Friends of the Kings River v. County of Fresno , 232 Cal. App. 4th 105 ( 2014 )

Filed 12/8/14
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
FRIENDS OF THE KINGS RIVER,
F068818
Plaintiff and Appellant,
v. (Super. Ct. No. 12CECG03730)
COUNTY OF FRESNO et al.,
Defendants and Respondents; OPINION
COLONY LAND COMPANY, L.P. et al.
Real Parties in Interest and Respondents.
APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y.
Hamilton, Jr., Judge.
Law Offices of Donald B. Mooney, Donald B. Mooney and Marsha A. Burch for
Plaintiff and Appellant.
Daniel C. Cederborg, County Counsel, and Bruce B. Johnson, Deputy County
Counsel for Defendants and Respondents County of Fresno and Fresno County Board of
Supervisors.
Mitchell L. Chadwick, Patrick W. Mitchell, Andrew M. Skanchy for Real Parties
in Interest and Respondents Colony Land Company, L.P. and Carmelita Resources, LLC.
-ooOoo-
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication as to the Introduction, Facts and Procedural History, parts II. and IV.E.
of the Discussion, and the Disposition.
INTRODUCTION
This case involves the Carmelita Mine and Reclamation Project (the Project), a
proposed aggregate mine and related processing plants to be operated on a 1,500-acre site
at the base of the Sierra Nevada foothills near the towns of Sanger and Reedley. The
Project includes, as required for every new surface mining operation, a reclamation plan
that specifies how the land will be treated to provide a usable postmining site. Fresno
County (County) prepared an environmental impact report (EIR) for the Project, and
County’s board of supervisors (the Board) certified the EIR.
An organization called Friends of the Kings River (petitioner or Friends) pursued
an appeal of County’s approval of the Project with the State Mining and Geology Board
(the SMGB). The SMGB granted Friends’ appeal and remanded the reclamation plan to
County for reconsideration. County approved a revised reclamation plan, and Friends
appealed to the SMGB again. In Friends’ second appeal, the SMGB upheld County’s
decision to approve the Project.
While its first SMGB appeal was pending, Friends initiated the case before us by
petitioning the trial court for writ of mandate. In its petition, Friends asserted a single
cause of action alleging abuse of discretion under the California Environmental Quality
Act (Pub. Resources Code, § 21000 et seq.; CEQA).1 The trial court denied the petition.
In this appeal, petitioner contends the trial court erred by ruling on the petition at a
time when “[j]udicial review of the Project approval was not ripe” because the SMGB
had granted its first appeal. Alternatively, petitioner contends County failed to proceed in
a manner required by law by approving the EIR at a time when the reclamation plan was
invalid.
Petitioner also raises numerous challenges to the adequacy of the EIR under
CEQA. It argues the project description is inadequate, certain conclusions regarding
1 Subsequent statutory references are to the Public Resources Code unless otherwise noted.
2.
water issues lack substantial evidence, County should have required the acquisition of
agricultural conservation easements as a mitigation measure for the loss of farmland
resulting from the Project, the EIR’s discussion of potential impacts to air quality,
hydrology and noise are inadequate, and the final EIR contains significant new
information and erroneous conclusions. Finally, petitioner contends no substantial
evidence supports the required findings for a conditional use permit.
We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The Project
In June 2010, Colony Land Company, L.P. (the applicant), applied to the Fresno
County Department of Public Works and Planning (the public works department) for a
conditional use permit (CUP), site plan review/occupancy permit, and reclamation plan
for an aggregate mine and related processing, asphalt, ready mix concrete, and recycling
plants to be operated by Carmelita Resources, LLC.2 The applicant proposed an
aggregate production rate of 1.25 million tons per year and an operating life of up to 100
years.
The proposed location for the Project is a 1,500-acre site south of State Route 180,
east of the Kings River, west of Reed Avenue, and approximately 15 miles east of the
city of Fresno. The Project site is on a flat terrace of former river deposits and is
currently used for growing row crops and stone fruit trees. Large and small farms with
grape, tree fruit, walnut, open pasture, and rural homesites surround the Project site.
Area-wide development includes rural farming, limited commercial and municipal
facilities, and residential subdivisions associated with the towns of Sanger and Reedley.
In the vicinity, there are aggregate production operations to the northwest and southwest.
2 The applicant and Carmelita Resources, LLC, together are the real parties in interest in
this case.
3.
Another mining and reclamation project has been proposed to the northeast. Reedley
Airport is southeast of the Project site.
In 1986, California classified the area as a Mineral Resource Zone 2, which means
adequate information indicates that significant mineral deposits are present or there is a
high likelihood for their presence. In 1988, California designated the Project site as
having construction-grade aggregate deposits of regional significance.
The proposed aggregate production operation would eventually occupy 898 acres
of the site. The remaining 602 acres would continue to support tree fruit production; 850
acres would be divided into 22 individual mining cells of approximately 40 acres. Each
cell would be mined to a depth of 50 feet below ground surface with slopes of 2:1
(horizontal:vertical) (h:v). The average cell is estimated to contain approximately 2.69
million cubic yards of material, resulting in an approximate total of 100 million tons of
marketable aggregate and 25 million tons of overburden and soils. Mining cell
development would involve cell-by-cell mining and reclamation operations. According
to the operational statement provided with the Project application, the operations would
be typical of sand and gravel extraction, with conventional mining practices common to
the industry. Soils and overburden would be removed and the underlying aggregate
reserves would be excavated and transported to an on-site rock processing plant for
washing and sizing. Materials would be sold as washed aggregates or used to make
products including asphaltic concrete and Portland cement concrete at on-site plants.
Access to the Project site would be from Reed Avenue.
The Project application included a reclamation plan intended to address the
requirements of the Surface Mining and Reclamation Act of 1975 (§ 2710 et seq.;
SMARA) and associated state regulations, as well as County’s reclamation standards.
The reclamation plan provided that all available overburden and soils would be used to
recreate agricultural soils for continued production of tree crops. Remaining areas would
be covered with water at varying elevations and would be used for irrigation and potential
4.
future water storage for irrigation. It was anticipated that 25 percent of the mined areas
would be reclaimed to agricultural land and the remaining mined areas would be
agricultural water ponds (also referred to as pits or basins).
Subsequent revised versions of the reclamation plan were prepared in May 2012
and August 2012.
Preparation and certification of the EIR, denial of Friends’ administrative appeal
In August 2010, County issued a notice of preparation of a draft EIR (DEIR) for
the Project. In October 2011, County made the DEIR available for public review and
comment. A 45-day review and comment period began on October 7 and ended on
November 21, 2011.
In May 2012, County circulated the final EIR (FEIR). The FEIR consisted of the
DEIR, revisions and corrections to the DEIR, comments received on the DEIR, a list of
persons, organizations and public agencies that commented on the DEIR, responses to the
comments, and other information added by County.3 In July 2012, County gave notice of
a public hearing on the Project. On August 9, 2012, the County planning commission
held a public hearing on the Project and passed a resolution certifying the FEIR. The
planning commission found that certain significant environmental effects could not be
mitigated to insignificant levels and adopted a statement of overriding considerations.
The significant environmental effects related to the conversion of farmland, air pollutant
emissions, odors, and traffic.
Friends appealed the planning commission’s approval of the Project to the Board.
On October 16, 2012, the Board considered and rejected petitioner’s appeal. The Board
3 Because the FEIR includes all of the reports, revisions, and other information that
constitute the EIR, the terms “FEIR” and “EIR” may be considered synonymous. Generally, we
use the term FEIR when we are considering information added after the circulation of the DEIR,
such as the responses to public comments and revisions to the DEIR, and we use the term EIR
when we are discussing the document as a whole.
5.
passed a resolution finding that the FEIR had been completed and processed in
compliance with CEQA and certifying the FEIR. The Board adopted findings set forth in
a 58-page document titled “CEQA FINDINGS OF FACT AND STATEMENT OF OVERRIDING
CONSIDERATIONS,” which was attached to the resolution, and found that the
“MITIGATION MONITORING AND REPORTING PROGRAM” (MMRP) (also attached to the
resolution and incorporated by reference) was “adequate with respect to those mitigation
measures imposed on the project.”
Friends’ appeal to the State Mining and Geology Board
On October 30, 2012, petitioner submitted a designation appeal4 of the Board’s
decision to the SMGB, alleging that the reclamation plan was in conflict with various
requirements of SMARA.
On March 14, 2013, the SMGB held a public hearing on the Project and granted
petitioner’s designation appeal. In a letter dated March 19, 2013, the SMGB’s executive
officer wrote, “[T]he SMGB granted the appeal, denied the County’s approval of the
reclamation plan on procedural grounds, and remanded the reclamation plan back to the
County for approval consideration upon completion of the reclamation plan.”5
4 The SMGB and the parties refer to an appeal to the SMGB as a “designation appeal,” and
we will sometimes use the phrase as well.
5 The appellate record also includes a staff report to the SMGB on the appeal. The report
offered three suggested findings: (1) County did not have available water balance analysis or
slope stability analysis to address the potential instability of the proposed 2:1 slopes of the
proposed water basins at the time County approved the reclamation plan and CUP; (2) the Office
of Mine Reclamation (OMR) previously informed County that the reclamation plan would not be
deemed complete until three conditions were adequately addressed, County agreed to address the
three conditions in the reclamation plan, but it later approved the reclamation plan without
incorporating responses to the OMR-suggested conditions into the plan; and (3) “Due to
uncertainties associated with the water balance calculations and related slope stability issues, as
well as whether the proposed mined lands can be reclaimed to a useable [sic] condition which is
readily adaptable for alternative land uses pursuant to … Section 2712[, subdivision ](a), and
because the County may address those issues upon remand to allow it to complete its
determination of the reclamation plan at issue, it is apparent that such remand is appropriate.”
6.
County approval of revised reclamation plan, second appeal to the SMGB
In response to the SMGB’s decision remanding the reclamation plan, the Board
reconsidered the reclamation plan for the Project at a public meeting on July 9, 2013.
The public works department prepared an addendum to the FEIR. County staff member
Augustine Ramirez told the Board that the reclamation plan had been revised to include
an engineered grading and drainage plan and a postmining water balance.6 Ramirez
stated that the revisions did “not change the information analysis or conclusions of the
EIR” that the Board already certified, and he recommended the Board approve the
revised reclamation plan. On August 6, 2013, the Board passed a resolution in which it
found that the revised reclamation plan “provides for a post-mining usable condition of
the site, in compliance with SMARA” and approved the addendum to the FEIR and
revised reclamation plan for the Project.
On August 9, 2013, Friends submitted a second designation appeal to the SMGB,
appealing the Board’s approval of the revised reclamation plan. On November 14, 2013,
the SMGB held a public hearing on Friends’ second appeal. The SMGB determined that
County’s decision was supported by substantial evidence and upheld County’s decision
to approve a permit and reclamation plan for the Project.
Current writ petition
On November 20, 2012, while its first SMGB designation appeal was pending,
Friends filed a petition for writ of mandate against County and the Board (respondents)
challenging the certification of the EIR. Petitioner alleged that the EIR “fails to
adequately disclose, analyze and/or mitigate the Project’s environmental impacts as
required by law” and “its conclusions regarding the Project’s environmental impacts are
These findings were not included in the SMGB’s letter of March 19, 2013, and nothing in the
appellate record indicates whether these findings were adopted by the SMGB.
6 The revised reclamation plan and addendum to the FEIR are not in the administrative
record and are not part of the record on appeal.
7.
not supported by substantial evidence.” Petitioner alleged respondents violated CEQA by
approving the Project because it conflicts with County’s general plan.
Petitioner further alleged that the reclamation plan for the Project did not meet the
requirements of SMARA and that it had submitted a designation appeal to the SMGB.
Petitioner further alleged it “will amend this Petition to include allegations of SMARA
violation in the event the appeal is denied.”
After the SMGB granted its first designation appeal, Friends argued to the trial
court that the SMGB’s decision “invalidated” the reclamation plan for the Project and as
result, “there is no valid Project approval to be considered by this Court.” Respondents
and the real parties in interest took the position that the SMGB’s decision was irrelevant
to the issue whether County abused its discretion in certifying the EIR.7
On August 23, 2013, the trial court held a hearing on the petition and took the
matter under submission. (The record on appeal does not include a transcript of the
hearing.) On November 14, 2013, the trial court issued an order denying the petition for
writ of mandate.
Friends filed a notice of appeal on January 10, 2014.
Subsequent writ petition
On August 21, 2013, Friends filed a second petition for writ of mandate against
respondents, in which it challenged the Board’s decision of August 8, 2013, approving
the revised reclamation plan for the Project.
7 The trial court was kept informed of the progress of the designation appeals. In April
2013, Friends filed a request for judicial notice, asking the trial court to take judicial notice of
documents related to the SMGB’s decision in its first designation appeal. Although respondents
and the real parties in interest opposed this request, after the Board approved the revised
reclamation plan in August 2013, they joined petitioner’s request that the trial court take judicial
notice of the Board’s resolution and meeting transcript. Petitioner later informed the court that it
was filing a second SMGB appeal. Subsequently, the parties filed another joint request for
judicial notice after the SMGB upheld the County’s approval of the revised reclamation plan.
8.
DISCUSSION
I. The trial court did not err by ruling on the writ petition⃰
Petitioner’s first contention is that the trial court erred by reviewing the adequacy
of the EIR at a time when the reclamation plan “had been nullified by the SMGB.” It
argues that “[j]udicial review of the Project approval was not ripe” because the
reclamation plan, which was “an essential element of the CUP,” had been “set aside and
was of no effect.”
Respondents and the real parties in interest respond that petitioner’s CEQA cause
of action was ripe when petitioner filed the petition and evidence of the SMGB appeal
was inappropriate extra-record evidence that had no impact on the justiciability of the
petition.8 We conclude the trial court did not err by deciding Friends’ writ petition.
Ripeness is a question of law that we review de novo on appeal. (Wilson &
Wilson v. City Council of Redwood City (2011) 191 Cal. App. 4th 1559, 1582 (Wilson &
Wilson) see Steinberg v. Chiang (2014) 223 Cal. App. 4th 338, 343 [whether probable
future dispute over legal rights between parties is sufficiently ripe to be an actual
controversy for which declaratory relief is available is question of law].)
“[A] basic prerequisite to judicial review of administrative acts is the existence of
a ripe controversy.” (Pacific Legal Foundation v. California Coastal Com. (1982) 33
Cal. 3d 158, 169 (Pacific Legal).) “The ripeness requirement, a branch of the doctrine of
justiciability, prevents courts from issuing purely advisory opinions. [Citation.] It is
rooted in the fundamental concept that the proper role of the judiciary does not extend to
the resolution of abstract differences of legal opinion.… [T]he ripeness doctrine is
⃰ See footnote, ante, page 1.
8 They also note that lack of a ripe controversy is usually raised by a defendant trying to
defeat a lawsuit, not by the party who initiates the lawsuit, since a plaintiff or petitioner may
simply dismiss the lawsuit voluntarily if he or she realizes the controversy is not ripe. (Code
Civ. Proc., § 581, subds. (b)(1), (c).)
