Stop Syar Expansion v. County of Napa CA1/1 ( 2021 )

Filed 3/25/21 Stop Syar Expansion v. County of Napa CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
STOP SYAR EXPANSION,
Petitioner and Appellant, A158723
v.
(Napa County Super.
COUNTY OF NAPA, Ct. No. 16CV001070)
Defendant and Respondent;
SYAR INDUSTRIES, INC.,
Real Party in Interest and
Respondent.
INTRODUCTION
Stop Syar Expansion (SSE) has long opposed the expansion of Syar
Industries, Inc.’s (Syar) aggregate operation. Syar filed an application for
expansion in May 2008. After more than seven years of environmental
review and numerous hearings, the County Planning Commission, in October
2015, certified the final Environmental Impact Report (EIR) and approved a
modified project and a permit for an expansion half the size originally sought
and subject to more than 100 pages of conditions and mitigation measures.
SSE appealed both the EIR certification and the project and permit approvals
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to the County Board of Supervisions, asserting in the respective appeals that
the EIR and the project and permit approvals were deficient in a multitude of
respects. After nearly a year of additional environmental review and
hearings, the Board, in a 109-page decision, rejected SSE’s appeals, certified
the EIR, and approved a further modified project and permit.
SSE filed the instant writ proceeding pursuant to Public Resources
Code, section 21168,1 challenging the certification of the EIR. It ultimately
winnowed down its claims with respect to the EIR to 16 asserted deficiencies.
After briefing by the parties and a hearing, the trial court, in a 42-page
ruling, denied the writ petition on a variety of grounds, reaching the merits
as to some issues and concluding SSE failed to exhaust administrative
remedies as to others.
SSE appeals and, at this juncture, contends the EIR is deficient in five
respects. We affirm.
DISCUSSION2
Basic CEQA Principles and Standard of Review
In South of Market Community Action Network v. City and County of
San Francisco (2019) 33 Cal.App.5th 321, 329–330 (South of Market), we
summarized the relevant CEQA principles and standard of review in a case
like this one, where the petitioner’s appeal “primarily challenges the content
and analysis of the EIR.” (Id. at p. 329.)
As we explained, the “ ‘basic purpose of an EIR is to “provide public
agencies and the public in general with detailed information about the effect
1 All further statutory references are to the Public Resources Code
unless otherwise indicated.
2 We discuss the pertinent facts and any relevant procedural history in
connection with our discussion of the issues raised on appeal.
2
[that] 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.” ’ (Sierra Club v. County of Fresno
(2018) 6 Cal.5th 502, 511 . . . (Sierra Club).) ‘ “ ‘The EIR is the heart of CEQA’
and the integrity of the process is dependent on the adequacy of the EIR.” ’
(Rialto Citizens for Responsible Growth v. City of Rialto (2012)
208 Cal.App.4th 899, 924. . . .)” (South of Market, supra, 33 Cal.App.5th at
p. 329.)
“ ‘ “ ‘ “[A]n EIR is presumed adequate (Pub. Resources Code, § 21167.3),
and the plaintiff in a CEQA action has the burden of proving otherwise.” ’ ” ’
(Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 275. . . .)”
(South of Market, supra, 33 Cal.App.5th at p. 329.)
“As our Supreme Court recently explained in Sierra Club: ‘The
standard of review in a CEQA case, as provided in sections 21168.5 and
21005, is abuse of discretion. Section 21168.5 states in part: “In any action
or proceeding . . . to attack, review, set aside, void or annul a determination,
finding, or decision of a public agency on the grounds of noncompliance with
this division, the inquiry shall extend only to whether there was a prejudicial
abuse of discretion.” [Citation.] Our decisions have thus articulated a
procedural issues/factual issues dichotomy. “[A]n agency may abuse its
discretion under CEQA either by failing to proceed in the manner CEQA
provides or by reaching factual conclusions unsupported by substantial
evidence. (§ 21168.5.) Judicial review of these two types of error differs
significantly: While we determine de novo whether the agency has employed
the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated
CEQA requirements’ [citation], we accord greater deference to the agency’s
substantive factual conclusions. In reviewing for substantial evidence, the
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reviewing court ‘may not set aside an agency’s approval of an EIR on the
ground that an opposite conclusion would have been equally or more
reasonable,’ for, on factual questions, our task ‘is not to weigh conflicting
evidence and determine who has the better argument.’ ” ’ (Sierra Club,
supra, 6 Cal.5th at p. 512.)” (South of Market, supra, 33 Cal.App.5th at
pp. 329–330.)
