Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge., Super. Ct. No. CV-255604.
Andrew Lichtman for Plaintiffs and Appellants.
Rockard J. Delgadillo, City Attorney, and Jack L. Brown, Assistant City Attorney, for Defendants and Respondents.
No appearance for Real Party in Interest and Respondent.
Levy, Acting P.J.
INTRODUCTION
Appellants Kerncrest Audubon Society and Los Angeles Audubon Society, Inc., raise challenges under the California Environmental Quality Act (CEQA) to approval of a project to construct and operate a wind farm. Appellants contest the sufficiency of the final environmental impact report/environmental assessment (FEIR) and complain that the trial court improperly denied their discovery motions. None of these arguments are persuasive; we will affirm.
CEQA is codified at Public Resources Code section 21000 et seq. and is implemented in California Code of Regulations, title 14, section 15000 et seq. (CEQA Guidelines). Unless otherwise specified, all statutory references are to the Public Resources Code.
The terms wind farm, wind plant and wind resource area (WRA) are used throughout the administrative record. The terms wind farm and wind plant are interchangeable. A wind farm/wind plant is a specific development of wind turbines and associated transmission and support facilities. A WRA is a geographical region that is suitable for development of wind farms/wind plants.
Los Angeles Department of Water and Power (LADWP) is the lead agency for CEQA compliance. The Bureau of Land Management (BLM) is the lead agency for compliance with the National Environmental Policy Act.
GENERAL FACTS
The proposed Pine Tree Wind Development project is a wind farm consisting of eighty 1.5 megawatt wind turbine generators plus eight miles of transmission line, a substation, various outbuildings and service roads (Pine Tree). The wind turbines will be grouped along separate ridges in strings ranging in groupings from two to 16 towers.
The Pine Tree site is “located in a sparsely inhabited area” of the Southern Sierra Nevada Mountains in Kern County, approximately 12 miles north of the Town of Mojave and 15 miles northeast of the City of Tehachapi. Historically, the site has been used as grazing land for cattle. The areas surrounding the site are “essentially undeveloped.” A segment of the Pacific Crest National Scenic Trail is located on private property approximately one to two miles west of the site’s western boundary. Pine Tree involves the use of federal lands for roads and electrical transmission lines. Primary access to the wind turbine component will be taken from Jawbone Canyon Road at SR-14 and primary access to the transmission line component will be taken from Pine Tree Canyon Road at SR-14. Pine Tree is located in the Tehachapi WRA.
The “wind turbines [will] be located along selected ridgelines on privately owned land consisting of approximately 8,000 acres or approximately 12.5 square miles.” The actual area of new ground disturbance caused by Pine Tree is approximately 238 acres. This includes 106 acres of temporary disturbance related to construction activities and 132 acres of permanent disturbance.
The Pine Tree project will be developed and constructed by Wind Turbine Prometheus, LP (WTP). It will be owned and operated by LADWP. Pine Tree “is needed so that LADWP may meet commitments to supply an increased share of its electrical generation capacity from clean and renewable energy sources.” Also, it “is needed to help meet the future electrical energy demands of the Southern California region.” Since the LADWP does not possess authority to supply power to development outside the limits of the City of Los Angeles, “[t]he objective of the proposed project is not to create surplus energy for the open marketplace but to help meet the projected electrical energy demands of City of Los Angeles customers while increasing the share of the power used by LADWP that is generated from clean and renewable energy sources.”
The FEIR concluded that for the period of construction, which will be 10 months or less, Pine Tree will cause a significant and unavoidable adverse impact on air quality. After mitigation, operation of Pine Tree will not result in any significant adverse environmental impacts. Details concerning the contents of the FEIR will be set forth as necessary, post.
“The FEIR consists of the DEIR [draft environmental impact report], comments and the responses to the comments. (CEQA Guidelines, § 15132.)” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1389, fn. 3 (Irritated Residents).) The FEIR references numerous technical documents, studies and reports. These documents, studies and reports are contained in volumes III through XII of the administrative record. These studies and reports constitute “important anecdotal evidence” and the FEIR’s use of these studies as part of its analysis of the Pine Tree project’s possible adverse impacts and to assist in its formation of environmental conclusions is proper. (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1210 (BCLC).) The contents of these studies and reports will be set forth as necessary in our discussion of the avian issue raised by appellant.
A report authored by the California Energy Commission states that 90 percent of the world’s wind-produced electricity is from California. “Wind produced electricity is a preferred technology in California and is promoted.” Although wind energy projects are land intensive, ordinarily “wind project development produces no air quality impacts, no ground water pollution, no toxic wastes and does not use hydrocarbons. Also, wind produced energy does not increase California’s oil dependency. Additionally, it has compatible land uses such as low intensity agricultural practices which include grazing and crops which do not require aerial application of chemicals. It is also compatible with some types of recreation.”
After public hearing on April 19, 2005, the Board of Water and Power Commissioners (Board) adopted a resolution certifying the FEIR and approving Pine Tree.
Appellants filed a petition for writ of mandate. They asserted that the FEIR failed to study the possibility that Pine Tree could adversely affect nocturnally migrating songbirds and failed to consider Pine Tree’s individual and cumulative growth-inducing impacts on Los Angeles. The petition was orally denied after hearing on April 14, 2006. Entry of judgment was filed on May 17, 2006.
DISCUSSION
I. Standard of Review
Thorough discussions of background information about CEQA and the standard of review applied to an environmental impact report (EIR) are contained in BCLC, supra, 124 Cal.App.4th at pages 1197-1198. Appellate courts review challenges to CEQA compliance de novo. (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1375-1376.) “In reviewing an agency’s determination under CEQA, a court must determine whether the agency prejudicially abused its discretion. (§ 21168.5.) Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination is not supported by substantial evidence.” (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 25-26.) “The absence of information in an EIR, or the failure to reflect disagreement among the experts, does not per se constitute a prejudicial abuse of discretion. [Citation.] A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.” (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712 (Kings County).)
“When assessing the legal sufficiency of an EIR, the reviewing court focuses on adequacy, completeness and a good faith effort at full disclosure.” (Irritated Residents, supra, 107 Cal.App.4th at p. 1390.) A court’s function “is not to determine whether the EIR’s ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document.” (Id. at p. 1391.) “CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive. (Guidelines, § 15151.)” (Kings County, supra, 221 Cal.App.3d at p. 712.) An EIR’s analysis of possible adverse environmental effects “will be judged in light of what was reasonably feasible.” (Irritated Residents, supra, 107 Cal.App.4th at pp. 1390-1391.)
Courts apply the substantial evidence standard “to conclusions, findings and determinations. [The standard also is applied] to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions.” (BCLC, supra, 124 Cal.App.4th at p. 1198.) Substantial evidence includes “‘facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.’ [Citations.]” (Ibid.)
II. Appellants’ challenge to the FEIR’s analysis of the possibility that Pine Tree could adversely affect nocturnally migrating songbirds lacks merit.
A. Facts
i. Initial Site Reconnaissance
The initial study identified the possibility that Pine Tree could cause a potentially significant impact on native or migratory wildlife.
In a comment letter related to the first public meeting about Pine Tree, a representative of the Kern-Kaweah Chapter of the Sierra Club wrote that “[t]he high ridgelines and rocky outcrops provide critical habitat for native raptor species, as well as many resident and migratory passerine species. These southern Sierra canyons offer prime migration routes each year. There is a concern that this mountainous area may be too sensitive for wind development. [Footnotes added.]”
