3 - The Bowery_PUBLIC COMMENT (SAFER)

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The Bowery Mixed-Use Project CEQA Comment May 11, 2020 Page 18 studies. CEQA Guidelines § 15126.4(a)(1)(B); Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 308-309. “[M]itigation measure[s] [that do] no more than require a report be prepared and followed” do not provide adequate information for informed decisionmaking under CEQA. Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 794; Guidelines § 15126.4(a)(1)(B). Deferral of formulation of mitigation measures pending the completion of a future study is appropriate only where there is a practical reason that prevents formulation of a mitigation measures during CEQA review. Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1028-29. Moreover, by deferring the development of specific mitigation measures, the Applicant has effectively precluded public input into the development of those measures. CEQA prohibits this approach. As explained by the Sundstrom court: An EIR … [is] subject to review by the public and interested agencies. This requirement of “public and agency review” has been called “the strongest assurance of the adequacy of the EIR.” The final EIR must respond with specificity to the “significant environmental points raised in the review and consultation process.” . . . Here, the hydrological studies envisioned by the use permit would be exempt from this process of public and governmental scrutiny. Sundstrom, 202 Cal.App.3d at 308. Mitigation Measure HAZ-1 requires that, prior to issuance of a grading permit, a “Soil Management Plan (SMP) shall be prepared by a qualified hazardous materials consultant and shall detail procedures and protocols for excavation and disposal of onsite hazardous materials…” DEIR, 1-12. Mitigation Measure HAZ-1 constitutes precisely the type of deferred mitigation CEQA prohibits. The EIR defers preparation of the soil management plan until after completion of CEQA review, without imposing any substantive standards, and without providing for any pubic review. Moreover, there is no requirement that the Soil Management Plan be submitted to any agency for approval, so the applicant in essence is itself determining what constitutes sufficient mitigation. Deferral of mitigation is also impermissible if it removes the CEQA decision-making body from its decision-making role. The City may not delegate the formulation and approval of mitigation measures to address environmental impacts because an agency’s legislative body must ultimately review and vouch for all environmental analysis mandated by CEQA. Sundstrom v County of Mendocino (1988) 202 Cal.App.3d 296, 306-308. Thus, the EIR may not rely on programs to be developed and implemented later without approval by the City. Yet that is precisely what MM HAZ-1 does. The EIR may not rely on the soil management plan to be developed, approved, and implemented later without any approval by the City, at some future time after the Project has