By Tina Wallis, Esq.
The addition of studying how projects impact wildfire risk to Appendix G of the California Environmental Quality Act (CEQA) Guidelines has evolved through legislation, case law, an update to the CEQA Guidelines, subsequent case law, and recommendations from the California Attorney General. While the legal requirements evolved, California suffered from multiple major wildfires, such as the 2015 Valley Fire in Lake County, the 2017 Tubbs Fire in Napa County, Sonoma County, and the City of Santa Rosa, which, at that time was the most destructive wildfire disaster in California. The Tubbs Fire burned much of the same geographic area as the Hanley Fire decades earlier, but this time there was significantly more development in the same fire footprint. Wildfires burned in six other California counties around the same time as the Tubbs Fire. The Paradise Fire in 2018, surpassed the devastation of the Tubbs Fire. Changing legal requirements combined with California’s wildfire history and recent and severe wildfire impacts have made wildfire impact analysis a key issue in many communities.
Background
Lead agencies have historically been required to study hazards, including whether a project would:
. . .expose people or structures, either directly or indirectly, to a significant risk of loss, injury or death involving wildland fires. (Cal. Code Regs., tit. 14, (CEQA Guidelines, Appendix G, § IX, (g).)
In 2012, Senate Bill (SB) 1241 required wildfire impact analysis to be added to Appendix G in the next update of the CEQA Guidelines. In 2013, the Natural Resources Agency (Agency) began soliciting input for its next CEQA Guidelines update.
While the CEQA Guidelines update was in progress, in 2015, the California Supreme Court held that generally, a lead agency is not required to study the impacts of the environment on a project. (California Building Industry Association v. Bay Area Air Quality Management District 62 Cal.4th 369, 377 (2015) (CBIA).) Since wildfire risk is inherent in much of California, it was unclear how studying a project’s impact on wildfires would be accomplished. In early 2018, a comprehensive draft update of the CEQA Guidelines was submitted to the Natural Resources Agency and then made available for public comments. The Agency received comments that the proposed inclusion of wildfire in Appendix G conflicted with CBIA because studying wildfire was the impact of the environment on the project. In its response, the Agency noted that CBIA contains an important caveat which is when a “proposed project risks exacerbating environmental hazards or conditions that already exist, an agency must analyze the potential impacts of the hazards on future residents or users.” (CBIA, supra, 62 Cal.4th at 377.) The Agency also stated that in the context of wildfire, development may exacerbate wildfire risk. (California Natural Resources Agency, Final Statement of Reasons for Regulatory Action, November 2018, p. 87.) The Agency explained that exacerbated risk is like an indirect change, which means a lead agency may limit its analysis to reasonably foreseeable impacts. (See also Cal. Code Regs., tit. 14, § 15064, subds. (d)(2) & (d)(3).)
The updated CEQA Guidelines became effective on December 19, 2018. In addition to the long-standing hazard analysis, lead agencies must now specifically study a project’s effects on wildfire for projects in specific geographic areas.
Appendix G’s Wildfire Analysis Requirement
As updated, Appendix G, Section XX, requires public agencies to study the impacts of a project in or near a State Responsibility Area (SRA) or in a very high fire hazard severity zone for wildfire. CalFire is primarily responsible for fire suppression within SRA’s. CalFire designates fire hazard severity zones and is undergoing a regulatory review of its Fire Hazard Severity Zone maps.
For SRA’s and very high fire hazard severity zones, a CEQA document must answer four questions. Will the project:
. . .(a) substantially impair an adopted emergency response or evacuation plan; (b) due to slope, prevailing winds, and other factors, exacerbate wildfire risks and thereby expose project occupants to pollutant concentrations from a wildfire or the uncontrolled spread of a wildfire; (c) require the installation or maintenance of infrastructure (such as roads, fuel breaks, emergency water sources, power lines or other utilities) that may exacerbate fire risk or that may result in temporary or ongoing impacts to the environment; (d) expose people or structures to significant risks, including downslope or downstream flooding or landslides, as a result of runoff, post-fire slope instability, or drainage changes? (CEQA Guidelines, Appendix G, § XX (a)-(d).)
