1 Where in the course of the ruling several parties have argued the same point, the ruling does not always acknowledge all the arguments advanced on that point. However, the ruling is informed by all of the arguments which were advanced concerning a given issue being urged by counsel.

which the development is scheduled to take place) and three of which are in Ventura County. Ventura County argues that the L.A. Board of Supervisors' action "… severed the portions of the lots in Ventura County from the portions in Los Angeles County, creating three new lots entirely within Ventura County." Since the purpose of the subdivision was the sale, lease or financing of the lots, then it is Ventura County's view that the lots they style as the three new lots within Ventura County are part and parcel of the subdivision and, consequently, should have triggered a joint application to the Boards of Supervisors of both Ventura and Los Angeles Counties for subdivision approval.

Both Los Angeles County and Ventura County agree that neither county may approve a subdivision beyond its borders; however, respondents contend that there was no subdivision in Ventura County because the three original lots were divided more than 100 years ago when the border between Los Angeles County and Ventura County was established; and also, should that not be so, the portions of the three original lots which are in Ventura County are either remainders or excluded portions of the property not subject to the Subdivision Map Act.

Having agreed to disagree, Los Angeles and Ventura cannot agree on the standard of review to be utilized by this Court in examining the issue before it. Ventura contends that, since this Court is dealing with an issue of statutory interpretation, the Court must use its independent judgment in this case of first impression in determining whether respondents violated the law by approving the tentative map without requiring a joint application by Newhall Ranch to the County of Ventura. They rely on City of

Lafayette v. East Bay Mun. Utility Dist. (1993) 16 Cal.App.4th 1005, 1013, for this proposition.

Respondent contends that the standard to be utilized is the substantial evidence test in determining whether Los Angeles County's finding that VTPM 24,500 complies fully with the Subdivision Map Act. It relies on the case of Pescosolido v. Smith (1983) 142 Cal.App.3d 964, 967. We shall conclude that Ventura is correct and that the standard of review with regard to the Subdivision Map Act question is that of an independent review and the exercise of the independent judgment of the trial judge.

The court had before it a case in which the senior Pescosolidos wished to divide their property between several children and to retain a single parcel for themselves. The parents owned a 37.60 acre lot and wanted to give the parcels to the children, not with the intent that the parcels be sold, but to allow the children to use the land they received to help finance their college educations. The Tulare County Planning Department denied the Pescosolidos' application for certificates of compliance as to the six portions of land they had deeded to their children and ultimately their applications for certificates of compliance were denied with the finding that the lots created by the six deeds to the children were in violation of Tulare County Ordinances governing the subdivision of land.

The appellate court did not cite to authority for its conclusion that the independent judgment test should not apply in a case where the issue before the court did not raise a fundamental question of statutory or constitutional right. However, utilizing that analysis we now turn to the question before this court.

Both Ventura and Los Angeles cite to numerous authorities emphasizing the significance of the Subdivision Map Act and the importance of complying with its terms. We do not here deal with a question of the manner in which a private property owner undertakes to convey portions of their real estate, but rather we deal with a fundamental question of the power of one political subdivision to impact the operation of another coequal political subdivision. Under these circumstances, the utilization of the independent judgment test constitutes the appropriate standard.

In support of the finding of the L. A. County Board of Supervisors, respondents argue: "in forming the two counties and describing each as a 'legal subdivision of the state' the Legislature divided the so-called 'transcounty' lots along the counties' common boundary line as a matter of law." They cite no authority for this proposition. On the other hand, petitioner relies upon an opinion of the Attorney General (61 Ops. Cal.Atty.Gen. 299, 301, (1978)) addressing an analogous situation to that which we rind currently, and the court rinds the reasoning of that opinion persuasive.

In the referenced opinion the Attorney General concluded that commonly owned units of land could be developed as a single subdivision project even though separated by a fee simple strip of land owned by another (in that case a federal governmental unit) and concluded, therefore, that the units could be considered contiguous under Government Code section 66424. That code section provides, inter alia, that "[p]roperty shall be considered as contiguous units, even if it is separated by roads, streets, utility easements or railroad rights of way." Consequently, we conclude that the portions of the three lots in question which are situated in Ventura County have not been severed

by law from the portions of the lots situated in Los Angeles County.

The question then remains whether the portions of the three lots which are in Ventura County must be included within the subdivision. If so, Ventura County must be included in the process of adopting the map.

Respondents argue that even if VTPM 24,500 divides property situated partially in Ventura County, nevertheless the Map Act authorizes Newhall to entirely omit that portion of the property which lies in that County because Government Code section 66424.6(a) provides that "[w]hen a subdivision, as defined in Section 66424, is of a portion of any unit or units of improved or unimproved land, the subdivider ... may omit entirely that portion of any unit of improved or unimproved land which is not divided for the purpose of sale, lease, or financing."

Petitioner points out that the Vesting Tentative Parcel Map did not designate any remainders. Consequently, no remainder could have been created pursuant to the provisions of Government Code section 66424.6(a). However, a reading of the statute appears to indicate that, while certain activity must be undertaken to designate a remainder, it is possible to omit a portion of a parcel of land which is not scheduled for development while creating a subdivision on another portion of the land, and this, respondents argue, is what has been done here. Nevertheless, petitioner asserts that one cannot subdivide a portion of their property, then omit or treat as a remainder the rest of that property if their intent is to sell, lease, or finance the so-called remainder. They rely on an Attorney General's opinion found at 77 Ops. Cal.Atty.Gen. 185 which concluded that under the provisions of the Subdivision Nlap Act a remainder cannot be designated when

a developer subdivides portions of the parcel for the first phase of a housing development while intending later to subdivide the undeveloped portions for subsequent phases of development.

