Kerncrest Audubon v. LA Dept. of Water and Power

Filed 8/2/07 Kerncrest Audubon v. LA Dept. of Water and Power CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Andrew Lichtman for Plaintiffs and Appellants.

Rockard J. Delgadillo, City Attorney, and Jack L. Brown, Assistant City Attorney, for Defendants and Respondents.

No appearance for Real Party in Interest and Respondent.

INTRODUCTION

Appellants Kerncrest Audubon Society and Los Angeles Audubon Society, Inc., raise challenges under the California Environmental Quality Act (CEQA)^[1]to approval of a project to construct and operate a wind farm.^[2] Appellants contest the sufficiency of the final environmental impact report/environmental assessment (FEIR)^[3]and complain that the trial court improperly denied their discovery motions. None of these arguments are persuasive; we will affirm.

GENERAL FACTS

The proposed Pine Tree Wind Development project is a wind farm consisting of eighty 1.5 megawatt wind turbine generators plus eight miles of transmission line, a substation, various outbuildings and service roads (Pine Tree). The wind turbines will be grouped along separate ridges in strings ranging in groupings from two to 16 towers.

The Pine Tree site is located in a sparsely inhabited area of the Southern Sierra Nevada Mountains in Kern County, approximately 12 miles north of the Town of Mojave and 15 miles northeast of the City of Tehachapi. Historically, the site has been used as grazing land for cattle. The areas surrounding the site are essentially undeveloped. A segment of the Pacific Crest National Scenic Trail is located on private property approximately one to two miles west of the sites western boundary. Pine Tree involves the use of federal lands for roads and electrical transmission lines. Primary access to the wind turbine component will be taken from Jawbone Canyon Road at SR-14 and primary access to the transmission line component will be taken from Pine Tree Canyon Road at SR-14. Pine Tree is located in the Tehachapi WRA.

The wind turbines [will] be located along selected ridgelines on privately owned land consisting of approximately 8,000 acres or approximately 12.5 square miles. The actual area of new ground disturbance caused by Pine Tree is approximately 238 acres. This includes 106 acres of temporary disturbance related to construction activities and 132 acres of permanent disturbance.

The Pine Tree project will be developed and constructed by Wind Turbine Prometheus, LP (WTP). It will be owned and operated by LADWP. Pine Tree is needed so that LADWP may meet commitments to supply an increased share of its electrical generation capacity from clean and renewable energy sources. Also, it is needed to help meet the future electrical energy demands of the Southern California region. Since the LADWP does not possess authority to supply power to development outside the limits of the City of Los Angeles, [t]he objective of the proposed project is not to create surplus energy for the open marketplace but to help meet the projected electrical energy demands of City of Los Angeles customers while increasing the share of the power used by LADWP that is generated from clean and renewable energy sources.

The FEIR^[4]concluded that for the period of construction, which will be 10 months or less, Pine Tree will cause a significant and unavoidable adverse impact on air quality. After mitigation, operation of Pine Tree will not result in any significant adverse environmental impacts.^[5] Details concerning the contents of the FEIR will be set forth as necessary, post.

After public hearing on April 19, 2005, the Board of Water and Power Commissioners (Board) adopted a resolution certifying the FEIR and approving Pine Tree.

Appellants filed a petition for writ of mandate. They asserted that the FEIR failed to study the possibility that Pine Tree could adversely affect nocturnally migrating songbirds and failed to consider Pine Trees individual and cumulative growth-inducing impacts on Los Angeles. The petition was orally denied after hearing on April 14, 2006. Entry of judgment was filed on May 17, 2006.

DISCUSSION

I. Standard of Review

Thorough discussions of background information about CEQA and the standard of review applied to an environmental impact report (EIR) are contained in BCLC, supra, 124 Cal.App.4th at pages 1197-1198. Appellate courts review challenges to CEQA compliance de novo. (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1375-1376.) In reviewing an agencys determination under CEQA, a court must determine whether the agency prejudicially abused its discretion. ( 21168.5.) Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination is not supported by substantial evidence. (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 25-26.) The absence of information in an EIR, or the failure to reflect disagreement among the experts, does not per se constitute a prejudicial abuse of discretion. [Citation.] A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process. (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712 (Kings County).)

When assessing the legal sufficiency of an EIR, the reviewing court focuses on adequacy, completeness and a good faith effort at full disclosure. (Irritated Residents, supra, 107 Cal.App.4th at p. 1390.) A courts function is not to determine whether the EIRs ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document. (Id. at p. 1391.) CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive. (Guidelines,  15151.) (Kings County, supra, 221 Cal.App.3d at p. 712.) An EIRs analysis of possible adverse environmental effects will be judged in light of what was reasonably feasible. (Irritated Residents, supra, 107 Cal.App.4th at pp. 1390-1391.)

Courts apply the substantial evidence standard to conclusions, findings and determinations. [The standard also is applied] to challenges to the scope of an EIRs analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions. (BCLC, supra, 124 Cal.App.4th at p. 1198.) Substantial evidence includes facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts. [Citations.] (Ibid.)

II. Appellants challenge to the FEIRs analysis of the possibility that Pine Tree could adversely affect nocturnally migrating songbirds lacks merit.