Guidance
Since the CEQA Guidelines update, there are a handful of published decisions that lead agencies can look to when complying with CEQA’s wildfire impact analysis requirement. Although not binding precedent, there are a few Superior Court decisions that are also instructive. This article will discuss only the wildfire issues in these cases, in chronological order. Additionally, after intervening in CEQA suits challenging projects in fire-prone areas, California’s Attorney General promulgated a best practices document to provide additional guidance to lead agencies.
California Decisions
In 2021, layperson testimony, from retired firefighters, did not constitute substantial evidence that a bridge replacement project may have a significant impact on the environment. (Newton Preservation Society v. County of El Dorado, 65 Cal.App.5th 771 (2021).) The lead agency prepared a Mitigated Negative Declaration (MND), which stated the lead agency would coordinate with its emergency service and fire offices because the potential need for evacuation plans and routes depended on the timing of the bridge replacement relative to the wildfire season. Because emergencies are unpredictable and unique, the MND intentionally did not include detailed evacuation plans since actual emergency conditions might require a different plan.
Opponents, who were firefighters, commented negatively on potential evacuation routes and the lack of a specific evacuation plan. The court noted that the issue is whether the project may have a significant effect on the environment or may exacerbate existing environmental hazards. After scrutinizing public comments, the court found that while they were experienced firefighters, the commenters did not demonstrate any experience directing evacuations. Thus, these comments were not substantial evidence supporting a fair argument that the bridge replacement project may have a significant impact on the environment.
In the wildfire portion of a 2022 decision, there was substantial evidence supporting an Environmental Impact Report’s (EIR) conclusion that a project would not significantly impair the implementation of an evacuation plan or physically interfere with an adopted emergency response plan or emergency evacuation plan. (League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer et al., 75 Cal.App.5th 63, 136 (2022).) The project was a specific plan and rezoning, that would allow residential and commercial development in a very high fire hazard zone and a timberland production zone, adjacent to Lake Tahoe. The project included two egress methods for every parcel and a “shelter-in-place facility” available to project residents and the public. The EIR used time delay as the significance standard for regular traffic conditions and a different standard, public safety, for evacuation conditions. Evacuation traffic modeling showed evacuation time was 1.3 hours for the project and 1.5 hours for cumulative conditions.
Public comments objected to the projected 1.5-hour evacuation time as being too long in the event of a wind-driven fire. Public comments also asked that multiple scenarios, resulting from human behavior, as well as other scenarios, such as an accident blocking the evacuation route be evaluated. The court relied on CEQA Guidelines section 15145 that “CEQA does not require evaluation of speculative impacts” and on CEQA Guidelines section 15151 that CEQA does not require analysis to include every conceivable study or permutation of data. CEQA requires a good faith effort at full disclosure; it does not mandate perfection. (Cal. Code Regs., tit. 14, § 15151 & Kings County Farm Bureau v. City of Hanford, 221 Cal.App.3d 650, 712 (1990).)
The court held that the county did not abuse its discretion when selecting its evacuation modeling methodology for evaluating impacts on evacuation plans, selecting a standard of significance for evacuation time, and substantial evidence supported the EIR’s conclusion that the project’s impact on an adopted evacuation plan was less than significant.
Another 2022 decision considered a challenge to a 312-unit apartment complex on vacant land near the Petaluma River. (Save North Petaluma River and Wetlands v. City of Petaluma, 86 Cal.App.5th 207 (2022).) The CEQA challenges included an argument that the EIR’s evacuation analysis was inadequate based, in part, on testimony from a “National Evacuation Expert.” This expert commented that if the project apartments and the adjacent existing apartments had to evacuate simultaneously during a flood, earthquake, fire, or railway hazardous materials spill, the residents would compete to evacuate on the same roads.
The court considered whether the project would impair the implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan and found there was substantial evidence supporting the EIR. The substantial evidence was a staff memo confirming that the project, including access roads and infrastructure, were outside of the 100-year floodplain. The memo also included input from the city’s Assistant Fire Chief and Emergency Operations Manager, confirming the city’s Fire Department did not have any concerns about ingress or egress with development above the 100-year flood plain. For fire evacuations, the site was not in a high fire hazard zone and the project had secondary access through an EVA.