Respondents contend that the record demonstrates Newhall Ranch has no intention to shift from agricultural pursuits on the Ventura property and to develop the land in Ventura County. Ventura County, however, is able to demonstrate that Newhall Ranch has clearly shown its intent to develop all of its land, including the land in Ventura County, in the future. For example, the Ventura County land has been allowed to lapse from Williamson Act protection (Government Code section 51200, et seq.); and that the administrative record is replete with statements by Newhall Ranch that it is now in the business of real estate development. Given that this is so, argues Ventura, there can be no omitted portion of the property in question when it is intended that all of the property will ultimately be developed. In this regard, Ventura is wrong.

While it is no doubt accurate to say that Newhall Ranch is presently in the primary business of creating "value from land by meeting the needs of a growing population," (A.R. 13631) the record does not demonstrate that the portion of the three lots situated in Ventura County is being severed from the 30 subdivided lots in Los Angeles County for the purpose of sale, lease, or financing. The record demonstrates that the

property in Ventura County is still being used for agricultural purposes and is devoid of any indication that that property is being omitted for the purpose of allowing A second, third, or fourth phase of development of the project now in planning in the future. Consequently, there was no need for Newhall Ranch to apply to Ventura County for Subdivision Map approval.

The Vega petitioners contend the Newhall Ranch Development is void because the Specific Plan is inconsistent with the fundamental policies of the Los Angeles County General Plan. They assert that the Specific Plan is inconsistent with certain of the county's housing element goals and also with general policies found in the background report of the General Plan.

Petitioners point out that of the various elements of a General Plan required by the Government Code, the housing element is of "preeminent importance" (Committee for Responsible Plannin2 v. Citv of Indian Wells (1989) 209 Cal.App.3d 1005, 1013). They also point out that SCAG has determined Los Angeles County's share of future regional needs for housing. That determination was incorporated in the County's assessment of housing needs in its housing element reflecting a total need for 34,039 units comprising very low income, low income, moderate income, and high income (to say nothing of a need for 54,613 very low income and low income households to achieve affordable housing because they are currently overpaying for housing). To meet those needs the housing element established as its first goal "a sufficient quantity of dwelling units to meet the housing needs

of the population, particularly those lower-income households and other special needs groups such as elderly and the homeless."

Petitioners contend that the Specific Plan will create a greater need for low-cost housing than the plan will accommodate and that the Specific Plan's consistency analysis regarding Goal One ignores that shortfall.

Respondents argue that the Los Angeles County General Plan is not intended to mandate a precise quid pro quo of housing units to jobs or housing units to population in a given development. The introduction to the General Plan contains the following language: "The General Plan provides general policy direction for the future of the county; it is not a detailed blueprint for action .... the plan is the tool to guide decision making related to overall land use direction and development in the county .... [A]t the time specific decisions are made .... the appropriate decision making authority must interpret and weigh various plan policies based on the information available at the time. Thus, the General Plan neither promises nor guarantees the achievement of a particular goal nor strict adherence to any single policy statement." (AR 7121)

Petitioners also allege that Goal Three of the housing element has not been met: "A housing supply that ranges broadly enough in price and rent to enable all households, regardless of income, to secure adequate, affordable housing." They argue that the plan is inconsistent with the goal because, while it creates affordable housing, the need based upon jobs and the like created in the area is greater than the need accommodated. Respondents reply that their plan supplies 2,200 dwelling units qualifying as very low, low, or moderate income housing, and reiterate that they are not required by any policy or plan

to supply 100% of the affordable housing needs existing in an approved project area.

The Vega petitioners also raise the question whether Goal Four has been adequately met: "Adequate housing, accessible to employment and community services for all persons, regardless of race, ethnic background, sex, age, marital status, income, or disability." Petitioners contend that the plan is inconsistent with that goal "... because the plan fails to provide sufficient housing to meet the additional need for housing affordable to very low and low income households generated by the low wage employment opportunities that will be created."

The court is satisfied that substantial evidence supports the finding of the respondent Board of Supervisors that the Specific Plan was consistent with the housing elements of the General Plan:

The Vega petitioners further allege that the Newhall Ranch approvals should be enjoined because the respondents failed to update the housing element of the general plan to address the substantial additional need for affordable housing the Development would create. They pointed out that the law requires revision of the General Plan "as frequently

as appropriate, but not less than every rive years .... 11 (Government Code Section 65588(b)). While conceding that the statute does not define "as appropriate," petitioners argue that the project in question is of such a magnitude that its implementation must necessarily trigger such a review. In the instant case, the court does not rind a basis for concluding that it was an abuse of discretion for the Board of Supervisors of Los Angeles County to conclude no revision was required by the implementation of this project.

Petitioners contend that the EIR improperly concludes that the Specific Plan will have no significant impact on regional or local population, housing and employment. They argue that the EIR reaches its conclusion by relying on the consistency of the increases in population, housing and employment projected by the project with SCAG Planning Forecast. In this regard the EIR has four naws, the first being that there is no evidence in the record to support the conclusion that consistency with Planning Forecasts means that the project will have no significant impact on the environment. They base this argument on the theory that if an EIR was prepared at the time of the development of the SCAG, and if that EIR is being relied upon, it must be set forth and analyzed in the development of the current EIR. Respondent, however, argues correctly that it is relying upon the SCAG projections themselves and not upon the underlying EIR. Both sides cite to CEQA guideline 15150, and related guidelines. It is apparent that the manner in which the SCAG forecast was utilized in the current EIR is consistent with those guidelines.