A. Facts

i. Initial Site Reconnaissance

The initial study identified the possibility that Pine Tree could cause a potentially significant impact on native or migratory wildlife.

In a comment letter related to the first public meeting about Pine Tree, a representative of the Kern-Kaweah Chapter of the Sierra Club wrote that [t]he high ridgelines and rocky outcrops provide critical habitat for native raptor^[[6]] species, as well as many resident and migratory passerine^[[7]] species. These southern Sierra canyons offer prime migration routes each year. There is a concern that this mountainous area may be too sensitive for wind development. [Footnotes added.]

EDAW (the company contracted to prepare the FEIR) conducted initial site reconnaissance, general wildlife evaluations and sensitive wildlife surveys. It made the following observations concerning the possibility that migratory songbirds could fly over the Pine Tree site:

At this time, we have no recommendations for project siting relative to potential bird strikes. Curry and Kerlinger indicate a low probability of impacts to songbirds or raptors for the Florida Power and Light project. Though our biologists did note some flyovers by raptors, general activity is very, very low. Our observations of flight activity, or lack thereof, tend to correlate with Curry and Kerlingers findings that the project site is not a significant foraging area or flyway for raptors or songbirds. We intend to supplement our findings by consulting with a knowledgeable raptor specialist (we are working with Andy and DWP on this) and to obtain survey and siting information from other local sources. (Emphasis added.)

Michael Morrison, Ph.D., a recognized avian expert, was retained to augment the analysis of avian impacts. He was employed to assist in the evaluation of potential project related impacts to all raptor species and bat species that are currently known, or could be expected, from the project area.

Morrison conducted a series of focused avian surveys with an emphasis on raptors to quantify general bird activity and passage near proposed turbine strings. The data were used to assess the potential impacts of the proposed project on avian wildlife species. During these surveys, Dr. Morrison noted not only the bird species that were observed during the point counts but also those identified through incidental observations. (Emphasis added.) Morrisons spring surveys were conducted on the following days in 2004: March 16-17, April 4-5, April 13-14, April 28 and May 30.

ii. The Draft EIR

The draft EIR and environmental assessment (the DEIR) concluded that direct impacts to sensitive raptors and bats could result from collisions with rotating turbine blades. However, the DEIR stated the potential mortality rate of 0.047 raptors per turbine per year would not significantly affect the local raptor population. The DEIR concluded the projected raptor fatalities represent a de minimus contribution to yearly raptor fatalities in the Tehachapi WRA. The DEIR further determined that Pine Trees impacts on avian life are not cumulatively significant when considered in the context of the entire Tehachapi WRA. Impacts on bats are predicted to be low due to the lack of evidence of substantial bat populations on site. The DEIR recommended monitoring of avian and bat mortality through the first year of operations.

iii. Comments and Responses

Several comment letters stated that the DEIR inadequately considered the possibility that songbirds could fly over the site during their spring migration. The commenters complained about the absence of a nighttime survey of migratory birds. Commenters also complained that the five surveys of the project site Morrison conducted (in March, April and May 2004) were inadequate to detect migrating songbirds. Finally, a commenter referenced a study concerning bird mortality in the Altamont Pass WRA and stated that the DEIR failed to properly consider this study in developing its avian protocol and conclusions.

Detailed responses were prepared to these comments. In substantial part, the same information was conveyed in the response prepared for each comment letter raising a songbird-related point. The bulk of the FEIRs analysis and conclusions regarding songbirds are contained in these responses. To resolve the issue presented on appeal and properly assess the sufficiency of the FEIRs analysis of possible adverse effects on migratory songbirds, it is necessary to quote these responses at length.^[8]

a. Methodology

The responses set forth the methodology utilized in identifying and studying possible adverse effects on avian life. The avian protocol is responsive to the level of effort recommended in the National Wind Coordinating Committee (NWCC)Guidance Document and the recently released United States Fish and Wildlife Service (USFWS) Interim Guidelines.^[9] It continued:

The biological studies at the [Pine Tree] site were initiated over 2 years ago, and avian studies are continuing at present and would continue through the first year of operations. The Pine Tree studies were approached in a manner widely accepted for complex biological analysis, following a phased progression of study that builds a basis of general information followed by progressively more detailed work. The methodologies, protocols, and extent of these surveys were documented in the Draft EIR/EA in the biological resources section. To summarize, studies were initiated in December of 2002 with a general biological habitat assessment over (at that time) a 33-square-mile project study area. Existing vegetation communities were delineated, potential habitats for sensitive plants and wildlife associations within those communities were mapped, and searches for sign of sensitive plant and wildlife species were completed. Based on the results of the December 2002 habitat assessment, and considering a list of sensitive species with the potential to occur within the project area assembled through literature review, focused surveys were conducted in the spring and summer of 2003. The characterization of wildlife usage of the site included direct observations of avian species as well as research regarding avian species likely to occur. The amount of time spent in the field was consistent with biological survey practice for wildlife characterization and was accomplished by professional biologists with significant experience with Southern California desert and mountain habitats. Field work was supplemented with research of published literature applicable to the region.