9.
primarily bottomed on the recognition that judicial decisionmaking is best conducted in
the context of an actual set of facts so that the issues will be framed with sufficient
definiteness to enable the court to make a decree finally disposing of the controversy.”
(Id. at p. 170.) “‘The controversy must be definite and concrete, touching the legal
relations of parties having adverse legal interests. [Citation.] It must be a real and
substantial controversy admitting of specific relief through a decree of a conclusive
character, as distinguished from an opinion advising what the law would be upon a
hypothetical set of facts.’” (Id. at pp. 170-171, quoting Aetna Life Ins. Co. v. Haworth
(1937) 300 U.S. 227, 240-241.)
Here, Friends challenged the certification of the EIR and the approval of the
Project. This is a real and substantial controversy, not a hypothetical situation. In the
petition’s prayer for relief, Friends sought, among other things, a “peremptory writ of
mandate directing Respondents to vacate and set aside the certification of the EIR
prepared for the Project on the ground that it violates [CEQA].” This is “‘specific relief
through a decree of a conclusive character,’” not an advisory legal opinion. (Pacific
Legal, supra, 33 Cal.3d at p. 171.) Thus, a ripe controversy existed at the time petitioner
filed its petition.
Respondents and real parties in interest point out that a dispute that is ripe at the
inception of a lawsuit cannot become unripe based on subsequent events, although it may
become moot. “‘A controversy is “ripe” when it has reached, but has not passed, the
point that the facts have sufficiently congealed to permit an intelligent and useful
decision to be made.’ [Citation.] But ‘ripeness is not a static state’ [citation], and a case
that presents a true controversy at its inception becomes moot ‘“if before decision it has,
through act of the parties or other cause, occurring after the commencement of the action,
lost that essential character.”’ [Citation.]” (Wilson & Wilson, supra, 191 Cal.App.4th at
p. 1573.) Petitioner replies that “issues surrounding the validity of the approval(s) and
the sufficiency of the environmental review were either moot or unripe with respect to the
10.
invalidated Reclamation Plan.” We conclude the case was neither unripe nor moot. “The
pivotal question in determining if a case is moot is … whether the court can grant the
plaintiff any effectual relief.” (Id. at p. 1574.) In this case, the trial court could have
granted petitioner effectual relief. Had the court found in petitioner’s favor, it could have
set aside the certification of the EIR. Accordingly, the lawsuit was not moot at the time
the trial court ruled.
At this point, we observe that Friends’ position is somewhat curious. If it is
correct that the issues raised in its writ petition were moot at the time the trial court ruled,
then the appropriate result would have been dismissal of its lawsuit. (Wilson & Wilson,
supra, 191 Cal.App.4th at p. 1574 [“When events render a case moot, the court, whether
trial or appellate should generally dismiss it.”].) Likewise, if its CEQA cause of action
was not ripe, the trial court should have denied relief. (Wilson & Wilson, supra, at
p. 1575; see Pacific Legal, supra, 33 Cal.3d at pp. 163, 174.)
On appeal, petitioner does not suggest the trial court should have dismissed the
writ petition because it was unripe or moot. Instead, it asserts that the trial court’s review
of the EIR should not have occurred until after the revised reclamation plan was adopted.
Petitioner, however, does not claim that a completed SMGB appeal process was an
administrative prerequisite to the trial court’s review of the EIR for compliance with
CEQA.9 To the extent petitioner argues that the trial court was required to abstain from
considering its CEQA lawsuit while petitioner pursued separate SMARA claims with the
SMGB, petitioner offers no authority for this proposition, and we reject it.
At trial, Friends did not claim that the court should stay or continue the case until
the SMGB appeal process was concluded. In its opening brief to the trial court, Friends
9 To the contrary, in the writ petition Friends alleged it “performed any and all conditions
precedent to filing the instant action and … exhausted any and all available administrative
remedies to the extent required by law.”
11.
told the court about its successful first appeal to the SMGB and argued that, since the
reclamation plan had been “set aside” by the SMGB, the trial court should also set aside
the CUP approval. It appears that Friends’ position is not that the trial court had no
authority to rule on its writ petition but, rather, that the trial court was required to find
that County’s approval of the reclamation plan for the Project had been invalidated by the
SMGB’s action and this, in turn, rendered the EIR inadequate. On appeal, petitioner
continues to assert that the reclamation plan was “nullified,” “invalidated,” and “set
aside” by the SMGB. Accordingly, we consider what effect, if any, the SMGB’s decision
on Friends’ first designation appeal had on County’s approval of the reclamation plan and
certification of the EIR.
II. The successful SMGB appeal did not set aside County’s approval of the
reclamation plan or nullify the certification of the EIR
A. Statutory framework of SMARA
“SMARA was enacted by the Legislature in recognition that ‘the extraction of
minerals is essential to the continued economic well-being of the state and to the needs of
the society, and that the reclamation of mined lands is necessary to prevent or minimize
adverse effects on the environment and to protect the public health and safety.’ (§ 2711,
subd. (a).)” (Mineral Associations Coalition v. State Mining & Geology Bd. (2006) 138
Cal. App. 4th 574, 580.)
“A reclamation plan under SMARA is a written plan specifying how mined land
will be treated so as to minimize the environmental impacts of mining and render a mined
site usable in the future for alternative purposes. (See § 2733.) Financial assurances are
a mine operator’s pledges of funds sufficient to perform reclamation in accordance with
an approved reclamation plan. (§ 2773.1, subd. (a)(1).” (People ex rel. Dept. of
Conservation v. El Dorado County (2005) 36 Cal. 4th 971, 981 (El Dorado County).)
“‘At the heart of SMARA is the requirement that every surface mining operation have a
12.
permit, a reclamation plan, and financial assurances. (§ 2770, subd. (a).)’” (Id. at
p. 984.)
SMARA provides for “‘“home rule,”’” with the local lead agency (in this case,
County) having primary responsibility for enforcing the law’s requirements. (El Dorado
County, supra, 36 Cal.4th at p. 984; §§ 2728, 2774.1, subd. (f).) “‘Prior to approving
reclamation plans and financial assurances, the lead agency submits the proposals and all
supporting documentation, including information from any document prepared, adopted
or certified pursuant to CEQA, to the Director [of the Department of Conservation] for
review. (§ 2774, subd. (c).) The Director then may prepare written comments, if he
chooses, within 30 days for reclamation plans and 45 days for financial assurances.
(§ 2774, subd. (d)(1).) The lead agency shall prepare written responses to the Director’s
comments, describing disposition of the major issues raised. In particular, the lead
agency shall explain in detail why any specific comments and suggestions were not
accepted. (§ 2774, subd. (d)(2).) Thus, although the lead agency must evaluate and
respond to the Director’s comments, it need not always accept them.’” (El Dorado
County, supra, at pp. 984-985.)
The SMGB is authorized to hear appeals by “any person who is aggrieved by the
granting of a permit to conduct surface mining operations in an area of statewide or
regional significance.” (§ 2775, subd. (a).) In deciding a designation appeal, the SMGB
“shall not exercise its independent judgment on the evidence but shall only determine
whether the decision of the lead agency is supported by substantial evidence in the light
of the whole record.” (Id., subd. (c).) If the SMGB determines that a lead agency’s
decision is not supported by substantial evidence, the SMGB “shall remand the appeal to
the lead agency and the lead agency shall schedule a public hearing to reconsider its
action.” (Ibid.)
13.
In addition, the SMGB has authority to step in and take over as the lead agency if
it finds that the local lead agency has failed to meet its enforcement obligations under
SMARA. (El Dorado County, supra, 36 Cal.4th at pp. 985-986; § 2774.4.)10
B. Analysis
The SMGB wrote that it “granted [petitioner’s] appeal, denied the County’s
approval of the reclamation plan on procedural grounds, and remanded the reclamation
plan back to the County for approval consideration upon completion of the reclamation
plan.” The SMGB did not make a determination that the reclamation plan for the Project
was not supported by substantial evidence but found that it was not complete for SMARA
purposes.
Respondents and real parties in interest argue that a remand by the SMGB “has no
impact on the validity of an approved reclamation plan, but merely informs the lead
agency about the SMGB’s position and requires the lead agency to consider the plan
again in light of the SMGB’s concerns.” For the reasons explained below, we agree.
“[A]dministrative agencies have only such powers as have been conferred on
them, expressly or by implication, by constitution or statute.” (Ferdig v. State Personnel
Bd. (1969) 71 Cal. 2d 96, 103.) “‘[A]n agency literally has no power to act … unless and
until [the Legislature] confers power upon it.’ [Citation.]” (Security National Guaranty,
Inc. v. California Coastal Com. (2008) 159 Cal. App. 4th 402, 419.) “That an agency has
10 “‘Where the lead agency fails to fulfill its duties under SMARA, the [SMGB] may take
over the powers of a lead agency, except for permitting authority. The [SMGB] may step in if it
finds that a lead agency has: (1) approved reclamation plans and financial assurances that are not
consistent with SMARA; (2) failed to inspect mines as required by SMARA; (3) failed to seek
forfeiture of financial assurances to carry out reclamation; (4) failed to take appropriate
enforcement actions; (5) intentionally misrepresented the results of inspections; or (6) failed to
submit the required information to the Department [of Conservation]. (§ 2774, subd. (a).)’” (El
Dorado County, supra, 36 Cal.4th at p. 985.)
14.
been granted some authority to act within a given area does not mean that it enjoys
plenary authority to act in that area.” (Ibid.)
In this case, the agency at issue, the SMGB, has not been granted authority to set
aside or nullify a lead agency’s approval of a project or a reclamation plan. The only
remedy available for a successful appeal to the SMGB is remand to the lead agency for
reconsideration. (§ 2775, subd. (c).) When the SMGB determines that a lead agency’s
decision is not supported by substantial evidence, the lead agency must hold a public
hearing and reconsider its action, but section 2775 does not require the lead agency to set
aside its prior decision. Although the SMGB wrote that it “denied the County’s approval
of the reclamation plan,” the SMGB had no power to deny the approval of the
reclamation plan. It is the local lead agency that is responsible for approving reclamation
plans. (§ 2728.) This does not mean the SMGB is powerless to enforce SMARA. As we
have described, the SMGB may step in and take over as the lead agency if it finds the
local lead agency is not enforcing SMARA adequately.11 (El Dorado County, supra, 36
Cal.4th at pp. 985-986.) That has not happened in this case, however, and County is the
lead agency for SMARA and CEQA purposes. (§§ 2728, 21067; see Nelson v. County of
Kern (2010) 190 Cal. App. 4th 252, 268-269 [county in which proposed surface mining
operation was located was lead agency under SMARA and CEQA].)
In support of its assertion that the SMGB’s remand rendered the reclamation plan
“set aside” and “of no effect,” petitioner cites County of Amador v. El Dorado County
Water Agency (1999) 76 Cal. App. 4th 931 (County of Amador). Petitioner’s reliance on
County of Amador is misplaced.
11 In addition, where a local lead agency approves an allegedly inadequate reclamation plan,
the Director of the Department of Conservation may petition for writ of mandate to seek judicial
review of the local lead agency’s approval of the plan. (El Dorado County, supra, 36 Cal.4th at
pp. 992-994.)
15.
In County of Amador, a water agency and an irrigation district certified an EIR for
a water project. After the trial court issued a writ of mandate setting aside the approval of
the EIR, the agencies appealed, arguing that subsequent action by the State Water
Resources Control Board (SWRCB) mooted the trial court’s concerns. (County of
Amador, supra, 76 Cal.App.4th at pp. 940-941.) The trial court had ruled that the EIR
did not adequately assess the project’s impacts on fishery resources and lake levels. On
appeal, the agencies asserted the SWRCB later provided the requisite analysis and
mitigation measures by imposing conditions in its own decision, D-1635. The SWRCB,
however, subsequently ordered reconsideration of D-1635. The Court of Appeal rejected
the agencies’ claim that D-1635 could be relied upon to remedy deficiencies in the EIR.
In doing so, the court observed, “Because reconsideration has been granted, D-1635 is of
no effect. It therefore cannot be deemed to ‘moot’ anything.” (Id. at p. 949.) County of
Amador does not support the proposition that the SMGB’s remand had the effect of
setting aside the reclamation plan or nullifying County’s certification of the EIR in this
case. County of Amador did not concern the issue whether the SMGB has the authority
to set aside another agency’s approval decision, and a case is not authority for points not
decided or considered. (People v. Knoller (2007) 41 Cal. 4th 139, 154-155.)
Furthermore, the agency in County of Amador, the SWRCB, was reconsidering its own
decision and it had the authority to reverse itself. (See Wat. Code, § 1123.) Here, in
contrast, the SMGB reviewed and remanded County’s decision, and as we have
discussed, the SMGB has no statutory authority to set aside a local lead agency’s
approval of a reclamation plan.
In summary, the SMGB did not have authority to set aside County’s approval of
the reclamation plan for the Project. As a consequence, its decision granting Friends’
first designation appeal had no effect on County’s certification of the EIR and approval of
the Project.
16.
This means that Friends’ arguments premised on the theory that the SMGB set
aside or invalidated County’s approval of the reclamation plan are also unavailing.
Petitioner contends County failed to proceed in a manner required by law because it
failed to comply with a County ordinance that requires there be a reclamation plan in
order to approve a CUP application for a surface mining operation. Petitioner asserts:
“The CUP approval was no longer valid as a result of the SMGB remand of the
Reclamation Plan because the necessary findings could not be made at the time of Project
approval. At the time the trial court reviewed the ‘Project’ and its associated EIR, there
was no valid Reclamation Plan in place.” Because the SMGB did not set aside or
invalidate the reclamation plan approved by County, this argument fails.
Having concluded that the SMGB’s first designation appeal decision did not
render Friends’ petition unripe or moot and did not invalidate County’s approval of the
reclamation plan, we agree with respondents and real parties in interest that evidence of
the SMGB proceedings—which occurred after County certified the EIR—is not
admissible in our consideration of CEQA issues. (Western States Petroleum Assn. v.
Superior Court (1995) 9 Cal. 4th 559, 576 [“extra-record evidence is generally not
admissible in traditional mandamus actions challenging quasi-legislative administrative
decisions on the ground that the agency ‘has not proceeded in a manner required by law’
within the meaning of … section 21168.5”].)
III. Friends may not raise a SMARA claim for the first time on appeal⃰
Petitioner next contends that County failed to proceed in a manner required by law
because County improperly avoided SMARA requirements. Specifically, it argues that
the reclamation plan approved by County in October 2012 lacks (1) an engineered
grading and drainage plan and (2) a postmining calculated water balance. Friends,
⃰ See footnote, ante, page 1.
17.
however, did not assert a cause of action for alleged violations of SMARA in its writ
petition. Petitioner did refer to SMARA and its pending designation appeal, alleging:
“The Reclamation Plan is inconsistent with the requirements of SMARA. Friends has
appealed the Reclamation Plan approval to the State Mining and Geology Board under …
section 2775, and will amend this Petition to include allegations of SMARA violation in
the event the appeal is denied.” Thus, petitioner pointedly did not seek relief from the
trial court for alleged violations of SMARA. Although petitioner indicated it might later
amend its pleadings to add a cause of action under SMARA, nothing in the record
suggests it ever did so.