The Vega petitioners next argue that the EIR used the wrong legal standard to evaluate its impacts. In the EIR respondents state that "According to Appendix G of the state CEQA guidelines, as amended, a project is considered to have a significant effect on

the environment if it will induce substantial growth or concentration of population, and cumulatively exceed official regional or local population forecasts." (AR 5036) Petitioners correctly point out that respondents have mischaracterized Appendix G in that the appendix lists a number of items which will normally have a significant effect on the environment, one of which is "conflict with adopted environmental plans and goals of the community where it is located That listing is not conjunctive, but rather is disjunctive with other items on the. list. Consequently, petitioners conclude that respondents have simply relied upon their misreading of Appendix G to allow them to conclude there are no significant or environmental effects based upon the increased population, housing and employment to be generated by the project in question.

Respondents conceded the error in their reply to Ventura County's comment during the comment period but now argue that CEQA does not require the precise application of the Appendix G significant thresholds but rather allows agencies to format their own versions. They point out that in the case of the County of Los Angeles, the County has adopted an environmental check list tailored to the needs of Los Angeles County, which tailoring is authorized by CEQA guideline 15063(f). Respondents also argue that their analysis of the utilization of various adopted environmental plans and goals demonstrates proper compliance with CEQA. The court concurs.

Petitioners argue that the EIR fails to analyze the impact of its excessive employment projections, pointing out that respondents admit their employment projections exceed SCAG's estimate but argue that the increase will not be significant because upon completion of the project the jobs/housing ratio in the Santa Clarita Valley will be the same

as SCAG's target ratio. Petitioners assert that statement, however, does not take into account the fact that there will be many years when the jobs and housing ratio in the interim is not balanced and also does not consider the cost of housing in relation to available jobs. They cite to no authority for the proposition that the EIR must analyze a jobs/housing imbalance in order to comply with CEQA. Absent such a requirement in the form of a statute or guideline, this Court cannot impose such a requirement upon the proponent of an EIR.

The Vega petitioners contend that respondents were presented with a fair argument that a lack of affordable housing would impact the environment by causing undue commuting and traffic congestion as low-income employees attempted to reach jobs in the Development. The respondent Board of Supervisors concluded there were affordable housing opportunities within the suburbs for low-wage jobs being created there:

affordable housing within the Development, this Court (while it might question the practicality of the granny flat solution) cannot conclude that there is no substantial evidence supporting the finding just quoted.

The Vega petitioners also argue that the EIR fails to identify all significant effects of the increase in population, employment and housing. Respondents point to the analysis found at AR 5025-5058 which deals with the increases in population, housing and employment anticipated as a result of approval of the Specific Plan. Substantial evidence contained within the administrative record justified the conclusion of the Board of Supervisors that the Specific Plan adequately analyzed transportation, population and employment impacts. While petitioners point to the alleged paucity of respondents' solutions for the affordable housing/employment/population increase aspect of the plan, they ignore the fact that the plan does introduce a substantial number of low-income housing units into the mix. As respondents repeatedly assert, the EIR need not purport to solve all of the housing problems facing Los Angeles County, but rather must analyze the effect of the Project itself on the portion of the County which will be directly impacted by the planned Development.

Petitioner Sierra Club alleges that the EIR improperly defers the analysis and mitigation of the project's biological impacts. They point out that the EIR concludes the Specific Plan would "substantially diminish habitat for wildlife and plants" and significantly impact sensitive wildlife species, significantly impact the ability of animals to

move across portions of the site, and significantly impact several sensitive upland habitat types." That being the case, they argue that the EIR lacks specificity in its treatment of biological resources and, in essence, defers evaluation of the impact of the Project on fish and wildlife until the approval process for Specific Tract Maps, or for Section 404 permits and Section 1603 agreements. This deferral confounds any good faith effort to understand the Project's impacts on wildlife and plants. In general, the Project's potential impacts on a number of rare and endangered species are discussed without any connection to where these impacts will occur, when during the Project's 30-year buildup they will occur, and how the anticipated destruction of habitat actually affects the species. Where potentially significant impacts are identified, the reader is directed to a set of boiler plate mitigation measures that bear no clear relation to the particular impacts that they are supposed to address."

As an example of this treatment, petitioner reviews the EIR's approach to Project impacts on the least Bell's vireo, a state and federally listed endangered songbird. The EIR references mitigation measures 4.6-1 through 4.6-26, 4.6-53, 4.6-56, and 4.6-59, which are designed to reduce the Project's impacts to the vireo to a less than significant level. They allege that analysis of those measures "describe an extremely general habitat restoration, enhancement, and management program," and otherwise does not demonstrate that the mitigation measures will address the impact on the vireo. A similar analysis can be utilized for most of the additional endangered or threatened biological species identified in the EIR and, therefore, the EIR does not pass muster with regard to its discussion of the impacts on the biological resources in the Project area. "In general, an agency may not defer the

formulation of mitigation measures to some future date pending the additional assessment of environmental impacts. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 306-307 .... The mitigation framework defers not only the small details of 'environmental problem-solving,' but also the establishment of the standards and criteria needed to evaluate the adequacy of mitigation."