Raptors are birds of prey. Raptors have hooked beaks, sharp talons, powerful leg and toe muscles, and excellent eyesight. Hawks, eagles, falcons and owls are raptors. ( [as of May 8, 2007]; [as of May 14, 2007].)
“Passerines are the perching birds -- technically members of the order Passeriformes. Birds in this order are characterized by having four toes, three directed forward and one backward, all joining the foot at the same level.” ( [as of July 9, 2007].) There are two suborders within the Passeriformes: the Oscines and the Suboscines. “The Oscines, divided into about 70 families, are the ‘songbirds.’ This is the group of birds in which singing is most highly developed. The calls of some birds in other groups are quite musical, but it is in the Oscines that we perceive songs to reach their full beauty and complexity.” (Ibid.)
EDAW (the company contracted to prepare the FEIR) conducted initial site reconnaissance, general wildlife evaluations and sensitive wildlife surveys. It made the following observations concerning the possibility that migratory songbirds could fly over the Pine Tree site:
“At this time, we have no recommendations for project siting relative to potential bird strikes. Curry and Kerlinger indicate a low probability of impacts to songbirds or raptors for the Florida Power and Light project. Though our biologists did note some flyovers by raptors, general activity is very, very low. Our observations of flight activity, or lack thereof, tend to correlate with Curry and Kerlinger’s findings that the project site is not a significant foraging area or flyway for raptors or songbirds. We intend to supplement our findings by consulting with a knowledgeable raptor specialist (we are working with Andy and DWP on this) and to obtain survey and siting information from other local sources.” (Emphasis added.)
Michael Morrison, Ph.D., “a recognized avian expert,” was retained to augment the “analysis of avian impacts.” He was employed to “assist in the evaluation of potential project related impacts to all raptor species and bat species that are currently known, or could be expected, from the project area.”
Morrison conducted a series of focused avian surveys with an emphasis on raptors “to quantify general bird activity and passage near proposed turbine strings. The data were used to assess the potential impacts of the proposed project on avian wildlife species. During these surveys, Dr. Morrison noted not only the bird species that were observed during the point counts but also those identified through incidental observations.” (Emphasis added.) Morrison’s spring surveys were conducted on the following days in 2004: March 16-17, April 4-5, April 13-14, April 28 and May 30.
ii. The Draft EIR
The draft EIR and environmental assessment (the DEIR) concluded that direct impacts to sensitive raptors and bats could result from collisions with rotating turbine blades. However, the DEIR stated the potential mortality rate of 0.047 raptors per turbine per year would not significantly affect the local raptor population. The DEIR concluded the projected raptor fatalities represent a de minimus contribution to yearly raptor fatalities in the Tehachapi WRA. The DEIR further determined that Pine Tree’s impacts on avian life are not cumulatively significant when considered in the context of the entire Tehachapi WRA. Impacts on bats are predicted to be low due to the lack of evidence of substantial bat populations on site. The DEIR recommended monitoring of avian and bat mortality through the first year of operations.
iii. Comments and Responses
Several comment letters stated that the DEIR inadequately considered the possibility that songbirds could fly over the site during their spring migration. The commenters complained about the absence of a nighttime survey of migratory birds. Commenters also complained that the five surveys of the project site Morrison conducted (in March, April and May 2004) were inadequate to detect migrating songbirds. Finally, a commenter referenced a study concerning bird mortality in the Altamont Pass WRA and stated that the DEIR failed to properly consider this study in developing its avian protocol and conclusions.
Detailed responses were prepared to these comments. In substantial part, the same information was conveyed in the response prepared for each comment letter raising a songbird-related point. The bulk of the FEIR’s analysis and conclusions regarding songbirds are contained in these responses. To resolve the issue presented on appeal and properly assess the sufficiency of the FEIR’s analysis of possible adverse effects on migratory songbirds, it is necessary to quote these responses at length.
We summarily reject appellant’s challenge to the adequacy of the responses on this topic. They are detailed and fully responsive to the issues raised by the commenters. (See, e.g., Irritated Residents, supra, 107 Cal.App.4th at pp. 1396-1397 [response adequately explained why suggested test was unnecessary].) The identity of the responder is not relevant; responses may be prepared by the lead agency’s staff, by a consultant or by the applicant. (Friends of La Vina v. County of Los Angeles (1991) 232 Cal.App.3d 1446, 1452-1455; 1 Kostka & Zischke, Practice Under the California Environmental Quality Act (Cont.Ed.Bar 2006 rev.) § 16.9, p. 781.) Furthermore, appellant failed to develop this contention with legal argument or citation to argument. Therefore, we deem it to be without foundation. (BCLC, supra, 124 Cal.App.4th at p. 1199.)
a. Methodology
The responses set forth the methodology utilized in identifying and studying possible adverse effects on avian life. The avian protocol “is responsive to the level of effort recommended in the National Wind Coordinating Committee (NWCC) Guidance Document … and the recently released United States Fish and Wildlife Service (USFWS) Interim Guidelines.” It continued:
“… The NWCC was formed in 1994 as a collaborative endeavor composed of representatives from diverse sectors including electric utilities and their support organizations, state utility commissions, state legislatures, consumer advocates, wind equipment suppliers and developers, green power marketers, environmental organizations, and state and federal agencies.” (NWCC, studying wind energy/bird interactions: a guidance document (Dec. 1999) p. ii. (Studying Wind Energy/Bird Interactions).)
“The biological studies at the [Pine Tree] site were initiated over 2 years ago, and avian studies are continuing at present and would continue through the first year of operations. The Pine Tree studies were approached in a manner widely accepted for complex biological analysis, following a phased progression of study that builds a basis of general information followed by progressively more detailed work. The methodologies, protocols, and extent of these surveys were documented in the Draft EIR/EA in the biological resources section. To summarize, studies were initiated in December of 2002 with a general biological habitat assessment over (at that time) a 33-square-mile project study area. Existing vegetation communities were delineated, potential habitats for sensitive plants and wildlife associations within those communities were mapped, and searches for sign of sensitive plant and wildlife species were completed. Based on the results of the December 2002 habitat assessment, and considering a list of sensitive species with the potential to occur within the project area assembled through literature review, focused surveys were conducted in the spring and summer of 2003. The characterization of wildlife usage of the site included direct observations of avian species as well as research regarding avian species likely to occur. The amount of time spent in the field was consistent with biological survey practice for wildlife characterization and was accomplished by professional biologists with significant experience with Southern California desert and mountain habitats. Field work was supplemented with research of published literature applicable to the region.”
Next, the responses summarized the results of the initial surveys:
“During these initial field visits to the site, which included the spring 2003 season, a remarkable characteristic of the site was the lack of observed bird activity, particularly raptors. A higher level of use by raptors typically would be expected. The biological survey team also noted a low level of riparian and songbird activity. Relative to song birds and riparian activity, California Department of Fish and Game wildlife biologists visiting the site confirmed this lack of activity and commented that the riparian areas appeared to not be well enough developed or extensive enough to be attractive to nesting riparian birds ….” (Emphasis added.)
Then, the responses explained why Morrison was retained to conduct focused avian studies, despite the low incidence of bird activity observed in the initial surveys:
“Under most circumstances, the relative absence of observed avian activity during spring would lead to the conclusion that the potential for significant impact would be low. In spite of this, and in consideration of the comments on the Notice of Preparation suggesting that one year of avian baseline information should be collected, LADWP decided to initiate a formal avian protocol survey. Dr. Michael Morrison, a nationally recognized avian biologist, was retained to develop a survey protocol and conduct the studies.”