To the extent petitioner now asks this court to reverse the trial court’s judgment
based on alleged violations of SMARA distinct from any alleged violation of CEQA, it
may not raise this new claim for the first time on appeal. (Habitat Trust for Wildlife, Inc.
v. City of Rancho Cucamonga (2009) 175 Cal. App. 4th 1306, 1325 [“‘“A party is not
permitted to change his position and adopt a new and different theory on appeal.”’”].)
On the other hand, Friends’ contention that the reclamation plan is incomplete and
resulted in an inadequate CEQA analysis is properly before us. The reclamation plan is
part of the Project as a whole and is reviewable together with the rest of the EIR for
compliance with CEQA. (See Nelson v. County of Kern, supra, 190 Cal.App.4th at
p. 272 [for proposed surface mining operation, “project” for CEQA purposes included
both mining operations and reclamation plan].) As will be seen, petitioner relies on the
argument that the reclamation plan is missing essential elements to support various
challenges to the adequacy of the EIR, and we address this argument in our discussion of
CEQA issues.
18.
IV. Friends’ challenges to the Project under CEQA⃰
Petitioner contends the EIR for the Project fails to comply with CEQA for several
reasons. It argues the project description is inadequate; there is no support for the
conclusion the Project will not impact groundwater supplies and adjacent riparian
vegetation; mitigation is required for the conversion of farmland; the analyses of air
quality, hydrology, and noise are inadequate; and the FEIR contains significant new
information and erroneous conclusions.
We begin our discussion with a brief overview of CEQA.
A. CEQA⃰
“With narrow exceptions, CEQA requires an EIR whenever a public agency
proposes to approve or to carry out a project[12] that may have a significant effect on the
environment. [Citations.] … ‘“Significant effect on the environment” means a
substantial, or potentially substantial, adverse change in the environment.’ [Citations.]
The Legislature has made clear that an EIR is ‘an informational document’ and that ‘[t]he
purpose of an environmental impact report is to provide public agencies and the public in
general with detailed information about the effect which a proposed project is likely to
have on the environment; to list ways in which the significant effects of such a project
might be minimized; and to indicate alternatives to such a project.’ [Citations.]” (Laurel
Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal. 3d 376,
390-391, fns. omitted (Laurel Heights I).)
“An adequate EIR must be ‘prepared with a sufficient degree of analysis to
provide decisionmakers with information which enables them to make a decision which
⃰ See footnote, ante, page 1.
⃰ See footnote, ante, page 1.
12 The parties do not dispute that the Project qualifies as a “project” for CEQA purposes.
19.
intelligently takes account of environmental consequences.’ (Guidelines, § 15151.)[13] It
‘must include detail sufficient to enable those who did not participate in its preparation to
understand and to consider meaningfully the issues raised by the proposed project.’
[Citation.]” (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal. App. 4th 20,
26 (Dry Creek).) “CEQA requires an EIR to reflect a good faith effort at full disclosure[,
but] it does not mandate perfection, nor does it require an analysis to be exhaustive.”
(Ibid.)
B. Standard of review⃰
“Where an EIR is challenged as being legally inadequate, a court presumes a
public agency's decision to certify the EIR is correct, thereby imposing on a party
challenging it the burden of establishing otherwise. [Citations.]” (Sierra Club v. City of
Orange (2008) 163 Cal. App. 4th 523, 530.) In considering Friends’ CEQA arguments,
we independently review the administrative record to determine whether County
prejudicially abused its discretion. (§ 21168.5; Dry Creek, supra, 70 Cal.App.4th at
p. 25; Nelson v. County of Kern, supra, 190 Cal.App.4th at p. 266.)
“Abuse of discretion is established [1] if the agency has not proceeded in a manner
required by law or [2] if the determination is not supported by substantial evidence. The
court does not pass on the correctness of an EIR’s environmental conclusions, but
determines whether the EIR is sufficient as an informational document.” (Dry Creek,
supra, 70 Cal.App.4th at p. 26.) Substantial evidence is defined in the CEQA Guidelines
as “enough relevant information and reasonable inferences from this information that a
fair argument can be made to support a conclusion, even though other conclusions might
13 “Guidelines” and “CEQA Guidelines” refer to the CEQA regulations codified at title 14
of the California Code of Regulations section 15000 et seq. We cite to these regulations as
Guidelines.
⃰ See footnote, ante, page 1.
20.
also be reached.” (Guidelines, § 15384, subd. (a).) Substantial evidence includes facts,
reasonable assumptions predicated upon facts, and expert opinion supported by facts, but
not argument, speculation, unsubstantiated opinion or narrative, or evidence which is
clearly erroneous or inaccurate. (Id., subds. (a), (b).) “The information in an EIR may
constitute substantial evidence in the record to support the agency’s action on the project
if its decision is later challenged in court.” (Guidelines, § 15121, subd. (c).)
C. Project description⃰
The project description in an EIR must contain specific information, including the
precise location of the proposed project, a statement of objectives sought by the proposed
project, and “[a] general description of the project’s technical, economic, and
environmental characteristics, considering the principal engineering proposals if any and
supporting public service facilities.” (Guidelines, § 15124, subds. (a)-(c).) The project
description “should not supply extensive detail beyond that needed for evaluation and
review of the environmental impact.” (Guidelines, § 15124.)
“An accurate, stable and finite project description is the sine qua non of an
informative and legally sufficient EIR.” (County of Inyo v. City of Los Angeles (1977) 71
Cal. App. 3d 185, 193.) By the same token, “[a] curtailed, enigmatic or unstable project
description draws a red herring across the path of public input.” (Id. at p. 198.)
Petitioner contends that the project description in this case is incomplete,
inaccurate, and unstable. It asserts that the project description is misleading about the
potential for limitless nighttime operations. Petitioner also argues County’s failure to
require a sufficient reclamation plan resulted in an inadequate description of the Project.
1. Nighttime operations
Petitioner argues the EIR contains “vague, misleading reference to nighttime
operations that could, under the existing Project description, happen without limitation,”
⃰ See footnote, ante, page 1.
21.
and this “violates CEQA’s requirement that the Project description be clear and
comprehensive enough to allow accurate analysis of impacts and meaningful public
review.”
In support of its argument, petitioner cites (1) certain language in the DEIR,
(2) portions of the transcript of the Board’s meeting of October 16, 2012, during which
the Board considered Friends’ administrative appeal of the planning commission’s
approval of the Project, and (3) an attorney’s response to a comment by Friends on the
FEIR. We consider the citations to the record offered by petitioner as well as additional
references to nighttime operations in the EIR cited by respondents and real parties in
interest.
a. Project description and additional references to nighttime
operations in the DEIR and FEIR
The project description is set forth in section 3.0 of the DEIR. It includes
descriptions of the regional and local setting, site characteristics, current operations by
the applicant, project objectives, proposed mining operations, and the reclamation plan.
Subsection 3.4.3 describes the proposed mine operations. The anticipated maximum
production of marketed aggregate is 1.25 million tons per year. Mining activity is to
occur incrementally, taking “many decades (80 to 100 years) to complete.”
Subsection 3.4.3.2, titled “Hours of Operation,” provides:
“Operations are planned to occur up to 6 days/week, or 312
days/year at maximum production. Operations will take place on weekdays
and Saturdays, typically during the hours shown in Table 3-2. Although
these hours represent typical hours of operation, the Applicant is requesting
approval to load material into trucks at night to support nighttime road
construction projects (e.g., Caltrans highway jobs) and emergency work.
Maintenance activities (e.g. nightly equipment maintenance) will also
extend beyond the hours shown.” (Italics added.)
Table 3-2 in the DEIR shows that excavation and aggregate processing and
production would occur 7:00 a.m. to 7:00 p.m. on weekdays; loading and aggregate
trucking would occur 6:00 a.m. to 9:00 p.m. on weekdays; and asphalt and ready-mix
22.
concrete plants would begin operations on weekdays at 4:00 a.m., May through October,
and at 5:30 a.m., November through April, and end at 6:00 p.m. and would operate on
Saturdays 7:00 a.m. to 2:00 p.m.
Three footnotes to Table 3-2 reiterate the point that certain operations may occur
at other times: (1) “Maintenance of mobile and plant equipment extends beyond these
hours.” (2) “During periods of public emergency affecting the health and safety of the
community, continuous 24-hour daily operations may be required.” (3) As to loading and
aggregate trucking, “Major projects may be required to be completed during night hours
or on weekends to avoid traffic conflicts. Such projects may require processing and
loading operations beyond the hours shown.”
The environmental impact evaluation of the Project is found in section 4 of the
DEIR. Here, the DEIR addresses the potential environmental impacts of nighttime
operation of the Project. In the noise analysis, the DEIR considers operational noise and
includes analysis “for [nighttime] hours in cases where emergencies or night-paving
projects require operation of various project components during those hours.” It provides
a noise exposure assessment table showing noise levels at identified noise receiver
locations that would result from various operational activities (aggregate, recycle,
asphalt, concrete, excavation) during daytime and nighttime. The DEIR notes that the
increase in noise level from excavation activities could potentially be significant. The
DEIR recommends mitigation measures to reduce the Project’s noise impacts.
Recommended Mitigation Measure N-2 provides, among other things, (1) excavation
would only occur from 7:00 a.m. to 7:00 p.m. Monday through Friday unless it could be
demonstrated through on-site noise measurements that such activities could occur during
nighttime hours without exceeding the thresholds of significance, (2) rock plant
processing and aggregate load-out would be limited to daytime hours “except during
emergencies or to supply nighttime road construction projects and emergency work with
nighttime delivery of materials,” and (3) asphalt and ready-mix concrete plant operations
23.
would be limited to daytime hours “except during emergencies or nighttime road
construction projects requiring materials.” The DEIR concludes that the noise impacts of
the Project would be less than significant with the implementation of the recommended
mitigation measures.
In the visual or aesthetics analysis, the DEIR considers the potential effects of
nighttime lighting for the Project. It recommends a mitigation measure regarding lighting
and concludes that impacts from light and glare would be less than significant with
implementation of the recommended mitigation measure.
After the DEIR was circulated for public review and comment, County received a
comment letter on the DEIR from Christine Bienvenue and family. Bienvenue wrote:
“Noise is another serious problem. The DEIR states that this mining operation may run
for 24 hours a day in the event of an emergency but doesn’t state what constitutes an
emergency[.]” The FEIR provides this response:
“As noted in footnote 2 of Draft EIR Table 3-2 (page 3-23), ‘during
periods of public emergency affecting the health and safety of the
community, continuous 24-hour daily operations may be required.’ Such
emergency situations could include emergency road repairs or other
infrastructure repairs necessary as [a] result of unanticipated conditions
(e.g., bridge replacement due to flood damage, etc.). All potential
emergency conditions cannot be and need not be defined for the purposes
of the Project environmental review.”
b. Board meeting discussion of operations
On October 16, 2012, the Board considered Friends’ appeal of the planning
commission’s approval of the Project. Will Kettler from the public works department
spoke at the meeting. Regarding hours of operation, Kettler told the Board that the
Project complied with County’s noise ordinance and the plant was located in the center of
the site, at the farthest point from any sensitive noise receptor. Board supervisor Debbie
Poochigian asked how the operation hours compared to similar mining operations nearby.
Kettler stated that he thought the hours were comparable and noted, “As with most
24.
projects also, there’s a 24-hour provision in case there’s a public emergency where health
and safety is an issue and the material is needed for that, they’d be authorized, and that is
included in the operation statement as well.”
Steve Lilburn, from Lilburn Corporation, which prepared the EIR for the Project,
also addressed the Board. He stated:
“These are their operating hours. Typical hours are shown. In some
cases, the operations could occur outside of these hours, and the EIR
addressed the potential for 24-hour operation in the analysis. This would
occur under emergency circumstances. There are typically requirements by
Caltrans that they operate off that there may be an emergency that requires
immediate operations and supply material. The other thing that may occur,
I suppose, in the past the energy off peak demands, we’ve had the Energy
Commission actually ask operators occasionally to intentionally process in
the evening when we have severe energy demands. But we’ve addressed
the 24 hours throughout the documentation as a worst case scenario.”
Poochigian asked: “So are you saying with energy demands, you would consider
that an emergency to be able to go 24 hours?” Lilburn responded: “Actually, in the past
I’ve seen the California Energy Commission stipulate aggregate producers that they run
off peak in the evening, yes. It depends. It’s usually in circumstances where they dictate
that—they’re looking at brown-outs and gray-outs and concerns about off peak energy,
so they make the industrial users move off peak. That would be a typical example.”
Board supervisor Susan Anderson asked what agencies, in addition to Caltrans and
County, could declare an emergency. Lilburn did not identify any agencies but stated
that an emergency situation would be when there are “massive needs for aggregates …
following earthquake[s], flooding.”
Anderson observed: “[S]ome of the residents who live around the area are
concerned that that’s not defined in the documents what an emergency is. I mean, who
actually determines whether something is an emergency, because not every emergency
will warrant afterhours working, but who determines when the plant can operate after
hours because there’s an emergency?” Lilburn stated: “Yeah, I don’t know that it would
25.
be actually directed by the emergency, which is why we took the approach of analyzing it
on a 24-hour aspect so that we were clear in assessing the potential impacts if it was 24
hours. Actual emergency would probably be a federal or state or local emergency as
declared by the lead agency.”
Anderson asked for Kettler’s input on the issue. Kettler stated: “I think in the last
several years there’s been a couple instances where there were rockslides … where
material was needed to open roads .… Maybe a couple times over the last few years, and
the occurrence lasted maybe one to two days and it was during heavy storms .… [¶] …
[¶] In those cases I believe it was Caltrans that needed the material. It was a state
agency.”
Anderson clarified, “So a government agency has to determine there’s an
emergency and that this particular plant is supplying that emergency and authorizes
afterhour work, right?” Kettler responded, “Correct.”
Petitioner also cites statements made by its own representative at the Board
meeting. Friends’ attorney, Marsha Burch , addressed the Board regarding nighttime
operations as follows:
“The EIR specifically states that it’s not just for emergencies, it also
includes nighttime operations; i.e., Caltrans highway projects. That’s not
an emergency. The Draft EIR and what has been reviewed is unlimited
nighttime operations. [¶] Now, I understand that that’s not going to
happen, it’s not going to be every night of the week for the entire year, but
the way that the EIR is drafted and the way the permit will be drafted, it
allows for nighttime operations that are not emergencies, and we all know
that Caltrans operates at night a lot, and they have their reasons for doing
that. But I think it’s really misleading to say that only in emergencies are
they going to be operating at night, because the way that it’s drafted now
that is not the case.”
c. Attorney response letter
Burch wrote a letter to County on behalf of petitioner dated August 3, 2012, in
which she identified a variety of reasons she believed the FEIR was not in compliance
26.
with CEQA. Burch argued that the project description was inadequate because, among
other things, it would allow unlimited nighttime operations. She asserted that comments
to the DEIR noted that the project description was misleading regarding nighttime
operations and the FEIR’s response did not address the fact that there were no limits on
nighttime operations.