In a 2022 Lake County Superior Court decision, the California Attorney General intervened in litigation challenging a proposed luxury resort and low-density residential development in a very high fire hazard severity zone on the 16,000-acre Guenoc Ranch. (Center for Biological Diversity v. County of Lake, Lake County Superior Court Case Nos. 421152 and 421193.) The proposed development would add 4,000 new residents to an area with only 10,000 existing residents. Parts of the project site had previously burned in multiple wildfires. While the Superior Court found that the EIR mostly complied with CEQA’s wildfire analysis requirements, the EIR failed to study the project’s impacts on community evacuation routes. The court focused on the project’s significant population increase for the area, that project occupants would likely compete with existing residents for safe evacuation routes, and more people competing for space on the same limited evacuation routes can cause congestion and delays, which in turn can increase wildfire-related deaths. Thus, the proposed project exacerbated existing wildfire risk. This litigation was partially resolved with the Attorney General’s Office by agreeing to several wildfire-related project modifications and mitigation measures.
In another Superior Court decision, Preserve Wild Santee v. City of Santee, the San Diego County Superior Court rejected a city’s methodology that omitted quantitative analysis of the proposed Fanita Ranch development on evacuation times. The EIR was also deficient because it relied on three evacuation routes, one of which included a dead-end road, rendering the evacuation plan unclear. (Preserve Wild Santee v. City of Santee, San Diego Superior Court Case No. 37-2020-00038168-CU-WM-CTL.) Without a quantitative methodology that estimated evacuation times, it was unclear how project occupants and existing residents would evacuate in the event of a wildfire. Relying on CEQA’s informational requirements, the court also noted that the lack of a measurable assessment (e.g.: evacuation traffic or timing modeling) meant the public could not evaluate if the project would result in a significant risk of loss, injury, or death during an evacuation.
California Attorney General’s Best Practices
The California Attorney General released “Best Practices for Analyzing and Mitigating Wildfire Impacts of Development Projects under the California Environmental Quality Act” (“Best Practices”) on October 10, 2022. The Best Practices provide suggestions for how to comply with CEQA’s wildfire analysis requirements, however, they are not mandatory. The Best Practices first discuss how to analyze wildfire impacts and then suggest how to analyze evacuation impacts.
Analyzing Wildfire Impacts
The Best Practices focus on three variables when considering what influences wildfire risk. Those three variables are project density, the project’s location in the landscape, and water supply and infrastructure. Project density is important because it places people, often the source of ignition, in structures that are spread out. It takes longer and can be more difficult to reach structures in low-density development relative to more dense development. The project’s location in the landscape means placing structures so they do not exacerbate wildfire risk. Careful consideration of a project site’s wildfire history, topography, and winds, along with careful structure placement, can result in a project that does not exacerbate wildfire risk. Project design should also focus on water supply and infrastructure, specifically will there be adequate fire flow to fight a fire and is there a backup power source for water for fire suppression in the event of a power outage. Inadequate water for fire suppression, inadequate fire flow, and the loss of power to the water supply make fire suppression on a site more difficult or impossible.
Analyzing Evacuation Impacts
Analyzing evacuation impacts is different for each project and its unique setting. The Best Practices recommend when to consider evacuations during project design, what aspects of evacuation to study, how to study evacuation impacts, and what resources to consult when studying evacuation impacts. The Best Practices also suggest different ways to mitigate evacuation impacts.
The Best Practices begin by acknowledging that new developments in SRA’s or very high wildfire hazard areas may impact first responders’ ability to get to wildfires, which in turn may impact the speed at which a fire spreads and community safety. The Best Practices recommend integrating evacuation planning early in a project’s design – before density, location on the site, design, and structural materials are decided. Early consideration of evacuation planning allows for the development of simultaneous ingress and egress, meaning occupants can evacuate while first responders simultaneously access the site. Early wildfire and evacuation consideration also allows for choosing better building locations and materials before any design is finalized.