“The court explained that this ‘procedural issues/factual issues
dichotomy’ has worked well for courts reviewing agency determinations.
(Sierra Club, supra, 6 Cal.5th at p. 512.) Some procedural questions, such as
whether the agency has provided sufficient notice and opportunity to
comment on a [draft EIR], or whether it has entirely omitted a required
discussion, have clear answers. ‘But the question whether an agency has
followed proper procedures is not always so clear. This is especially so when
the issue is whether an EIR’s discussion of environmental impacts is
adequate, that is, whether the discussion sufficiently performs the function of
facilitating “informed agency decisionmaking and informed public
participation.” ’ (Id. at pp. 512–513.)” (South of Market, supra,
33 Cal.App.5th at p. 330.)
“After reviewing several of its own decisions and those of the Court of
Appeal, the court summarized three ‘basic principles’ regarding the standard
of review for adequacy of an EIR: ‘(1) An agency has considerable discretion
to decide the manner of the discussion of potentially significant effects in an
EIR. (2) However, a reviewing court must determine whether the discussion
of a potentially significant effect is sufficient or insufficient, i.e., whether the
EIR comports with its intended function of including “ ‘ “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.” ’ ”
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[Citation.] (3) The determination whether a discussion is sufficient is not
solely a matter of discerning whether there is substantial evidence to support
the agency’s factual conclusions.’ (Sierra Club, supra, 6 Cal.5th at pp. 515–
516.)” (South of Market, supra, 33 Cal.App.5th at p. 330.)
“ ‘The ultimate inquiry, as case law and the CEQA guidelines make
clear, is whether the EIR includes enough detail “to enable those who did not
participate in its preparation to understand and to consider meaningfully the
issues raised by the proposed project.” ’ (Sierra Club, supra, 6 Cal.5th at
p. 516.) Generally, that inquiry is a mixed question of law and fact subject to
de novo review, but to the extent factual questions (such as the agency’s
decision which methodologies to employ for analyzing an environmental
effect) predominate, a substantial evidence standard of review will apply.
(Ibid.)” (South of Market, supra, 33 Cal.App.5th at pp. 330–331, fn. omitted.)
“Further, ‘ “[i]n determining the adequacy of an EIR, the CEQA
Guidelines look to whether the report provides decision makers with
sufficient analysis to intelligently consider the environmental consequences
of a project. ([Guidelines,] § 15151.) The CEQA Guidelines further provide
that ‘the sufficiency of an EIR is to be reviewed in the light of what is
reasonably feasible. . . . The courts have [therefore] looked not for perfection
but for adequacy, completeness, and a good faith effort at full disclosure.’
([Guidelines,] § 15151.)” [Citation.] The overriding issue on review is thus
“whether the [lead agency] reasonably and in good faith discussed [a project]
in detail sufficient [to enable] the public [to] discern from the [EIR] the
‘analytic route the . . . agency traveled from evidence to action.’ ” ’ (California
Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th
227, 262 . . . (California Oak Foundation); see Sierra Club, supra, 6 Cal.5th
at p. 515 [‘We also affirm that in reviewing an EIR’s discussion, we do not
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require technical perfection or scientific certainty. . . .’].)” (South of Market,
supra, 33 Cal.App.5th at p. 331.)
“ ‘Although an agency’s failure to disclose information called for by
CEQA may be prejudicial “regardless of whether a different outcome would
have resulted if the public agency had complied” with the law (§ 21005, subd.
