1

Filed 12/29/21; Certified for Publication 1/25/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CITIZENS’ COMMITTEE TO 

COMPLETE THE REFUGE et 

al.,

Plaintiffs and Appellants,

v.

CITY OF NEWARK et al.,

Defendants and 

Respondents;

SI XVII, LLC, et al.,

Real Parties in Interest 

and Respondents.

 A162045

 (Alameda County

 Super. Ct. No. 

RG19046938)

Citizens’ Committee to Complete the Refuge (CCCR) and 

Center for Biological Diversity appeal from the denial of their 

petition for writ of mandate under the California Environmental 

Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA).

1 

Plaintiffs argue the City of Newark (City) violated CEQA when it 

approved a housing development project by relying on the 

environmental impact report (EIR) from its approval of a specific 

1 Undesignated statutory citations are to the Public 

Resources Code.
2

plan without conducting further environmental review. We 

conclude the City’s project was exempt from further CEQA 

review under Government Code section 65457 because it 

implemented and was consistent with the specific plan, and 

substantial evidence supports the City’s conclusion that no 

project changes, changed circumstances, or new information 

required additional analysis. We also determine that the City’s 

deferral of analysis of potential flood control projects to address 

sea level rise in the latter half of this century was proper. We 

will therefore affirm.

BACKGROUND

In the early 1990s, the City’s general plan allowed for lowdensity housing, a business park, a golf course, and other 

recreational facilities and uses in the City’s Areas 3 and 4, which 

are located next to San Francisco Bay.2 The general plan 

acknowledged that development in Area 4 would have impacts on 

wetlands containing the salt marsh harvest mouse (harvest 

mouse), which is an endangered species. The general plan stated 

that development in Area 4 would require a specific plan. 

In 2010, the City certified an environmental impact report 

(EIR) on the specific plan for Areas 3 and 4, approved the specific 

2 We grant appellants’ unopposed request for judicial notice 

of portions of the City’s 1992 and 2013 General Plans. 

(Evid. Code, § 452, subds. (b) & (c); The Park at Cross Creek, LLC 

v. City of Malibu (2017) 12 Cal.App.5th 1196, 1200, fn. 2.) We 

deny as unnecessary their requests for judicial notice of a 2007 

report by the Intergovernmental Panel on Climate Change and 

the appearance and size of several plants mentioned in the 

administrative record. 
3

plan for Areas 3 and 4, and entered into a development 

agreement for the specific plan. The specific plan allowed 

development of up to 1,260 residential units as well as a golf 

course and related facilities. In Area 4, the plan allowed 

development of up to 316 acres spread across subareas B (about 

125 acres), C (about 90 acres), and D (about 100 acres). Subarea 

B could contain residential uses, subarea C could contain 

residential uses and/or recreational uses such as the golf course, 

and subarea D could contain only recreational uses such as the 

golf course. 

CCCR challenged the specific plan under CEQA, 

contending the EIR was inadequate. The trial court in that case 

identified several deficiencies in the EIR, including that the EIR 

failed to make clear in what respects it was intended to be a 

program-level or project-level document. In response, the City 

prepared a recirculated EIR (REIR). 

As relevant here, the REIR remedied the deficiency the 

trial court had identified by stating that it was providing a 

program-level analysis of environmental impacts of the 

development of housing and a golf course in Area 4. The final 

location and design of the housing development and golf course in 

Area 4 was not yet known. The REIR’s analysis of environmental 

impacts with respect to these elements was therefore “based on 

the potential environmental impacts of the maximum 

development permitted by the Specific Plan,” meaning the 

construction of all 1,260 residential units in Areas 3 and 4, the 

development of all 316 acres in Area 4, and the filling of all 86 
4

acres of wetlands in subareas B, C, and D in Area 4, even though 

the development might ultimately have a smaller footprint. The 

REIR further stated that the City would proceed under CEQA 

Guidelines3 section 15168 when it received a specific development 

proposal for Area 4 and would use a checklist or initial study to 

determine whether the environmental review for the specific 

development approvals would consist of an exemption, 

addendum, tiered negative declaration, or full subsequent or 

supplemental EIR. But the REIR also quoted the statement in 

CEQA Guidelines section 15168, subdivision (c)(5) that, with an 

adequately detailed analysis in a program EIR, “many 

subsequent activities could be found to be within the scope of the 

project described in the program EIR, and no further 

environmental documents would be required.” 

The REIR found the specific plan could have significant 

impacts due to the destruction of harvest mouse habitat from the 

filling of wetlands, the placement of houses next to that habitat, 

and predation by cats, rats, and raccoons. The REIR called for 

avoiding these impacts where feasible and mitigating the impacts 

where avoidance was infeasible. 

The REIR discussed the impacts of climate change and sea 

level rise, noting that by 2100 the Bay level could rise by as much 

as 5.5 feet and that this rise could occur at an accelerated rate. 