Respondents contend that "contrary to the impression painted by petitioners, the EIR contains a 155 page analysis of the biological setting of the Specific Plan site, the Project-Specific and cumulative impact of the Specific Plan and the biological mitigation program adopted by the County ... As part of the environmental review process, the County prepared 11 technical studies and documents devoted solely to the biological impacts of the Specific Plan, including a detailed biological impact report ... In addition, the Specific Plan itself contains a 'Resource Management Plan,' which provides regulations and standards by which biological resources within the Specific Plan area will be managed... In approving this Specific Plan, the County also adopted a Mitigation Monitoring Plan, which includes no less than 98 enforceable measures for the mitigation of the Specific Plan's biological impacts. ...

The Court has reviewed the Resource Management Plan and the Mitigation Monitoring Plan referenced by respondents. It agrees with amicus counsel from the Attorney General's Ofrice that mitigation measures which require compliance with environmental regulations are proper only where the public agency had "meaningful information" which justified an expectation of compliance, and also that, per the CEQA guidelines, in essence allow such mitigation measures so long as they "may specify

performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way." (14 Cal. Code Regs, Section 15126.4(a)(1)(B)). It does not agree, however, with the argument of the Sierra Club or amicus counsel that the mitigation measures being challenged herein "do not include performance standards which would mitigate impacts on sensitive species and sensitive habitat. The mitigation requirements discussed in the Administrative Record at pages 44534471 do include performance standards which can be utilized to hold the respondents to compliance with the EIR, and which adequately inforrn the public of the nature of the proposed mitigation designed to reduce the significant impacts on biological resources in the area during the development of the Project.

Petitioner Sierra Club has analogized the situation regarding biological impacts analysis in this case to the Project addressed by the Court of Appeal in Stanislaus Natural Herita2e Prooect v. County of Stanislaus (1996) 48 Cal.App.4th 182. There a project of substantial magnitude was contemplated and the County of Stanislaus certified an EIR for a proposed Specific Plan submitted by the developer involving the creation of an approximately 30,000 acre destination resort and residential community. The project was to be developed in phases over 25 years, and water had only been secured for a portion of the first phase (rive years out of the 15 years contemplated for that phase). "The county knew neither the source of the water the project would use beyond the first rive years, nor what significant environmental effects might be expected when the as yet unknown water source (or sources) is ultimately used." (Ld. at p. 195). The respondent developer and county in the Stanislaus case contended that they planned to undertake a site-specific

environmental review for each of the four phases of development and that they could properly defer analysis of the environmental impacts of supplying water to the project until they had selected the source of supply in the future. The court said:

It was this total lack of information which caused the Stanislaus Court to reject the EIR there being proffered. In contrast in the instant case the environmental consequences of the Development to biological resources on site have been explored and mitigation measures adopted with performance standards specific enough to demonstrate the feasibility of the mitigation which is proposed.

The Sierra Club alleges that the EIR does not include an adequate discussion of the Project's impacts on tributary streams, pointing out that of approximately 92,500 linear feet of blue line drainage courses affected by development activity, approximately 52% of the stream area in question would be converted to closed drainages. The Club alleges that, in essence, there was an inadequate response to remarks of the USFWS comment that the IEIR "grossly undervalued" the Specific Plan areas existing on ephemeral drainages.

Respondents disagree as to the significance of that comment, arguing that the USFWS's comment had to do with criticism of the EIR's analysis of the use of the ephemeral drainages as wildlife corridors, rather than a criticism of the analysis of the drainages as such. Respondent alleges that they did respond to the USFWS's comment

when the comment is put in proper context. They also argue that the petitioner's argument on this ground must fail "because it presents no tangible issue (i.e., it never contends that the Specific Plan will cause an adverse significant impact on minor streams. Petitioners summarize the Specific Plan's method of altering on-site drainage courses, but never explain how this methodology will cause a significant environmental impact."

In the absence of any indication on the record that the Specific Plan will cause an adverse significant impact on minor streams, the Court rinds no basis for granting the relief sought by petitioners based upon this ground.

The Sierra Club next contends that the EIR does not adequately address impacts of biological resources related to flood plan modifications. They point out that, although several individuals and agencies have commented upon the effect of modifications to the river and channels insofar as biological resources were concerned, the only effort to address these concerns was with reference to the County Public Works Department's Sedimentation Manual, and then argument from inference that the minimal change in velocity caused by channelization would not affect aquatic resources.

Respondents argue that if there is no anticipated significant sedimentation or scouring impacts on the Santa Clara River from channelization or hardening of its banks for insertion of the fill in the floodplain "implementation of the Specific Plan is not expected to affect fish movement anywhere along the river." Unfortunately, this reliance upon the quoted language in the EIR does not address the issue posed. The CDFG commented on impacts of the unarmored three-spine stickleback based upon narrowing of the river channel and increased flow velocities, and there was further comment regarding impact of

channelization and restriction of the river bottom on river habitat and dependent species (AR 14826). Conversely, there is no substantial evidence to justify the conclusions reached by respondents that there would be no adverse biological impacts on the river corridor based upon channelization and hardening of the banks. The fact that a lack of significant sedimentation or scouring would equate to an environment which did not affect fish movement along the river begs the question. Consequently, petitioners are entitled to relief with regard to this issue.²

2 The Sierra Club has argued that the EIR does not adequately address impacts to biological resources which are related to project-induced changes in ground water levels. Because that argument deals with the effect of storage of the Castaic Creek floodwaters via the ASR alternative, and because of the conclusions the Court reaches in its findings on the water issues, there is no discussion of this issue in this portion of the ruling.

substantial evidence to justify the finding that siting of the WRP at a non-river location will not mitigate the biological impacts conceded by the siting of the plant as proposed immediately adjacent to SEA 23, and impacting some acreage, although small, of sensitive habitat (about 10 acres [AR 5101]).