(a)), under CEQA, “there is no presumption that error is prejudicial” (§ 21005,
subd. (b)). Insubstantial or merely technical omissions are not grounds for
relief. [Citation.] “A prejudicial abuse of discretion occurs if the failure to
include relevant information precludes informed decisionmaking and
informed public participation, thereby thwarting the statutory goals of the
EIR process.” ’ (Neighbors for Smart Rail v. Exposition Metro Line
Construction Authority (2013) 57 Cal.4th 439, 463 . . .; see id. at pp. 464–465
[failure to comply with CEQA’s informational mandate ‘did not deprive
agency decision makers or the public of substantial information relevant to
approving the project, and is therefore not a ground for setting that decision
aside’].)” (South of Market, supra, 33 Cal.App.5th at p. 331.)
General CEQA Exhaustion Principles
The requirement that administrative remedies be exhausted “is
founded on the theory that the administrative tribunal is created by law to
adjudicate the issue sought to be presented to the court, and the issue is
within its special jurisdiction. If a court allows a suit to go forward prior to a
final administrative determination, it will be interfering with the subject
matter of another tribunal.” (Tahoe Vista Concerned Citizens v. County of
Placer (2000) 81 Cal.App.4th 577, 589 (Tahoe Vista).)
In the context of CEQA, specifically, “ ‘ “The essence of the exhaustion
doctrine is the public agency’s opportunity to receive and respond to
articulated factual issues and legal theories before its actions are subjected to
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judicial review.” ’ [Citations.] Comments must express concerns so the lead
agency has ‘ “ ‘ “its opportunity to act and to render litigation
unnecessary.” ’ ” ’ [Citation.].” (North Coast Rivers Alliance v. Marin
Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 623
(North Coast Rivers).)
Thus, “the requirement of exhaustion is a jurisdictional prerequisite,
and not a matter of judicial discretion.” (Tahoe Vista, supra, 81 Cal.App.4th
at p. 589; accord, Clews Land & Livestock, LLC v. City of San Diego (2017)
19 Cal.App.5th 161, 184 (Clews Land); North Coast Rivers, supra,
216 Cal.App.4th at p. 624.)
“Inasmuch as the issue of exhaustion is a question of law, ‘[a]n
appellate court employs a de novo standard of review when determining
whether the exhaustion of administrative remedies doctrine applies.’ ” (North
Coast Rivers, supra, 216 Cal.App.4th at p. 624; accord, Clews Land, supra,
19 Cal.App.5th at p. 185.)
“ ‘The purposes of the doctrine are not satisfied if the objections are not
sufficiently specific so as to allow the Agency the opportunity to evaluate and
respond to them.’ [Citation.] ‘ “ ‘[Thus,] [r]elatively . . . bland and general
references to environmental matters’ . . . , or ‘isolated and unelaborated
comment[s]’ ” ’ do not satisfy the exhaustion requirement. [Citation.] Rather,
‘ “[t]he ‘exact issue’ must have been presented to the administrative
agency. . . .” ’ [Citation.] Requiring anything less ‘would enable litigants to
narrow, obscure, or even omit their arguments before the final administrative
authority because they could possibly obtain a more favorable decision from a
trial court.’ [Citation.].”3 (North Coast, supra, 216 Cal.App.4th at p. 623;
3This does not mean an objector must be as specific as an attorney
making an objection in a lawsuit. (California Native Plant Society v. City of
Rancho Cordova (2009) 172 Cal.App.4th 603, 629 [“To satisfy the exhaustion
7
accord, South of Market, supra, 33 Cal.App.5th at p. 347; Sierra Club v. City
of Orange (2008) 163 Cal.App.4th 523, 535 [“To advance the exhaustion
doctrine’s purpose ‘[t]he “exact issue” must have been presented to the
administrative agency. . . .’ ”].)
In the instant case, because the County, by ordinance (Napa County
Code, ch. 288), provides for an appeal of actions by the Planning Commission
to the County Board of Supervisors, the exhaustion analysis entails a dual
inquiry.
