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Deferring Mitigation Details - No Problem, If...
Lead agencies are obligated under CEQA to adopt feasible mitigation to reduce significant environmental impacts. But what happens if the details of the mitigation are not defined? The specific details of a mitigation measure may not be known, or engineering design of measures may be too expensive to develop during CEQA review. Yet, the public seeks and deserves assurance that significant impacts will be reduced. This tension has led to several CEQA lawsuits surrounding the concept of “mitigation deferral.”
Ascent recently presented a CEQA practicum session on mitigation measures at the Association of Environmental Professionals’ State Conference in Sacramento. The slide show from that session can be accessed here.
Court Decisions Chart the Course
A series of court cases define the law about deferring the details of mitigation measures. Some of the cases are “classics;” four were decided within the last year. The chart below illustrates the litany of court decisions. If you click on the chart, it will connect you to an interactive version that will help you gain easy access to each decision through links.
(click to enlarge)
Deferral Principles are the Guideposts
Case law provides a good road map for properly deferring the details of mitigation measures, when it is not feasible to provide them during the CEQA review process. A dozen recommended principles from those decisions are presented as follows:
If you have questions or need further information, please feel free to contact Ascent principals, Curtis Alling (916.930.3181) or Sydney Coatsworth (916.930.3185). We’re happy to “talk CEQA compliance” with you anytime.
Identify significant effects and commit to mitigation actions
Don’t defer adoption of mitigation commitments until further study
Don’t defer formulation of the significant aspects of mitigation until future study
If mitigation details must be deferred, explain why they are not feasible or practical to describe now
Describe performance criteria that deferred mitigation measure details must attain
Don’t rely just on general goals as the performance criteria
Make performance criteria sufficiently specific to enable measurement of success
Reliance on permits is acceptable, if you can demonstrate that reduction of the significant impact can be reasonably expected
Offer specific examples of alternative actions that may be implemented with the deferred mitigation approach
Explain how deferred actions will be both “feasible and efficacious” as mitigation
Deferral of engineering design details can be acceptable, if not feasible to prepare now
Ensure that the public has a chance to review the approach to deferring mitigation details
Ascent Environmental, Inc. is a forward-looking environmental and natural resources consultancy. We do not practice law nor give legal advice, but rather apply our extensive CEQA experience in our environmental practice with the goal of developing defensible environmental documents. Please contact an environmental attorney, if you need legal advice on your project.
Ascent Environmental, Inc.
455 Capitol Mall, Suite 205
, CA 95814
Main: (916) 444-730
Curtis E. Alling, AICP
Sydney B. Coatsworth, AICP