Attorney Thomas Henry, an attorney for the applicant, prepared a response to
Burch’s letter. In a letter, dated October 15, 2012, Henry wrote:
“The commenter points to one of many references in the EIR to the
potential for nighttime Project activities. Contrary to the commenter’s
assertion, the EIR adequately analyzes nighttime activities and imposes
mitigation measures that mitigate all nighttime-specific impacts to a less
than significant level. As noted by the commenter, Project hours are
limited, but activities may occur during nighttime hours if there is an
emergency or a paving project that requires material and cannot be serviced
during the daytime hours. The frequency of emergencies and nighttime
paving projects is uncertain, but the mitigation measures in place will
reduce their impacts to a less than significant level when these activities do
occur. A valid project description must, as here, be detailed enough to
allow the decision maker to ascertain the project’s effects and propose ways
of mitigating them. (See DEIR Section 4.11-24 for a nighttime noise
assessment, Mitigation Measures N-1 and N-2 reducing Project noise to a
less than significant level, DEIR Section 4.1-21 for an analysis of nighttime
lighting, and Mitigation Measure AES-3 mitigating nighttime lighting to a
less than significant level.”
d. Analysis
We are not persuaded by Friends’ argument that the project description is vague
and misleading regarding nighttime operations. The EIR describes the usual operating
hours of the Project and clearly states that there could be times when the Project would
operate at night. Continuous 24-hour operations could occur in two situations:
(1) during periods of public emergency and (2) when major projects requiring aggregate
operate at night or on weekends to avoid traffic conflicts.
27.
The EIR is not misleading or inconsistent about the possibility of nighttime
operations. The project description, under the heading, “Hours of Operation,” explains
that the Project could operate continuously during periods of public emergency or when
major projects, such as Caltrans highway construction, required it. The same information
is repeated in the EIR’s analyses of potential visual and noise impacts. The fact that the
EIR addresses the potential environmental impacts of nighttime operations also refutes
petitioner’s argument that the project description is not “clear and comprehensive enough
to allow accurate analysis of impacts and meaningful public review.” Further,
Bienvenue’s comment and the Board’s discussion on what could constitute an emergency
show that the public decisionmakers were aware that the Project could operate at night
and were not misled by the project description into believing the Project would operate
only during the day. Nor does the EIR suggest that nighttime operations would occur
only during emergencies, as argued by Burch. Under “Hours of Operation,” the project
description expressly provides, “the Applicant is requesting approval to load material into
trucks at night to support nighttime road construction projects (e.g., Caltrans highway
jobs) and emergency work.” (Italics added.) Similarly, in the discussion of noise
impacts, the EIR includes analysis of nighttime operations for times when “emergencies
or night-paving projects require operation of various project components during those
hours.” (Italics added.)
We also reject petitioner’s assertion that nighttime operations of the Project are
unlimited. The EIR recommends Mitigation Measure N-2, which limits operations to
daytime hours except during emergencies and nighttime construction projections.
County accepted the recommendation and Mitigation Measure N-2 is included in the
MMRP approved by the Board. Thus, nighttime operations are not unlimited; they are
limited to circumstances described in the mitigation measure. Nonexcavation activities
are limited to daytime except during emergencies and nighttime construction. Excavation
activities are limited to daytime unless it can be shown through on-site noise
28.
measurements that such activities do not create noise exceeding the thresholds of
significance. In addition, the Project is limited to a maximum aggregate production rate
of 1.25 million tons per year.
2. Postmining condition of the site
Petitioner next argues that the project description is inadequate because the
reclamation plan is missing “essential pieces of information regarding the post-mining
condition of the site.” Petitioner asserts the reclamation plan approved by the Board is
flawed because it omits two elements: (1) an engineered grading and drainage plan and
(2) a postmining calculated water balance.14
Given that petitioner’s challenge is to the project description, we consider the
information provided in the project description found in section 3 of the DEIR.
a. Description of reclamation plan in the DEIR
Subsection 3.4.5, “Reclamation Plan,” describes the postmining condition of the
Project site: “The reclamation plan implementation results in a total reclaimed area of
±898 acres of which 104 acres of mine cell are backfilled with aggregate fines, 134 acres
are backfilled with overburden backfill, 583 acres remain as water basins and are not
backfilled, and 77 acres of existing roads will remain for post-mining access to the
Project Site.”
Subsection 3.4.5.2, titled “Backfilling, Regrading, Slope Stability and
Recontouring ([Cal. Code Regs., tit. 14, § 3704]),” provides:
“The post-mining land use is water recharge and agriculture.
Backfilling of the cell floor will commence once final design depth of a cell
is reached using available overburden and unmarketable material/fines from
processing operations. These materials will be used to elevate the quarry
floor to final reclamation design depth. Approximately 25 percent of the
Project Site is expected to be backfilled given the estimated fines and
14 This argument echoes petitioner’s argument that County failed to proceed in a manner
required by law by improperly avoiding SMARA requirements.
29.
overburden amounts while 75 percent of mined cells will remain as water
basins.”15
Under the heading, “Cut Slope Stability ([Cal. Code Regs., tit. 14, § 3704,
subd. (f)]),” subsection 3.4.5.2 continues, “The Proposed Project, as designed, anticipates
final reclaimed cut slopes of 2:1 (h:v).”
Subsection 3.4.5.4, “Drainage, Diversion Structures, Waterways, and Erosion
Control ([Cal. Code Regs., tit. 14, § 3706]),” provides:
“The dominant beneficial use of water on-site and in the surrounding
area is agriculture. As described, excavation operations will be phased.
Agricultural uses will continue to occur in undisturbed phases and in phases
where mining has reached design depth and reclamation backfilling actions
have been completed. Reclaimed slopes will be 2:1 (h:v), and all
stormwater will be maintained within active or reclaimed excavation areas.
Therefore, no waters would leave the site impacting downstream beneficial
uses.”
15 We note that this paragraph is revised in the FEIR. The FEIR explains: “Th[is] section is
revised to clarify and amplify the methods for backfilling mined areas and to provide more
specific information regarding the areas to be backfilled and soil placement in these areas. The
revisions are consistent with the Project as evaluated in the Draft EIR.” In the FEIR, the
paragraph quoted above is replaced with the following:
“The post-mining land use is land and water basins for agriculture. Approximately
27 percent of the mine disturbance area would be backfilled using the fines and overburden,
while approximately 65 percent would not be backfilled and would be reclaimed as water basins.
The remaining 8 percent of the mine area is associated with access roads and setbacks. Of the
areas to be reclaimed to land, the Reclamation Plan estimates that approximately 137 acres
would be backfilled with overburden and approximately 102 acres would be backfilled with
process fines. A minimum of 2 to 3 feet of soil would cover all cells returned to land surface.
“Following backfill of a cell to an elevation above the historical high water table with
fines or overburden, the upper 2 feet of soil that had been separately salvaged would be placed
on the surface in one or more lifts. The cells reclaimed to land surface would be reclaimed to the
approximate pre-mining elevation. Thus, the separation between the post-reclamation land
surface and the historical high groundwater elevation would be no less than the conditions prior
to mining. Surface contouring of the replaced materials would be completed to establish proper
drainage for return to agriculture.”
30.
The DEIR goes on to list actions to be taken to minimize inadvertent
contamination of groundwater during operations and to control erosion during operations.
A table is included with a summary of reclamation standards and actions.
In addition, subsection 3.3.3.1 of the DEIR, “Current Water Consumption and
Project Water Use,” describes the current and past water use at the Project site for
agricultural irrigation. It explains that irrigation water is supplied from a combination of
surface water from irrigation ditches and pumped groundwater. Of the 850 acres
proposed for mining, current water applications total approximately 4,585 acre-feet per
year, of which about 48 percent is pumped groundwater and 52 percent is surface water
supplied from irrigation ditches. The DEIR then describes the water usage of the Project:
“The total water usage for the Proposed Project includes water that
will be used for mining and production activities, and water that evaporates
from the mine pits. Water usage for mining and production activities will
remain relatively constant over time. Water that evaporates from the mine
pits will reach its maximum amount at the conclusion of the mining
activities, assuming that reclamation is conducted concurrently with
mining.”
b. Analysis
“The project description must contain sufficient specific information about the
project to allow the public and reviewing agencies to evaluate and review its
environmental impacts. A project description that omits integral components of the
project may result in an EIR that fails to disclose the actual impacts of the project.” (Dry
Creek, supra, 70 Cal.App.4th at p. 26.)
In this case, the project description informs readers that, after the proposed mining
is complete and the reclamation plan is implemented, a portion of the mined land (about
25 percent) will be returned to the premining use of agriculture, existing roads on the
Project site will remain, and water basins will cover the remaining mined land. Readers
would also learn that the slopes of the water basins are intended to be 2:1 (h:v) and that
water evaporation from the basins will reach its maximum during the postmining period.
31.
i. Engineered grading and drainage plan
Petitioner contends the project description is inadequate because it lacks an
engineered grading and drainage plan. We disagree. In Dry Creek, supra, 70
Cal. App. 4th 20, the Court of Appeal rejected a similar argument. In that case, the EIR
for a proposed expansion of a surface mining operation described proposed mitigation
measures of a bypass channel, cutoff walls, and in-stream diversion structures. (Id. at
pp. 23, 27.) The EIR provided information on these structures, but did not include
engineering designs. The bypass channel, for example, was described as “an ‘earthen
unlined channel which will have a 10-foot-wide bottom and 2:1 slopes and a depth of
10 feet,’” and schematic cross-section illustrations of the channel were provided. (Id. at
pp. 28-29.) As a condition of project approval, the bypass channel was to be designed by
a registered engineer and approved by the lead agency. (Id. at p. 31.) The appellants
argued, however, that “only precise engineering designs [in the project description]
provide the necessary detail to analyze the environmental consequences” of a project.
(Id. at p. 27.)
In rejecting the appellants’ position, the court explained that CEQA requires a
“general description” of the project’s technical characteristics (Guidelines, § 15124,
subd. (c)), and “‘[g]eneral’ means involving only the main features of something rather
than detail or particulars.” (Dry Creek, supra, 70 Cal.App.4th at p. 28.) The court also
reasoned: “The ‘general description’ requirement for the technical attributes of a project
is consistent with other CEQA mandates to make the EIR a user-friendly document. For
example, Guidelines section 15140 states that EIR’s must be written in plain language so
that decisionmakers and the public can rapidly understand them. The general description
requirement also fosters the principle that EIR’s should be prepared early enough in the
planning stages of a project to enable environmental concerns to influence the project’s
design. [Citations.] A general description of a project element can be provided earlier in
32.
the process than a detailed engineering plan and is more amenable to modification to
reflect environmental concerns.” (Ibid.)
The court concluded:
“Appellants have not established that the general description of the
diversion structures in the EIR coupled with approval of final designs after
the project is approved violated any CEQA mandate. Courts should not
interpret CEQA to impose procedural or substantive requirements beyond
those explicitly required in the statutes or CEQA Guidelines. [Citations.]
… CEQA requires a ‘general description’ of the technical aspects of the
stream diversion structures of the project. The description must contain
sufficient detail to enable the public and the decisionmakers to understand
the environmental impacts of the proposed project. The description cannot
narrow the scope of environmental review or minimize the project’s
impacts on the environment. [Citations.]
“ … None of appellants’ contentions demonstrate that the
description of the water diversion elements was insufficient to understand
the environmental impacts of the proposed project. Nor do they
demonstrate that the descriptions narrowed the scope of environmental
review or minimized environmental impacts. In addition, appellants do not
explain how more detailed engineered drawings would allow the public and
decisionmakers to ‘fully understand the environmental consequences of the
entire project.’ In fact, engineered drawings may well supply ‘extensive
detail beyond that needed for evaluation and review of the environmental
impact’ in violation of Guidelines section 15124. Accordingly, appellants
have not demonstrated the water diversion structures are inadequately
described in the EIR.” (Dry Creek, supra, 70 Cal.App.4th at p. 36.)
Here, the EIR provides a similar level of detail regarding the water basins as found
in the EIR in Dry Creek regarding the water diversion structures. The EIR’s project
description includes specifications and schematic cross-section illustrations of the water
basins. (See Figures 3-18 and 3-19 in the DEIR.) Following the reasoning of Dry Creek,
we reject petitioner’s claim that CEQA requires the EIR’s project description in this case
to include an engineered grading and drainage plan.
Petitioner’s attempt to distinguish Dry Creek is not convincing. Petitioner cites a
letter dated July 9, 2012, from the Department of Conservation’s Office of Mine
33.
Reclamation (OMR) reviewing the Project’s reclamation plan. (This is the state agency’s
review of the reclamation plan, conducted pursuant to section 2774 of SMARA, as
described above.) In the letter, the OMR recommended that the applicant consult with
the Regional Water Quality Control Board (RWQCB) to determine requirements
applicable to the Project and also wrote that “the revised reclamation plan must include a
water balance for Post Mining Conditions.” County consulted with the RWQCB and
prepared a response to the OMR dated July 10, 2012. County added as a condition of
approval for the CUP that an engineered grading and drainage plan would be prepared by
a registered engineer. This is similar to the condition of approval in Dry Creek, supra, 70
Cal.App.4th at page 31. County also added a condition of approval that, prior to
commencement of mine operations, a calculated water balance for postmining conditions
would be submitted to County for review and approval. In a letter dated August 8, 2012,
the OMR responded to County’s letter, indicating that it would not consider the
reclamation plan complete until the applicant complied with the conditions of approval
prior to the commencement of mining activities.
The OMR’s comments on the reclamation plan, made pursuant to SMARA
(§ 2774, subd. (d)), do not support petitioner’s claim that the project description is
inadequate under CEQA. The OMR’s comments were directed at SMARA compliance,
not CEQA compliance. Further, a project description “should be prepared early enough
in the planning stages of a project to enable environmental concerns to influence the
project’s design” (Dry Creek, supra, 70 Cal.App.4th at p. 28), while the OMR generally
reviews and provides comments on the reclamation plan much later in the environmental
review process.16 In the present case, for example, the OMR reviewed the reclamation
16 Section 2774, subdivision (c) provides that, when a lead agency submits a reclamation
plan for review, the agency must also submit “information from any related document prepared,
adopted, or certified pursuant to [CEQA],” suggesting that a related EIR may be certified at the
time the OMR reviews the reclamation plan.
34.
plan after the FEIR was circulated. Petitioner asserts that SMARA and its regulations
require engineering-level details and “[t]hese requirements inform the analysis in this
case regarding what level of detail is necessary in an EIR for a reclamation plan.” But
petitioner offers no authority for the proposition that an EIR’s project description must
comply with the OMR’s recommendations regarding SMARA compliance in order to
comply with CEQA. Even as a SMARA matter, the statute does not require the lead
agency to implement recommendations offered by the OMR. (See § 2774, subd. (d)(2)
[requiring lead agency to provide written responses when it does not accept
recommendations of state agency].) We see no reason to find the project description
inadequate because the OMR recommended including additional information pursuant to
SMARA.
ii. Water balance calculation
Petitioner also contends that the project description is inadequate because it lacks a
water balance calculation. It argues that, without the water balance, there is no
substantial evidence or information regarding postmining water consumption and
potential contamination. Petitioner does not explain what a “water balance calculation”
is or why it is necessary. (See Mount Shasta Bioregional Ecology Center v. County of
Siskiyou (2012) 210 Cal. App. 4th 184, 222 [“we are left to guess at what a ‘water balance
study’ might be or why it was necessary in this instance”].) We gather from appendix J-4
to the DEIR that “a water balance analysis,” also referred to as a “water budget,” may
refer to “a simple equation that sums inflows and outflows [of water] to the project area.”