Tahoe Vista guides this analysis, as the court therein addressed what
was then an issue of first impression—“whether a party who raises an issue
in the first hearing provided on a project but fails to raise that same issue in
an administrative appeal remains free to raise that issue in a subsequent
court challenge under section 21177.”4 (Tahoe Vista, supra, 81 Cal.App.4th at
p. 589.) Following an extensive discussion of both section 21177 and the
exhaustion doctrine, the court concluded “section 21177 and the exhaustion
requirement, objections a party seeks to raise in a CEQA action must have
been made ‘known in some fashion, however unsophisticated[, in the
administrative proceeding].’ ”].) Nonetheless, the objection must fairly
apprise the agency of the substance of the objection so that it has an
opportunity to evaluate and respond to it. (Planning & Conservation League
v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 251 [“To satisfy the
exhaustion doctrine, the objections must ‘fairly apprise[]’ the agency of the
purported defect in the EIR.”].)
4 Section 21177 provides in pertinent part: “(a) An action or proceeding
shall not be brought . . . unless the alleged grounds for noncompliance with
this division were presented to the public agency orally or in writing by any
person during the public comment period provided by this division or before
the close of the public hearing on the project before the issuance of the notice
of determination. (b) A person shall not maintain an action or proceeding
unless that person objected to the approval of the project orally or in writing
during the public comment period . . . or before the close of the public hearing
on the project. . . .” (§ 21177, subds. (a)-(b).)
8
doctrine prevent such an issue from being raised in a court action.”5 (Tahoe
Vista, at pp. 589–592.)
In Tahoe Vista, it was undisputed that the “plaintiffs raised their
objection to the negative declaration ‘during the public comment period’ or
‘prior to the close of the [Planning Commission’s] public hearing on the
project before the issuance of the notice of determination.’ (§ 21177,
subd. (a).)” (Tahoe Vista, supra, 81 Cal.App.4th at p. 591.) “Plaintiffs thus
had standing to file their petition in the trial court and to prosecute their
claim under CEQA provided they otherwise exhausted all administrative
remedies available to them once the Planning Commission committed what
plaintiffs believed was a wrongful act.” 6 (Tahoe Vista, at p. 591.)
5 The court pointed out, “[s]ection 14.5 of chapter 1514 of the Statutes
of 1984, the measure by which section 21177 was enacted, ‘states that the
“intent of the Legislature in adding Section 21177 . . . [is] to codify the
exhaustion of administrative remedies doctrine.” (Stats.1984, ch. 1514,
§ 14.5, p. 5345; italics added.) It further provides that “it is not the intent [of
the legislation] to limit or modify any exception to the doctrine of
administrative remedies contained in case law.” (Ibid., italics added.) “We
are thus directed to read [section 21177] with reference to a specific common
law rule.” (Cantor v. Anderson (1981) 126 Cal.App.3d 124, 129 . . . , citations
omitted.) That rule has to do with the law of administrative remedies as it
preceded the enactment of section 21177.’ (California Aviation Council [v.
County of Amador (1988)] 200 Cal.App.3d [337, 346] (conc. opn. of Blease,
J.).)” (Tahoe Vista, supra, 81 Cal.App.4th at pp. 589–590.)
6 The court also explained why the dual requirements of section
21177—that (a) the plaintiff have participated in the administrative
proceedings prior to the issuance of a notice of determination and (b) the
specific issue the plaintiff later raises in a court challenge was raised by
someone during those proceedings—are more accurately characterized as
establishing “standing” to sue, rather than requiring exhaustion of
administrative remedies. (Tahoe Vista, supra, 81 Cal.App.4th at pp. 589–
590; see Clews Land, supra, 19 Cal.App.5th at p. 184, fn. 3 [also stating dual
requirements of § 21177 are “separate from” the operation of the exhaustion
doctrine where there are “available administrative procedures to challenge”
9
The appellate court then turned to the principal issue—whether the
plaintiffs had exhausted their administrative remedies with respect to the
issues they sought to raise in their court action. The court explained that
“ ‘[c]onsideration of whether such exhaustion has occurred in a given case will
depend upon the procedures applicable to the public agency in question.’
