending a general plan to consult with affected Native American tribes to preserve or mitigate impacts to Native American artifacts that are located within the city or county’s jurisdiction. (Gov. Code, § 65352.3, subd. (a)(1).) As part of that process, the city or county must, consistent with guidelines developed by the Governor’s Office of Planning and Research, “protect the confidentiality of information concerning the specific identity, location, character, and use of those places, features, and objects.” (Gov. Code, § 65352.3, subd. (b).)

The Governor’s Office of Planning and Research guidelines, in turn, counsel local governments to “avoid including any specific cultural place information within CEQA documents (such as Environmental Impact Reports, Negative Declaration, and Mitigated Negative Declarations) or staff reports which are required to be available at a public hearing. In such cases, confidential cultural resource inventories or reports generated for environmental documents should be maintained under separate cover and shall not be available to the public.” (Governor's Office of Planning & Research, Cal. Tribal Consultation Guidelines, General Plan Guidelines (Nov. 14, 2005 supp.) p. 27.)

Working within these specific restrictions, the City provided sufficient information in the EIR to satisfy CEQA’s general demand for full disclosure of the environmental setting. As the trial court correctly found, the EIR provides sufficient information to permit decision makers and members of the public generally to assess the existence of confidential archaeological resources on the site, the potential adverse impacts the project would impose on those resources, and the effectiveness of the specified mitigation measures in avoiding or reducing those impacts to a level of insignificance.

The Foundation claims the lack of detailed information in the EIR about the archaeological resources precluded meaningful opportunity to comment on the project’s effects on those resources. We disagree. The public knew that of the 34 archaeological resources found on the site, all but eight would be fully protected due to the project’s redesign. Of the remaining eight, the public knew they would be subject to highly regulated and observed data excavations. CEQA did not require the public to know, at the risk of vandalism and destruction of the resources, the exact nature and location of the resources being protected.

Indisputably, the City complied with the requirements of CEQA. Consequently, there is no prejudicial error. The City made a remarkably good faith effort at full disclosure of the existence of archaeological resources on the site, but did so in recognition of, and submission to, express prohibitions in CEQA not to disclose information regarding the location, use and character of the resources.

At oral argument, counsel for the Foundation reluctantly agreed that the Foundation was not primarily concerned with the sufficiency of the information the EIR eventually provided on the eight affected archeological sites. Indeed, responding to questioning from the panel, counsel agreed the Foundation would not be before the court on this issue had the information provided in the Additional Responses about the eight sites been included in the RDEIR.

Instead, counsel stated the Foundation’s real CEQA concern was that the information included in the Additional Responses was not first included in the RDEIR, thereby depriving the public of an opportunity to comment on the information as part of the RDEIR’s public review. The difficulty with this argument, however, is that CEQA provides the remedy of recirculation to address a deficient draft EIR, and the information added to the Additional Responses did not trigger an obligation to recirculate the RDEIR. Thus, CEQA provides no remedy for the fault in the RDEIR alleged by the Foundation.

Once a draft EIR has been circulated for public review, CEQA does not require any additional public review of the document before the lead agency may certify the EIR except in circumstances requiring recirculation. A lead agency must recirculate an EIR when “significant new information” is added to an EIR after the draft EIR has been circulated for public review. (Pub. Resources Code, § 21092.1; Guidelines, § 15088.5, subd. (a).) New information added to an EIR is not “significant” unless “the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that the project’s proponents have declined to implement.” (Guidelines, § 15088.5, subd. (a).)

“Significant new information” includes, for example, a disclosure that (1) a new significant environmental impact would result from the project or a new mitigation measure; (2) a substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted; (3) a feasible alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the project’s significant impacts but the project’s proponents decline to adopt it; or (4) the draft EIR “was so fundamentally and basically inadequate and conclusoiy in nature that meaningful public review and comment were precluded. (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043 [263 Cal.Rptr. 104].)” (Guidelines, § 15088.5, subd. (a).)

“Recirculation is not required where the new information added to the EIR merely clarifies or amplifies or makes insignificant modifications in an adequate EIR.” (Guidelines, § 15088.5, subd. (b).)

The City effectively concluded the information added to the Additional Responses about the eight cultural sites did not constitute “significant information,” and it did not recirculate the EIR. As did the trial court, we apply the substantial evidence test to the City’s determination. (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1135 [26 Cal.Rptr.2d 231, 864 P.2d 502] (Laurel Heights II).)