Given the fact that no substantial evidence justifies rejection of the mitigation of the alternative of a non-river site, and the minimal discussion of the biological impacts of siting the WRP on the river, the EIR is deficient in its analysis of the Plan location of the WRP.

Petitioner Sierra Club alleges that there is no substantial evidence supporting the Respondent's rejection of feasible alternatives to the Specific Plan. It then discusses the six alternatives which were presented in the Planning documents and, using Alternative Five as an example, argues the inadequacy of the analysis provided. Specifically, it argues that the conclusion that Alternative Five would impede the ability of the developer to earn a reasonable return on his investment "requires specific evidence that cost or profit considerations make an environmentally superior alternative truly impractical." Respondents argue that there was substantial consideration of the Alternatives documented in the record with adequate information contained therein to allow an intelligent analysis of the Alternatives. The Court has reviewed the Administrative Record with regard to the discussion of the six Alternatives and has concluded that the argument that no substantial evidence supports Respondent's rejection of feasible Alternatives must be rejected, notwithstanding the failure of the Respondent to adequately document the economic aspect

of the implementation of Alternative Five. CEQA Guidelines, Section 15126.6(d) provides:

Whereas in Citizens for Valeta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1181, the proponent of the Project had given an inadequate economic analysis as to the feasibility of the scaled down project, and had made no other meaningful analysis of negative aspects of the alternative other than those economic reasons, in the instant case a variety of matters were considered and adequately documented to justify the finding that the six Alternatives propounded were infeasible.

Sierra Club argues that the Newhall Ranch Project is inconsistent with General Plan policies requiring protection of natural resources, especially SEAS. It points out that:

It then argues that, given the intent of the General Plan policy which was designed to preserve the County significant ecological resources in natural condition, the project in

question would adversely affect SEA 23 by authorizing extensive commercial and residential development, as well as three bridges within the confines of that area.

Petitioner contends that, although the Board amended the General Plan to change the boundaries of SEA 23, the action of amending the plan in this regard was contrary to several General Plan policies designed to conserve natural habitats. It points out that more than 103 acres of the most sensitive habitat types are being eliminated from SEA 23 and argues that, although the General Plan Amendment states that the modification of the boundaries of SEA 23 are done to "in part, better reflect the sensitive biological resources present on the site.", it is clear that the real rationale for the amendment of the boundary was "made to accommodate the siting of commercial and residential uses rather than merely to reflect the presence of biological resources."

Respondents contend that sufficient findings were made by the Board to justify the modification of SEA 23, and point out that the addition of acreage with an SMA designation immediately adjacent to the SEA 23 area will result in an increase of approximately 155 acres of protected habitat. Petitioner, however, points out that "Here, the Board improperly reduced the size of SEA 23, then created the River Corridor SMA to include portions of SEA 23, and then made findings about the SMA which were not based upon substantial evidence. By doing so, the Board failed to make findings about SEA 23, as it is required to do."

Respondent argues that on a percentage analysis "only 22% of the impacted area of SEA 23 consists of sensitive habitat.", and argues that, in essence, better habitat is being substituted i-n the SMA for poorer quality habitat being deleted in SEA 23 (other than the

103 acres previously referenced). It also argues that any impacts to SEA 23's sensitive habitat are mitigated according to the Specific Plan: "All of the riparian vegetation and all oak resources will be restored in the most suitable areas of the SMA as identified and required under the Resource Management Plan or under regulations of the ACOE and the State Department of Fish and Game." This argument, however, begs the question because the fact that all riparian vegetation and all oak resources will be restored somewhere in the SMA does not address the fact that 103 acres of highly sensitive habitat are being deleted from the SMA. Because the Board chose to address its findings within the context of the River Corridor SMA, this Court cannot conclude on the record that substantial evidence supported the findings made by the Board with regard to deletion of highly sensitive habitat from SEA 23.

The Court cannot discern from the record that there is substantial evidence to justify the finding of the Board which was designed to satisfy General Plan Policy 2.22 and the County Zoning Ordinance requirement that in granting a CUP the roads and utilities serving the development be located and designed "so as not to conflict with critical resources, habitat areas, or migratory paths.", given the fact that in other portions of the CEQA findings we have the following language:...... live movement along the Santa Clara River through the Specific Plan area will also be affected by adjacent development and several bridges across the river." (7 AR 6631). Consequently, the Court concludes that the Sierra Club's argument that the Newhall Ranch Project is inconsistent with General Plan policies requiring protection of natural resources insofar as SEA 23 is concerned.

Insofar as the Petitioner Sierra Club has advanced other arguments concerning the treatment of SEA 23 it has reviewed the record and concluded that its arguments are without merit.

With regard to SEA 20, the Court has reviewed the record and the arguments of the parties and concluded that substantial evidence exists to justify the findings which were made by the Board in approving modifications to that SEA.

]?ID TffE EIR ADMUATELY ANALYZE THE SPECIFIC PLANS' EFFECTS ON TITE SALT CREEK CORRIDOR?