(City of Sacramento v. State Water Resources Control Bd. (1992)
2 Cal.App.4th 960, 969 . . . ; see also Park Area Neighbors v. Town of Fairfax
(1994) 29 Cal.App.4th 1442, 1450 . . . [failure to appeal planning
commission’s actions ‘in the manner prescribed by the town code’ constituted
failure to exhaust administrative remedies]; Browning–Ferris Industries v.
City Council (1986) 181 Cal.App.3d 852, 860. . . .)” (Tahoe Vista, supra,
81 Cal.App.4th at pp. 591–592.)
In Tahoe Vista, those procedures were provided by section 25.140 of the
Placer County Code, which “allows persons who appear at a Planning
Commission hearing to appeal the Planning Commission’s decision to the
Board of Supervisors. The County Code describes the scope of the appeal
hearing as follows: ‘At the hearing (a hearing conducted “over again”), the
appellate body shall initiate a discussion limited to only those issues that are
the specific subject of the appeal, and, in addition, the specific grounds for the
appeal. [For example, if the permit for a project approval or denial has been
appealed, the entire project will be the subject of the appeal hearing;
however, if a condition of approval has been appealed, then only the condition
and issues directly related to the subject of that condition will be allowed as
part of the discussion by the appellate body.]’ (Placer County Code, § 25.140,
the public agency’s decision concerning an EIR; the “exhaustion doctrine is
separate from, and in addition to, the [statutory] requirements under
CEQA”].)
10
subd. D.4.a., italics in original.)” (Tahoe Vista, supra, 81 Cal.App.4th at
p. 592, first italics added.)
“These procedures thus provided plaintiffs with an appeal from the
Planning Commission’s decision, but required plaintiffs to specify the
particular subject or grounds of the appeal. Although the Board of
Supervisors would consider the matter ‘over again,’ or in legal parlance, de
novo, its review was limited solely to those issues the plaintiffs placed before
it.” (Tahoe Vista, supra, 81 Cal.App.4th at p. 592.) The plaintiffs’ appeal,
however, had placed “only the conditional use permit before the Board of
Supervisors and only with regard to parking.” (Ibid.) The court pointed out
the appeal form had “provided a specific notation by which [the] plaintiffs
could have appealed the Planning Commission’s approval of the negative
declaration,” but they “did not specify they were appealing the Planning
Commission’s decision on that point.” (Ibid.) Such failure “to raise an issue
in an administrative appeal after raising the issue in the first public or
administrative hearing,” said the court, constituted “a failure to exhaust
administrative remedies and prevent[ed] the issue from being raised in a
subsequent judicial action.” (Ibid.; see Clews Land, supra, 19 Cal.App.5th at
pp. 185–187 [where municipal code provided a bifurcated appeals procedure,
one applicable to environmental determinations and the other to other kinds
of land use decisions, and petitioner did not comply with the former, it “did
not exhaust its administrative remedies regarding the [mitigated negative
declaration], and it may not now bring a judicial action challenging it”].)
Thus, as Tahoe Vista and other cases explain, SSE must first
demonstrate that it meets the requirements of section 21177—that is, that it
participated in the Planning Commission hearings “ ‘before the issuance of
the notice of determination’ ” and that either it, or another objector appearing
11
during those proceedings, raised the issues SSE has raised in this court
action. (Tahoe Vista, supra, 81 Cal.App.4th at p. 591; Clews Land, supra,
19 Cal.App.5th at p. 184, fn. 3.)
Because the County provides for an appeal of actions by the Planning
Commission to the Board of Supervisors, SSE must secondly demonstrate
that it exhausted this administrative remedy. (Clews Land, supra,
19 Cal.App.5th at pp. 184–187; Tahoe Vista, supra, 81 Cal.App.4th at
pp. 591–592.) And to determine whether SSE did so, we must look to the
County’s appeal procedures. (Clews Land, at p. 185; Tahoe Vista, at pp. 591–
592.)