The REIR stated that fill would be used to raise the elevation of 

the housing units in Area 4 to approximately 10 to 14.5 feet 

3 References to CEQA Guidelines are to California Code of 

Regulations, title 14, section 15000 et seq.
5

above mean sea level, and the REIR found these elevations would 

protect the housing units against flooding from rising sea levels 

until 2100 in all but the most extreme scenario. The REIR noted 

that because of the uncertainty in projections for sea level rise, it 

was not clear that using additional fill to raise the residential 

sites further to provide more protection against flooding in an 

extreme scenario would be better than relying on a regional 

adaptive strategy, such as levees or floodwalls. 

In March 2015, the City certified the final REIR and readopted the 2010 specific plan. Later that year, the City 

executed a development agreement with the predecessor in 

interest to SI XVIII, LLC and Arques Investment Company, LLC 

(collectively, “applicants”), who are the real parties in interest in 

this proceeding. 

In 2016, the City approved a subdivision map for the 

development of 386 housing units in Area 3. 

In 2019, the applicants submitted a proposed subdivision 

map for approval of 469 residential lots in subareas B and C of 

Area 4, even though there remained 874 units of the 1,260 units 

authorized by the specific plan. The subdivision map proposed no 

development outside subareas B and C and omitted the golf 

course. Instead, the development agreement proposed to deed 

much of subarea D to the City. 

To determine whether the REIR sufficiently addressed the 

environmental impacts of the proposed subdivision map, the City 

prepared a checklist comparing the REIR’s analysis of the 

impacts of the specific plan with the impacts of the subdivision 
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map. The checklist included supporting materials such as plans, 

letters, expert memos, and technical reports, including an 

updated analysis of the effects of sea level rise. The checklist 

concluded the construction of 469 units as proposed in the 

subdivision map would be consistent with the specific plan, and 

there were no changed circumstances or new information that 

might trigger the need for additional environmental review. The 

City posted the checklist for public comment and responded to 

those comments. The City then approved the subdivision map 

based on the analysis in the checklist. 

Plaintiffs challenged the map and checklist via a petition 

for writ of mandate and complaint for injunctive relief. The trial 

court denied appellants’ writ petition, concluding the 

administrative record contained substantial evidence to support 

the City’s determination that further environmental review after 

the REIR was not necessary. 

DISCUSSION

I. Relevant legal principles and standard of review

Section 21151, subdivision (a) states, “All local agencies 

shall prepare, or cause to be prepared by contract, and certify the 

completion of, an [EIR] on any project that they intend to carry 

out or approve which may have a significant effect on the 

environment.” The EIR “provides public officials and the general 

public with details about a proposed project’s consequences. The 

EIR also lists the ways to potentially minimize any significant 

environmental effects, and presents alternatives to the project.” 

(California Building Industry Assn. v. Bay Area Air Quality 
7

Management Dist. (2015) 62 Cal.4th 369, 383 (Building Industry 

Assn.).) 

“Unlike ‘[p]roject EIR[s],’ which ‘examine[ ] the 

environmental impacts of a specific development project’ (CEQA 

Guidelines, § 15161), the CEQA provisions governing tiered EIRs 

‘permit[ ] the environmental analysis for long-term, multipart 

projects to be “tiered,” so that the broad overall impacts analyzed 

in an EIR at the first-tier programmatic level need not be 

reassessed as each of the project’s subsequent, narrower phases 

is approved.’ ” (Friends of College of San Mateo Gardens v. San 

Mateo County Community College Dist. (2016) 1 Cal.5th 937, 959 

(Friends).) 

Government Code section 65457 provides an exemption 

from CEQA for housing development proposals that follow a city’s 

specific plan. Subdivision (a) of that statute states, in pertinent 

part, “Any residential development project, including any 

subdivision, or any zoning change that is undertaken to 

implement and is consistent with a specific plan for which an 

environmental impact report has been certified after January 1, 

1980, is exempt from the requirements of [CEQA]. However, if 

after adoption of the specific plan, an event as specified in Section 

21166 . . . occurs, the exemption provided by this subdivision does 

not apply unless and until a supplemental environmental impact 

report for the specific plan is prepared and certified in accordance 

with the provisions of [CEQA].” (Gov. Code, § 65457, subd. (a).)

Section 21166 provides that after an agency prepares an 

EIR for a project, “no subsequent or supplemental [EIR] shall be 
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required . . . unless one or more of the following events occurs: 

[¶] (a) Substantial changes are proposed in the project which will 

require major revisions of the [EIR]. [¶] (b) Substantial changes 

occur with respect to the circumstances under which the project 

is being undertaken which will require major revisions in the 

environmental impact report. [¶] (c) New information, which was 

not known and could not have been known at the time the 

environmental impact report was certified as complete, becomes 

available.” (§ 21166, subds. (a)–(c).) “ ‘The purpose behind the 

requirement of a subsequent or supplemental EIR or negative 

declaration is to explore environmental impacts not considered in 

the original environmental document. . . . The event of a change 

in a project is not an occasion to revisit environmental concerns 

laid to rest in the original analysis. Only changed 

circumstances . . . are at issue.’ ” (Friends, supra, 1 Cal.5th at 

p. 949.)