Appendix J-4 to the DEIR is a hydrology technical report dated June 15, 2011. It
provides a water budget for the Project, which includes tables labeled “Water Balance”
showing the yearly inflows and outflows of water for four scenarios: (1) the baseline
conditions on the site, (2) mining above the water table, (3) dry mining, and (4) wet
mining. In the baseline condition of growing fruit trees, for example, the inflows are
rainfall, estimated groundwater recharge from rainfall, and estimated groundwater
35.
recharge from applied water (irrigation), while the outflows are estimated groundwater
pumping, irrigation ditches, and transpiration by the fruit trees.
Although the EIR does not provide a water balance table for the postmining
period, respondents and real parties in interest assert the EIR contains the necessary
information and analysis regarding postmining water consumption. They point to
section 4.9 of the DEIR, which considers potential impacts of the Project to hydrology
and water quality. The DEIR states that a water supply assessment for the Project was
prepared and the assessment concludes that the Project’s water demand is less than the
current irrigation water use. The DEIR continues, “In addition, at the completion of
mining, up to 2,175 [acre-feet per year] of evaporation from the reclaimed mining pits
may occur during normal water level conditions. This volume of water is less than the
current groundwater pumping and irrigation application for the same acreage.”
The water supply assessment itself is included as appendix J-5 to the DEIR. It
explains the basis for the conclusion that the reclaimed site will use less water than it
currently uses:
“It is estimated that once mining is completed, approximately 565 acres of
water surface will be exposed (based on current average groundwater
elevations). The annual lake evaporation rate at the site is 46.2 inches per
year .… Therefore, the annual evaporation from the water surface after
mining is completed will be approximately 2,175 [acre-feet per year]. For
comparison purposes, this volume of water is much less than the 3,050
[acre-feet per year] of current net irrigation application for 565 acres of
orchard. [¶] … [T]he post-mining evaporation of groundwater from the
reclaimed mining pits is less than the current irrigation rate of the same
acreage .…”
Thus, contrary to petitioner’s argument, the EIR provides evidence and information
regarding postmining water consumption.17
17 In its reply brief, Friends argues that the EIR’s discussion of evaporation of the water
basins is not a sufficient discussion of postmining water use. It argues there is no information in
the record regarding how much water will be pumped from the water basins for irrigation. Their
36.
Petitioner does not explain why a water balance analysis would be needed in order
to understand the potential for water contamination in the postmining period. We
observe that the DEIR addresses whether the Project would provide a substantial
additional source of polluted runoff and whether the Project would cause a violation of
water quality standards or otherwise degrade water quality. The DEIR explains that
groundwater would be exposed in the water basins following reclamation. It identifies
mechanisms that could degrade groundwater quality (such as pesticide overspray or
irrigation runoff) and describes steps to be taken to avoid potential contamination. Thus,
again contrary to petitioner’s argument, the EIR provides evidence and information
regarding the potential for postmining water contamination.
Petitioner has failed to show that a postmining water balance is necessary to
understand the Project’s impacts on water consumption or potential contamination.
Consequently, we reject its argument that the project description is inadequate because it
lacks a postmining water balance calculation. (Dry Creek, supra, 70 Cal.App.4th at
p. 36.)
D. Substantial evidence regarding EIR’s conclusions on groundwater
supplies, adjacent riparian vegetation, and Byrd Slough⃰
Petitioner argues there is no support for the EIR’s conclusions that the Project will
not impact groundwater supplies and adjacent riparian vegetation. It asserts there is
“significant evidence in the record” showing that the Project will impact Byrd Slough and
the oak woodlands adjacent to the Project.
opening brief, however, refers only to the loss of the water from evaporation. We need not
consider this argument, which is raised for the first time in the reply brief and which the other
parties have no opportunity to respond to. Further, it is unclear what petitioner’s concern about
using the water basins for irrigation is. If water from the water basins is used to irrigate the
orchards, presumably the same amount of groundwater would not need to be pumped from wells,
resulting in no net increase in water consumption.
⃰ See footnote, ante, page 1.
37.
We understand petitioner’s argument to be that the EIR’s conclusions regarding
the Project’s potential impacts to groundwater supplies, adjacent oak woodlands, and
Byrd Slough are not supported by substantial evidence. As a preliminary matter, even if
“significant evidence in the record” could support different conclusions, this does not
demonstrate the EIR’s conclusions are not supported by substantial evidence. The
relevant inquiry in a substantial-evidence challenge is whether there is “enough relevant
information and reasonable inferences from this information that a fair argument can be
made to support [the EIR’s] conclusion, even though other conclusions might also be
reached.” (Guidelines, § 15384, subd. (a), italics added; see Laurel Heights I, supra, 47
Cal.3d at p. 407 [“The question … is not whether there is substantial evidence to support
[the petitioner’s] position; the question is only whether there is substantial evidence to
support [the lead agency’s] conclusion.”].)
We consider whether substantial evidence supports the EIR’s conclusions
regarding groundwater supplies, adjacent oak woodlands, and Byrd Slough.
1. Groundwater supplies
The EIR reports that the amount of water that would be lost due to evaporation
from reclaimed water basins would be less than the current amount of water used for
irrigation. It concludes, “Future evaporative loss would be less than the baseline net
irrigation demand and therefore impacts from evaporative losses are determined to be less
than significant.”
Friends challenges this conclusion, citing a written comment on the FEIR by
David Cehrs, “Ph.D. (Hydrology[)], R.G., C.H.G.” In a document titled “Response to
Carmelita Mine and Reclamation Project FEIR, May 2012,” Cehrs wrote that the EIR’s
conclusion that the reclaimed ponds will use less water than stone fruit is incorrect. He
asserted that County and the applicant “do not know the difference between applied
38.
water/consumptive use on a crop and the evapo-transpiration (ET) demand of the
plant.”18 According to Cehrs, the ET for stone fruit is 2.8 acre-feet per acre, which is less
than the projected evaporation of 3.85 acre-feet per acre attributable to the reclaimed
water basins. He argued: “Thus, there will be a permanent loss of 1.05 [acre-feet per
acre] of water from the groundwater filling the ponds in perpetuity. For the project this
means a permanent yearly loss of 612 [acre-feet] of water from the groundwater system.
This is significant.” (Underlining omitted.)
The applicant provided a response to Cehrs’s letter, prepared by Andrew Kopania,
principal hydrologist of EMKO Environmental, Inc., which prepared the water supply
assessment at appendix J-5 to the DEIR. Kopania responded:
“One comment misrepresents the information presented in the EIR.
The total amount of water applied for irrigation on the Project site is
currently approximately 5.4 acre-feet per acre … (see page 12 of
Appendix J-1 of the Draft EIR and page 4.9-22 of the Draft EIR). The
consumptive use of the orchards is estimated to be 4 [acre-feet per acre],
based on data presented by the California Department of Water Resources
(1975 and 1986, as cited in Appendix J-1). There are numerous websites
and references that provide crop water use values for various crops, and
these values can vary widely. The County has determined that the values
considered in the EIR are appropriate for this evaluation and accurately
reflect actual water use under existing conditions at the Project site.”
Appendix J-1 to the DEIR (the hydrology and water quality environmental
assessment cited by Kopania) states: “[T]he average annual irrigation application is
approximately 5.4 [acre-feet per acre], whereas the net consumptive use of water by the
orchards is approximately 4 [acre-feet per acre]. Applied water in excess of consumptive
18 Appendix J-1 to the DEIR is a hydrology and water quality environmental assessment
prepared for the Project. It defines ET as “the amount of rainfall and applied water (e.g. for
irrigation or dust control) that is lost to both surface evaporation and transpiration from plant
surfaces.”
39.
use percolates to groundwater.” (Thus, the EIR does account for the difference between
applied water and the water demand or ET of the orchards.)
We conclude that the DEIR, together with appendices J-1, J-4, and J-5 (discussed
above), provide substantial evidence for the EIR’s conclusion that the reclaimed water
basins will consume less water than is currently used by the orchards and, therefore, the
postmining condition of the Project site will not result in a significant impact to
groundwater supplies.
The EIR uses an estimated water use rate for the orchards of 4 acre-feet per acre,
based on data from the California Department of Water Resources, while Cehrs argued
the fruit trees consume water at a rate of 2.8 acre-feet per acre. It is not our role to decide
the appropriate rate for estimating the water consumption of fruit trees; nor do we have
the scientific expertise to do so. (See Laurel Heights I, supra, 47 Cal.3d at p. 393 [noting
the court has neither the resources nor scientific expertise to determine which party has a
better argument in dispute over whether adverse effects have been mitigated].) Our role
is limited to determining whether substantial evidence supports the EIR’s conclusion,
which we have done. Petitioner has shown there is a disagreement between two
hydrologists, but it is well-established that a disagreement among experts does not make
an EIR inadequate. (Id. at p. 409.) County was free to choose the EIR’s analysis over the
different analysis offered by Cehrs. (Association of Irritated Residents v. County of
Madera (2003) 107 Cal. App. 4th 1383, 1397 (Irritated Residents) [“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.’”].)
Petitioner also argues that an “essential report and analysis was omitted,” referring
again to the absence of a postmining water balance calculation. However, even if a water
balance calculation for the postmining period might have been helpful, this does not show
that CEQA requires it. (Irritated Residents, supra, 107 Cal.App.4th at p. 1396 [“The fact
40.
that additional studies might be helpful does not mean that they are required.”].)
Accordingly, we reject petitioner’s substantial-evidence challenge to the EIR’s
conclusion regarding groundwater supplies.
2. Oak woodlands
As we have described, the EIR concludes that the Project’s mining operations
would have a less than significant impact on groundwater supplies. The DEIR explains:
“Consumptive use of water at the Project Site is greater under baseline conditions than
under dry and wet mining conditions associated with the Proposed Project because the
stone fruit trees require more water per acre than that required for mining. Even though
more groundwater would be pumped if dewatering was selected to dry mine the deeper
portions of a mining cell, the pumped water would be returned to the aquifer through an
adjacent mining cell, or used for irrigation or aggregate operations, which would offset
groundwater pumping that would otherwise occur.”
After the DEIR was circulated for public review and comment, County received
several comments expressing concern that the Project could affect oak trees in areas
adjacent to the Project site. The FEIR includes a response, “Collective Response 4,” to
this concern:
“[T]he Project would not affect the water table in a greater amount
than has occurred under baseline conditions, to which the subject habitat is
adapted. Therefore, no significant impacts are foreseen.
“Based on information distributed by the United States Fish and
Wildlife Service (USFWS) [citation], the greatest problem facing the
Valley oak is sapling recruitment and loss of mature trees. Valley oaks
have died in some areas because of substantial and long-term lowered water
tables, a situation that would not occur as result of implementing the
Project. Mature trees are also sensitive to overwatering, pruning, grade
changes, and blankets of asphalt covering the root system. However, the
trees are resistant to short-term drought and mature trees exhibit drought
damage only after a series of dry years occur and result in the groundwater
surface declining to depths in excess of 70 feet below ground surface,
which is deeper than the maximum depth of mining and potential
41.
dewatering for the Project. Furthermore, Valley oak trees typically have
several vertical roots that tap groundwater and extensive horizontal root
branches. Vertical root depth has been measured as deep as 80 feet in some
individuals [citation].
“The California Oak Foundation provides recommendations
regarding minimization of impacts to oak trees and woodlands. The
Foundation recommends avoiding disturbance within the root protection
zone, which is an area surrounding the tree 1.5 times as large as the area
from the trunk to the dripline.… The distance between the nearest oak trees
and Project disturbance areas are outside this root protection zone for each
oak tree in the area and no oak trees are located in the mining areas.…”
Petitioner argues that, contrary to the EIR’s conclusion, the Project will affect oak-
savanna habitats. Petitioner relies on Cehrs’s comment on the FEIR. Cehrs wrote that
pumping perimeter mining cells dry for gravel extraction (i.e., dewatering for dry mining)
would significantly adversely affect neighboring properties and their oak-savanna
riparian habitats. He suggested that dry mining “should be located at least 1,500 feet
away from the project site boundary to protect neighboring parcel oak-savanna habitats.”
Respondents and real parties in interest point out that Cehrs’s assertion that oaks would
be adversely affected by dewatering was not supported by any technical studies or other
data. Cehrs cited appendices J-1 and J-4 of the DEIR, but these reports do not conclude
that oak woodlands would be affected by dewatering activities. Instead, appendix J-4
supports the EIR’s conclusion.
Appendix J-4 includes analysis of the effect dewatering might have on off-site
well owners. It determines that, in a worst case scenario of pumping 24 hours per day,
365 days a year (which is unlikely to occur), dewatering an individual mine cell could
cause groundwater levels to drop by 5 to 20 feet at the boundary of the proposed Project.
Appendix J-4 notes that “[a]vailable data indicate groundwater elevations in the Project
area fluctuate more than 5 to 50 feet.” As a result, it concludes, “the effects of
dewatering are less than what has occurred historically.” This information supports the
collective response that no significant impacts to nearby oaks are foreseen because
42.
historical fluctuations in the groundwater level have been greater than any fluctuation
(lowering) that may be caused by dewatering activities. Together with the information in
Collective Response 4 itself, this was substantial evidence supporting the conclusion the
Project would not have a significant impact on oak woodlands. Cehrs’s comment to the
FEIR did not dispute the historical water table data, nor did he refute the information that
oaks are resistant to short-term drought and exhibit damage only after a series of dry
years.
Finally, petitioner cites appendix F-2 to the DEIR, but this document does not
demonstrate that the EIR lacks substantial evidence regarding oak trees. Appendix F-2 is
a memorandum prepared by URS, an engineering consulting company, titled “Carmelita
Project EIR Technical Report Review” reviewing a biological resources environmental
assessment report for the Project dated July 2010. Petitioner relies on the following
recommendation from URS: “Additional information should be obtained to assist in the
assessment of impacts to riparian forest … communities west of the project site.” As
respondents and real parties in interest note, however, petitioner fails to mention that,
after reviewing the biological resources report, URS itself prepared the hydrology
technical report at appendix J-4 to the DEIR. As we have seen, appendix J-4 supports the
FEIR’s conclusion that the Project will not have a significant impact on groundwater
levels and, therefore, will not significantly impact adjacent oak trees. In appendix J-4,
URS further concludes that the Project “will not affect conditions along Byrd Slough,”
which is a slough located immediately west of the Project site. This appears to satisfy
URS’s own recommendation for additional information “to assist in the assessment of
impacts to riparian forest … communities west of the project site.”
In sum, substantial evidence supports the EIR’s conclusion regarding adjacent oak
woodlands.
43.