These procedures are set forth in chapter 2.88 of the Napa County Code
of Ordinances. An appeal is commenced by filing a “notice of intent to
appeal” and paying the required fees “within ten working days of the decision
of the approving authority.” (Napa County Code. § 2.88.040, subd. (A).)
Within “ten working days following the submittal of a notice of intent to
appeal,” the appellant must submit an “appeal packet.” (Id., § 2.88.050, subd.
(A).) This packet must, among other things, include “[i]dentification of the
specific factual or legal determination of the approving authority which is
being appealed, and the basis for such appeal.” (Id., § 2.88.050, subd. (A)(4).)
“Any issue not raised by the appellant in the appeal packet shall be deemed
waived.” (Ibid.) “If the basis of the appeal is, in whole or in part, an
allegation of prejudicial abuse of discretion on the part of the approving
authority, that there was a lack of a fair and impartial hearing, or that there
were no facts presented to the approving authority to support the decision,
such grounds of appeal and the factual or legal basis for such grounds must
be expressly stated or the board shall deem such bases and grounds for
appeal waived by the appellant.” (Id., § 2.88.050, subd. (A)(5).)
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In accordance with these provisions, the Board of Supervisor’s 109-page
decision separately identified and addressed each “ground” SSE listed in its
“Grounds of Appeal” set forth in its appeals packets; indeed, in many
instances the Board extensively quoted from SSE’s stated grounds to set forth
the ground raised, which the Board then addressed. In fact, the Board’s
decision separately identified and addressed the grounds SSE raised in its
first appeal from the Planning Commission’s certification of the EIR, and
those it raised in its second appeal from the Commission’s approval of the
project and permit. The Board addressed no other grounds.
Thus, like the appeal process at issue in Tahoe Vista, the County’s
procedures provided SSE “with an appeal from the Planning Commission’s
decision, but required [that SSE] to specify the particular subject or grounds
of the appeal.” (Tahoe Vista, supra, 81 Cal.App.4th at p. 592.) And while the
Board of Supervisors will “exercise its independent judgment in determining
whether the decision appealed was correct” (Napa County Code, § 2.88.090,
subd. (A)), an appeal is bounded by the grounds of appeal set forth in the
appeal packet (id., § 2.88.050(A)(4), (5)). (See Tahoe Vista, supra,
81 Cal.App.4th at pp. 592–593.)
Accordingly, to demonstrate that it exhausted its administrative
remedies, SSE must show that it timely filed a notice of intent to appeal and
timely submitted an appeal packet which specifically identified the grounds it
raises in this court action.
Citing to Citizens for Open Government v. City of Lodi (2006)
144 Cal.App.4th 865 (Citizens), SSE maintains Tahoe Vista is not controlling
and it was not required to exhaust the administrative remedy set forth in the
County’s appeal ordinance. Citizens was decided by the same court that
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decided Tahoe Vista. The court did not repudiate its prior decision, but
rather, distinguished it.
In Citizens, the city issued a notice of preparation of a draft EIR and
the objecting group appeared at the planning commission meeting and
asserted the draft was deficient in a number of respects. (Citizens, supra,
144 Cal.App.4th at p. 869.) A second objecting group raised similar, but not
identical issues. (Ibid.) The commission subsequently certified the EIR and
approved a permit and tentative map. (Id. at p. 870.) The city code provided
for an appeal to the city council, which had to be filed within five days of the
commission’s decision. (Ibid.) There was no requirement that issues be
specified; rather, the city gave notice that any person could appear and “
‘present their views and comments’ ” on the development project. (Id. at
p. 871.) The city further advised that any challenge in court, might be “
‘limited to raising only those issues you or someone else raised’ ” at the city
council hearing or in correspondence delivered to the city clerk before the
council meeting. (Ibid.) Only the second objecting group filed an appeal from
the commission to the city council. But both groups appeared at the city
council meeting, and the first objecting group raised the mitigation issue it
subsequently raised in its writ proceeding. (Id. at pp. 870–871.) The trial
court dismissed the writ petition for failure to exhaust administrative
remedies on the ground the first objecting group had not filed its own appeal
to the city council. The Court of Appeal reversed. (Id. at p. 872.)