“Thus, to qualify for the [Government Code] section 65457 

exemption, the project must be for residential development, it 

must implement and be consistent with a specific plan for which 

an [EIR] previously has been certified, and the qualification 

contained in the final sentence must not apply, i.e., either a 

supplemental EIR must not be required by Public Resources Code 

section 21166 or such a supplemental EIR must already have 

been prepared and certified.” (Concerned Dublin Citizens v. City 

of Dublin (2013) 214 Cal.App.4th 1301, 1310–1311 (Dublin).) 

Government Code section 65457 exempts such a project “from 
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further CEQA review regardless of possible environmental 

impacts of the project.” (Id. at p. 1312.)4

“In considering a petition for a writ of mandate in a CEQA 

case, ‘[o]ur task on appeal is “the same as the trial court’s.” 

[Citation.] Thus, we conduct our review independent of the trial 

court’s findings.’ [Citation.] The question on appeal ‘is whether 

the agency abused its discretion. “Abuse of discretion is 

established if the agency has not proceeded in a manner required 

by law or if the determination or decision is not supported by 

substantial evidence.” ’ ” (Dublin, supra, 214 Cal.App.4th at 

p. 1310.)

We review questions of statutory interpretation de novo 

and review for substantial evidence the City’s determination that 

the section 21166 criteria were not met. (Dublin, supra, 

214 Cal.App.4th at p. 1311.) For the purposes of our substantial 

evidence review, “ ‘[w]e resolve reasonable doubts in favor of the 

administrative decision. [Citation.] “We do not judge the wisdom 

of the agency’s action in approving the [p]roject or pass upon the 

correctness of the EIR’s environmental conclusions. [Citations.] 

Our function is simply to determine whether the agency followed 

4 Both parties contend that the standard for application of 

the Government Code section 65457 exemption is similar to 

standard for CEQA review of projects under tiered EIRs, 

discussed at Friends, supra, 1 Cal.5th at pages 959–960. 

However, as Friends noted, review of tiered projects is “ ‘more 

searching’ ” than the standard under section 21166. (Id. at 

p. 960.) Because we conclude that Government Code section 

65457 exempts the subdivision map from CEQA review, the 

general standard for review of tiered projects does not apply here.
10

proper procedures and whether there is substantial evidence 

supporting the agency’s determination . . . .” ’ ” (Moss v. County 

of Humboldt (2008) 162 Cal.App.4th 1041, 1058.) “A party 

challenging an agency’s decision under section 21166 has the 

burden to demonstrate that the agency’s decision is not supported 

by substantial evidence and is therefore improper.” (Committee 

for Re-Evaluation of T-Line Loop v. San Francisco Municipal 

Transportation Agency (2016) 6 Cal.App.5th 1237, 1247.)

Plaintiffs do not dispute that the subdivision map 

constitutes a residential development project or that the project 

implements and is consistent with the City’s specific plan. We 

therefore confine our analysis under Government Code section 

65457 to the question of whether project changes, changed 

circumstances, or new information trigger the section 21166 

exception to the exemption. We also consider appellants’ 

separate argument that the City failed to adequately study 

certain measures it may adopt to respond to rising sea levels in 

the second half of this century. 

II. Changes to the project

Plaintiffs’ first argument focuses on three aspects of the 

subdivision map that they contend are significantly different 

from the specific plan the REIR analyzed. First, the subdivision 

map proposes to fill and elevate only the upland portions of 

subareas B and C and not the wetlands in those subareas. 

Second, the subdivision map does not include a golf course, even 

though the specific plan had allowed for a golf course in subarea 

C or D. Third, the filled and raised portions of subareas B and C 
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to be developed will be directly next to the wetlands and the 

western banks of those elevated areas will be armored with 

riprap. 