Next, the responses summarized the results of the initial surveys:

During these initial field visits to the site, which included the spring 2003 season, a remarkable characteristic of the site was the lack of observed bird activity, particularly raptors. A higher level of use by raptors typically would be expected. The biological survey team also noted a low level of riparian and songbird activity. Relative to song birds and riparian activity, California Department of Fish and Game wildlife biologists visiting the site confirmed this lack of activity and commented that the riparian areas appeared to not be well enough developed or extensive enough to be attractive to nesting riparian birds . (Emphasis added.)

Then, the responses explained why Morrison was retained to conduct focused avian studies, despite the low incidence of bird activity observed in the initial surveys:

Under most circumstances, the relative absence of observed avian activity during spring would lead to the conclusion that the potential for significant impact would be low. In spite of this, and in consideration of the comments on the Notice of Preparation suggesting that one year of avian baseline information should be collected, LADWP decided to initiate a formal avian protocol survey. Dr. Michael Morrison, a nationally recognized avian biologist, was retained to develop a survey protocol and conduct the studies.

The responses state that the sampling protocol used by Morrison exceeds the basic protocol standard both in terms of number of counts (5) and duration (30 minutes each). The responses stated that Morrisons focused avian studies were adequate to count songbirds as well as raptors:

The 30-minute duration was chosen to count raptors but is more than adequate for songbirds. The fact that counts were conducted during the spring migration period and failed to locate any substantial number of songbirds using the riparian area in Jawbone Canyon (that portion within the wind turbine siting area), indicates that the area was likely not used in 2004 for resting and foraging by large numbers of migrating songbirds. (Emphasis added.)

b. Results of Morrisons Surveys

The responses set forth Morrisons findings as they relate to songbirds:

In other findings from the fall 2004 survey report, Morrison found no large movements or concentrations of non-raptorial birds (e.g., songbirds, quail) in the project area. The most frequently observed songbirds were mixed flocks of white-crowned sparrows and golden-crowned sparrows, which were seen throughout the project area during fall. Additionally, large (approximately 50 individuals) flocks of California quail were frequently observed throughout the project area in grassland and shrubland. No information was gathered on the movement of birds at night. However, observations conducted during the day did not identify any large numbers of migratory species (e.g., warblers, vireos, sparrows) that appeared to be using the project area for foraging or loafing (i.e., as a daytime stopover location during migration).

Similarly, the winter 2005 survey shows that the project does not serve as a major wintering area for raptors or other bird groups. Some species, such as the prairie falcon, appeared to spend a brief period of time in the project area and then depart. Other species, such as the red-tailed hawk, appeared to be both resident and transitory in the area in low numbers in winter. It also appeared that the abundance of certain species, such as meadowlarks and sparrows, declined as winter progressed. (Emphasis added.)

c. Pine Tree Site Is Not Located In A Flyway For Migratory Songbirds

The responses explained why it was concluded that the Pine Tree site is not located in a flyway for migratory songbirds:

LADWP does not deny the importance of Butterbredt Springs as an important bird area. However, the deduction that the [Pine Tree] site is flooded with migratory birds in the spring because it is within 8 miles of Butterbredt Springs and is within the southern SierraMountains is not supported by the direct observations at Pine Tree. As summarized previously, the riparian portions of upper Jawbone Canyon and little Jawbone Canyon do not support a substantial number of migratory birds. (Emphasis added.)

Furthermore:

The proposed wind turbines would be located in the western end of Jawbone Canyon, some 10 miles from the mouth of the canyon, near SR-14. Anecdotal information from the commenter and an unpublished report indicate that the localized spring migration in the area is from southeast to northwest and that the migration is captured in northwest-southeast trending canyons, such as the east portion of Jawbone Canyon. The Jawbone Canyon migration continues in a northwesterly direction up Alphie and Hoffman canyons through the topographic pinch point of Butterbredt Springs. This would take the localized migration well east of the proposed project property, which encompasses northeast-southwest trending portions of upper Jawbone Canyon. Our data based on extensive field observations show that there are no other logical reasons, such as good habitat or adequate cover and water, for a substantial number of birds to be loafing or resting in the proposed turbine area. There is a reason that birds seek Butterbredt versus the proposed project site (i.e., a readily available source of water and its location along the local canyon migratory pathway). (Emphasis added.)

d. Avian Fatality Studies

The responses discuss existing fatality studies and stated that they support the conclusion reached by Morrison that the Pine Tree site is not likely to cause a significant adverse impact on migratory songbirds:

Based on a comparison of the use of Pine Tree by birds relative to other existing wind developments, fatalities are predicted to be at the low end of that quantified elsewhere for both raptors and songbirds. In spite of the fact that some wind developments lie directly in areas that are known migration routes, Erickson et al. (2002) summarized the observed and likely potential impact of wind farms on passerine and other non-raptorial birds, including nocturnally migrating species. They found that nocturnal migrants are estimated to comprise approximately 50 percent of the fatalities at new wind projects (estimated range 34 to 59%), based on timing and species observed during standardized fatality monitoring. There has been no reported large episodic mortality event (e.g., >50 passerine birds during a single night) recorded at a U.S. wind plant. Two small nocturnal avian mortality events have been published at U.S. wind plants. Fourteen nocturnal migrating passerines at two turbines at Buffalo Ridge (Minnesota) were killed on one night during spring migration after a thunderstorm. At the Mountaineer Wind Energy Center, West Virginia, 33 (47.8%) of 69 passerine fatalities occurred on one night at a few turbines adjacent to a well-lit substation during spring migration (Kerns and Kerlinger 2004). The data suggest that sodium vapor lamps at the substation were the primary attractant, since fatality locations were correlated with the location of the substation, and the other turbines away from the substation had few fatalities documented the morning after the event. After the lights were turned off at the substation, no events occurred. Erickson et al. (2002) were not aware of any other mortality events greater than a few birds at single or adjacent turbines found during a single search at any U.S. wind plant.