The responses state that the sampling protocol used by Morrison exceeds the basic protocol standard both in terms of number of counts (5) and duration (30 minutes each). The responses stated that Morrison’s focused avian studies were adequate to count songbirds as well as raptors:
“The 30-minute duration was chosen to count raptors but is more than adequate for songbirds. The fact that counts were conducted during the spring migration period and failed to locate any substantial number of songbirds using the riparian area in Jawbone Canyon (that portion within the wind turbine siting area), indicates that the area was likely not used in 2004 for resting and foraging by large numbers of migrating songbirds.” (Emphasis added.)
b. Results of Morrison’s Surveys
The responses set forth Morrison’s findings as they relate to songbirds:
“In other findings from the fall 2004 survey report, Morrison found no large movements or concentrations of non-raptorial birds (e.g., songbirds, quail) in the project area. The most frequently observed songbirds were mixed flocks of white-crowned sparrows and golden-crowned sparrows, which were seen throughout the project area during fall. Additionally, large (approximately 50 individuals) flocks of California quail were frequently observed throughout the project area in grassland and shrubland. No information was gathered on the movement of birds at night. However, observations conducted during the day did not identify any large numbers of migratory species (e.g., warblers, vireos, sparrows) that appeared to be using the project area for foraging or loafing (i.e., as a daytime stopover location during migration).
“Similarly, the winter 2005 survey shows that the project does not serve as a major wintering area for raptors or other bird groups. Some species, such as the prairie falcon, appeared to spend a brief period of time in the project area and then depart. Other species, such as the red-tailed hawk, appeared to be both resident and transitory in the area in low numbers in winter. It also appeared that the abundance of certain species, such as meadowlarks and sparrows, declined as winter progressed.” (Emphasis added.)
c. Pine Tree Site Is Not Located In A Flyway For Migratory Songbirds
The responses explained why it was concluded that the Pine Tree site is not located in a flyway for migratory songbirds:
“LADWP does not deny the importance of Butterbredt Springs as an important bird area. However, the deduction that the [Pine Tree] site is flooded with migratory birds in the spring because it is within 8 miles of Butterbredt Springs and is within the southern Sierra Mountains is not supported by the direct observations at Pine Tree. As summarized previously, the riparian portions of upper Jawbone Canyon and little Jawbone Canyon do not support a substantial number of migratory birds.” (Emphasis added.)
Furthermore:
“The proposed wind turbines would be located in the western end of Jawbone Canyon, some 10 miles from the mouth of the canyon, near SR-14. Anecdotal information from the commenter and an unpublished report indicate that the localized spring migration in the area is from southeast to northwest and that the migration is captured in northwest-southeast trending canyons, such as the east portion of Jawbone Canyon. The Jawbone Canyon migration continues in a northwesterly direction up Alphie and Hoffman canyons through the topographic pinch point of Butterbredt Springs. This would take the localized migration well east of the proposed project property, which encompasses northeast-southwest trending portions of upper Jawbone Canyon. Our data based on extensive field observations show that there are no other logical reasons, such as good habitat or adequate cover and water, for a substantial number of birds to be loafing or resting in the proposed turbine area. There is a reason that birds seek Butterbredt versus the proposed project site (i.e., a readily available source of water and its location along the local canyon migratory pathway).” (Emphasis added.)
d. Avian Fatality Studies
The responses discuss existing fatality studies and stated that they support the conclusion reached by Morrison that the Pine Tree site is not likely to cause a significant adverse impact on migratory songbirds:
“Based on a comparison of the use of Pine Tree by birds relative to other existing wind developments, fatalities are predicted to be at the low end of that quantified elsewhere for both raptors and songbirds. In spite of the fact that some wind developments lie directly in areas that are known migration routes, Erickson et al. (2002) summarized the observed and likely potential impact of wind farms on passerine and other non-raptorial birds, including nocturnally migrating species. They found that nocturnal migrants are estimated to comprise approximately 50 percent of the fatalities at new wind projects (estimated range 34 to 59%), based on timing and species observed during standardized fatality monitoring. There has been no reported large episodic mortality event (e.g., >50 passerine birds during a single night) recorded at a U.S. wind plant. Two small nocturnal avian mortality events have been published at U.S. wind plants. Fourteen nocturnal migrating passerines at two turbines at Buffalo Ridge (Minnesota) were killed on one night during spring migration after a thunderstorm. At the Mountaineer Wind Energy Center, West Virginia, 33 (47.8%) of 69 passerine fatalities occurred on one night at a few turbines adjacent to a well-lit substation during spring migration (Kerns and Kerlinger 2004). The data suggest that sodium vapor lamps at the substation were the primary attractant, since fatality locations were correlated with the location of the substation, and the other turbines away from the substation had few fatalities documented the morning after the event. After the lights were turned off at the substation, no events occurred. Erickson et al. (2002) were not aware of any other mortality events greater than a few birds at single or adjacent turbines found during a single search at any U.S. wind plant.
“Several studies have been published regarding extrapolated bird passage rates [citations]. We are aware of only a few studies that have attempted to compare fatality rates to bird passage rates. McCrary et al. (1986) estimated approximately 6,800 annual bird fatalities at the San Gorgonio wind project in California, with an estimate of approximately 75 million migrants passing through during fall and spring migration. McCrary et al. (1986) believed the mortality levels were biologically insignificant. Radar studies conducted in the vicinity of the Buffalo Ridge wind project (over 400 turbines) in Minnesota suggested that as many as 3.5 million birds may migrate over the wind development area, and fatality studies suggest only a few hundred migrating songbirds are killed each spring. Radar studies at the Stateline Wind Project, a large facility (454 turbines) with its northern boundary located within 1.5 miles of the Columbia River, indicate a large number of birds migrate over that facility (several hundred thousand to over a million) during spring migration, and the fatality studies suggest a very small number result in collisions (Erickson et al. 2004). A similar pattern was observed for the nearby Nine Canyon facility (Cooper and Mabee 2001; Erickson et al. 2003b).
“Rappole (1995) reviewed the behavior of migrating passerine birds including activities during stopovers. Most passerines migrate at night and rest and forage during the day. He noted that migrating flocks would sometimes spend several days in a location before continuing migration, while others would leave the evening of their arrival day. He thought that differences in stopover time were likely related to the physiological condition of individual birds, given that poor weather was not the reason for remaining at a location. He also noted that habitat selection was species specific, ranging from highly selective to very broad, and was at least partially based on a bird’s energetic state.” (Emphasis added.)
The responses also state that studies of existing California wind farms in places such as the Altamont WRA and the Tehachapi WRA do not indicate that the wind farms resulted in a significant songbird mortality rate:
“For example, the fatality surveys conducted for over 13 years at the Altamont Pass WRA, including the intense surveys during the past approximately 5 years, have never recorded a substantial mortality of songbirds. Likewise, the fatality searches at the Tehachapi WRA failed to locate substantial songbird mortalities. Finally, the summary papers by Erickson and co-workers show that no Western wind development with newer larger turbines has had a large mortality of songbirds.” (Emphasis added.)