Observing that the only issue before it was whether the first objecting
group had exhausted its administrative remedies, the appellate court, as it
had in Tahoe Vista, examined “the procedures applicable to the public agency
in question.” (Citizens, supra, 144 Cal.App.4th at p. 876.) The court pointed
out the city’s appeal procedure differed from that at issue in Tahoe Vista in
14
several significant respects. The city did not require a specification of issues,
nor did it require each objector to file its own appeal. On the contrary, the
city council treated the second objectors’ appeal as opening the entire
environmental review process to anyone who wanted to voice any concern.
(Id. at p. 877.) Indeed, the city essentially advised “that any person
participating in the [council] hearing could subsequently challenge the
matter in court limited only by the issues raised at the hearing.” (Ibid.)
Thus, rather than being a true “ ‘appeal,’ ” the city’s procedures “in reality”
simply “transfer[red] . . . the final decision-making authority from the
planning commission to the city council.”7 (Ibid.)
7 SSE points out the Citizens court first “note[s]” that if a nonelected
body certifies an EIR, the public entity must, pursuant to section 21151,
provide for an appeal to the elected decision making body, and under CEQA
Guidelines, a final EIR must reflect the “ ‘lead agency’s [i.e., the final decision
making body’s] independent judgment and analysis.’ ” (Citizens, supra,
144 Cal.App.5th at p. 876, italics omitted.) In Citizens then, the city council
was the “ ‘final decision-making body’ ” that exercised the “ ‘lead agency’s
independent judgment and analysis.’ ” (Italics omitted.) Thus, the city
council was not acting in a “traditional” appellate sense. (Ibid.) The court
did not suggest, however, as SSE implies, that this was determinative of
exhaustion. On the contrary, it was against this statutory backdrop, that the
court went on to discuss the city’s appeal procedures and to conclude they
were, in significant respects, unlike those in Tahoe Vista. (Id. at pp. 876–
877.) Indeed, in Tahoe Vista, the court had pointed out that while the board
of supervisors heard issues on appeal de novo and was also required to adopt
all findings necessary to implement approval of the project, including re-
adopting a negative declaration, this did not mean the challengers did not
have to follow the county’s appellate procedures. (Tahoe Vista, supra,
81 Cal.App.4th at p. 593; see Clews Land, supra, 19 Cal.App.5th at pp. 187–
188 [where environmental decision is delegated to nonelected body, which
CEQA allows, agency must provide appeal process and challenger must
comply with that process to pursue judicial challenge].)
15
Nor does California Clean Energy Committee v. City of San Jose (2013)
220 Cal.App.4th 1325 (Clean Energy), assist SSE. In that case, the court
concluded the city had improperly divided CEQA duties between the
planning commission and the city council and, thus, the purported
“delegation” to the commission was invalid. The action by the city council as
the final decision maker, however, was valid. (Id. at pp. 1338, 1342.) As a
consequence, there was no valid appeal to be taken from the decision by the
commission under the municipal code “appeal” provisions. (Id. at pp. 1345–
1346.) Nor did the code provide for any appeal from the city council’s action.
(Id. at p. 1346.) Moreover, in that venue, the objector had preserved issues
for judicial challenge by submitting comment letters before the city council
acted. (Id. at pp. 1346–1348.) The Clean Energy court not only did not take
issue with Tahoe Vista, but it reaffirmed the exhaustion principles
established by that case (Clean Energy, at pp. 1342–1344), concluding only
that the circumstances in the case before it differed and the objectors
complied with the dual requirements of section 21177 in the one forum that
had validly acted, namely the city council. (Clean Energy, at p. 1348; ibid.[“The situation presented to us is dissimilar to the situation addressed in
Tahoe Vista, where the ultimate decisionmaking authority’s review was
specifically confined to issues raised in the administrative process.”])