We agree with the trial court’s finding that substantial evidence supported the determination not to recirculate the RDEIR: “Notably, the additional information released by [the City] about the eight cultural resources requiring data recovery excavation adds narrative detail about the resources’ characteristics but not new substantive information which would militate against the resources’ cultural significance and need for preservation.” (Fn. omitted.) “The information . . . did not require recirculation of the EIR for public comment pursuant to Public Resources Code section 21166 [(regarding changes necessitating a subsequent or supplemental EIR)] and CEQA Guidelines 15088.5 [(regarding recirculating a draft EIR)]. The additional information about the eight cultural resources merely clarified or amplified information in the EIR.”

Because recirculation was not required, we have no opportunity or obligation under CEQA to review the adequacy of the RDEIR divorced from the other documents that comprise the EIR, including the FEIR and the Additional Responses.

The Foundation argues recirculation is not the only remedy for addressing a defective draft EIR. It claims we can invalidate the certification of the entire EIR based on the alleged defective nature of the RDEIR. It cites Mountain Lion Coalition v. Fish & Game Com., supra, 214 Cal.App.3d 1043 (Mountain Lion Coalition), as the basis for such authority. Mountain Lion Coalition, however, is inapposite.

That case concerned the state Fish and Game Commission’s failure to prepare an adequate second draft EIR in compliance with a prior court order that had invalidated the first environmental document. The Court of Appeal sustained the trial court’s exercise of its continuing jurisdiction over the matter and the grant of a writ of mandate against the • second draft EIR because the new draft failed to comply with the trial court’s earlier order. (Mountain Lion Coalition, supra, 214 Cal.App.3d at pp. 1051, 1052.) The commission abused its discretion by not strictly following the prior order. (Id. at p. 1052.) Thus, the remedy exercised by the court in the case is limited to its unique factual situation of enforcing a prior court order.

Moreover, any' precedential value of Mountain Lion Coalition, as noted above, has been codified at Guidelines section 15088.5. Citing to the case, the Guideline requires recirculation of an EIR if the “draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded.” (Guidelines, § 15088.5, subd. (a)(4).)

The City and the trial court determined the RDEIR’s analysis of the cultural resources was not so deficient, and substantial evidence supports that determination. Because the RDEIR did not qualify for recirculation, and the entire EIR satisfied CEQA’s disclosure requirements for cultural resources, the demands of CEQA are satisfied, and we do not, and cannot, take any action against the RDEIR.

B. Sewer pipeline’s growth-inducing impacts

The Foundation claims the EIR failed to analyze the growth-inducing impacts that construction of an offsite sewer pipeline to serve the project’s 558 homes and an additional 524 homes would create. We disagree. The EIR explained the pipeline’s growth-inducing impact, that it would remove an obstacle to future growth. No further analysis was required, as that growth had already been expressly contemplated in the City’s general plan and the general plan EIR.

1. Additional background information

a. EIR’s analysis of pipeline’s growth-inducing impacts

The project includes construction of an offsite sewer line that will accommodate not only this project, but also the eventual additional development of 501 dwelling units to the north of the project site and 23 units to the south. The City claims its zoning already provides for this additional development in these locations, and the upgrade in the sewer infrastructure is required by the South Placer Municipal Utility District (SPMUD) master plan’s requirements for providing sewer to the project and the additional development.

The RDEIR acknowledged the proposed sewer infrastructure would generate a growth-inducing impact. It stated that because the SPMUD master plan included the additional development north of the project site, the project’s infrastructure was designed to meet the needs of the project and this additional approved development. The RDEIR recognized, however, that any development outside the project site would be required to undergo discretionary approval by the City, including annexation and subdivision map approval.

The Foundation accused the RDEIR of omitting details about the sewer line’s growth-inducing effects. It alleged the RDEIR failed to adequately analyze the significance of the growth-inducing impact and it wrongly deferred mitigating the impact. It claimed the EIR had to evaluate the growth-inducing impacts of the sewer line, determine the significance of the growth-inducing impacts, and, if the impacts are significant, identify and discuss feasible mitigation measures.

The City responded to the Foundation’s criticisms in its Master Responses. The City acknowledged the project’s development of the additional sewer capacity would eliminate “an obstacle to development of these units, and, to that degree, could be considered ‘growth-inducing. ’ ” However, the City disagreed with the Foundation’s claim that CEQA required the RDEIR to analyze the environmental impacts of the additional development, which may or may not ever occur. The City claimed it was sufficient under CEQA for the EIR to acknowledge the project is removing an obstacle to such future growth.

