Failure to Identify Preferred Alternative Dooms EIR

A draft EIR that studies five very different project alternatives without identifying a preferred alternative violates CEQA by failing to provide the public with a stable project to review, the court of appeal held in Washoe Meadows Community v. Department of Parks and Recreation, No. A145576 (1st Dist., Nov. 15, 2017). The California Department of Parks and Recreation undertook a project to address erosion of the Upper Truckee River in Washoe Meadows State Park and Lake Valley State Recreation Area, which was a major source of sediment and nutrient runoff in Lake Tahoe. The Recreation Area contained an 18-hole golf course that had altered the river's original course and flow. The Department issued a scoping notice that identified four alternatives for the project: Alternative 1: No project. Alternative 2: River restoration with reconfiguration of the 18-hole golf course. Alternative 3: River restoration with a nine-hole golf course. Alternative 4: River stabilization with continuation of the existing 18-hole golf course. The scoping notice identified Alternative 2 as the preferred alternative. The Department's Draft EIR (which also served as a draft EIS for purposes of NEPA and the Tahoe Regional Planning Compact and Tahoe Regional Planning Agency Code of Ordinances) added a fifth alternative that would include decommissioning of the golf course. The Draft EIR did not specify a preferred alternative; rather, the Draft EIR stated that the Department would select a preferred alternative after receiving comments on the Draft EIR. The Draft EIR analyzed all five alternatives in considerable detail. In the Final EIR, the Department identified a slightly modified version of Alternative 2 as the preferred alternative. Washoe Meadows Community filed a petition for writ of mandate seeking to set aside the Department's certification of the Final EIR, alleging, among other claims, that the failure to identify a preferred alternative in the Draft EIR violated CEQA. The court of appeal agreed. The court of appeal relied on County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185 (1977), in which the court stated that "[a]n accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR." Although County of Inyo involved an EIR that inconsistently described the scope of the project, the court held that the circumstance in this case—where the Draft EIR had not selected a preferred alternative for the project—was "no less problematic." The court explained: "For a project to be stable, the DEIR, the FEIR, and the final approval must describe substantially the same project. A DEIR that states the eventual proposed project will be somewhere in 'a reasonable range of alternatives' is not describing a stable proposed project. A range of alternatives simply cannot be a stable proposed project." The court explained that the Department's failure to select a preferred alternative could limit meaningful public participation in the environmental review process. According to the court, it did not matter if the EIR had thoroughly analyzed the preferred alternative; the Draft EIR's failure to identify a preferred project "impair[ed] the public's right and ability to participate in the environmental review process." The court explained that "[a] description of a broad range of possible projects, rather than a preferred or actual project, presents the public with a moving target." The court recognized that "there may be situations in which the presentation of a small number of closely related alternatives" would be acceptable, but explained that in this case the five alternatives were vastly different because each alternative "created a different set of impacts, requiring different mitigation measures." When an agency is considering a diverse range of alternatives, the court held, it must select a preferred alternative prior to preparing a draft EIR.