Petitioners, Ventura County, et al., and United Water Conservation District (hereafter collectively Ventura County) argue that the EIR did not adequately analyze and identify the Project's impact on the Salt Creek biological corridor in Ventura County. They argue that the Project will create an urban barrier drastically narrowing the movement of wildlife from the Los Padres National Forest north of the Project across the Santa Clara River and into the Santa Susanna Mountains south of the Project. They conclude, therefore, that all of the wildlife movement which now occurs over a 2.1 to 5.1 mile front will be channeled to the Salt Creek Corridor which the Los Angeles County Board of Supervisors has characterized as a "critical component of the open area system within the Newhall Ranch property...." Petitioner points out that despite this characterization the Board "deferred analysis of the extension of the Salt Creek Corridor in Ventura County to 'future action' that may be taken by Ventura County." Petitioner argues that since the Los Angeles County Board found that "the impact of the revised Specific Plan - on biological resources would remain individually and cumulatively

significant" even after mitigation measures, the Board was required to "adopt all feasible measures that will mitigate those impacts." (Relying on CEQA Guidelines Section 15092).

Respondents point out that in the Final Plan the Los Angeles portion of the Salt Creek Corridor was widened considerably. They point to the Administrative Record: "To understand the role that the Salt Creek Corridor plays in animal movement, one must understand that this corridor is but one small part of a larger regional wildlife movement interface that exists between the Los Padres/Angeles National Forest and the Santa Susanna Mountains that spans a distance of approximately 35 miles.... [T]he Newhall Ranch Specific Plan site is only an approximately 2 to 5 mile wide portion... of this 35 mile wide interface. Clearly, the Salt Creek Corridor is just one of many such corridors which exist in this very broad interface area." (AR 488) They then point to the conclusion in the EIR that:

The problem is that, since Respondents undertook no study of the portion of the Salt Creek Corridor lying in Ventura County to ascertain the effect of the restriction of movement of wildlife for 2.1-5.1 miles east of that corridor, there is no substantial evidence to justify the finding reached in the EIR in this regard. Since the EIR concludes that the wildlife movement will be focused toward the west side of the Project down Salt Creek, it

is clear that the lack of a study of the Ventura County portion of the Salt Creek Corridor leaves a vacuum in the record concerning the impact of that westward shift of wildlife into the Salt Creek Corridor.

Ventura County argues that the FEIR adopted "...as the standard for a measurable traffic impact a Specific Plan contribution of within 1% to arterial highways (4596). Hence, in Los Angeles County vehicle counts for those locations where the Specific Plan was found to contribute more than 1% to the total traffic volume were examined and feasible mitigation measures proposed. However, the traffic analysis in Ventura County was stopped at Highway 126 ... and Highway 23 ... even though the Project traffic still greatly exceeded 1% of the total traffic. No Project traffic analysis was done for Ventura County arterial highways exiting SR 126 and SR 23." Consequently, Ventura County contends that there is not substantial evidence for a finding as to Ventura County's arterial highways that significant traffic impacts identified in that County based on the 1% standard were mitigated, as was done in the Los Angeles County area based upon that same standard.

Respondents contend that they did not use a different standard in analyzing traffic impact in Ventura County but rather used that same standard. However, they fail to demonstrate that that is the case. As Ventura County points out when the FEIR traffic analysis in Ventura County stopped on State Route 126 the Project represented 12.2% of the traffic and when it stopped on State Route 23, it represented 35% of the traffic.

The Plan traffic analysis states: "In all cases, a Specific Plan contribution of more than 1% is considered to be a measurable impact and is used as the impact criterion (for traffic analysis). Hence, V/Cs for those locations where the Specific Plan contributes more than l% to the total volume are examined and, if any of the above impact types are found, then the locations are identified as being significantly impacted by the Specific Plan." There being no evidence available in the Administrative Record to demonstrate that the local roadways exiting on State Routes 126 and 23 in Ventura County would not be impacted above 1%, there was no basis for the finding that traffic impacts would not be significant on those roads in Ventura County.

Given the Court's finding with regard to the inadequacy of the traffic study contained in the EIR, the argument concerning the traffic impact fee is moot.

Ventura County points out that the Los Angeles County Board found that there would be unavoidable impacts on the air as a result of the Project. Petitioner argues that the Project will thus make it more difficult for Ventura County to attempt to meet State and Federal standards for clean air. Respondents, however, contend that the EIR demonstrates that "on most days of the year, the Specific Plans' impact on Ventura County's air quality will be relatively slight. Under prevailing winds, 'Ventura County would receive a minimal impact (on the order of 1%) of the Newhall Ranch Specific Plan's emissions compared with the Santa Clarita Valley and Los Angeles County.'-(AR 410)"

The Court rinds on the totality of the record with regard to the issue of air pollution that substantial evidence supports the finding of the Board in its rejection of the mitigation measures proposed by Ventura County.

Petitioner Ventura County argues that the FEIR is legally deficient for failure to evaluate or mitigate the reasonably foreseeable impacts of contaminated storm water runoff on water quality in the Santa Clara River watershed. Pointing to the NPDE's permit which calls for coordination among the City of Santa Clarita, the County of Los Angeles, and Ventura County in developing and implementing a future storm water management plan for the watershed, Ventura County argues that all that has been developed by way of mitigation of potential storm water pollution has been a piecemeal approach to the problem and "as a result, the FEFR mitigation measures regarding potentially contaminated storm water runoff are inadequate to mitigate to a level below significance the potential Project storm water impact on the watershed as a whole."