Several studies have been published regarding extrapolated bird passage rates [citations]. We are aware of only a few studies that have attempted to compare fatality rates to bird passage rates. McCrary et al. (1986) estimated approximately 6,800 annual bird fatalities at the San Gorgonio wind project in California, with an estimate of approximately 75 million migrants passing through during fall and spring migration. McCrary et al. (1986) believed the mortality levels were biologically insignificant. Radar studies conducted in the vicinity of the Buffalo Ridge wind project (over 400 turbines) in Minnesota suggested that as many as 3.5 million birds may migrate over the wind development area, and fatality studies suggest only a few hundred migrating songbirds are killed each spring. Radar studies at the Stateline Wind Project, a large facility (454 turbines) with its northern boundary located within 1.5 miles of the Columbia River, indicate a large number of birds migrate over that facility (several hundred thousand to over a million) during spring migration, and the fatality studies suggest a very small number result in collisions (Erickson et al. 2004). A similar pattern was observed for the nearby Nine Canyon facility (Cooper and Mabee 2001; Erickson et al. 2003b).

Rappole (1995) reviewed the behavior of migrating passerine birds including activities during stopovers. Most passerines migrate at night and rest and forage during the day. He noted that migrating flocks would sometimes spend several days in a location before continuing migration, while others would leave the evening of their arrival day. He thought that differences in stopover time were likely related to the physiological condition of individual birds, given that poor weather was not the reason for remaining at a location. He also noted that habitat selection was species specific, ranging from highly selective to very broad, and was at least partially based on a birds energetic state. (Emphasis added.)

The responses also state that studies of existing California wind farms in places such as the Altamont WRA and the Tehachapi WRA do not indicate that the wind farms resulted in a significant songbird mortality rate:

For example, the fatality surveys conducted for over 13 years at the Altamont Pass WRA, including the intense surveys during the past approximately 5 years, have never recorded a substantial mortality of songbirds. Likewise, the fatality searches at the Tehachapi WRA failed to locate substantial songbird mortalities. Finally, the summary papers by Erickson and co-workers show that no Western wind development with newer larger turbines has had a large mortality of songbirds. (Emphasis added.)

The responses continued on this topic, as follows:

The references to Altamont should include several other points of clarification. Repowering will use turbines of a similar design and size as those proposed for the Pine Tree project, and the new turbines will be spaced farther apart than those currently in place at Altamont. Once again, the data and conclusions in the Draft EIR/EA were not derived from studies at Altamont, which is an entirely different environment. They are derived from direct observations and monitoring that occurred over a 2-year period of time at the Pine Tree project site.

Also, because no substantial songbird mortality has occurred at Altamont, these changes are designed to reduce raptor fatalities. In addition, based on extensive site surveys , raptor use at the project site is estimated to be 40 percent lower than the average use in the Tehachapi WRA, 50 percent lower than the average use found at other active or proposed wind energy developments, and 90 percent lower than the average use in the Altamont Pass WRA. (Emphasis added.)

e. Absence of Night Surveys

The responses explained the absence of night surveys as follows:

The commenter is correct that no night surveys were conducted. Night surveys are not commonly conducted when there is no evidence of daytime early morning or late evening use by migrants. As noted above, migrating passerine birds include some activity during stopovers and may forage for an entire day. This is largely absent at the proposed project site. (Emphasis added.)

The responses also stated that [n]ight surveys are of limited usefulness to the prediction of avian impact. They explained:

Use of radar and other scanning techniques do not distinguish among species and it difficult to tell whether the same bird or bat may pass through the scan more than once. Just knowing that there are bird species passing overhead has not been demonstrated as an accurate or reliable predictor of avian risk at wind power sites. The primary reason is that there have not been any wind power projects where night migration fatalities have been considered biologically significant. Most studies of North American bird migration using techniques such as radar have suggested that nocturnal migrants follow a broadfront migration pattern, flying at high altitudes, where they are not affected by variation in surface topography [citations]. While there is some expected mortality of nighttime migrants, numbers of fatalities for individual species from the many fatality studies conducted in the West suggest levels inconsequential to the affected species [citation.] (Emphasis added.)

f. Absence of Cumulative Impacts on Avian Life

The response explained why it concluded that Pine Tree and other wind projects in this WRA are not likely to have a cumulative adverse effect on avian life, as follows:

Specific to avian impacts, the results of Anderson et al. (2004) relative to the Tehachapi WRA were summarized and considered in quantifying avian risk at the project site. The avian mortality at Tehachapi was considerably less than that observed at many other Western wind resource areas. The Pine Tree project is predicted to add comparatively few additional mortalities given the relatively small number of turbines added. As such, there would not be a substantial cumulative effect. The determination of cumulative impact is one of biological magnitude, not mere addition, especially of generally small numbers. If this were not the case, any project that created any impact whatsoever, regardless of how insignificant, would need to be considered cumulatively significant simply because it added to an existing impact.