The responses continued on this topic, as follows:
“The references to Altamont should include several other points of clarification. Repowering will use turbines of a similar design and size as those proposed for the Pine Tree project, and the new turbines will be spaced farther apart than those currently in place at Altamont. Once again, the data and conclusions in the Draft EIR/EA were not derived from studies at Altamont, which is an entirely different environment. They are derived from direct observations and monitoring that occurred over a 2-year period of time at the Pine Tree project site.
“Also, because no substantial songbird mortality has occurred at Altamont, these changes are designed to reduce raptor fatalities. In addition, based on extensive site surveys …, raptor use at the project site is estimated to be 40 percent lower than the average use in the Tehachapi WRA, 50 percent lower than the average use found at other active or proposed wind energy developments, and 90 percent lower than the average use in the Altamont Pass WRA.” (Emphasis added.)
e. Absence of Night Surveys
The responses explained the absence of night surveys as follows:
“The commenter is correct that no night surveys were conducted. Night surveys are not commonly conducted when there is no evidence of daytime early morning or late evening use by migrants. As noted above, migrating passerine birds include some activity during stopovers and may forage for an entire day. This is largely absent at the proposed project site.” (Emphasis added.)
The responses also stated that “[n]ight surveys are of limited usefulness to the prediction of avian impact.” They explained:
“… Use of radar and other scanning techniques do not distinguish among species and it difficult to tell whether the same bird or bat may pass through the scan more than once. Just knowing that there are bird species passing overhead has not been demonstrated as an accurate or reliable predictor of avian risk at wind power sites. The primary reason is that there have not been any wind power projects where night migration fatalities have been considered biologically significant. Most studies of North American bird migration using techniques such as radar have suggested that nocturnal migrants follow a broadfront migration pattern, flying at high altitudes, where they are not affected by variation in surface topography [citations]. While there is some expected mortality of nighttime migrants, numbers of fatalities for individual species from the many fatality studies conducted in the West suggest levels inconsequential to the affected species [citation.]” (Emphasis added.)
f. Absence of Cumulative Impacts on Avian Life
The response explained why it concluded that Pine Tree and other wind projects in this WRA are not likely to have a cumulative adverse effect on avian life, as follows:
“Specific to avian impacts, the results of Anderson et al. (2004) relative to the Tehachapi WRA were summarized and considered in quantifying avian risk at the project site. The avian mortality at Tehachapi was considerably less than that observed at many other Western wind resource areas. The Pine Tree project is predicted to add comparatively few additional mortalities given the relatively small number of turbines added. As such, there would not be a substantial cumulative effect. The determination of cumulative impact is one of biological magnitude, not mere addition, especially of generally small numbers. If this were not the case, any project that created any impact whatsoever, regardless of how insignificant, would need to be considered cumulatively significant simply because it added to an existing impact.
“It is noted that the Tehachapi data have been used to assist with the quantification of avian impacts at the Pine Tree project site, but the combined mortality effects on avian species are only part of the avian mortality equation. There are many other reasons for avian mortality and evidence suggests that wind power is not a major source. For example, the American Wind Energy Association (AWEA) notes that the Deputy Director of the Fish and Wildlife Service, in a September 15, 2003, correspondence, states that, with limited exception, impacts on birds from wind farms in the U.S. are low compared to impacts on birds from communication towers, power lines, and building windows [citation]. This available information, coupled with the on-site observations, led to the conclusion that the proposed project would not have a significant cumulative impact.” (Emphasis added.)
g. Summary of Conclusions
The responses summarized the conclusions concerning passerine fatalities, as follows:
“In summary, it does not appear that the project site serves as a major pathway or stopover area for migrating birds. The few instances in which relatively large numbers of migrating passerine birds have been killed in wind developments have been apparently due to a combination of poor weather and lights reflecting off of a low cloud ceiling.
“Based on the habitat assessment and consideration of mortality rates from other Western wind developments, it is estimated that passerine mortality at the [Pine Tree project] would be approximately 0 to 2 birds per turbine per year. This level of mortality includes potential effects on migrants and would not be considered a significant impact in relation to the total population of the various bird species found in the area.
“LADWP, through its continuation of avian studies, is building upon the base of resource information that it has collected over the past 2 years. LADWP has not dismissed the potential effects on birds and bats but has determined that significant mortality is not likely. It is noted that many of the birds potentially occurring at the Pine Tree project site could also occur at Tehachapi, and no substantial mortalities [have] been recorded. Scavenging is accounted for in all appropriately designed fatality surveys (as it was in the Tehachapi study).” (Emphasis added.)
iv. Appellants’ Avian Expert
On April 18, 2005, appellants submitted a letter from their counsel, Andrew Lichtman, and a report written by Robert A. Hamilton. Hamilton is a biologist who was retained by appellants to provide a professional opinion regarding the adequacy of the FEIR, with focus on the question whether Pine Tree “could result in any potentially significant adverse effects on populations of native bird species known to migrate through Jawbone Canyon each spring.” Hamilton wrote that “the optimistic conclusions drawn by EDAW (2004) and the [FEIR] could prove to be accurate if the project is implemented according to the current plans. The essential deficiency of this report, and of the impact analyses based on this report, is that none of the various biological investigations undertaken for this project were completed with the explicit goal or effect of evaluating the potential for conflicts between migratory passerines and the proposed wind turbines.” In Hamilton’s opinion, Morrison’s avian surveys are inadequate because they fail to specify at what time of day the surveys were conducted, and if they were not conducted during the first two or three hours of the day, most of the passerines could have been missed. Furthermore, no surveys were specifically conducted “to determine whether large numbers of nocturnal migrants pass over the project area at night during the peak of spring migration, or to determine the potential effects of low cloud-cover on the height at which nocturnal migrants may fly over the project site on such nights.” Hamilton acknowledged that the FEIR’s conclusion that most of the northbound migratory birds entering Jawbone Canyon would not fly over the project site “makes intuitive sense, and could be correct.” However, it is “a mere hypothesis that has not been tested with any well-conceived field studies.” Hamilton also wrote that Morrison failed to follow the survey methods he recommended in prior writings. In Hamilton’s opinion, the FEIR’s “findings regarding the project’s potential effects on migratory songbirds appear to be based on inadequate data.”
We note that LADWP was not required to discuss Hamilton’s opinion in the FEIR because his report was submitted after closure of the public comment period. If Hamilton’s report had been submitted during the comment period, the FIER should have summarized the main points of disagreement between Hamilton and Morrison and explained its reasons for accepting one set of judgments instead of another. (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 372 (Eureka); Irritated residents, supra, 107 Cal.App.4th at p. 1391.)
Appellants also attached as an exhibit to the letter and report, a written “transcription” of a portion of a telephone conversation on February 24, 2005, involving Morrison, Garry George, Tom Ryan and Chuck Holloway. This conversation was “transcribed” by Garry George. The “transcription” does not attribute the replies made to George’s remarks to any specific individual. Rather, it states that the statements contained in uppercase letters were made by “Morrison, Ryan, and Holloway.” During this conversation, one of these three men stated that Morrison was not asked to focus on songbirds in his avian studies. Yet, one of these three men also stated that during the avian studies Morrison looked for songbirds and not just for raptors. Furthermore, one of them said that no one has yet found a correlation between migratory period and fatalities of songbirds.