Plaintiffs contend these three changes will have new,

significant impacts on the harvest mouse. According to 

appellants, the subdivision map’s occupation of all of the upland 

areas in subareas B and C with housing instead of the golf course 

will deprive the harvest mouse of escape habitat, also known as 

refugia. The harvest mouse needs escape habitat like the 

uplands so that when the wetlands where the harvest mouse 

normally lives are inundated with periodic flooding, the mouse 

can temporarily flee to higher ground. In appellants’ view, the 

proximity of the housing development to the wetlands where the 

harvest mouse lives, together with the riprap armoring the 

western sides of the filled and raised housing development, 

exacerbates the effects of the specific plan on the harvest mouse 

by allowing rats, cats, and raccoons to prey on the harvest 

mouse.5

Substantial evidence supports the City’s conclusion that 

none of these changes will significantly increase the impacts on 

the harvest mouse beyond what the REIR addressed. The 

specific plan envisioned the complete development of all of 

subareas B, C, and D. In its description of the specific plan, the 

5 Plaintiffs raised other arguments in the trial court, 

including the assertion that changes to the project would 

exacerbate flooding inland from the project. Plaintiffs renewed 

that argument in their opening brief but abandoned it in their 

reply, so we do not discuss it. 
12

REIR stated, “The Specific Plan land use plan for Area 4 includes 

up to 316 acres of potential development,” with 316 acres 

equaling the total land contained in subareas B, C, and D. By 

contrast, the subdivision map will not develop subarea D at all 

(except for a multi-use trail) and will develop only 96.5 acres of 

the approximately 148.7 upland acres in subareas B and C. The 

changes the subdivision map makes from the uses envisioned in 

the specific plan thus will result in the development of fewer total 

acres and fewer upland acres. The subdivision map also provides 

for fewer residential units than the specific plan allowed. 

In its discussion of biological resource impacts, the REIR 

acknowledged that it was “possible that only a portion of the 

potential development areas in Area 4 will actually be 

developed,” and indicated that “any actual development will 

require further entitlement processing and environmental 

review.” Plaintiffs rely on passages like this in the REIR to argue 

that the City could not rely on the REIR and instead was 

required to analyze the impacts from the specific acres developed 

in the subdivision map. Crucially, however, because the REIR 

could not say which land would be developed, it assumed the 

entire area was to be developed when it analyzed the impacts of 

the specific plan on biological resources like the harvest mouse. 

As the REIR stated, “For the purposes of this analysis of the

Specific Plan, however, it was assumed that the entire 

development areas in Area 4 (Sub-Areas B, C, and D) would be 

developed and impacted.” Elsewhere, it said that because “the 

specific location and number of residences, and location and type 
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of recreation facility in Area 4 are only conceptually known,” the 

EIR’s analysis of those elements was programmatic and “based 

on the potential environmental impacts of the maximum 

development permitted by the Specific Plan.” Because the REIR 

claimed it analyzed the impact of developing all of subareas B, C, 

and D, the subdivision map’s development of only a portion of 

subareas B and C suggests that it will have less of an impact on 

the environment than the REIR examined. (Citizens Against 

Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788, 

802–806 [assuming prior EIR was a program EIR, substantial 

evidence supported city’s choice not to prepare new EIR for 

airport project because updated information showed fewer flights 

with quieter aircraft than previously projected].)

The mere fact that the REIR anticipated some additional 

review but the City determined the subdivision map had no 

additional impacts warranting review is not improper or even 

remarkable. The City’s preparation of the checklist and 

determination that the Government Code section 65457 

exemption applies constitute environmental review, so the City 

acted consistently both with the law and with the statements in 

the REIR. (Dublin, supra, 214 Cal.App.4th at p. 1317.) And as 

Dublin explained at page 1316, while in some cases involving 

program EIRs and tiered review it will be necessary to prepare a 

negative declaration or a full EIR, “in others, the analysis will be 

completed by determining that the project is exempt from further 

CEQA analysis.” The rule is similar even in the context of tiered 

review under a program EIR, which involves more stringent 
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review standards than under section 21166 and Government 

Code section 65457. (Citizens for Responsible Equitable 

Environmental Development v. City of San Diego Redevelopment 

Agency (2005) 134 Cal.App.4th 598, 615 [“a program EIR may 

serve as the EIR for a subsequently proposed project to the extent 

it contemplates and adequately analyzes the potential 

environmental impacts of the project”]; Friends, supra, 1 Cal.5th 

at p. 960.) 

A closer examination of appellants’ arguments confirms 

that substantial evidence supports the City’s conclusion that the 

subdivision map was exempt from further review. First, 

concerning escape habitat for the harvest mouse, the specific plan 

recognized that uplands next to tidal marsh provide important 

escape habitat. The REIR stated that there were 270 acres of 

these uplands in Areas 3 and 4 currently being used for 

agriculture and that grading and construction could destroy up to 

154.6 acres of them in Area 4. CCCR itself complained in a 

comment on the draft REIR that the specific plan would 

eliminate most of the uplands in subareas B, C, and D, either 

through development or conversion into wetlands as mitigation 

for filling existing wetlands, and that this would deprive the 

harvest mouse of escape habitat. The REIR found the impact of 

the loss of these upland habitat would be less than significant 

because the uplands were regularly used for agriculture and did

not provide high quality transitional habitat. This indicates the 

REIR already addressed the loss of upland escape habitat, so the 

subdivision map’s impact on such habitat is not new. The 
15

subdivision map’s change of developing only 96.5 acres of the 

uplands means the subdivision map will eliminate less upland 

escape habitat, not more.