It is noted that the Tehachapi data have been used to assist with the quantification of avian impacts at the Pine Tree project site, but the combined mortality effects on avian species are only part of the avian mortality equation. There are many other reasons for avian mortality and evidence suggests that wind power is not a major source. For example, the American Wind Energy Association (AWEA) notes that the Deputy Director of the Fish and Wildlife Service, in a September 15, 2003, correspondence, states that, with limited exception, impacts on birds from wind farms in the U.S. are low compared to impacts on birds from communication towers, power lines, and building windows [citation]. This available information, coupled with the on-site observations, led to the conclusion that the proposed project would not have a significant cumulative impact. (Emphasis added.)

g. Summary of Conclusions

The responses summarized the conclusions concerning passerine fatalities, as follows:

In summary, it does not appear that the project site serves as a major pathway or stopover area for migrating birds. The few instances in which relatively large numbers of migrating passerine birds have been killed in wind developments have been apparently due to a combination of poor weather and lights reflecting off of a low cloud ceiling.

Based on the habitat assessment and consideration of mortality rates from other Western wind developments, it is estimated that passerine mortality at the [Pine Tree project] would be approximately 0 to 2 birds per turbine per year. This level of mortality includes potential effects on migrants and would not be considered a significant impact in relation to the total population of the various bird species found in the area.

LADWP, through its continuation of avian studies, is building upon the base of resource information that it has collected over the past 2 years. LADWP has not dismissed the potential effects on birds and bats but has determined that significant mortality is not likely. It is noted that many of the birds potentially occurring at the Pine Tree project site could also occur at Tehachapi, and no substantial mortalities [have] been recorded. Scavenging is accounted for in all appropriately designed fatality surveys (as it was in the Tehachapi study). (Emphasis added.)

iv. Appellants Avian Expert

On April 18, 2005, appellants submitted a letter from their counsel, Andrew Lichtman, and a report written by Robert A. Hamilton. Hamilton is a biologist who was retained by appellants to provide a professional opinion regarding the adequacy of the FEIR, with focus on the question whether Pine Tree could result in any potentially significant adverse effects on populations of native bird species known to migrate through Jawbone Canyon each spring.^[10] Hamilton wrote that the optimistic conclusions drawn by EDAW (2004) and the [FEIR] could prove to be accurate if the project is implemented according to the current plans. The essential deficiency of this report, and of the impact analyses based on this report, is that none of the various biological investigations undertaken for this project were completed with the explicit goal or effect of evaluating the potential for conflicts between migratory passerines and the proposed wind turbines. In Hamiltons opinion, Morrisons avian surveys are inadequate because they fail to specify at what time of day the surveys were conducted, and if they were not conducted during the first two or three hours of the day, most of the passerines could have been missed. Furthermore, no surveys were specifically conducted to determine whether large numbers of nocturnal migrants pass over the project area at night during the peak of spring migration, or to determine the potential effects of low cloud-cover on the height at which nocturnal migrants may fly over the project site on such nights. Hamilton acknowledged that the FEIRs conclusion that most of the northbound migratory birds entering Jawbone Canyon would not fly over the project site makes intuitive sense, and could be correct. However, it is a mere hypothesis that has not been tested with any well-conceived field studies. Hamilton also wrote that Morrison failed to follow the survey methods he recommended in prior writings. In Hamiltons opinion, the FEIRs findings regarding the projects potential effects on migratory songbirds appear to be based on inadequate data.

Appellants also attached as an exhibit to the letter and report, a written transcription of a portion of a telephone conversation on February 24, 2005, involving Morrison, Garry George, Tom Ryan and Chuck Holloway. This conversation was transcribed by Garry George. The transcription does not attribute the replies made to Georges remarks to any specific individual. Rather, it states that the statements contained in uppercase letters were made by Morrison, Ryan, and Holloway. During this conversation, one of these three men stated that Morrison was not asked to focus on songbirds in his avian studies. Yet, one of these three men also stated that during the avian studies Morrison looked for songbirds and not just for raptors. Furthermore, one of them said that no one has yet found a correlation between migratory period and fatalities of songbirds.^[11]

v. Avian Monitoring Program

The following avian monitoring program was included as a condition to approval of the Pine Tree project:

To ensure that the predicted rates of raptor mortality remain low and insignificant, a qualified ornithologist will conduct bird mortality monitoring at the project site for one year following the first delivery of power. All results will be provided to the Wildlife Response and Reporting System database and to the California Department of Fish and Game. Also, LADWP will maintain a record in accordance with U.S. Fish and Wildlife Service guidance of avian injury and mortality that is observed on the project site during operations for the life of the project.

After one year of post-construction monitoring data has been obtained, LADWP shall review project operations to determine if any specific turbine(s) is responsible for disproportionately high levels of avian mortalities compared to other turbines on site. If so, LADWP shall implement operational modifications of the turbine(s) and conduct further study in consultation with the California Department of Fish and Game and/or the U.S. Fish and Wildlife Service to evaluate the effectiveness of the modifications.