Respondents reply that they have neither piecemealed nor deferred (as the amicus brief of the Attorney General suggests) arguing, inter alia: "As described in the EIR, the County found these deferral arguments inappropriate given that the Specific Plan contemplates future subdivision maps where, appropriately, on-site drainage systems would be designed and engineered. Specirically, the EIR states that:

Substantial evidence appears in the Administrative Record to justify the findings of the Board with regard to issue of storm water pollution. In this case, given the need to tailor drainage systems to the specific subdivision in development, discussion of the drainage system and its impacts project-wide were sufficient to allow proper input during the process of developing the EIR.

All petitioners save the Vega petitioners, and the Attorney General in his amicus brief, raise similar concerns about the adequacy of the EIR's treatment of water issues. Each petitioner addressing the water issues, as well as the Attorney General, place substantial reliance on the holding in Stanislaus Natural Herita2e Project v. County of Stanislaus. As we have previously discussed, in that case the proponents of the Project took the position that, inasmuch as they were dealing with a project to be developed in tiers, it was sufficient to have the County deeni the environmental effects of the Specific Plan to be significant, approve the Specific Plan, and then at a later time determine what the significant environmental effects of the Specific Plan were to be as construction approached

on each phase of the Project. Thus, the proponents set forth the various sources from which they hoped to acquire water for their Project, analyzed the water needs for the built-out Project, conceded that they had a firm water supply in hand only for the first rive years of development, and successfully proposed to the Board of Supervisors (but not so successfully argued to the Court of Appeal) that adequate mitigation could be achieved by adopting a mitigation measure declaring that development requiring over a certain number of acre feet per year of water would not be permitted beyond the five year build-out "'unless the applicant can show to the county's satisfaction that adequate water supplies have been made available, and that environmental impacts of those sources have been studied and mitigated per CEQA requirements."' (Id, at p. 195)

In the instant case respondents correctly argue that, unlike the proponents in the Stanislaus case, they have specifically identified their water sources, have detailed their water needs through build-out, and, they contend, have attempted to address the significant impacts of the utilization of the various water sources upon the environment. Consequently, although the Stanisl,,itis analysis must needs be applied to certain aspects of the mitigation measures adopted in this case, the Stanislaus holding does not require the conclusion that the water needs analysis contained in the instant EIR simply constitutes an inappropriate deferral of an analysis of environmental impacts.

The revised Specific Plan calls for 17,680 afy (AR 767), from which the water needs are to be met by (1) reclaimed water from the WRP; (2) Water from Castaic Creek flood flows; and (3) water from the Valencia Water Company. Valencia Water Company, a subsidiary of respondent Newhall, derives its water from ground water pumping in the area, and from CLWA, which in turn receives its water from SWP. The Project projects use of 5,344 afy from the WRP, leaving 12,336 afy to be obtained from flood flows and from Valencia Water Company. In dry years flood flows would not be available, unless they had been stored by injection into either the alluvial or the Saugus aquifer. We will deal with that issue later. Consequently, in dry years the Project would need 12,336 afy from VWC. At the time of the adoption of the EIR, the CLWA had an entitlement to 54,200 afy of water from SWP each year. The various petitioners and amicus argue, however, that the SWP has never been in a position to deliver more than 50% of entitlement to its users, including CLWA. While respondents contend that that is not so, and that the reason that CLWA has never taken more than 50% of its entitlement has to do with its lack of need for that entitlement rather than its availability, Ventura County in its reply brief points out that...... there is nothing in the record regarding CLWA's requested deliveries compared to its actual deliveries of state water and certainly no evidence to support the suggestion that it can obtain as much of its entitlement as it requests. "

Respondents have argued, extra the record, that subsequent to the approval of the EIR that which was projected in the EIR has happened, and CLWA has acquired an additional 41,000 afy. As several petitioners point out, we view the record as it exists at

the time the document is adopted and not later. Moreover, as several petitioners have also argued, even assuming acquisition of 41,000 afy by CLWA, only 20,500 afy can be projected from that source based upon historical records. Thus, of a theoretical entitlement of 95,200 afy available to CLWA, only half that sum would be available in fact based upon the record before us, and of that sum only 35.9% would be available to VWC, which means, given the existence of currently pending, approved and reported projects, and their demands upon VWC, the Project can only meet its water demands if it also utilizes flood flow from Caliente Creek.

In effect, respondents argue that, assuming all of the above to be correct, they will be able to utilize flood flow from Caliente Creek to augment the SWP water supply because they will obtain their allotted share of the flood flow in wet years from CLWA and will inject the same into the Saugus aquifer. Since the approved Project requires that no additional ground water be drawn to support the Project, there must be substantial evidence in the record to demonstrate that (a) the nood now in wet years will be available to respondents for use on the Project, and (b) the respondent's share of that now can be safely stored by injection into the aquifer and then retrieved without undue environmental damage. Lacking such evidence, the only source available to meet SWP shortfalls will be pumping of ground water in violation of the terms of the EIR.

Looking first to the resolution of the question whether the Castaic Creek floodwaters will be reasonably available to respondent, the Court agrees with respondent that an EIR can project modification agreements in the future. However, the status of the record in this case is such that there is no substantial evidence modification of the agreement to allow

withdrawal of the floodwater and storage of Newhall's share of the floodwaters is achievable. Assuming, however, that it can be done and that that is not a sufficient impediment to utilization of floodwaters, the more complex problem involves the ability to store the floodwaters in the aquifer.