The purported “transcript” does not support appellants’ assertion that Morrison did not consider songbirds when conducting his avian surveys. It adds no new meaningful evidence. The scope of work document provides that Morrison was retained to study raptors and bats. The responses to comment letters state that Morrison’s avian studies were focused on raptors but he recorded the presence of all types of birds. They also state that the 30-minute counts were adequate to record the presence of songbirds.
v. Avian Monitoring Program
The following avian monitoring program was included as a condition to approval of the Pine Tree project:
“To ensure that the predicted rates of raptor mortality remain low and insignificant, a qualified ornithologist will conduct bird mortality monitoring at the project site for one year following the first delivery of power. All results will be provided to the Wildlife Response and Reporting System database and to the California Department of Fish and Game. Also, LADWP will maintain a record in accordance with U.S. Fish and Wildlife Service guidance of avian injury and mortality that is observed on the project site during operations for the life of the project.
“After one year of post-construction monitoring data has been obtained, LADWP shall review project operations to determine if any specific turbine(s) is responsible for disproportionately high levels of avian mortalities compared to other turbines on site. If so, LADWP shall implement operational modifications of the turbine(s) and conduct further study in consultation with the California Department of Fish and Game and/or the U.S. Fish and Wildlife Service to evaluate the effectiveness of the modifications.”
B. The FEIR’s determination that Pine Tree will not adversely affect migrating songbirds is based on an adequate investigation and is supported by substantial evidence; CEQA does not compel conduct of a focused nighttime study designed to answer “The Question.”
Appellants challenge the sufficiency of the FEIR’s analysis of possible adverse effects on nocturnally migrating songbirds. They contend that all of the avian surveys are inadequate because none of them were focused on answering the following question, “[W]hat are the fluctuations, from spring to spring, of the routes and songbird population traveling at night without stopping …?” In appellants’ view, the FEIR does not contain “a meaningful investigation of avian behavior and safety.” Appellants argue that CEQA compels respondents to conduct an avian study designed to answer “The Question.” Appellants assert that “The Question” must be studied “as a matter of law,” because the omissions of “any meaningful consideration of The Question” resulted in a failure “to comply with the information disclosure provisions of CEQA ….” The absence of such a focused study is alleged to have precluded “the establishment of a baseline against which to measure the future effects of the EIR Project on songbirds migrating at night during the spring, and for [the lead agency] to make a rational assessment of the threat of the EIR Project to the safety of such birds.” Alternatively, they argue that in the absence of an avian study specifically designed to answer “The Question,” the record lacks substantial evidence supporting the FEIR’s conclusion that Pine Tree will not cause a significant adverse effect on avian life.
Although it is unclear from appellants’ briefing, they might have attempted to assert that because one or more songbirds belonging to an endangered or threatened species might fly over the project site, even the death of one bird is biologically significant and compels a conclusion that the project will have an a substantial adverse effect on avian life. Appellants failed to develop this argument. Points perfunctorily asserted without legal argumentation and citation to authority are deemed to be without foundation and waived. (BCLC, supra, 124 Cal.App.4th at p. 1199.)
We are unpersuaded. As will be explained, LADWP did not fail to obtain and disclose relevant information necessary to assess whether Pine Tree might adversely affect nocturnally migrating songbirds. The FEIR estimated that passerine mortality, including migrants, would be approximately 0 to 2 birds per turbine per year. This would not be considered a significant impact in relation to the total population of the various bird species found in the area. These determinations are based on the results of reconnaissance surveys of the Pine Tree site, Morrison’s avian studies and published studies and reports concerning the effects of wind farms on avian life. CEQA does not compel respondents to conduct a focused study specifically designed to answer “The Question” simply because appellants and their expert, Hamilton, believe it would be useful. Irritated Residents, supra, 107 Cal.App.4th 1383 and Eureka, supra, 147 Cal.App.4th 357 are directly analogous and support this line of analysis and conclusion.
i. The relevant legal principles are well established.
Appellants’ challenge to the sufficiency of the avian studies is not a novel line of argument. CEQA Guidelines section 15144 provides: “[d]rafting an EIR or preparing a negative declaration necessarily involves some degree of forecasting. While foreseeing the unforeseeable is not possible, an agency must use its best efforts to find out and disclose all that it reasonably can.” (Emphasis added.) CEQA Guidelines section 15145 states: “If, after thorough investigation, a lead agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact.” (Emphasis added.) Citing these CEQA Guidelines, project opponents frequently argue that refusal to conduct a suggested test thwarts the information and disclosure provisions of CEQA and precludes a finding of substantial evidence supporting an EIR’s conclusions. Two cases, Irritated Residents and Eureka, are directly on point to the issue presented herein; in neither of these cases did the court conclude that CEQA’s informational mandate required performance of the additional test suggested by appellant.
In Irritated Residents, supra, 107 Cal.App.4th 1383, this court rejected a challenge to the sufficiency of an EIR for a large dairy. Appellants argued that the EIR failed to sufficiently analyze whether the dairy would cause an adverse impact on the kit fox. In their view, County of Madera was required to conduct a protocol level study following one of three specific methodologies. The absence of such a study was claimed to have rendered the EIR insufficient as an informational document. We disagreed. Qualified biologists performed a reconnaissance level survey and they did not detect quality natural habitat or any sign of kit fox. Query of a relevant database only revealed one kit fox sighting a decade earlier and over eight miles south of the dairy. Based on these facts, we concluded that further study of the topic was not required. We explained:
“… The County was not required to conduct a protocol level study merely because [appellant] requested it in its comment. CEQA does not require a lead agency to conduct every recommended test and perform all recommended research to evaluate the impacts of a proposed project. The fact that additional studies might be helpful does not mean that they are required. [Citations.] The agency has discretion to reject a proposal for additional testing or experimentation. [Citation.] The response to [appellant’s] comment adequately explains why a protocol level study in conformity with the survey guidelines was not conducted; no quality natural habitat was present on the site, no sensitive species or their sign was detected during the field survey and the [database] query showed only one kit fox sighting a decade ago and it was over eight miles south of the dairy site. For these many reasons, we conclude that appellants have not shown that CEQA required use of the survey guidelines in this instance. The biological report (which discusses the field survey, the NDDB query, and the conclusions [the biologist] reached from this data) constitutes substantial evidence supporting the determination reached in the FEIR and the finding adopted by the board that, as mitigated, the dairy will not significantly affect the kit fox.” (Irritated Residents, supra, 107 Cal.App.4th at pp. 1396-1397, emphasis added.)
We also rejected the corollary contention that the absence of a protocol level study precluded a finding that there was substantial evidence supporting the determination that the dairy would not significantly adversely affect the kit fox, as follows:
“… Contrary to the assertion of appellants, ‘an EIR need not include all information available on a subject.’ [Citation.] Although the biological resources section of the FEIR is brief, it contains sufficient information and analysis to enable the public to discern the analytic route the agency traveled from evidence to action…. While there were differing opinions on the issue of whether the dairy would impact the kit fox and whether the mitigation measure would be effective, the board was entitled to choose to believe one side more than the other. [Citation.] Appellants disagree with the analysis and conclusions reached in the FEIR. Yet, this does not render the FEIR legally insufficient.” (Irritated Residents, supra, 107 Cal.App.4th at pp. 1397-1398.)