Second, regarding the elimination of the golf course, 

appellants assert that the golf course would have provided escape 

habitat for the harvest mouse because the development of the golf 

course would not have changed the elevation of the undeveloped 

land. They conclude from this that the subdivision map’s 

abandonment of the golf course eliminates escape habitat. 

However, the REIR’s finding of no significant impact from the 

development of the uplands in Area 4 did not depend on the golf 

course continuing to provide upland habitat in subarea C or D. 

Rather, the City discounted the quality of the upland habitat 

being eliminated for escape habitat because it is regularly disced 

and ripped for agriculture. Plaintiffs disagree with this 

conclusion, which the City repeated in a response to their 

comment on the checklist. But appellants do not argue the value 

of the upland habitat changed after the REIR was prepared or 

cite any evidence to show such a change.6 If appellants believed 

the uplands had more value as habitat than the City recognized, 

they should have raised that challenge to the REIR. (Friends, 

6 At oral argument, appellants pointed to a doctoral thesis 

published in 2019 that they claim provided new information that 

regularly disced agricultural land is suitable habitat for the 

harvest mouse. The information in the thesis was not new in 

2019. The thesis’s author made the same point in a 2014 

presentation at a scientific conference. CCCR itself cited this 

presentation in a comment on the checklist and provided a web 

link to a copy of the presentation. 
16

supra, 1 Cal.5th at p. 949 [“ ‘The event of a change in a project is 

not an occasion to revisit environmental concerns laid to rest in 

the original analysis. Only changed circumstances . . . are at 

issue’ ”]; Laurel Heights Improvement Assn. v. Regents of 

University of California (1993) 6 Cal.4th 1112, 1130 [conclusive 

presumption under section 21167.2 that a certified and 

unchallenged EIR is valid “acts to preclude reopening of the 

CEQA process even if the initial EIR is discovered to have been 

fundamentally inaccurate and misleading in the description of a

significant effect or the severity of its consequences”].)

Moreover, the subdivision map’s elimination of the golf 

course came together with its abandonment of any development 

of subarea D, with one minor exception, and the deeding of much 

of subarea D to the City. Thus, as compared to the specific plan, 

uplands in subarea D will be less developed and thus will 

continue to provide the harvest mouse whatever escape habitat 

they do currently. Plaintiffs respond that one portion of subarea 

D is currently used by an auto dismantler, so leaving that area 

undeveloped will mean it will be worse than developing the golf 

course. But even if the auto dismantler’s continued operation in 

subarea D prevents some of subarea D from serving as escape 

habitat, the rest of subarea D may still do so, so the subdivision 

map’s impact on uplands is comparable or lower than the specific 

plan. Plaintiffs also claim there is no guarantee that the portion 

of subarea D deeded to the City will never be developed. Since 

the subdivision map does not propose to develop any acreage in 

subarea D, the City cannot be faulted for failing to analyze a 
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development that is not currently proposed. If and when the City 

develops subarea D in any fashion, such development will need to 

comply with CEQA.

Third, regarding the impacts on harvest mouse habitation 

through adjacent development, appellants admit that the REIR 

disclosed these indirect impacts. Because the subdivision map 

will develop fewer acres than the specific plan, in total the 

impacts on the harvest mouse will be reduced. Moreover, the 

REIR found the indirect impacts could be mitigated, declaring, 

“Habitat for these species that is indirectly impacted due to 

proximity to residential and golf course development (i.e., habitat 

that is not directly filled but that is located within 100 feet of 

direct impact areas) will be mitigated at a 2:1 ratio by on-site 

habitat restoration.” Plaintiffs point out that the subdivision 

map will avoid having any direct impacts on harvest mouse 

habitat because it will avoid filling wetlands. They therefore 

read this mitigation measure as meaning no indirect impacts will 

be mitigated. This reads the REIR too narrowly. The REIR 

plainly admits the harvest mouse habitat will be indirectly 

impacted by adjacent residential development, regardless of 

whether that development occurs in directly impacted wetlands. 

The mitigation measure is designed to address indirect impacts, 

and the checklist states that the subdivision map will implement 

the mitigation measure that includes on-site habitat restoration 

for indirect impacts on the harvest mouse “following an approved 

habitat mitigation and monitoring plan.” Plaintiffs have not 

challenged this aspect of the checklist, and at oral argument the 
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City represented that it would implement in good faith the 

mitigation measure it has proposed for such indirect impacts.

The only aspect of the subdivision map that appellants 

identify which the REIR did not already address is the fact that 

the western sides of the raised and filled developed areas will be 

armored with riprap. The City contends the need for engineering 

and armoring of the slopes of the filled and raised developed 

areas has long been known and cites to a portion of the REIR 

that discusses different techniques the City could use to avoid 

settlement of fill. The portion of the REIR the City cites does not 

mention riprap. Also, the need for engineering and armoring 

slopes in connection with the subdivision map is to prevent 

erosion from waves and tidal flooding, not to prevent fill from 

settling as discussed in the REIR. The use of riprap in 

connection with erosion of the development is therefore new.