B. The FEIRs determination that Pine Tree will not adversely affect migrating songbirds is based on an adequate investigation and is supported by substantial evidence; CEQA does not compel conduct of a focused nighttime study designed to answer The Question.

Appellants challenge the sufficiency of the FEIRs analysis of possible adverse effects on nocturnally migrating songbirds. They contend that all of the avian surveys are inadequate because none of them were focused on answering the following question, [W]hat are the fluctuations, from spring to spring, of the routes and songbird population traveling at night without stopping ? In appellants view, the FEIR does not contain a meaningful investigation of avian behavior and safety. Appellants argue that CEQA compels respondents to conduct an avian study designed to answer The Question. Appellants assert that The Question must be studied as a matter of law, because the omissions of any meaningful consideration of The Question resulted in a failure to comply with the information disclosure provisions of CEQA . The absence of such a focused study is alleged to have precluded the establishment of a baseline against which to measure the future effects of the EIR Project on songbirds migrating at night during the spring, and for [the lead agency] to make a rational assessment of the threat of the EIR Project to the safety of such birds. Alternatively, they argue that in the absence of an avian study specifically designed to answer The Question, the record lacks substantial evidence supporting the FEIRs conclusion that Pine Tree will not cause a significant adverse effect on avian life.^[12]

We are unpersuaded. As will be explained, LADWP did not fail to obtain and disclose relevant information necessary to assess whether Pine Tree might adversely affect nocturnally migrating songbirds. The FEIR estimated that passerine mortality, including migrants, would be approximately 0 to 2 birds per turbine per year. This would not be considered a significant impact in relation to the total population of the various bird species found in the area. These determinations are based on the results of reconnaissance surveys of the Pine Tree site, Morrisons avian studies and published studies and reports concerning the effects of wind farms on avian life. CEQA does not compel respondents to conduct a focused study specifically designed to answer The Question simply because appellants and their expert, Hamilton, believe it would be useful. Irritated Residents, supra, 107 Cal.App.4th 1383 and Eureka, supra, 147 Cal.App.4th 357 are directly analogous and support this line of analysis and conclusion.

i. The relevant legal principles are well established.

Appellants challenge to the sufficiency of the avian studies is not a novel line of argument. CEQA Guidelines section 15144 provides: [d]rafting an EIR or preparing a negative declaration necessarily involves some degree of forecasting. While foreseeing the unforeseeable is not possible, an agency must use its best efforts to find out and disclose all that it reasonablycan. (Emphasis added.) CEQA Guidelines section 15145states: If, after thorough investigation, a lead agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact. (Emphasis added.) Citing these CEQA Guidelines, project opponents frequently argue that refusal to conduct a suggested test thwarts the information and disclosure provisions of CEQA and precludes a finding of substantial evidence supporting an EIRs conclusions. Two cases, Irritated Residents and Eureka, are directly on point to the issue presented herein; in neither of these cases did the court conclude that CEQAs informational mandate required performance of the additional test suggested by appellant.

In Irritated Residents, supra, 107 Cal.App.4th 1383, this court rejected a challenge to the sufficiency of an EIR for a large dairy. Appellants argued that the EIR failed to sufficiently analyze whether the dairy would cause an adverse impact on the kit fox. In their view, County of Madera was required to conduct a protocol level study following one of three specific methodologies. The absence of such a study was claimed to have rendered the EIR insufficient as an informational document. We disagreed. Qualified biologists performed a reconnaissance level survey and they did not detect quality natural habitat or any sign of kit fox. Query of a relevant database only revealed one kit fox sighting a decade earlier and over eight miles south of the dairy. Based on these facts, we concluded that further study of the topic was not required. We explained:

The County was not required to conduct a protocol level study merely because [appellant] requested it in its comment. CEQA does not require a lead agency to conduct every recommended test and perform all recommended research to evaluate the impacts of a proposed project. The fact that additional studies might be helpful does not mean that they are required. [Citations.] The agency has discretion to reject a proposal for additional testing or experimentation. [Citation.] The response to [appellants] comment adequately explains why a protocol level study in conformity with the survey guidelines was not conducted; no quality natural habitat was present on the site, no sensitive species or their sign was detected during the field survey and the [database] query showed only one kit fox sighting a decade ago and it was over eight miles south of the dairy site. For these many reasons, we conclude that appellants have not shown that CEQA required use of the survey guidelines in this instance. The biological report (which discusses the field survey, the NDDB query, and the conclusions [the biologist] reached from this data) constitutes substantial evidence supporting the determination reached in the FEIR and the finding adopted by the board that, as mitigated, the dairy will not significantly affect the kit fox. (Irritated Residents, supra, 107 Cal.App.4th at pp. 1396-1397, emphasis added.)

We also rejected the corollary contention that the absence of a protocol level study precluded a finding that there was substantial evidence supporting the determination that the dairy would not significantly adversely affect the kit fox, as follows:

Contrary to the assertion of appellants, an EIR need not include all information available on a subject. [Citation.] Although the biological resources section of the FEIR is brief, it contains sufficient information and analysis to enable the public to discern the analytic route the agency traveled from evidence to action. While there were differing opinions on the issue of whether the dairy would impact the kit fox and whether the mitigation measure would be effective, the board was entitled to choose to believe one side more than the other. [Citation.] Appellants disagree with the analysis and conclusions reached in the FEIR. Yet, this does not render the FEIR legally insufficient. (Irritated Residents, supra, 107 Cal.App.4th at pp. 1397-1398.)