Eureka, supra, 147 Cal.App.4th 357 is also instructive. There, appellants complained about the sufficiency of a noise study analyzing the effects of a project to build a playground. They argued that the study was flawed and technically incompetent and therefore did not provide a factual basis for the City of Eureka’s finding that the noise levels generated by the playground would not cause a significant environmental effect. Appellants argued that the city should have been compelled to accept the competing noise study prepared by their expert. The appellate court rejected this claim. As relevant here, the court explained that “[d]isagreements among experts do not make an EIR inadequate. [Citations.]” (Id. at p. 371.) The court continued:
“… [O]ur Supreme Court has cautioned reviewing courts against performing our own scientific critiques of environmental studies, a task for which we have neither resources nor scientific expertise. [Citation.] Our duty is not to pass on the validity of the conclusions expressed in the EIR, but only on the sufficiency of the report as an informative document. The issue is not whether the studies are irrefutable or whether they could have been better. The relevant issue is only whether the studies are sufficiently credible to be considered as part of the total evidence that supports the findings. [Citation.]” (Eureka, supra, 147 Cal.App.4th at p. 372, emphasis added.)
The city staff concluded that the engineering firms who prepared the conflicting reports both were well-respected and qualified. The study relied upon by the city to support its noise finding constitutes substantial evidence, despite the disagreement of appellants’ expert. (Id. at pp. 372-373.)
Irritated Residents and Eureka establish the legal proposition that an EIR is not required to conduct every suggested test or field study. The relevant question for courts considering the sufficiency of an EIR is not whether every imaginable study or test has been conducted but whether the studies and tests that were conducted comply with CEQA Guidelines section 15144 and are sufficient to permit a reasoned and reasonable conclusion about the likely adverse environmental effects of a proposed project. “Technical perfection is not required; we look not for an exhaustive analysis but for adequacy, completeness, and a good faith effort at full disclosure.” (Eureka, supra, 147 Cal.App.4th at p. 372.) The disagreement of a competing expert with the conclusions reached in an EIR merely creates a factual conflict of fact to be resolved by the lead agency; it does not render an EIR inadequate. (Id. at p. 371.)
Appellants primarily rely on Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715 (Santa Clarita), arguing it is directly on point to this matter. They are wrong; Santa Clarita bears no similarities to this case. In Santa Clarita, no definite water source was identified for the proposed residential and commercial project; the EIR assumed that state water project (SWP) entitlements would suffice. The EIR’s failure to “attempt to calculate or even discuss the differences between entitlement and actual supply,” rendered the EIR inadequate as an informational document. (Id. at p. 722.) The EIR gave “no hint that SWP entitlements cannot be taken at face value” and the response to comments on this subject only “obliquely acknowledge[d] that the entitlements may not be all they seem.” (Id. at p. 723.) As will be explained, post, the FEIR’s conclusion concerning songbirds is based on adequate study and information. Nothing even remotely equivalent to phantom water at issue in Santa Clarita is present here.
ii. The FEIR’s conclusion that Pine Tree is not a flyover for migrating songbirds is based on adequate research and evaluation.
Having established the applicable legal precedents and principles of law, we turn to consideration of appellants’ contention that it cannot be determined whether songbirds will be adversely affected by the Pine Tree project in the absence of a nighttime survey specifically designed to assess if and when flocks of migrating songbirds fly over the Pine Tree site. We reject this contention because it ignores the substantial body of evidence on this topic that is contained in the FEIR. The FEIR made reasonable determinations about the possible effects of the Pine Tree project on avian life, including migrating songbirds. These determinations are based on the results of reconnaissance visits to the site, Morrison’s avian surveys, information concerning the migratory patterns of birds entering Jawbone Canyon and published studies of other wind farms in the United States. After synthesizing this information, the FEIR concluded that it is unlikely that migrant passerines use the Pine Tree site for foraging or resting or as a migratory flyway. It also concluded that even if migrating songbirds fly over the project site, it is not likely that they will experience a biologically significant mortality rate. As we will explain, the FEIR’s analysis of this topic constitutes a good faith effort at full disclosure and its conclusions are supported by substantial evidence.
The FEIR explained that the riparian portions of upper Jawbone Canyon and little Jawbone Canyon do not support a substantial number of migratory birds. Also, there was a low level of observed avian activity on the Pine Tree site during the spring months. Furthermore, migratory birds travel east of the Pine Tree site and they do not use the Pine Tree site for resting or foraging. In response to a comment letter, it was stated, “Anecdotal information from the commenter and an unpublished report indicate that the localized spring migration in the area is from southeast to northwest and that the migration is captured in northwest-southeast trending canyons, such as the east portion of Jawbone Canyon. The Jawbone Canyon migration continues in a northwesterly direction up Alphie and Hoffman canyons through the topographic pinch point of Butterbredt Springs. This would take the localized migration well east of the proposed project property, which encompasses northeast-southwest trending portions of upper Jawbone Canyon.” Even appellants’ expert, Hamilton, acknowledged that the FEIR’s determination that most of the northbound migratory birds entering Jawbone Canyon would not fly over the project site “makes intuitive sense, and could be correct.”
Appellants’ contention that Morrison’s avian studies are irrelevant because he was contractually retained to study raptors and bats is unpersuasive. Morrison was retained primarily to study raptors because the initial reconnaissance of the Pine Tree site did not indicate that migrating flocks of songbirds fly over the site in spring or that they use the site as a resting foraging area. Yet, Morrison’s avian studies on the Pine Tree site accounted for all bird species, not just raptors. Although Morrison’s avian studies were primarily designed to assess the possible effects of the Pine Tree project on raptors and bats, the information collected during these studies was useful in determining whether the project could adversely affect songbirds. The FEIR states that the duration and frequency of Morrison’s avian studies was adequate to study songbirds.
Also, previous experience at other wind farms demonstrates that turbines pose a greater risk to raptors than they do to songbirds. Studying Wind Energy/Bird Interactions states that, “Some species or species groups, such as raptors, have shown a greater tendency to collide with wind turbines than have other species, such as ravens ….” (NWCC, Studying Wind Energy/Bird Interactions, supra, p. 15.) A handbook entitled Permitting of Wind Energy Facilities, states, “Although normally not the most abundant species, raptors appear to be at high risk relative to other types of birds at several sites under study.… To date, most studies are not pointing to an issue with migrant songbirds.” (NWCC, Permitting of Wind Energy Facilities: A Handbook (Aug. 2002) p. 26, emphasis added (Permitting of Wind Energy Facilities).)
Appellants contend that passerines are undercounted in published studies because they often result in nothing more than “‘feather spots.’” However, this is simply a dispute about the methodology used in these studies and in Morrison’s avian surveys. The FEIR states, “Scavenging is accounted for in all appropriately designed fatality surveys (as it was in the Tehachapi study).” Disputes such as appellants’ challenge to the accuracy of passerine mortality counts are subject to the substantial evidence standard. “When the evidence on an issue conflicts, the decisionmaker is ‘permitted to give more weight to some of the evidence and to favor the opinions and estimates of some of the experts over the others.’ [Citation.]” (Irritated Residents, supra, 107 Cal.App.4th at p. 1397.) The Board was entitled to rely on Morrison’s conclusions that the published surveys accurately accounted for passerine fatalities and that his avian studies were of sufficient frequency and duration to assess potential songbird presence at the Pine Tree site.
iii. The FEIR’s conclusion that passerines migrating over wind farms such as Pine Tree do not experience a biologically significant mortality rate is supported by avian mortality research and published studies.
Studies of avian behavior and mortality at other wind farms and WRAs are important anecdotal evidence and may be relied upon in making deductions concerning the likely effects of a proposed project. (BCLC, supra, 124 Cal.App.4th at p. 1210.) Studies concerning the effects of existing wind farms on avian life do not support appellants’ assumption that songbirds passing over a wind farm or through a WRA experience a biologically significant mortality rate. They do not reveal a statistically significant mortality rate for migrating songbirds and they support the FEIR’s determination that passerines are not likely to experience a significant level of mortality due to the Pine Tree project (2 passerine deaths per turbine per year).