3. Byrd Slough
Byrd Slough is associated with the Kings River and, as mentioned, is located
immediately west of the Project site. The DEIR addresses Byrd Slough as follows:
“Appendix J-4, Figures 2 and 3 present water level data dating back
to 1946 from wells in the vicinity of Byrd Slough. During the period
shown, groundwater levels have been at least six feet below ground surface,
and typically much deeper than that. In addition, the groundwater surface
slopes toward the southeast, away from the slough and the larger Kings
River system. Historical lowering of the groundwater table, as occurs
seasonally due to irrigation pumping, and longer-term due to climatic
cycles, does not affect the flow or riparian conditions along the slough.
Historic fluctuations of the water table have been as much as 50 feet.
“Since the ground water elevation has been below the base of the
slough throughout the entire period of monitoring shown on Figures 2 and 3
of Appendix J-4, the groundwater and surface water in Byrd Slough are
hydraulically disconnected, such that fluctuations in groundwater levels do
not affect flow in the slough. Fluctuations in groundwater levels do not
affect surface water in Byrd Slough and related habitat, as demonstrated by
the wide fluctuations in groundwater levels that have been measured since
the 1940s. Based on the assumptions and results of modeling conducted for
the report presented as Appendix J-4, it is anticipated that the Proposed
Project’s impact to Byrd Slough will be less than significant.”
Appendix J-4 provides substantial evidence in support of the EIR’s conclusion that
the Project will not have a significant impact on Byrd Slough. Petitioner asserts
“significant evidence in the record show[s] that the Project will indeed impact Byrd
[S]lough,” but even if this were so, this does not make the EIR inadequate. (Laurel
Heights I, supra, 47 Cal.3d at p. 407.) Further, petitioner’s cites to the record—Cehrs’s
comment on the FEIR, the OMR’s review of the reclamation plan from July 9, 2012, and
URS’s technical report review—do not show the Project will have significant impact on
Byrd Slough. Petitioner’s argument that no substantial evidence supports the EIR’s
conclusion regarding Byrd Slough is without merit.
44.
4. Hydrology
We generally address Friends’ appellate arguments in the order they are presented
in its opening appellate brief. We deviate from this practice to note that, later in its brief,
petitioner argues, “The EIR failed to adequately address other areas of impact,” including
hydrology. Petitioner’s entire argument on hydrology is as follows:
“As set forth in detail above, the EIR grossly mischaracterizes water
consumption by the proposed Project, fails to evaluate run-off from the
Project site, fails to analyze the potential for water contamination through
the 600 acres of open pits filled with groundwater, and fails to adequately
analyze the impacts of groundwater drawdown on adjacent landowners and
habitat. The failure of the County to require preparation of a post-mining
water balance also prevented the County from disclosing Project impacts,
and analyzing and mitigating those impacts.”
We have concluded that petitioner’s arguments regarding groundwater and other
water-related issues are without merit. It follows that petitioner’s argument that the EIR
inadequately addresses hydrology also fails.
E. Mitigation for loss of farmland
The EIR determines that the Project will result in the permanent loss of almost
600 acres of farmland and concludes that this is a significant impact. Petitioner asserts
County failed to require mitigation for the conversion of farmland to other uses in
violation of CEQA. We begin with a brief discussion of the law on mitigation.
1. CEQA’s mitigation requirement
In section 21002 of CEQA, the Legislature declared, “[I]t is the policy of the state
that public agencies should not approve projects as proposed if there are feasible
alternatives or feasible mitigation measures available which would substantially lessen
the significant environmental effects of such projects .…” Section 21002 has been
described as a “substantive mandate that public agencies refrain from approving projects
for which there are feasible alternatives or mitigation measures.” (Mountain Lion
45.
Foundation v. Fish & Game Com. (1997) 16 Cal. 4th 105, 134 (Mountain Lion).) This
substantive mandate “is effectuated in section 21081.” (Ibid.)
“Under [section 21081], a decisionmaking agency is prohibited from approving a
project for which significant environmental effects have been identified unless it makes
specific findings about alternatives and mitigation measures. [Citations.] The
requirement ensures there is evidence of the public agency’s actual consideration of
alternatives and mitigation measures, and reveals to citizens the analytical process by
which the public agency arrived at its decision. [Citations.] Under CEQA, the public
agency bears the burden of affirmatively demonstrating that, notwithstanding a project’s
impact on the environment, the agency’s approval of the proposed project followed
meaningful consideration of alternatives and mitigation measures.” (Mountain Lion,
supra, 16 Cal.4th at p. 134.)19
19 Section 21081 provides:
“Pursuant to the policy stated in Sections 21002 and 21002.1, no public agency shall
approve or carry out a project for which an environmental impact report has been certified which
identifies one or more significant effects on the environment that would occur if the project is
approved or carried out unless both of the following occur:
“(a) The public agency makes one or more of the following findings with respect to each
significant effect:
“(1) Changes or alterations have been required in, or incorporated into, the project which
mitigate or avoid the significant effects on the environment.
“(2) Those changes or alterations are within the responsibility and jurisdiction of another
public agency and have been, or can and should be, adopted by that other agency.
“(3) Specific economic, legal, social, technological, or other considerations, including
considerations for the provision of employment opportunities for highly trained workers, make
infeasible the mitigation measures or alternatives identified in the environmental impact report.
“(b) With respect to significant effects which were subject to a finding under
paragraph (3) of subdivision (a), the public agency finds that specific overriding economic, legal,
social, technological, or other benefits of the project outweigh the significant effects on the
environment.”
46.
An EIR must describe “feasible measures which could minimize significant
adverse impacts.” (Guidelines, § 15126.4, subd. (a)(1).)20 “Where several measures are
available to mitigate an impact, each should be discussed and the basis for selecting a
particular measure should be identified.” (Id., subd. (a)(1)(B).)
“‘Mitigation’” includes: “(a) Avoiding the impact altogether by not taking a
certain action or parts of an action. [¶] (b) Minimizing impacts by limiting the degree or
magnitude of the action and its implementation. [¶] (c) Rectifying the impact by
repairing, rehabilitating, or restoring the impacted environment. [¶] (d) Reducing or
eliminating the impact over time by preservation and maintenance operations during the
life of the action. [¶] (e) Compensating for the impact by replacing or providing
substitute resources or environments.” (Guidelines, § 15370.) “‘Feasible’” means
“capable of being accomplished in a successful manner within a reasonable period of
time, taking into account economic, environmental, legal, social, and technological
factors.” (Guidelines, § 15364.)
2. Background
Section 4.2 of the DEIR addresses potential impacts of the Project on agricultural
and forestry resources. The DEIR explains that a maximum of 583 acres of farmland
would be permanently lost from agricultural production as result of the Project. This
would occur over the course of 100 years at an estimated rate of 5 to 24 acres lost per
year.
The DEIR states that it is not possible to reclaim the entire site to agricultural land
due to the existing water table. It continues:
20 “‘Significant effect on the environment’ means a substantial, or potentially substantial,
adverse change in any of the physical conditions within the area affected by the project including
land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic
significance.” (Guidelines, § 15382.)
47.
“Fresno County does not have an established farmland protection
program or uniform agricultural conservation banking program to which
the Applicant could contribute. However, the Applicant does have large
agricultural land holdings on which agricultural easements could be placed.
Securing these parcels in an agriculture easement would not reduce the
number of acres lost to agricultural production, nor would it increase the
number of acres under Williamson Act contract.
“Given the lack of feasible mitigation, the conversion of prime
farmland, unique farmland, farmland of statewide importance, and farmland
of local importance is a significant and unavoidable impact.”
Three mitigation measures are recommended. Mitigation Measure AG-1 provides
that the current agricultural use of the Project site would continue until the land is
prepared for mining activities. Mitigation Measure AG-2 requires the applicant to ensure
that 602 acres within the Project site but outside the surface disturbance boundary are
maintained as an agricultural buffer zone for the life of the CUP, which is estimated to be
100 years. Mitigation Measure AG-3 requires the applicant to reclaim mine cells to
farmland as adequate materials are generated to fill the empty mine cells.
The DEIR concludes that, after the implementation of the recommended
mitigation measures, “the conversion of farmland to another land use remains a
significant and unavoidable impact.”
County received several public comments to the DEIR about the loss of farmland
caused by the Project, and Collective Response 6 of the FEIR addresses this concern.
Some commenters suggested that the Project should mitigate the loss of farmland by
establishing permanent agricultural conservation easements (ACEs) at a ratio of between
one and two acres of preservation for each acre of farmland lost. A few commenters
referred to a draft County policy called “Farmland Mitigation Program for Fresno
48.
County’s Sanger River [B]ottom [Mineral Resource Zone] Area Due to Gravel
Mining.”21
Collective Response 6 explains, “The County’s decision makers have not formally
considered nor approved, nor has County staff recommended, adoption of a farmland
mitigation program.” The response continues:
“Approximately 35 acres (6 percent) of the Project disturbance area are
Prime Farmland …, all of which would be replaced by mine reclamation
backfill to create Prime Farmland of equal acreage .… As stated in the
Project objectives, one reason the Project Site is proposed as a mining site
is because of the rocky soils .… Reclamation would involve backfill of
approximately 240 acres to surfaces that would again be capable of
supporting tree crops. Removal of cobbles and gravels from the soils
before soils are replaced would remove one of the primary limitations of
the site soils in their present condition.… Production records indicate that
the existing site soils produce 20 percent less fruit on average than the same
trees on soils without the cobbles. Therefore, the reclaimed soils are
expected to be 20 percent more productive per acre than under existing
conditions. The reclaimed lands would be returned to agricultural lands of
equal or better quality of that currently existing on the site. In addition, …
Mitigation Measure AG-1 require[s] phasing of the Project’s mining
activities to ensure that areas to be mined remain in agricultural production
as long as practicable.
“Mitigation Measure AG-2 requires that the Applicant ensure that
602 acres of farmland within the Project Site, but outside of the Project’s
mining disturbance area boundary, be maintained as an agricultural buffer
zone and remain in agricultural production for the life of the [CUP],
estimated at 100 years. This mitigation measure therefore requires
preservation of farmland at a 1:1 ratio during the life of the Project. While
this preservation requirement is not in perpetuity, as would occur under a
conservation easement, implementing this mitigation measure would
mitigate the temporal loss of agricultural land during the life of the Project.
In addition, no settled statutory or published CEQA case law exists that
mandates mitigating loss of farmland using conservation easements
[citations].
21 None of the parties offers a record citation for this draft policy, and we have not located it
in the record.
49.
“Mitigation Measure AG-3 would accelerate the return to farmland
of certain mined areas, and the Reclamation Plan requires that
approximately 240 acres of the Project be reclaimed to agricultural use as
soon as possible.
“However, even with implementation of the mitigation identified in
the Draft EIR, the County considers the permanent loss of up to 583 acres
of farmland to represent a significant impact under CEQA. Permanent
preservation through a farmland conservation easement would not reduce
the amount of farmland permanently converted as result of the Project. A
conservation easement would not ‘replace or provide a substitute resource’
(CEQA Guidelines § 15370[, subd. ](e)) for the permanent loss of 583 acres
of farmland, which is unique and would be lost permanently. Accordingly,
a conservation easement would not mitigate the impact to a less-than-
significant level or substantially reduce the severity of the impact, as would
Mitigation Measures AG 1-3.”
3. Analysis
Petitioner initially contends County violated CEQA by failing to require
mitigation for the conversion of farmland to other uses. It asserts, “The EIR for the
Project, however, does not include any specific measures to mitigate the adverse
environmental impact of eliminating important farmland.” This is not correct. The EIR
recommends three mitigation measures, which the County approved. Pursuant to the
MMRP, the public works department is responsible for enforcement of the mitigation
measures, and compliance is to be monitored in yearly mine inspections. Mitigation
Measure AG-2, for example, requires the applicant to maintain 602 acres in agricultural
production for the life of the CUP. Thus, the EIR does include specific measures to
mitigate the loss of farmland, and petitioner’s contention that County failed to require
mitigation is without merit.
Petitioner next argues that the EIR fails to evaluate feasible mitigation measures.
We disagree. “If more than one mitigation measure is available, the EIR must discuss
each and describe reasons for the measure or measures it selects.” (Woodward Park
Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal. App. 4th 683, 724, citing
Guidelines, § 15126.4, subd. (a)(1)(B).) Here, County considered ACEs as a possible
50.
mitigation measure along with the three mitigation measures recommended in the DEIR.
In Collective Response 6, the FEIR discusses ACEs, comparing them to the
recommended mitigation measures of continuing agricultural production until each cell is
ready to be mined, saving the topsoil and overburden to reclaim some of the mined land
to farmland, and requiring a 600-acre agricultural zone within the Project site. The FEIR
notes that Mitigation Measure AG-2 preserves farmland at a 1:1 ratio for the life of the
Project, which is 100 years. Accordingly, we reject petitioner’s contention that the EIR
fails to evaluate feasible mitigation measures.22
Petitioner also appears to take the position that County was required to adopt the
use of ACEs as a mitigation measure as a matter of law. Petitioner asserts, “[F]ailure to
require compensatory mitigation is a violation of the law.”
Petitioner relies on Masonite Corp. v. County of Mendocino (2013) 218
Cal. App. 4th 230, 238 (Masonite), in which the Court of Appeal held, “ACEs may
22 We recognize that the DEIR states there is a “lack of feasible mitigation” for the
conversion of farmland. The DEIR, however, goes on to recommend three mitigation measures
that are intended to lessen the Project’s impact on farmland. Thus, we do not read the DEIR as
concluding there are no measures that would minimize or compensate for the impact
(mitigation), which are capable of being accomplished in a successful manner (feasible). Rather,
in context, it is apparent that the DEIR means no feasible measures are available that would
mitigate the impact to a less-than-significant level. This is a common use of the phrase “feasible
mitigation.”
For example, in Citizens for Open Government v. City of Lodi (2012) 205 Cal. App. 4th
296 (Lodi), a case involving a proposal to build a shopping center on farmland, the lead agency
found there were “no feasible mitigation measures” because no mitigation could avoid the
significant impact resulting from the permanent loss of farmland. (Id. at pp. 301, 323.) The lead
agency went on to require the project applicant to acquire an ACE. (Id. at p. 322.) The Court of
Appeal found substantial evidence to support the lead agency’s finding that “there were no
feasible mitigation measures,” although the court also noted that the ACE requirement “would
minimize and substantially lessen the significant effects” of the project. (Id. at p. 324.) Since
the Lodi court expressly recognized that the ACE requirement would mitigate a significant
impact, it is clear the court intended the phrase “there were no feasible mitigation measures” to
mean there were no feasible mitigation measures that would reduce the project’s impact to a
level of insignificance. (Ibid.)
51.
appropriately mitigate the direct loss of farmland when a project converts agricultural
land to a nonagricultural use.” This case does not support petitioner’s position.
In Masonite, Mendocino County approved a project for a sand and gravel quarry
on a site where vineyards were cultivated. (Masonite, supra, 218 Cal.App.4th at p. 233.)
The EIR for the project rejected the use of ACEs as a possible mitigation measure. The
EIR explained the county’s understanding that an ACE only mitigates “‘the indirect and
cumulative effects of farmland conversion,’” such as “‘pressure created to encourage
additional conversions’” of nearby farmland, but an ACE does not mitigate the direct loss
of farmland because it “does not replace the on-site resources” of prime farmland. (Id. at
p. 236.) The EIR went on to conclude that the project would not create indirect
development pressure on agricultural lands and, as a result, “‘feasible mitigation
measures are not available.’” (Ibid.) The planning commission adopted a statement of
overriding considerations. (Id. at p. 234.)