However, section 21166, subdivision (a) requires a 

subsequent or supplemental EIR only when “[s]ubstantial

changes are proposed in the project which will require major

revisions of the environmental impact report.” (Italics added.) 

Because Government Code section 65457 incorporates section 

21166 by reference, we take further guidance from the CEQA 

Guidelines’ interpretation of section 21166. (Building Industry 

Assn., supra, 62 Cal.4th at p. 381 [courts “should afford great 

weight to the Guidelines when interpreting CEQA, unless a 

provision is clearly unauthorized or erroneous under the 

statute”].) CEQA Guidelines section 15162, subdivision (a)(1) 

expands on the concept of project changes by stating that an 
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agency shall not conduct further review of a project unless 

“[s]ubstantial changes are proposed in the project which will 

require major revisions of the previous EIR or negative 

declaration due to the involvement of new significant 

environmental effects or a substantial increase in the severity of 

previously identified significant effects.” The same guideline also 

allows for further review if new information “of substantial 

importance, which was not known and could not have been 

known with the exercise of reasonable diligence at the time the 

previous EIR was certified as complete,” shows “[m]itigation 

measures or alternatives which are considerably different from 

those analyzed in the previous EIR would substantially reduce 

one or more significant effects on the environment, but the 

project proponents decline to adopt the mitigation measure or 

alternative.” (CEQA Guidelines, § 15162, subd. (a)(3)(D).)

The new use of riprap does not meet this standard. 

Plaintiffs admit the REIR already recognized that the specific 

plan would lead to rat predation on the harvest mouse and 

addressed it with a mitigation measure. Plaintiffs nonetheless 

argue the use of riprap deserves further study because it will 

substantially increase the severity of rat predation. They appear 

to believe that without the riprap, the rats would den further 

away from the harvest mouse’s habitat, so that the increased 

proximity will increase the severity of rat predation relative to 

the specific plan. Plaintiffs cite nothing to support this belief. 

Logic might dictate that proximity will increase the risk of 

predation to some degree, but without some evidence to support 
20

their contention, appellants cannot establish that there will be a 

substantial increase in the severity of conditions analyzed in the 

REIR. (Committee for Re-Evaluation of T-Line Loop v. San 

Francisco Municipal Transportation Agency, supra, 6 Cal.App.5th 

at p. 1247 [party challenging a decision under section 21166 has 

the burden to demonstrate the decision is not supported by 

substantial evidence].) In the absence of such evidence, the City’s 

position that its mitigation measure will continue to reduce the 

impact of rat predation as described in the REIR is supported by 

substantial evidence. 

Plaintiffs counter the City’s reliance on its predator 

management plan by pointing out that the plan does not require 

extermination or elimination of rats and that extermination or 

elimination of rats in riprap would be difficult. But even if the 

plan were revised to require eliminating rats through some 

means, such an adjustment would still not constitute a major 

revision to the REIR. (River Valley Preservation Project v. 

Metropolitan Transit Development Bd. (1995) 37 Cal.App.4th 154,

175 & fn. 23 [change to small portion of project would not require 

a major revision to EIR when considered relative to the size of 

the rest of the project].) Any way we view it, the newly identified 

use of riprap does not trigger the section 21166, subdivision (a) 

exception to the Government Code section 65457 exemption.

We recognize that by rejecting appellants’ arguments 

regarding the riprap, we are allowing the City’s development to 

proceed despite a potential increase in the impact on the harvest 

mouse to some degree. However, Government Code section 
21

65457 compels this result by setting a higher threshold for review 

of a residential development consistent with a previously 

analyzed specific plan than for a project tiered under a program 

EIR. (See Friends, supra, 1 Cal.5th at p. 960 [review of project 

tiered under a program EIR is “more searching” than review for 

substantial changes or new circumstances].) “The [Government 

Code] section 65457 exemption, like other statutory exemptions, 

reflects the Legislature’s determination that the interest 

promoted is ‘important enough to justify forgoing the benefits of 

environmental review.’ ” (Dublin, supra, 214 Cal.App.4th at 

p. 1312.) The interest animating Government Code section 65457 

is to increase the supply of housing. (May v. City of Milpitas

(2013) 217 Cal.App.4th 1307, 1324, 1331 [discussing history of 

Gov. Code, § 65457 and its similar predecessor statute, former 

Gov. Code, § 65453].) Thus, Government Code section 65457 is 

intended to permit housing developments like the one at issue 

here that are consistent with a specific plan that has already 

undergone environmental review, “regardless of possible 

environmental impacts of the project.” (Dublin, at p. 1312.)