First, the FEIR states that migrating songbirds typically fly at an altitude above the top of the turbine blades in most locations. This assertion is supported by the technical documents and studies contained in the administrative record. In Permitting of Wind Energy Facilities, the NWCC wrote, “Even migrating songbirds fly at an altitude of 500 to 1,000 feet (150-300m), well above the top of turbine blades in most locations. Therefore, collisions with wind turbines during actual migratory flights should be, and appear in actuality to be, rare.” (NWCC, Permitting of Wind Energy Facilities, supra, p. 25.)
Second, only two significant passerine strikes have been recorded at existing wind farms. Both of these strikes appear to have resulted from the use of sodium vapor lights and neither occurred at West Coast wind farms. A study prepared by the National Renewable Energy Laboratory (NREL), which is operated for the U.S. Department of Energy, entitled Avian Monitoring and Risk Assessment at the Tehachapi Pass Wind Research Area, explained:
“… While there have been numerous single fatality events recorded at communication structures that document several hundred avian fatalities in one night, there have been only two events reported, both reasonably small, at U.S. wind generation facilities. Fourteen nocturnal migrating passerines were found dead at two turbines during a single night at the Buffalo Ridge, Minnesota, Windplant during spring migration. Approximately 25-30 nocturnal migrating passerines were observed at three turbines and a lighted substation at the Backbone Mountain, West Virginia, facility following one or two nights of foggy weather. Strong evidence suggests the sodium vapor lamps at the substation were the primary attractant, and few migrant fatalities were found after the lights on the substation were turned off.” (Anderson et. al, Avian Monitoring and Risk Assessment at the Tehachapi Pass Wind Resource Area, NREL (Sept. 2004) p. 24.)
An article entitled Avian Collisions with Wind Turbines: A Summary of Existing Studies and Comparisons to Other Sources of Avian Collision Mortality in the United States reviewed existing mortality studies and concluded, “[A]lthough some nocturnal migrants have been killed by wind turbines, we believe large mortality events at windplants are unlikely.” (Erickson et. al, Avian Collisions with Wind Turbines: A Summary of Existing Studies and Comparisons to Other Sources of Avian Collision Mortality in the United States, NWCC (Aug. 2001) p. 15, emphasis added.)
Morrison’s Pine Tree Avian Assessment summarizes the results of these existing studies. In this assessment, Morrison also wrote that three seasons of nocturnal radar surveys were conducted at two wind plants in Washington and Oregon. The results of these surveys “provid[es] some evidence that mortality relative to passage rates is very low.”
The turbines and electrical transmission towers at Pine Tree will not be lit, except where lighting is required by the FAA. Where the FAA requires lighting, it will “be placed on towers with the least potential to attract birds but consistent with FAA lighting requirements.” Also, appellants do not point out any topographical features at the Pine Tree site that could increase the expected passerine mortality rate. There is no indication in the administrative record that the flocks of songbirds appellants speculate nocturnally migrate over the Pine Tree site travel at an unusually low altitude. Although appellants argue that the WRA at issue here is dissimilar to other WRAs such as the Altamont WRA, they point to no existing research or studies concluding that nocturnally migrating passerines in other WRAs experience a biologically significant mortality rate resulting from migration over a wind farm.
iv. The record does not support appellants’ assumptions concerning the prevalence and value of nocturnal avian studies.
Finally, the record does not support appellants’ assumptions concerning the prevalence and usefulness of nocturnal avian studies. The FEIR states that nocturnal avian studies normally are not conducted when there is no evidence of early-morning or late-evening avian use of the project site. It also states that a nocturnal radar survey cannot differentiate between different passerine species. Thus, it appears that the night survey sought by appellants would be of limited usefulness in determining whether passerines nocturnally passing over the site are songbirds or whether they belong to an endangered or threatened species.
Studying Wind Energy/Bird Interactions supports the FEIR’s conclusions about the limitations of nocturnal avian studies. It states, “Current technology for nocturnal bird utilization monitoring can be costly and is not as well established as day time observational methods,” and that, “Information about nocturnal bird activity may be obtained using remote sensing methods such as radar [citation], ceilometers, acoustic monitoring [citation] or other night-time inventory techniques. Except in specific situations, existing techniques for nocturnal surveys may not be adequately refined nor validated to provide needed information at the level of confidence required.” (NWCC, Studying Wind Energy/Bird Interactions, supra, p. 15.) Also, marine radar cannot identify specific avian species. (Ibid.)
Although appellants argue that technical advances have been made in this area of study, the record before this court supports the statements made in the FEIR concerning nocturnal avian studies. Appellants’ sole support for their assertion that radar use is common is Morrison’s discussion in his Pine Tree Avian Assessment of the nocturnal radar surveys conducted in two wind farms located in Oregon and Washington. However, Morrison did not write that radar studies are common. Rather, he reported the results of these studies -- that nocturnally migrating passerines had a low mortality rate at these wind farms. This study shows only that a nocturnal radar study can be accomplished and not that it is a common avian research method.
Also, the FEIR explains that a detailed level 2 survey such as the night survey recommended by appellants and their expert is rarely needed if reconnaissance and level 1 surveys are implemented properly. Only the high mortality rate of golden eagles at the Altamont Pass WRA has necessitated a level 2 study to date. Appellants provide no examples where detailed level 2 studies or night surveys were conducted in a factually analogous context.
Also, the evidence does not support appellants’ assumption that a night survey would lead to an accurate prediction of possible passerine fatality rates. In Permitting of Wind Energy Facilities, supra, the NWCC cautioned:
“… [T]he species [of birds] killed [by wind turbines] do not always match the types and numbers of birds observed in pre-installation counts. This suggests that simple presence and numbers are not always accurate predictors of mortality. The results of numerous studies indicate that abundance and utilization are not clear indicators of potential fatality rates for individual species. The data suggest that just because a species is abundant does not mean it will have a high fatality rate (turkey vultures and ravens in the Altamont are two examples).” (NWCC, Permitting of Wind Energy Facilities, supra, p. 26.)
Irritated Residents, supra, 107 Cal.App.4th at page 1396 is directly on point. Appellants’ challenge to the sufficiency of the EIR’s kit fox analysis failed, in relevant part, because it was not established that the guideline methodologies appellants claimed were indispensable to proper assessment of kit fox presence were meant to be applied in cases where a reconnaissance level study did not detect quality natural habitat or any sign of the species. Similarly, in this case appellants failed to show that nocturnal avian studies are normally conducted when the site does not possess quality natural habitat for resting or foraging and when avian studies failed to detect the presence of passerines on the site during the early morning or late evening hours.
v. Hamilton’s disagreement with Morrison’s conclusions do not render the FEIR invalid as an informational document.