The City also stated there was a distinction between inducing new growth and merely accommodating growth for which the City has already planned: “The City’s General Plan already designates the areas in question outside the project for the 501 additional units to the north and the 23 units to the south. The City’s long-term plans thus already call for the eventual development of these sites, and the City has already certified an EIR for its General Plan analyzing, at a programmatic level, the environmental impacts of such future development. A project’s growth inducing impacts can be a problem where a project is inducing growth to occur which is not already planned for [szc]. The present project does not raise this problem. In fact, the City is requiring the present project to size the sewer pipes to accommodate this additional growth in order to be consistent with the South Placer Municpal [szc] Utility District’s long-term infrastructure Master Plan. The project’s growth ‘inducing’ (or, rather, ‘accommodating’) impacts thus do not constitute a significant adverse environmental impact.”

b. Trial court’s ruling

The trial court held the EIR’s discussion of growth-inducing impacts satisfied CEQA’s requirements. The EIR acknowledged the pipeline was growth inducing insofar as it removed an obstacle to residential development already contemplated by the City’s general plan and SPMUD’s master plan. The EIR did not need to analyze the environmental impacts of that growth because the general plan EIR had already done so at a programmatic level, the growth was not part of the project being approved, and the growth will undergo separate CEQA review when it is begun.

Before us, the Foundation claims the City misstated the law, and, as a result, failed to describe adequately the project’s growth-inducing impacts and to evaluate the environmental effects of the foreseeable offsite development.

2. Analysis

CEQA requires an EIR to “include a detailed statement setting forth . . . [][]... [][].. . [t]he growth-inducing impact of the proposed project.” (Pub. Resources Code, § 21100, subd. (b)(5).) Section 15126.2, subdivision (d), of the Guidelines explains this requirement obligates an EIR to “[djiscuss the ways in which the proposed project could foster economic or population growth, or the construction of additional housing, either directly or indirectly, in the surrounding environment. Included in this are projects which would remove obstacles to population growth (a major expansion of a waste water treatment plant might, for example, allow for more construction in service areas). Increases in the population may tax existing community service facilities, requiring construction of new facilities that could cause significant environmental effects. Also discuss the characteristic of some projects which may encourage and facilitate other activities that could significantly affect the environment, either individually or cumulatively. It must not be assumed that growth in any area is necessarily beneficial, detrimental, or of little significance to the environment.”

The EIR’s discussion of the sewer line’s growth-inducing impacts satisfied this requirement. The RDEIR and the Master Comments explained the sewer improvements would provide part of the infrastructure required later to undertake construction of additional housing to the north and south of the project, thereby removing, euphemistically speaking, “an obstacle to development”: the present lack of sufficient sewer capacity. The additional development would indeed tax existing sewage capacity, so this project would alleviate that problem.

No further detail or analysis was required of the potential impacts the additional planned development could cause. An EIR is not “required to make a detailed analysis of the impacts of a project on housing and growth. Nothing in the Guidelines, or in the cases, requires more than a general analysis of projected growth. The detail required in any particular case necessarily depends on a multitude of factors, including, but not limited to, the nature of the project, the directness or indirectness of the contemplated impact and the ability to forecast the actual effects the project will have on the physical environment. In addition, it is relevant, although by no means determinative, that future effects will themselves require analysis under CEQA.” (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 369 [110 Cal.Rptr.2d 579].)

Here, more detail was not required for at least three reasons. First, the purpose and nature of this project was not to facilitate additional development after the project is completed. In City of Antioch v. City Council (1986) 187 Cal.App.3d 1325 [232 Cal.Rptr. 507], a case relied upon by the Foundation, the court struck down the use of a negative declaration to conclude construction of a proposed road and utility infrastructure through undeveloped land would not have a significant effect on the environment. The court found the city needed to prepare an EIR and analyze the impacts of future development that would utilize the improvements where “the sole reason to construct the road and sewer project is to provide a catalyst for further development in the immediate area.” (Id. at p. 1337.)

Here, the sole reason for constructing the sewer pipeline is not to provide a catalyst for further development. Rather, it is first to meet the needs of the current project. And the nature of the project is not to facilitate additional development.

Second, the contemplated impact on growth is indirect. Although the sewer line will provide essential capacity for the additional housing, it removes only one of potentially numerous obstacles and approval requirements for developing the additional housing that may arise if and when an application to develop it is ever submitted.

Third, any future effects of that additional development will undergo CEQA analysis. In fact, in this case, that growth has already been analyzed in the City’s general plan EÍR and was contemplated in the general plan and the SPMUD master plan. The possible development’s general impacts had already been considered and approved on a program level. CEQA did not require the City to redo that analysis in this project EIR as part of the growth-inducing impacts analysis. (Pub. Resources Code, § 21094, subd. (a).)