Eureka, supra, 147 Cal.App.4th 357 is also instructive. There, appellants complained about the sufficiency of a noise study analyzing the effects of a project to build a playground. They argued that the study was flawed and technically incompetent and therefore did not provide a factual basis for the City of Eurekas finding that the noise levels generated by the playground would not cause a significant environmental effect. Appellants argued that the city should have been compelled to accept the competing noise study prepared by their expert. The appellate court rejected this claim. As relevant here, the court explained that [d]isagreements among experts do not make an EIR inadequate. [Citations.] (Id. at p. 371.) The court continued:

[O]ur Supreme Court has cautioned reviewing courts against performing our own scientific critiques of environmental studies, a task for which we have neither resources nor scientific expertise. [Citation.] Our duty is not to pass on the validity of the conclusions expressed in the EIR, but only on the sufficiency of the report as an informative document. The issue is not whether the studies are irrefutable or whether they could have been better. The relevant issue is only whether the studies are sufficiently credible to be considered as part of the total evidence that supports the findings. [Citation.] (Eureka, supra, 147 Cal.App.4th at p. 372, emphasis added.)

The city staff concluded that the engineering firms who prepared the conflicting reports both were well-respected and qualified. The study relied upon by the city to support its noise finding constitutes substantial evidence, despite the disagreement of appellants expert. (Id. at pp. 372-373.)

Irritated Residents and Eurekaestablishthe legal proposition that an EIR is not required to conduct every suggested test or field study. The relevant question for courts considering the sufficiency of an EIR is not whether every imaginable study or test has been conducted but whether the studies and tests that were conducted comply with CEQA Guidelines section 15144 and are sufficient to permit a reasoned and reasonable conclusion about the likely adverse environmental effects of a proposed project. Technical perfection is not required; we look not for an exhaustive analysis but for adequacy, completeness, and a good faith effort at full disclosure. (Eureka, supra, 147 Cal.App.4th at p. 372.) The disagreement of a competing expert with the conclusions reached in an EIR merely creates a factual conflict of fact to be resolved by the lead agency; it does not render an EIR inadequate. (Id. at p. 371.)^[13]

ii. The FEIRs conclusion that Pine Tree is not a flyover for migrating songbirds is based on adequate research and evaluation.

Having established the applicable legal precedents and principles of law, we turn to consideration of appellants contention that it cannot be determined whether songbirds will be adversely affected by the Pine Tree project in the absence of a nighttime survey specifically designed to assess if and when flocks of migrating songbirds fly over the Pine Tree site. We reject this contention because it ignores the substantial body of evidence on this topic that is contained in the FEIR. The FEIR made reasonable determinations about the possible effects of the Pine Tree project on avian life, including migrating songbirds. These determinations are based on the results of reconnaissance visits to the site, Morrisons avian surveys, information concerning the migratory patterns of birds entering Jawbone Canyon and published studies of other wind farms in the United States. After synthesizing this information, the FEIR concluded that it is unlikely that migrant passerines use the Pine Tree site for foraging or resting or as a migratory flyway. It also concluded that even if migrating songbirds fly over the project site, it is not likely that they will experience a biologically significant mortality rate. As we will explain, the FEIRs analysis of this topic constitutes a good faith effort at full disclosure and its conclusions are supported by substantial evidence.

The FEIR explained that the riparian portions of upper Jawbone Canyon and little Jawbone Canyon do not support a substantial number of migratory birds. Also, there was a low level of observed avian activity on the Pine Tree site during the spring months. Furthermore, migratory birds travel east of the Pine Tree site and they do not use the Pine Tree site for resting or foraging. In response to a comment letter, it was stated, Anecdotal information from the commenter and an unpublished report indicate that the localized spring migration in the area is from southeast to northwest and that the migration is captured in northwest-southeast trending canyons, such as the east portion of Jawbone Canyon. The Jawbone Canyon migration continues in a northwesterly direction up Alphie and Hoffman canyons through the topographic pinch point of Butterbredt Springs. This would take the localized migration well east of the proposed project property, which encompasses northeast-southwest trending portions of upper Jawbone Canyon. Even appellants expert, Hamilton, acknowledged that the FEIRs determination that most of the northbound migratory birds entering Jawbone Canyon would not fly over the project site makes intuitive sense, and could be correct.

Appellants contention that Morrisons avian studies are irrelevant because he was contractually retained to study raptors and bats is unpersuasive. Morrison was retained primarily to study raptors because the initial reconnaissance of the Pine Tree site did not indicate that migrating flocks of songbirds fly over the site in spring or that they use the site as a resting foraging area. Yet, Morrisons avian studies on the Pine Tree site accounted for all bird species, not just raptors. Although Morrisons avian studies were primarily designed to assess the possible effects of the Pine Tree project on raptors and bats, the information collected during these studies was useful in determining whether the project could adversely affect songbirds. The FEIR states that the duration and frequency of Morrisons avian studies was adequate to study songbirds.