Contrary to appellants’ assertion that this is not a case of dueling experts, it is. Hamilton disagreed with the conclusions reached in the FEIR concerning the absence of adverse effects on avian life, including songbirds. The conclusions reached in the FEIR were based on initial reconnaissance surveys, Morrison’s avian studies, Morrison’s review of published studies and his expert conclusions. Hamilton’s disagreement with the conclusions reached in the FEIR and Hamilton’s opinion that a focused nocturnal avian study should be conducted does not render the FEIR inadequate as an informational document. “Disagreements among experts do not make an EIR inadequate. [Citations.]” (Eureka, supra, 147 Cal.App.4th at pp. 371-372.) Hamilton’s disagreement does no more than raise a factual conflict, which is a matter properly decided by the lead agency. (Irritated Residents, supra, 107 Cal.App.4th at p. 1397.)
vi. Conclusions
In summary, we conclude that the FEIR presented the public and public agencies with adequate information on the subject of nocturnally migrating passerines/songbirds to permit an informed and balanced decision. Just as in Irritated Residents, supra, 107 Cal.App.4th 1383, we reject appellants’ assertion that further detailed study on this subject is required as a matter of law. Under the circumstances presented in this case, LADWP is not compelled to conduct a study answering “The Question” prior to assessing whether the Pine Tree project could adversely affect songbirds. The information in the FEIR is adequate to satisfy CEQA’s informational disclosure requirements and there is substantial evidence supporting the determination that Pine Tree will not adversely affect avian life, including songbirds.
Although it is not a part of our essential holding, we note that appellants’ demand for a nocturnal study to quantify fluctuations “from spring to spring” in the songbird population that might fly over the Pine Tree site is unreasonable. Appellants essentially are demanding that a study be conducted that spans every night during the entire spring migration period for multiple years in order to see if passerines fly over the site and if their flocks remain constant. Compelling such a study as a matter of law in order to establish a baseline threshold for analysis of a potential impact would elevate CEQA’s information gathering provisions to a farcical level.
III. Appellants’ remaining challenges to the adequacy of the FEIR are barred by the exhaustion doctrine.
Appellants also raise the following alleged deficiencies in CEQA compliance: (1) the FEIR failed to address the growth-inducing impacts of the Pine Tree project on Los Angeles and the resultant increase in water consumption in Los Angeles and the entire state; (2) failed to discuss the cumulative impacts on biological resources; (3) failed to impose all feasible mitigation measures; and (4) omitted unspecified relevant projects from the cumulative impacts analysis. As will be explained, these contentions were all barred by the exhaustion doctrine because they were not raised in comments to the DEIR or during the hearing on project approval.
Pursuant to Government Code section 68081, the parties were afforded the opportunity to submit a briefing letter addressing the applicability of the exhaustion doctrine to the issues raised by appellants. We requested citation to specific pages in the administrative record demonstrating that administrative remedies were exhausted with respect to each of the appellate issues, excepting the avian complaints. Our letter to the parties included citations to authority explaining the exhaustion doctrine to them. Appellants provided a perfunctory response to this question in the letter brief they submitted; respondents did not submit a letter brief. In their letter brief, appellants requested an additional opportunity to brief this issue. However, they provided no legitimate basis or persuasive reason for the court to grant this request. Appellants were given a reasonable opportunity to address this issue and we did not impose a page limit on the solicited letter brief. Counsel for appellants appeared and orally argued the case, including the exhaustion question. Accordingly, we find their request to lack merit and it is denied.
With certain exceptions not shown to be relevant in this case, CEQA prohibits a petitioner or appellant from alleging noncompliance with the requirements of CEQA unless the alleged grounds for noncompliance were presented to the public agency either orally or in writing by any person during the public comment period or during the hearing on project approval. (§ 21177, subd. (a); BCLC, supra, 124 Cal.App.4th at p. 1199.) When a ground of noncompliance with CEQA was not raised during the comment period or during the public hearing on project approval, the right to raise the issue in a subsequent legal action is waived. The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level. (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1136.) “… [T]he objections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.” (Id. at p. 1140.) This requirement is known as the exhaustion doctrine. (2 Kostka & Zischke, Practice Under the California Environmental Quality Act, supra, § 2393, p. 1228.) The rationale behind this rule is that the public agency should have the opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review. (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1198.)
We have reviewed the comments submitted to the DEIR and the transcript of the April 19, 2005, public hearing. Even giving the comments letters and remarks at the public hearing a generous interpretation, the above listed alleged grounds of CEQA noncompliance were not presented to the lead agency and it did not have an opportunity to evaluate and respond to these alleged grounds of noncompliance. “General objections to project approval or general references to environmental issues are not sufficient.” (2 Kostka & Zischke, Practice Under the California Environmental Quality Act, supra, § 2393, p. 1229; Coalition for Student Action v. City of Fullerton, supra, 153 Cal.App.3d at pp. 1197-1198.)
Appellants perfunctorily assert that the exhaustion requirement was excused by “the exception of futility and the exception where the issue had not yet ripened by the close of the public hearing.” As this assertion is unsupported by legal argument or citation to any authority, it is deemed to be without foundation. (BCLC, supra, 124 Cal.App.4th 1184, 1199.) Furthermore, the contention is not convincing. Appellants both submitted comment letters on the DEIR. They were represented by counsel at the April 19th public hearing on project approval; Lichtman spoke on their behalf. The grounds of CEQA noncompliance alleged on appeal ripened when the environmental document for the Pine Tree project was ready for public review. It would not have been futile for appellants to have presented the alleged deficiencies in their comments to the DEIR or to have raised them during the public hearing. The responses prepared to the issues raised in the comment letters to the DEIR are thorough.
There is no basis in law or equity to relieve appellants from compliance with the exhaustion doctrine. Respondents did not concede this point or otherwise affirmatively waive compliance with section 21177, subdivision (a). Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordoba (2007) 40 Cal.4th 412 did not create a change in law that justifies failure to present the deficiencies listed above to the lead agency prior to close of the pubic hearing on project approval.
Accordingly, we conclude that the issues listed above are not cognizable because appellants failed to exhaust their administrative remedies. Appellants, “having failed to raise their CEQA clams at the administrative level, cannot air them for the first time in the courts.” (Coalition for Student Action v. City of Fullerton, supra, 153 Cal.App.3d at p. 1198; Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 282.)
IV. Appellants’ contest of the rulings on pretrial motions is deemed waived because the claim is not supported by legal argument and citation to authority.
Appellants argue that they were prejudiced by the denial of unspecified “failed discovery motions.” Our review of the record indicates that appellants are referencing the following motions: (1) motion to deem admitted the matter of every request for admissions; (2) motion to compel response to interrogatories; and (3) opposition to request for hearing date and briefing schedule.
We agree with respondents that appellants’ contest of these rulings fails because they did not develop a legal argument supporting their conclusory assertion that the court erred. In BCLC, we rejected a challenge to a discovery ruling because it was not supported by legal argument, as follows: “Since C & C did not support with legal argument or authority its perfunctory assertion that the trial court erred by quashing a deposition meant to elicit facts about BCLC’s standing, we deem this point to be without foundation and reject it on this basis. [Citation.]” (BCLC, supra, 124 Cal.App.4th at pp. 1198-1199.) Similarly, in this case, although appellants argued that they were prejudiced by these rulings, they did not articulate any legal argument or theory demonstrating that the challenged rulings were legally erroneous or constituted an abuse of discretion. Accordingly, we deem the challenge to these rulings to be without foundation and reject it on this basis.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to City of Los Angeles Department of Water and Power.
WE CONCUR: Cornell, J., Dawson, J.
The parties were afforded an opportunity pursuant to Government Code section 68081 to submit a letter brief addressing the creation and admissibility of this “transcript.” However, the conclusion that the “transcript” is not significant to resolution of the avian issue presented in this appeal renders moot questions surrounding its creation, reliability and admissibility.