III.Changed circumstances and new information

Plaintiffs’ arguments concerning the changed 

circumstances and new information exceptions present a 

variation on their argument about the impact of changes to the 

project on the harvest mouse’s upland habitat. The new 

information and circumstances they point to are scientific 

insights concerning the amount and rate of sea level rise that 

emerged after the City certified the REIR. Plaintiffs concede that 
22

the City was not required to review the effects of sea level rise on 

the project. (Ballona Wetlands Land Trust v. City of Los Angeles

(2011) 201 Cal.App.4th 455, 472–474 (Ballona Wetlands) [agency 

was not required to analyze impacts of sea level rise on project].) 

In an amicus brief, Environmental Defense Center, Sierra Club, 

San Francisco Baykeeper, and The Ohlone Audubon Society 

(collectively, “amici”) characterize such analysis of the effects of 

sea level rise on a project as “reverse-CEQA,” because CEQA 

requires analysis of a project’s impact on the environment and 

not the environment’s impact on a project. Plaintiffs and the 

amici argue the City was nonetheless required to examine 

whether the project risks exacerbating the effects of sea level rise 

on the environment because of how the project interacts with 

wetlands in the area. They rely on the California Supreme 

Court’s clarification in Building Industry Association, supra, 

62 Cal.4th at page 377, that “when a proposed project risks 

exacerbating those environmental hazards or conditions that 

already exist, an agency must analyze the potential impact of 

such hazards on future residents or users.” They argue that 

study of how the project will exacerbate the harms of sea level 

rise is not “reverse-CEQA” but rather classic CEQA prospective 

analysis of how a project will affect the existing environmental 

conditions and risks at the site. 

This argument turns on the concept of wetland migration, 

which appellants define as “the movement of wetland areas 

inland to slightly higher areas as sea levels rise and the former 

wetlands are gradually submerged.” According to appellants and 
23

the amici, the subdivision map’s development of all the uplands 

in subareas B and C will prevent the wetlands in those areas 

from migrating. They contend this process, which the amici call 

“coastal squeeze,” will effectively eliminate wetlands in the area, 

as rising sea levels inundate the wetlands on one side and on the 

other side the project’s elevated building sites hem them in and 

prevent the wetlands from becoming established on higher 

ground. In their reply brief, appellants connect this idea to their 

arguments about predation and the loss of escape habitat. They 

argue that rising sea levels will force the harvest mouse from its 

wetland habitat into the developed residential areas instead of 

into escape habitat, causing the harvest mouse to suffer 

predation from rats in the riprap and other threats from dogs, 

cats, people, and cars. 

Plaintiffs and the amici may be right that under Building 

Industry Association an EIR must analyze the risk that a project 

could exacerbate the effects of sea level rise by contributing to 

coastal squeeze and thwarting wetland migration. Even if they 

are correct, however, these dynamics are not new in relation to 

this project, so the City did not need to address them in the 

checklist. Plaintiffs themselves cite to a mention of wetland 

migration in an appendix to the City’s first EIR for the specific 

plan in 2009, long before the City certified the REIR. 

Additionally, as noted above, the REIR assumed the entire 

development areas in Area 4 (Sub-Areas B, C, and D) would be 

developed and impacted, which would lead to the destruction of 

154.6 acres of uplands. The time and place for appellants’ and 
24

amici’s argument regarding the effects of the development of 

uplands and rising sea levels on wetland migration was in 

response to the City’s circulation of the REIR, if not the original 

EIR.

Plaintiffs’ arguments about new scientific studies showing 

an increased rate of sea level rise do not convince us otherwise. 

The REIR noted that the rate of sea level rise was uncertain and 

might be accelerating, so the REIR anticipated the new 

information that appellants rely on. More importantly, while the 

increased rate of sea level rise might expedite the effects of 

thwarted wetland migration and make it harder to mitigate those 

effects, the overall impact on the wetlands is the same: Wetlands 

will be lost because the specific plan did not provide for any

mitigation of thwarted wetland migration, so it is immaterial for 

CEQA purposes that sea level rise may occur faster and make

such mitigation more difficult. Accordingly, sea level rise does 

not make the impacts of thwarted wetland migration 

substantially more severe in a way that would trigger the section 

21166 exception to the Government Code section 65457 

exemption. (CEQA Guidelines, § 15162, subd. (a)(3)(A) & (B)7.)

7 “When an EIR has been certified or a negative declaration 

adopted for a project, no subsequent EIR shall be prepared for 

that project unless the lead agency determines, on the basis of 

substantial evidence in the light of the whole record, one or more 

of the following: . . . [¶] (3) New information of substantial 

importance, which was not known and could not have been 

known with the exercise of reasonable diligence at the time the 

previous EIR was certified as complete or the negative 

declaration was adopted, shows any of the following:
25

IV. Adaptive management

In a separate argument, appellants take issue with a 

hydrology report attached to the checklist, which says the City 

would take an adaptive approach to managing flooding of the 

project from sea-level rise toward the end of the century, such as 

by creating levees or floodwalls built on top of or outside the 

raised and filled residential areas. In their opening brief, they 

fault the City for using this approach because it improperly 

defers consideration of mitigation measures for the project’s 

impacts, since the City did not say whether any of the adaptive 

mitigation measures would be effective at addressing flooding, 

nor did it address whether and how to avoid the environmental 

impacts the measures would create. 