The Court of Appeal disagreed with the EIR’s discussion of ACEs. The court
explained: “The County presumed that ACEs were useful only to address ‘the indirect
and cumulative effects of farmland conversion,’ and were not needed here because the
Project would have no such effects. Thus, the finding of infeasibility in the EIR rested on
the legal conclusion that while ACEs can be used to mitigate a project’s indirect and
cumulative effects on agricultural resources, they do not mitigate its direct effect on those
resources.” (Masonite, supra, 218 Cal.App.4th at p. 238.) The court rejected the
county’s presumption and legal conclusion, holding: “We conclude that ACEs may
appropriately mitigate for the direct loss of farmland when a project converts agricultural
land to a nonagricultural use, even though an ACE does not replace the onsite resources.
Our conclusion is reinforced by the CEQA Guidelines, case law on offsite mitigation for
loss of biological resources, case law on ACEs, prevailing practice, and the public policy
of this state.” (Ibid.)
52.
The court reasoned that ACEs “compensate” for the loss of farmland within the
Guidelines’ definition of mitigation. (Masonite, supra, 218 Cal.App.4th at p. 238, citing
Guidelines, § 15370, subd. (e).) It noted that case law has recognized off-site
preservation of habitats for endangered species as an accepted means of mitigating
impacts on biological resources, and that ACEs serve a similar function. (Id. at pp. 238-
239 [citing cases on use of conservation of off-site habitat as mitigation].) Considering
case law on ACEs, the Masonite court cited Lodi, supra, 205 Cal. App. 4th 296.
(Masonite, supra, at p. 239.) In Lodi, the court observed that requiring the project
applicant to acquire an off-site ACE “would minimize and substantially lessen the
significant effects of the proposed project.” (Lodi, supra, at p. 324.) The Masonite court
further explained that ACEs “are commonly used” to mitigate the loss of farmland.
(Masonite, supra, at p. 240.) Finally, the court relied on the Legislature’s repeated
declarations that “the preservation of agricultural land is an important public policy.” (Id.
at pp. 240-241 [citing statutes].)
The court concluded: “To categorically exclude ACEs as a means to mitigate the
conversion of farmland would be contrary to one of CEQA’s important purposes.…
ACEs should not ‘be removed from agencies’ toolboxes as available mitigation’ for this
environmental impact.” (Masonite, supra, 218 Cal.App.4th at p. 241.) Therefore, the
court required Mendocino County to “explore[]” the economic feasibility of off-site
ACES to mitigate the project’s impact on the loss of 45 acres of prime farmland. (Ibid.)
In sum, the Masonite court held that ACEs may mitigate the direct loss of
farmland and that the lead agency in that case erred by failing to consider ACEs as a
potential mitigation measure for this direct loss. We do not read Masonite, however, to
stand for the proposition that CEQA requires the use of ACEs as a mitigation measure in
every case where ACEs are economically feasible and the project causes the loss of
farmland. In Masonite, the lead agency did not believe ACEs were applicable and
apparently did not adopt any mitigation measures to address the loss of farmland caused
53.
by the project. Here, in contrast, County did not “categorically exclude ACEs as a means
to mitigate the conversion of farmland.” (Masonite, supra, 218 Cal.App.4th at p. 241.)
Rather, County considered the use of ACEs along with other mitigation measures and
selected the three mitigation measures recommended in the DEIR. We decline to hold
that County was required to adopt ACEs as a mitigation measure instead of the mitigation
measures it did adopt.
Finally, we reject petitioner’s argument that County failed to provide a reasoned
response to commenters raising concerns regarding the conversion of agricultural lands to
other uses. “An agency must evaluate and respond to timely comments on the draft EIR
that raise significant environmental issues. [Citations.] Responses must describe the
disposition of the issues raised in the comments. [Citations.] If the agency rejects a
recommendation or objection concerning a significant environmental issue, the response
must explain the reasons why. [Citation.]” (Ballona Wetlands Land Trust v. City of Los
Angeles (2011) 201 Cal. App. 4th 455, 475.) Other than arguing County should have
required the acquisition of ACEs as a mitigation measure, petitioner does not explain how
Collective Response 6 is deficient. We do not find the response to be inadequate.
F. Air quality⃰
Section 4.7 of the DEIR addresses greenhouse gas (GHG) emissions and global
climate change. It states that the primary sources of GHG emissions from the Project
include facilities’ energy usage, other equipment energy usage, operation of mobile
equipment, on-site and off-site delivery trucks, on-site and off-site worker vehicles, and
stationary sources.
The DEIR explains that population growth correlates to growth in demand for
aggregate and related construction materials. It states that aggregate shortages in the
Fresno area have resulted in rock being imported from Coalinga, a 60-mile haul, quoting
⃰ See footnote, ante, page 1.
54.
a 2006 Department of Conservation (DOC) report, “Aggregate Availability in
California.” It continues:
“Delivery trucks are an aspect of the Proposed Project that may
result in a regional reduction of GHG emissions. By placing a source of
aggregate, ready-mix concrete, and asphalt in a location where supply does
not currently meet demand the Project will result in a reduction in VMT
[vehicle miles traveled] for customers. It is expected that many of the
Proposed Project’s customers will be located within a 30 to 60 mile
roundtrip distance from the Proposed Project. In the absence of the
Proposed Project, a portion of these customers would otherwise have to
travel to Coalinga to obtain these materials, at a roundtrip distance of
approximately 120 miles. This reduction in distance traveled for customer
vehicles would result in a corresponding reduction in GHG emissions .…”
Petitioner contends the EIR’s analysis is flawed because it is based on the
incorrect “assumption that there is tremendous unmet need for aggregate in Fresno
County.” Petitioner argues there is no substantial evidence in the record to support the
conclusion that there is any unmet need for aggregate in Fresno County. Petitioner offers
no citations in support of this argument, but claims the “flaws in this assumption are
discussed at length above” in its opening brief. Earlier in the brief, in its statement of
facts, petitioner asserts, “Based upon the evidence in the record, it appears that demand
has been decreasing and that Fresno County aggregate mines have been exporting
material to other counties, and may continue to do so in the future.” In support of this
assertion, petitioner cites (1) a comment prepared by Richard Young addressing a
different mining project proposal, the CEMEX Jesse Morrow mine (CEMEX project),
(2) a letter from the public works department to a person at an address in Fowler
regarding the recipient’s approved rezoning application, and (3) a letter to the Board from
Friends’ attorney, Burch, appealing the planning commission’s approval of the EIR.
Young wrote that projected population growth rates for Fresno County in the
DEIR for the CEMEX project were too large. In citing Young’s comment, petitioner
makes no effort to show how it is relevant to the present case. Petitioner does not, for
55.
example, offer evidence showing that the population growth rates used in the Project’s
EIR are the same as those used in the CEMEX project. Young also wrote that there was
a decrease in aggregate production from 2006 to 2007, due in part to decreased home
construction. He then claimed that the recent economic downturn would “almost
certainly result in even further decreases in aggregate demand for some time to come”
and the analysis for the CEMEX project “does not account for the downturns.” Again,
petitioner does not connect Young’s comments about a different EIR to the evidence in
this case. The public works department letter does not appear to be relevant, and
petitioner does not attempt to explain how it might be relevant. Burch’s letter asserts that
the EIR uses “outdated information from 2006.” Yet petitioner acknowledges that the
EIR “uses data from the most recent [California Geological Survey] study (2006).”
(Italics added.) And, returning to the assertion these record cites are supposed to support,
we are unable to locate anything that demonstrates “Fresno County aggregate mines have
been exporting material to other counties” as petitioner claims.
In any event, as we explained above in our discussion of petitioner’s substantial-
evidence challenge to the EIR’s analysis of water issues, the question is not whether there
is substantial evidence to support petitioner’s position, the question is whether there is
substantial evidence to support County’s conclusion. (Laurel Heights I, supra, 47 Cal.3d
at p. 407.) The EIR provides, “‘Aggregate shortages in the Fresno area have resulted in
rock being imported into the area from Coalinga, a 60-mile haul.’ (DOC 2006,
‘Aggregate Availability in California,’ p. 15.)” A map prepared by the DOC,
“AGGREGATE AVAILABILITY IN CALIFORNIA[;] Fifty-Year Aggregate Demand Compared
to Permitted Aggregate Resources” shows that permitted sources of aggregate represent a
small fraction of the 50-year demand for aggregate in the Fresno area. A planning
commission staff report provides: “The shortage of aggregate throughout the Fresno
region is a serious problem. As of January 1, 2006, the County had only permitted
11 percent of the region’s 50-year aggregate demand, with less than 10 years of permitted
56.
supply remaining. (Kohler, 2006.) … While this data was compiled before the recent
recession, it is important to note that it is based on a 50-year forecast, and it accounts for
economic expansion and contraction.” A consulting firm opined in August 2012 that “the
DOC’s data remain the official source of reliable statewide and regional information [and
are] … useful to local decision makers [and] land-use planners.” This is substantial
evidence supporting the conclusions that there is a need for additional sources of
aggregate in the Fresno area and that a source of aggregate located closer to the Fresno
area could result in fewer trucks hauling aggregate from Coalinga.
Petitioner next claims, “The terrible air quality impacts that will result from the
Project may not be ignored on the basis of the unsupported claim that the Project will
likely be closer to its customers than other aggregate mines, without substantial evidence
to support this conclusion.” We have addressed the second part of this claim. As to the
first part of this claim, the EIR does not ignore the Project’s impacts on air quality.
Section 4.3 of the DEIR evaluates potential air quality impacts that could occur with
implementation of the Project. The DEIR finds that the Project “could increase emissions
of criteria pollutants and potentially violate air quality standards, or contribute
substantially to an existing or projected air quality violation.” Nor did County ignore the
Project’s potential impacts to air quality. In its statement of overriding conditions,
County cited the EIR’s air quality analysis and found “no feasible mitigation can reduce
the Project’s emissions of criteria pollutants or contributions to existing air quality
violations to a less-than-significant level.” Petitioner’s challenge to the EIR’s discussion
on the Project’s potential impacts on air quality and GHG emissions fails.
G. Noise⃰
Petitioner contends, “The DEIR’s analysis of the Project’s noise impacts is flawed
in many respects .…” Petitioner does not explain the “many respects” in which the noise
⃰ See footnote, ante, page 1.
57.
analysis is supposed to be flawed except to note “there is no limit whatsoever on the
nighttime operations allowed for the Project.” However, we have rejected petitioner’s
claim that nighttime operations of the Project are unlimited in our discussion of the
project description.
The DEIR recommends mitigation measures to address the Project’s noise
impacts. It then concludes that the noise impacts would be less than significant with the
implementation of the recommended mitigation measures. Petitioner does not challenge
this conclusion. Instead, it asserts that “nighttime noise impacts are the most severe” and
argues that limiting nighttime operations would be a feasible mitigation measure.
Petitioner offers no basis for its assertion that nighttime noise impacts would be most
severe. We note that Table 4.11-16, a noise exposure assessment, indicates that the only
potentially significant noise impacts would be caused by excavation activities, which
would occur during the day (and under Mitigation Measure N-2 could occur at night only
if it could be demonstrated through on-site noise measurements that such activities would
not exceed the thresholds of significance). Petitioner has not shown that the EIR’s
analysis of noise impacts is inadequate.
H. Revisions to the DEIR⃰
The FEIR includes revisions to the DEIR, denominated “Errata.” Petitioner
challenges two of the revisions, arguing they contain “significant new information and
erroneous conclusions.” The first revision, Errata 3.2.11, is an addition to the EIR’s
discussion of potential air quality impacts. The second revision, Errata 3.2.20, adds
further discussion and a new mitigation measure to the EIR’s analysis of potential traffic
impacts.
“Significant new information” is a term of art in the CEQA context. The
consequence of adding “‘significant new information’” to an EIR after the public has
⃰ See footnote, ante, page 1.
58.
reviewed and commented on it is that the lead agency must recirculate the revised EIR
for additional review and comment. (§ 21092.1; Laurel Heights Improvement Assn. v.
Regents of University of California (1993) 6 Cal. 4th 1112, 1124-1125.) The purpose of
the recirculation requirement is to advance “the goal of meaningful public participation in
the CEQA review process” without at the same time causing “endless rounds of revision
and recirculation of EIR’s.” (Id. at p. 1132.)
The Guidelines explain that new information is significant if “the EIR is changed
in a way that deprives the public of a meaningful opportunity to comment upon a
substantial adverse environmental effect of the project or a feasible way to mitigate or
avoid such an effect (including a feasible project alternative) that the project's proponents
have declined to implement.” (Guidelines, § 15088.5, subd. (a).) “‘Significant new
information’ requiring recirculation include[s], for example, a disclosure showing that:
[¶] (1) A new significant environmental impact would result from the project or from a
new mitigation measure proposed to be implemented. [¶] (2) A substantial increase in
the severity of an environmental impact would result unless mitigation measures are
adopted that reduce the impact to a level of insignificance. [¶] (3) A feasible project
alternative or mitigation measure considerably different from others previously analyzed
would clearly lessen the significant environmental impacts of the project, but the
project’s proponents decline to adopt it. [¶] (4) The draft EIR was so fundamentally and
basically inadequate and conclusory in nature that meaningful public review and
comment were precluded. [Citation.]” (Ibid.)
On the other hand, “[r]ecirculation is not required where the new information
added to the EIR merely clarifies or amplifies or makes insignificant modifications in an
adequate EIR.” (Guidelines, § 15088.5, subd. (b).)
1. Errata 3.2.11
In section 4.3 addressing air quality, the DEIR states that the regional effects of
the Project may result in significant impacts by exceeding the threshold for nitrogen
59.
oxide (NOx) emission. The DEIR explains that the greatest source of NOx emissions is
customer and supplier vehicles traveling to and from the site:
“If not for offsite NOx emissions from on-road vehicles, the impact
from NOx emissions would be considered to be less than significant, and
these emissions represent by far the majority of the NOx emissions from the
Project. These vehicles are owned by suppliers and customers of the
Project, and the particular make, model, and emission rate of these sources
are not under the control of the applicant. Requiring that these vehicles
meet emission mitigation levels[,] therefore, is not a feasible option. In
addition, although these offsite emissions are being included in the impact
analysis for the Project, in reality it is likely that by supplying product to
potential customers from a source closer than would otherwise be available,
total NOx emissions into the airshed are expected to be reduced as result of
implementing the Project .…”
The DEIR does not identify any mitigation measures to reduce NOx emissions and
concludes that impacts are anticipated to be significant and unavoidable.
Errata 3.2.11 adds to the discussion of NOx emissions. In a preface to the
additional language, the FEIR explains that “County determined that the EIR should
include discussion of baseline NOx emissions associated with existing conditions at the
Project Site to provide a context for the Project’s net NOx emissions associated with
onsite activities.”