As to how to study the impacts of proposed projects on evacuation, the Best Practices recommend using evacuation traffic modeling. This modeling should consider road capacity for both the project’s occupants and the pre-existing community; evacuation and access; evacuation timing; alternative evacuation plans; the project’s impacts on adopted evacuation plans; the adequacy of the emergency access for the project; the proximity of the project site to emergency services and the capacity of those emergency services; and should quantify evacuation travel time.
The goal of any evacuation is for people to move away from the imminent threat. Moving large numbers of people at one time means traffic will be slower than during non-evacuation conditions. Evacuation traffic standards may differ from everyday traffic conditions because evacuation traffic modeling may need to consider agricultural, industrial, or tourist seasons and the increased volume of cars on the road during an evacuation relative to everyday traffic conditions. Evacuating people from a wildfire-impacted area allows firefighters to focus on fighting the wildfire and saving structures and property because people have left the area.
The Best Practices recommend resources to use when analyzing evacuation impacts, such as consulting with local fire officials and reviewing existing and approved evacuation plans. The Best Practices caution against putting too much weight on sheltering in place and emphasize that sheltering in place is a last resort technique.
Importantly, the Best Practices suggest how to mitigate evacuation and emergency access impacts with the admonition that each development must be analyzed individually so that appropriate mitigation measures are adopted. Potential mitigation measures include increasing the density of development while reducing its footprint, buffer zones, undergrounding powerlines, placing occupied development near ingress and egress routes and evacuation routes, redundant ingress and egress, structural hardening (or making structures less vulnerable to fire), fire hardening on-site communications, educating project occupants about evacuation routes and plans, and restricting parking on evacuation routes so that the evacuation routes are not clogged with parked vehicles.
With a competent evacuation analysis, decision-makers and the public can understand what impact a project may have on the existing community’s ability to evacuate and any impacts on nearby emergency responders’ resources.
Conclusion and Implications—Practical Applications
From a legal point of view, we learned wildfire impact analysis should include quantitative evacuation traffic modeling and evacuation times. We have also been reminded that staff testimony is substantial evidence supporting an EIR and that public comments from those without evacuation experience is not substantial evidence that a project may have a significant impact on the environment. Finally, we have guidance in the Best Practices from the Attorney General.
From a practical point of view, every project is different and will require a unique design and wildfire analysis. Quantitative evacuation traffic modeling and timing is a valuable tool in assessing whether a project will interfere with an adopted evacuation plan.
Whenever possible, proactive project design and careful consideration are critical for forthcoming CEQA analysis. Developers and lead agencies can also consult with fire and law enforcement professionals early in the CEQA process.
Potentially beneficial physical design features are redundant ingress and egress that allow for the simultaneous evacuation of the project occupants with separate access for first responders. Redundant ingress and egress routes also maintain access if one route is blocked.
Landscaping plays a critical role in the spread of wildfires. In one project, wildfire modeling on a project site that had previously burned in two different fires showed that an ecologically appropriate landscaping restoration plan and astute structure placement would: (i) result in a widespread reduction in mean burn probabilities, meaning the project reduced the chances of a wildfire burning beyond the project site, compared to pre-project conditions; (ii) reduced fire line intensity and flame lengths, meaning reduced surface fire spread; (iii) reduced crown fire spread; and (iv) slowed the spread of wildfire across multiple contiguous properties.
Operational considerations may also be beneficial. For non-residential projects, early evacuation may be a valuable tool to reduce evacuation impacts on previously existing residents. For one project, where an entire community relied on a two-lane road to evacuate, evacuation modeling showed that early evacuations (e.g.: leaving the site before a mandatory evacuation order) resulted in no evacuation impact on existing residents. Other operational considerations include employee training, annual training for first responders on the project site, posting electronic information about the site, sharing information about the site with first responders before obtaining a Certificate of Occupancy, and abundant signage educating project occupants about fire conditions and evacuation routes.
Tina Wallis is Principal at Wallis Law, located in Santa Rosa, California. Tina is an experienced land use attorney and focuses her attention on the California Environmental Quality Act. Tina represents private and public sector landowners and developers and guides them through the complex entitlement and permitting processes, on CEQA compliance, in in due diligence for complex land use and environmental issues.