Also, previous experience at other wind farms demonstrates that turbines pose a greater risk to raptors than they do to songbirds. Studying Wind Energy/Bird Interactions states that, Some species or species groups, such as raptors, have shown a greater tendency to collide with wind turbines than have other species, such as ravens . (NWCC, Studying Wind Energy/Bird Interactions, supra, p. 15.) A handbook entitled Permitting of Wind Energy Facilities, states, Although normally not the most abundant species, raptors appear to be at high risk relative to other types of birds at several sites under study. To date, most studies are not pointing to an issue with migrant songbirds. (NWCC, Permitting of Wind Energy Facilities: A Handbook (Aug. 2002) p. 26, emphasis added (Permitting of Wind Energy Facilities).)

Appellants contend that passerines are undercounted in published studies because they often result in nothing more than feather spots. However, this is simply a dispute about the methodology used in these studies and in Morrisons avian surveys. The FEIR states, Scavenging is accounted for in all appropriately designed fatality surveys (as it was in the Tehachapi study). Disputes such as appellants challenge to the accuracy of passerine mortality counts are subject to the substantial evidence standard. When the evidence on an issue conflicts, the decisionmaker is permitted to give more weight to some of the evidence and to favor the opinions and estimates of some of the experts over the others. [Citation.] (Irritated Residents, supra, 107 Cal.App.4th at p. 1397.) The Board was entitled to rely on Morrisons conclusions that the published surveys accurately accounted for passerine fatalities and that his avian studies were of sufficient frequency and duration to assess potential songbird presence at the Pine Tree site.

iii. The FEIRs conclusion that passerines migrating over wind farms such as Pine Tree do not experience a biologically significant mortality rate is supported by avian mortality research and published studies.

Studies of avian behavior and mortality at other wind farms and WRAs are important anecdotal evidence and may be relied upon in making deductions concerning the likely effects of a proposed project. (BCLC, supra, 124 Cal.App.4th at p. 1210.) Studies concerning the effects of existing wind farms on avian life do not support appellants assumption that songbirds passing over a wind farm or through a WRA experience a biologically significant mortality rate. They do not reveal a statistically significant mortality rate for migrating songbirds and they support the FEIRs determination that passerines are not likely to experience a significant level of mortality due to the Pine Tree project (2 passerine deaths per turbine per year).

First, the FEIR states that migrating songbirds typically fly at an altitude above the top of the turbine blades in most locations. This assertion is supported by the technical documents and studies contained in the administrative record. In Permitting of Wind Energy Facilities, the NWCC wrote, Even migrating songbirds fly at an altitude of 500 to 1,000 feet (150-300m), well above the top of turbine blades in most locations. Therefore, collisions with wind turbines during actual migratory flights should be, and appear in actuality to be, rare. (NWCC, Permitting of Wind Energy Facilities, supra, p. 25.)

Second, only two significant passerine strikes have been recorded at existing wind farms. Both of these strikes appear to have resulted from the use of sodium vapor lights and neither occurred at West Coast wind farms. A study prepared by the National Renewable Energy Laboratory (NREL), which is operated for the U.S. Department of Energy, entitled Avian Monitoring and Risk Assessment at the Tehachapi Pass Wind Research Area, explained:

While there have been numerous single fatality events recorded at communication structures that document several hundred avian fatalities in one night, there have been only two events reported, both reasonably small, at U.S. wind generation facilities. Fourteen nocturnal migrating passerines were found dead at two turbines during a single night at the Buffalo Ridge, Minnesota, Windplant during spring migration. Approximately 25-30 nocturnal migrating passerines were observed at three turbines and a lighted substation at the Backbone Mountain, West Virginia, facility following one or two nights of foggy weather. Strong evidence suggests the sodium vapor lamps at the substation were the primary attractant, and few migrant fatalities were found after the lights on the substation were turned off. (Anderson et. al, Avian Monitoring and Risk Assessment at the Tehachapi Pass Wind Resource Area, NREL (Sept. 2004) p. 24.)

An article entitled Avian Collisions with Wind Turbines: A Summary of Existing Studies and Comparisons to Other Sources of Avian Collision Mortality in the United States reviewed existing mortality studies and concluded, [A]lthough some nocturnal migrants have been killed by wind turbines, we believe large mortality events at windplants are unlikely. (Erickson et. al, Avian Collisions with Wind Turbines: A Summary of Existing Studies and Comparisons to Other Sources of Avian Collision Mortality in the United States, NWCC (Aug. 2001) p. 15, emphasis added.)

Morrisons Pine Tree Avian Assessment summarizes the results of these existing studies. In this assessment, Morrison also wrote that three seasons of nocturnal radar surveys were conducted at two wind plants in Washington and Oregon. The results of these surveys provid[es] some evidence that mortality relative to passage rates is very low.

The turbines and electrical transmission towers at Pine Tree will not be lit, except where lighting is required by the FAA. Where the FAA requires lighting, it will be placed on towers with the least potential to attract birds but consistent with FAA lighting requirements. Also, appellants do not point out any topographical features at the Pine Tree site that could increase the expected passerine mortality rate. There is no indication in the administrative record that the flocks of songbirds appellants speculate nocturnally migrate over the Pine Tree site travel at an unusually low altitude. Although appellants argue that the WRA at issue here is dissimilar to other WRAs such as the Altamont WRA, they point to no existing research or studies concluding that n