Errata 3.2.11 states that the baseline condition of agricultural production involves
use of equipment and vehicles that emit NOx. It further provides that, as agricultural land
is removed from production for mining, the baseline emissions would reduce and
“eventually there would be a net NOx [emissions] reduction from the site as compared to
current agricultural practices.” The Errata explains its conclusion is based on
calculations using an estimate that NOx emissions associated with existing agricultural
practices are .91 tons per year for each 40-acre unit, citing Sierra Research 2012.
Petitioner argues there is no substantial evidence to support the conclusions in the
Errata. We disagree. The information in the Errata itself is substantial evidence
supporting the conclusion that, over time, the net on-site NOx emissions of the Project
60.
would be less than the emissions that would result from continuing agricultural
production. In addition, the Errata is not significant new information as it does not
change the EIR’s conclusion that the Project may result in significant and unavoidable
impacts related to NOx emissions.
2. Errata 3.2.20
Section 4.12 of the DEIR addresses traffic and circulation. It describes the
thresholds of significance used in determining whether an impact to traffic would be
deemed significant. These include impacts that “[s]ubstantially increase hazards due to a
design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g.,
farm equipment),” “[r]esult in an inadequate emergency access,” or “[c]onflict with
adopted policies, plans, or programs regarding public transit, bicycle, or pedestrian
facilities, or otherwise decrease the performance or safety of such facilities.”
Subsection 4.12.4.3 of the DEIR discusses “impact issues that have been
determined to be less than significant.” Errata 3.2.20 adds to this discussion of less-than-
significant impacts and includes a mitigation measure, although the FEIR continues to
find no significant impact. The new discussion language includes the following:
“No CEQA threshold exists for establishing potential changes in risk
associated with the addition of vehicles on existing roadways. Roadway
safety is typically evaluated by determining whether any roadways with
safety deficiencies would be adversely affected by a project. No substantial
evidence exists that the study area roadways have unusual conditions or
sight-distance deficiencies that would indicate that the addition of Project
vehicles would create or substantially contribute to a safety hazard.
[¶] … [¶]
“Much of the truck traffic associated with the Project would travel
north on Reed Avenue and west on State Route 180 and is not anticipated
to use many of the County roads in the Reedley and Sanger areas (see Draft
EIR Figure 4.12-2, Project Trip Distribution). Thus, Project-related trucks
would not frequently travel near local schools.
“Because no evidence exists that the Project would create an
increased safety risk on public roadways, this impact is considered less than
61.
significant. However, the County acknowledges that the shared use of
public roadways by heavy-duty trucks and other motorists, bicyclists, and
pedestrians, requires all users to exercise a level of precaution.
Notwithstanding this determination, the County will require the
implementation of mitigation to further ensure that operators of Project-
related vehicles obey the requirements of the California Vehicle Code by
requiring that information be provided to truck drivers regarding the
locations of established school bus stop locations within the Project area
and to school districts about haul-truck routes.”
Errata 3.2.20 then adds Mitigation Measure TC-5, which requires the Project
operator (1) to provide information to drivers on Vehicle Code requirements and (2) to
request maps from area school districts of bus stop locations and to provide the maps to
trucking companies and drivers that enter the Project Site.
Petitioner asserts the Project will increase risks to public safety, although it does
not explain the basis for this assertion. Petitioner argues that analysis must be completed
and mitigation measures identified. But the EIR does analyze potential impacts to traffic
safety. The EIR explains that roadway safety is typically evaluated by determining
whether any roadways with safety deficiencies would be adversely affected by the
Project. Petitioner disagrees with the EIR’s conclusions, but it has not shown that the
analysis of the potential traffic impacts is inadequate. In addition, Errata 3.2.20 does not
contain substantial new information.
I. County’s findings of fact and statement of overriding conditions⃰
Respondents and real parties in interest argue in their response brief that petitioner
has forfeited any argument regarding the sufficiency of County’s findings of fact and
statement of overriding considerations. We agree.
We have addressed each argument made in petitioner’s “LEGAL DISCUSSION”
section of its opening brief. The “LEGAL DISCUSSION” does not include a heading related
to County’s findings of fact and statement of overriding considerations. Petitioner’s
⃰ See footnote, ante, page 1.
62.
opening brief also includes a section called “ISSUES PRESENTED FOR REVIEW.” In this
section, petitioner identifies as an issue “Whether County’s approval of the Project
violated CEQA” and lists three separate sub-issues: (1) whether the EIR is an inadequate
informational document because it lacks a complete reclamation plan; (2) whether the
EIR fails to take into consideration the whole of the project where essential postmining
plans and reports are missing; and (3) whether the EIR violates CEQA by failing to
adequately analyze the Project’s impacts or adopt appropriate mitigation measures. This
section does not raise a challenge to County’s findings of fact and statement of overriding
considerations.
Each appellate brief must “[s]tate each point under a separate heading or
subheading summarizing the point, and support each point by argument and, if possible,
by citation to authority .…” (Cal Rules of Court, rule 8.204 (a)(1)(B).) “The
requirements that issues be raised in the opening brief and presented under a separate
argument heading, showing the nature of the question to be presented and the point to be
made, are part of the ‘“[o]bvious considerations of fairness”’ to allow the respondent its
opportunity to answer these arguments [citation] and also ‘“to lighten the labors of the
appellate [courts] by requiring the litigants to present their cause systematically and so
arranged that those upon whom the duty devolves of ascertaining the rule of law to apply
may be advised, as they read, of the exact question under consideration, instead of being
compelled to extricate it from the mass”’ [citation].” (People v. Roscoe (2008) 169
Cal. App. 4th 829, 840.) Petitioner’s opening brief fails to identify a challenge to
County’s findings of fact and statement of overriding conditions as an issue for review.
Consequently, this issue is forfeited. (Ibid.)
In any event, petitioner has failed to demonstrate that County’s findings of fact
and statement of overriding considerations are legally deficient. “Override findings are
sufficient if they ‘demonstrate the balance struck’ by an agency in ‘weighing the benefits
of the proposed project against its unavoidable adverse impacts.’ [Citation.]
63.
Additionally, ‘a statement of overriding considerations must be supported by substantial
evidence contained in “the final EIR and/or other information in the record.”
(Guidelines, § 15093, subd. (b).)’ [Citation.]” (California Native Plant Society v. City of
Santa Cruz (2009) 177 Cal. App. 4th 957, 983.)
Here, County identified seven benefits of the Project. County determined that “the
benefits identified are each one in and of themselves sufficient to make a determination
that the adverse project-level and cumulative environmental effects are acceptable.”
County stated that it “balanced the adverse environmental effects of the Project, which
cannot otherwise be avoided or substantially lessened, against each of the benefits” and
adopted the statement of overriding considerations “based upon each of the benefits
individually.” This demonstrates County balanced the benefits of the Project against its
unavoidable impacts.
One of the benefits identified by County is that the Project would provide an
additional local source of aggregate. This was based on the finding that there is a
shortage of aggregate throughout the Fresno region. In our discussion of air quality
above, we have concluded that this finding is supported by substantial evidence. Since
the record shows County weighed the benefits of the Project against its unavoidable
adverse impacts and substantial evidence supports at least one of the benefits identified as
independently outweighing those impacts, County’s findings of fact and statement of
overriding considerations is sufficient.
V. Findings required to approve CUP⃰
Finally, petitioner contends there is no substantial evidence to support the required
CUP findings. This contention is based in large part on petitioner’s challenges to the
adequacy of the EIR.
⃰ See footnote, ante, page 1.
64.
Under Fresno County Zoning Ordinance section 873, subdivision F
(section 873-F), the planning commission must make four required findings before
approving or recommending approval of a CUP. A planning commission staff report,
dated August 9, 2012 (the August 2012 staff report), provided the staff’s analysis in
support of each of the four required findings.
As an initial matter, petitioner points out that the findings required for the CUP
approval appear in the August 2012 staff report but are not included in the Board’s
resolution or its findings of fact and statement of overriding considerations.
Section 873-F refers to required findings by the planning commission, not the Board.
Respondents and real parties in interest argue that the planning commission’s resolution
“specifically referenced and incorporated” the August 2012 staff report. (Italics omitted.)
We have reviewed the planning commission’s resolution and do not find that it
incorporated the August 2012 staff report by reference. The resolution expressly
incorporated attached documents of (1) findings and a statement of overriding
considerations and (2) mitigation measures and a mitigation monitoring plan. Regarding
the August 2012 staff report, the resolution provided that the planning commission
“independently reviewed and considered” it, but did not expressly provide that the
August 2012 staff report was incorporated by reference.
Nevertheless, we reject petitioner’s claim, which is based on an apparent technical
violation of the zoning ordinance. Government Code section 65010, subdivision (b), of
the Planning and Zoning Law (Gov. Code, § 65000 et seq.) requires a showing of
prejudice in order to set aside an agency decision on the basis of procedural error. It
provides:
“No action … by any public agency … or any of its administrative
agencies or officials on any matter subject to this title shall be held invalid
or set aside by any court on the ground of the improper admission or
rejection of evidence or by reason of any error, irregularity, informality,
neglect, or omission (hereafter, error) as to any matter pertaining to
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petitions, applications, notices, findings, records, hearings, reports,
recommendations, appeals, or any matters of procedure subject to this title,
unless the court finds that the error was prejudicial and that the party
complaining or appealing suffered substantial injury from that error and
that a different result would have been probable if the error had not
occurred. There shall be no presumption that error is prejudicial or that
injury was done if the error is shown.” (Gov. Code, § 65010, subd. (b),
italics added.)
Government Code section 65010 “is a ‘curative statute’ enacted by the Legislature
for the purpose of ‘terminating recurrence of judicial decisions which had invalidated
local zoning proceedings for technical procedural omissions. [Citations.]’ [Citation.]”
(Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal. App. 4th 899,
921 (Rialto).)
Here, it appears there was an error: the omission of the required findings from the
planning commission’s resolution. The required findings, however, can be found in the
August 2012 staff report, which the planning commission reviewed before passing the
resolution. This suggests the omission “was an oversight and did not result in prejudice
or substantial injury to anyone.” (Rialto, supra, 208 Cal.App.4th at p. 923.) Petitioner
does not offer any evidence or argument to show that a different result would have been
probable if the error had not occurred. Accordingly, petitioner’s claim of technical
violation of section 873-F fails.
Petitioner’s primary argument is that no substantial evidence supports the four
findings required by the zoning ordinance. As described in the August 2012 staff report,
the four required findings are:
“1. That the site of the proposed use is adequate in size and shape to
accommodate said use and all yards, spaces, walls, and fences, parking,
loading, landscaping, and other features required by this Division, to adjust
said use with land and uses in the neighborhood[.]
“2. That the site for the proposed use relates to streets and highways
adequate in width and pavement type to carry the quantity and kind of
traffic generated by the proposed use.
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“3. That the proposed use will have no adverse impact on abutting
property and surrounding neighborhood or permitted use thereof.
“4. That the proposed use is consistent with the Fresno County
General Plan.”
With respect to the first finding—that the site is adequate to accommodate the
proposed use and to adjust such use with land and uses in the neighborhood—petitioner
argues the applicant failed to produce a site plan with enough specific information.
Friends’ attorney, Burch, raised this concern in her letter of August 3, 2012, described
above in our discussion of nighttime operations. Applicant’s attorney, Henry, responded
that the reclamation plan at appendix B-1 of the DEIR provides a site plan. On appeal,
petitioner argues that the reclamation plan was set aside by the SMGB and is insufficient
evidence because it is missing an engineered grading and drainage plan. Petitioner does
not explain why an engineered grading and drainage plan is necessary to understand
whether the site is an adequate size and shape to accommodate the Project, however, and
we have concluded that the reclamation plan was not set aside. The August 2012 staff
report analysis of this finding notes that County Zoning Ordinance section 858 precludes
extraction of material within 25 feet of any property line or within 50 feet of a road right-
of-way, and the Project proposes to set back excavation a minimum of 100 feet from the
property line. The August 2012 staff report finds that the property provides sufficient
area to maintain the proposed setbacks and sufficient area for the access road and
circulation of trucks within the processing plant. We will not disturb this finding based
on petitioner’s substantial-evidence challenge.
With respect to the second finding—that the streets and highways are adequate for
the proposed use—petitioner asserts “County simply cannot make the finding.” It claims
the roadways are inadequate and County has not done the required studies to determine
the level of increased safety risk caused by the Project. This argument is based on
petitioner’s challenge to the traffic analysis, discussed above in our consideration of
revisions to the DEIR. Since we have rejected petitioner’s claim that the traffic analysis
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is inadequate, we also reject this argument. In its reply brief, petitioner suggests that the
findings in the August 2012 staff report are inaccurate. In analyzing traffic impacts, the
DEIR notes that, if planned improvements to a road are delayed or not constructed, the
Project’s impact could be significant, while the staff report does not include this
observation. This does not demonstrate that the August 2012 staff report is inaccurate.
Nor does it bolster petitioner’s claim that no substantial evidence supports the second
finding.
Petitioner asserts the third finding “is not possible,” relying on the fact that the
EIR determines that certain impacts would be significant and unavoidable. The August
2012 staff report explains, however, that an impact deemed significant and unavoidable
for CEQA purposes would not necessarily be an adverse impact on neighbors for
purposes of the third finding of section 873-F. The report explains, for example: “The
EIR concluded that the Project’s impacts related to odor would be significant and
unavoidable because one residence is within the one mile of the proposed asphalt plant,
which is a screening level criteria specified in APCD [air pollution control district]
guidance. This was a legally conservative determination of the purposes of the County’s
CEQA review. However, based on the analysis above [describing EIR analysis and
mitigation measures], staff recommends that for purposes of CUP Finding 3 the
Commission can make the finding that impacts related to air quality would not adversely
affect abutting properties and surrounding neighborhoods or the permitted use thereof.”
Petitioner does not argue that County may not interpret its zoning ordinance in this
manner, and such an argument would not be successful. A local government agency is
entitled to deference in the interpretation of its own local zoning ordinances. (Gray v.
County of Madera (2008) 167 Cal. App. 4th 1099, 1130 (Gray).) In it reply brief,
petitioner argues the third finding is not supported by substantial evidence because the
EIR’s analysis of groundwater impacts is inadequate, but we have rejected this argument.
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As to the fourth finding—that the Project is consistent with County’s general
plan—petitioner makes no effort to describe County’s general plan or explain how the
Project would conflict with the general plan. Petitioner states the Project is inconsistent
with the general plan because of the “serious impacts to agricultural values, air quality
and oak savanna, among other things.” This is insufficient. County’s interpretation of its
own general plan is entitled to considerable deference. (Gray, supra, 167 Cal.App.4th at
p. 1129.) We also observe that County’s general plan recognizes that aggregate and
petroleum are County’s most significant extractive resources and play an important role
in maintaining County’s overall economy. Petitioner has failed to establish that no
reasonable person could have reached the conclusion that the Project is consistent with
County’s general plan. (No Oil, Inc. v. City of Los Angeles (1987) 196 Cal. App. 3d 223,
243.)
For the foregoing reasons, we will not set aside the approval of the CUP based on
petitioner’s argument that County violated its own zoning ordinance.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents and real
parties in interest.
_____________________
Kane, J.
WE CONCUR:
_____________________
Gomes, Acting P. J.
_____________________
Franson, J.
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