This argument regarding mitigation measures is 

misplaced. Sea level rise is not an impact on the environment 

caused by the project, so neither the REIR nor the checklist 

needed to discuss the effects of sea level rise on the project at all.8 

(Building Industry Assn., supra, 62 Cal.4th at p. 377; Ballona 

Wetlands, supra, 201 Cal.App.4th at pp. 472–474.) For the same 

reason, the adaptive responses to sea level rise discussed in the 

hydrology report are not mitigation measures and not governed 

by the rules concerning deferred mitigation. (King & Gardiner 

[¶] (A) The project will have one or more significant effects not 

discussed in the previous EIR or negative declaration; [or] [¶] (B) 

Significant effects previously examined will be substantially more 

severe than shown in the previous EIR.” (CEQA Guidelines, 

§ 15162, subd. (a)(3)(A) & (B).) 

8 The City apparently chose to include the discussion in 

accordance with a policy in its general plan. 
26

Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 851

[“Mitigation is defined as an action that minimizes, reduces, or 

avoids a significant environmental impact or that rectifies or 

compensates for the impact”].) 

In their reply brief, appellants change tack and argue 

instead that “[e]ven if the adaptive pathways do not constitute 

mitigation measures under CEQA, they would certainly be 

considered as a future project that is directly linked to the 2019 

project.” Plaintiffs then contend that with faster rates of sea 

level rise that will result in higher overall levels, additional flood 

protection measures should be viewed as a reasonably foreseeable 

project, not just a hypothetical. 

Because appellants raised this alternative theory for the 

first time in their reply brief, we need not consider it. (Meridian 

Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 707.) 

In any event, it fares no better. The hydrology report discussed 

the use of adaptive responses to sea level rise in the latter part of 

the century, between 2070 and 2100. The hydrology report cites 

2018 projections for sea level rise by 2100 that range from 2.4 

feet at the low end to 10.2 feet in the most extreme scenario. The 

projections for 2100 that appellants cite range from 0.3 meters 

(about 1 foot) in the best-case scenario to 2.5 meters (8.2 feet) in a 

worst-case scenario. 

The City’s potential responses to environmental conditions 

between 50 and 80 years from now cannot be considered part of 

the current project. Additionally, the range of projections for sea 

levels by that time are wide and sea levels at different ends of 
27

those projections could warrant significantly different responses. 

Because the City currently can only dimly guess what measures 

will be needed to respond to conditions several generations from 

now, the City was not required to analyze the impacts of the 

adaptive pathways as part of this project. (Environmental 

Council of Sacramento v. County of Sacramento (2020) 

45 Cal.App.5th 1020, 1031 [“CEQA does not require an EIR to 

discuss future developments which are unspecified or uncertain. 

‘Such an analysis would be based on speculation about future 

environmental impact’ ”].)

DISPOSITION

The judgment is affirmed.

BROWN, J.

WE CONCUR:

STREETER, ACTING P. J.

ROSS, J.

Citizens Committee v. City of Newark (A162045)

 Judge of the Superior Court of California, City and 

County of San Francisco, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.
1

Filed 1/25/22

CERTIFIED FOR PUBLICATION

CALIFORNIA COURT OF APPEAL

FIRST APPELLATE DISTRICT

DIVISION FOUR

CITIZENS' COMMITTEE TO COMPLETE THE REFUGE et al.,

Plaintiffs and Appellants,

v.

CITY OF NEWARK et al.,

Defendants and Respondents;

SI XVII, LLC, et al.,

Real Parties in Interest and Respondents.

A162045

Alameda County

Sup. Ct. No. RG19046938

BY THE COURT:

The written opinion which was filed on December 29, 2021, has now 

been certified for publication pursuant to rule 8.1105(b) of the California

Rules of Court, and it is ordered published in the official reports.

Date:___________________________ __________________________Acting P.J.

J. Streeter
2

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Frank Roesch 

Counsel: Law Offices of Stuart M. Flashman, Stuart M. Flashman; 

John Buse, Lisa Belenky for Plaintiffs and Appellants.

Linda Krop, Margaret Hall as Amicus Curiae on behalf of 

Plaintiffs and Appellants.

Rutan & Tucker, David P. Lanferman, Matthew D. 

Francios, Travis Van Ligten for Defendants and 

Respondents.

Cox, Castle & Nicholson, Andrew B. Sabey, Anne E. 

Mudge, Linda C. Klein, Craig E. Spencer for Real Parties in 

Interest.