The Foundation claims there is no evidence in the record that the general plan EIR actually considered the impacts from the proposed additional housing, and thus the City cannot rely upon it. It faults the City for attempting to rely on the general plan EIR without complying with CEQA’s procedures for tiering from another EIR or for incorporating by reference a portion of another EIR. (See Guidelines, § 15152, subds. (a), (g).) The Foundation admits the general plan EIR was mentioned in the City’s Master Responses and listed in the references section of the RDEIR, but that allegedly was not good enough. Also, the general plan EIR itself is not included in the administrative record.

A reasonable person would have understood the City was incorporating analysis from its general plan EIR and the SPMUD master plan when it referenced the reader to those documents and stated those analyses had already evaluated the environmental impacts of the additional growth. The opinions of the staff expressed in the FEIR are evidence the general plan EIR includes the analysis, and we are required to presume that EIR is valid. (River Valley Preservation Project v. Metropolitan Transit Development Bd. (1995) 37 Cal.App.4th 154, 178 [43 Cal.Rptr.2d 501].) The EIR’s discussion thus referenced the reader to the additional information.

For all of these reasons, CEQA required nothing more in this EIR concerning growth-inducing impacts than what is already contained in the document. The EIR informed decision makers and the public about the pipeline’s growth-inducing effects and referenced where those impacts were reviewed in more detail. That was enough.

C. Oak tree removal

The Foundation claims the EIR fails to account for all of the oak trees that will be removed due to the project. To the contrary, the EIR disclosed the loss of all oak trees that would be affected by the project and determined the impact was significant and unavoidable. The EIR satisfied CEQA’s requirements.

1. Additional background information

a. EIR’s analysis of project’s impact on oak trees

The RDEIR states oak woodland covers approximately 185 acres, or 29 percent, of the project area. The woodland provides a number of important wildlife resources, including food, shelter, roosting, and breeding sites. An inventory counted 28,246 trees on the project site. Development of the project would result in the loss of 7,422 trees. Construction of the major roadways would remove 1,632 trees, and construction of minor streets and small lots would remove 5,790 trees. According to the RDEIR, these calculations of trees to be lost do not include any trees that would be removed from commercial areas.

The City regulates oak tree removal pursuant to general plan polices, its oak tree preservation ordinance, and, in this instance, by the terms of the development agreement between the City and real parties in interest. The general plan, in policy 4 of the plan’s open space, conservation and recreation element, states it is the City’s policy to “encourage the protection of oak trees, including heritage oaks, and other significant vegetation from destruction.”

The oak tree preservation ordinance implements this policy by requiring a permit for the removal of an oak tree that has a trunk diameter at breast height of six inches or more. Mitigation is required and can be made either by tree replacement or payment into the City’s oak tree preservation fund.

The development agreement between the City and real parties in interest also addressed oak tree removal. The agreement requires real parties in interest to grant to the City open space and conservation easements for an oak tree preserve and an open space trail system. The agreement also requires real parties in interest to construct a bicycle/pedestrian trail system. In exchange for real parties in interest fulfilling these obligations, the City would deem the preserve and trail system as full mitigation for oak tree removal under the oak tree preservation ordinance so long as the number of oak trees removed does not exceed 25 percent of the oak trees in the project.

The development agreement also stated that trees removed for constructing the major roadways, estimated at 1,632 trees, would not count towards the 25 percent cap. Excluding those trees from the total estimated number of trees to be lost, 7,422, results in a loss of 5,790 trees, or about 20.5 percent of the total number of trees on the project site, well within the 25 percent cap.

Also, the RDEIR states trees in the proposed commercial areas were not included in the final calculations for tree removal because the oak tree preservation ordinance does not apply to commercial lands.

The RDEIR stated that despite the mitigation required by the development agreement, that agreement did not address removal of trees located within the major roadways associated with the offsite sewer pipeline. Thus, “the loss of trees resulting from the ultimate anticipated development of the project and associated infrastructure would be considered to be a significant effect.” (Original boldface & italics.) To mitigate that effect, the RDEIR recommended that the City enforce the mitigation measures agreed to in the development agreement, and that real parties in interest develop an oak tree mitigation strategy for impacts to oak trees along the offsite sewer line. The strategy had to be reviewed and approved by the City pursuant to the oak tree preservation ordinance prior to recording a final subdivision map. Even with this mitigation, however, the impact remained significant and unavoidab