At AR 4786 the DEIR recognizes that "The ability of the Saugus Aquifer to receive the treated flows is also a constraint" but states that "Findings indicate that the Saugus Aquifer would be able to accept the treated flows...... There is nothing in the record that supports a finding that a given volume of water can be stored in the Saugus Aquifer. Respondent contends that since this is a "confined" aquifer, its capacity to store additional water is, in essence, unlimited. Indeed, in response to a comment that ASR will cause ground water levels to "drop because of a decrease in the recharge rate." respondents' response was....... the proposed use of ASR for Newhall Ranch would involve injecting water into the Saugus formation, in which ground water is confined under pressure. As a result of confinement and pressure, the Saugus Aquifer is fully saturated and the water-level surface occurs at an elevation that is above the top of the aquifer. Even in dry years, therefore, the Saugus Aquifer is 'full' of water, but its capacity to store additional water is unaffected. An analogy for a confined aquifer in this situation is a pressurized gas cylinder that accepts increases in pressure by the addition of gas without changing shape or leaking." (AR 789) As the Court pointed out to respondents' counsel at oral argument, that statement belies the laws of physics which hold that, while gases can be substantially compressed (indeed, until they achieve liquid form), liquid cannot be compressed, and thus the science of hydraulics is born.

Storage of water in the Saugus Aquifer is also affected by the operation of the alluvial aquifer, which respondents assume is linked to it. Petitioner Ventura County questions how much water the aquifers can actually hold, and points out that the EIR does not demonstrate the ability of the alluvial and Saugus aquifers to actually store such water.

Respondents' revised draft EIR states: "The general lack of specific data on the potential interconnection [between the two aquifers], however, precludes a precise determination of potential effects on the alluvial aquifer. In the absence of these data, the hydraulic interconnection between the two aquifers is approximated in this analysis by simplifying assumptions for the properties of both aquifers. These assumptions are based on the professional judgment of CH2M HILL, the Specific Plan hydrogeologists, and result in an over exaggeration of the potential water level decline in the alluvial Aquifer as a result of the ASR pumping in the Saugus Aquifer. The over exaggeration is deliberate to compensate for the lack of complete understanding of the potential flow between the aquifers...... (AR 4808) Respondents take the position that their approach to ASR storage in the aquifers has been extremely conservative with only conservative assumptions being made.

It is not the job of the Courts in reviewing an EIR to interpose their judgment in place of the approving authority, nor to rule on the adequacy of the evidence presented to that authority, save to conclude that there is substantial evidence in support of the authority's determination. However, since in this case there is an admitted lack of understanding as to the properties of the aquifers in question, any assumptions based upon professional judgments are merely guesses on the capacity of the aquifers which, if wrong,

could substantially impact water availability to the Project and also the use of the aquifers by downstream users in Ventura County.³

3 See PRC § 21080(e)(1) "For the purposes of this section and this division substantial evidence includes .... expert opinions supported by fact." See also Gentry v. City of Murrieta (1995) 36 C.A.4th 1359, 1422-1423.

1. Determine the effect on that portion of the Salt Creek Corridor situated in Ventura County to be caused by the shifting of wildlife into the Salt Creek Corridor.

2. Extend the traffic control methods employed in analyzing the Project in Los Angeles County to analysis of the impact of the Project on arterial roadways until the 1% impact standard is reached.

THE SIERRA CLUB

Petitioners are entitled to a Writ of Mandate compelling respondents/real parties to refrain from taking action in furtherance of the Project unless/until respondents comply with CEQA in the following regard:

1. Address the issue of adverse biological impacts on the river corridor based upon channelization and hardening of the banks.

2. With regard to SEA 23, modify the Plan so that it is consistent with the General Plan policies of Los Angeles County requiring protection of natural resources in SEAS.

PETITIONERS VENTURA COUNTY, UNITED WATER, AND SIERRA CLUB

Petitioners are entitled to a Writ of Mandate compelling respondents/real parties to refrain from taking action in furtherance of the Project unless/until respondents comply with CEQA in the following regard:

1. Demonstrating that adequate water sources are available for build-out of the Project, which may be achieved by securing other water sources or by developing a factual basis providing substantial evidence from which the Board of Supervisors can adequately assess the environmental impacts of the employment of the ASR alternative.

ATTORNEY GENERAL'S AMICUS BRUFF

The Sierra Club shall include in its Writ an order compelling respondents/real parties to comply with CEQA in the following regard:

1. To address the alternative of siting the WRP off river, including analyzing the biological impact of that siting, given that there is no substantial evidence to justify rejection of the off river siting of the WRP.

RESPONDENTS

2. To a finding that the Subdivision Map Act does not require inclusion of Ventura County in the map approval process.

Newhall.RDR

I certify that I am not a party to this cause and that a copy of the attached was mailed first class, postage prepaid, in a sealed envelope as addressed as shown below, and that the mailing of the foregoing and execution of this certificate occurred at Bakersfield, California:

on (Date): May 3l., 2000. . . Terry McNally, Clerk of the Superior Court, By _________________

C. L. Isaac Deputy

|___| Name and address continued on reverse side.

________________________________________________________________________________

The singular includes the plural. This certificate must be attached to the original or a true copy of the document served by mail and filed in the action. If the copy of the document served by mail does not bear a notation of the date and place of mailing, an unsigned copy of this

certificate must accompany the document served by mail.