Here, the County’s appeal procedure is akin to that in Tahoe Vista.
(See Clews Land, supra, 19 Cal.App.5th at pp. 185–187.) Accordingly, SSE
was required to comply with that procedure.
We close with one final point as to exhaustion—that the petitioner
challenging a CEQA determination “has the burden of proof to show
exhaustion occurred.” (North Coast, supra, 216 Cal.App.4th at p. 624; accord,
Sierra Club, supra, 163 Cal.App.4th at p. 536.) And in this regard, a list of
16
string-cites to the administrative record without explanation as to “how each
citation supports the assertion [the public agency] was ‘fairly appri[s]ed’ ” of
the asserted noncompliance with CEQA, is not sufficient. (See Sierra Club,
at p. 536.)
With this overview of CEQA principles and the exhaustion requirement
in mind, we turn to the five issues SSE raises on appeal.
Daily Particulate Emissions
SSE maintains the EIR’s emissions analysis is deficient because it
assesses impacts on only an annualized basis and does not also include an
assessment on a daily basis. SSE relies on comments by its expert, who
opined the County’s methodology of “[d]ividing the annual emissions across
365 days improperly dilutes the daily emissions because the Quarry only
operates 250 days per year.” 8
The quarry is under the regulatory jurisdiction of the Bay Area Air
Quality Management District (District), which is “a regional agency
authorized to adopt and enforce regulations governing air pollutants from
stationary sources such as factories, refineries, power plants, and gas stations
in the San Francisco Bay Area. . . . (Health & Saf. Code, §§ 39002, 40000,
40001, subd. (a), 40200.) . . . [T]he District monitors air quality, issues
permits to certain emitters of air pollution, and promulgates rules to control
8 There is no exhaustion issue as to this issue. In what it identified as
SSE’s “Eighteenth Ground for Appeal” from the certification of the EIR , the
Board of Supervisors addressed a claim that “annualized emissions were not
properly analyzed” and, specifically, that it was not proper to determine “the
total quantity of annual emissions” by “divid[ing] by 365 days/year to
determine the average daily quantity of emissions released by the Quarry”
because (a) the operational season was only 250 days and (b) “[d]aily
emissions must be associated with daily production to arrive at an actual
daily emissions exposure.”
17
emissions. (Id., §§ 40001, 42300, 42301.5, 42315.)” (California Building
Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th
369, 378, fn. omitted (California Building).)
To implement its charge, the District develops “ ‘thresholds of
significance’ for determining ‘the significance of environmental effects.’ ”
(California Building, supra, 62 Cal.4th at p. 378.) These thresholds set levels
at which toxic air contaminants and certain types of particulate matter,
including PM2.5—particulate matter with a diameter of 2.5 microns or less—
would be deemed environmentally significant. (Id. at p. 379.) The District’s
CEQA guidelines are “advisory” and provide methodologies “for analyzing air
quality impacts based on evidence and technical studies supporting” the
guidelines.
The Air Quality and Health Impact Risk Assessment (AQ Assessment)
prepared by County consultants serves as the “evidentiary and analytical
basis of the air quality sections of the EIR.”9
The AQ Assessment explains that the air quality analysis utilizes “the
impact assessment methodologies presented in the [District’s] CEQA Air
Quality Guidelines (BAAQMD 2010) and the [District’s] Revised Draft
Options and Justification Report CEQA Thresholds of Significance
(BAAQMD 2009).” The AQ Assessment further explains “[o]perational
emissions are evaluated using only the maximum annual thresholds because
the average daily thresholds are equivalent (i.e. 10 tons divided by 365 days
per year=54.8 lb/day which BAAQMD rounded down to 54 lb/day threshold).”
The EIR thus concludes that, “after mitigations,” there is “less than
significant” impact from PM 2.5 emissions based on use of a 365-day average
annual threshold for that pollutant.
9 The AQ Assessment is attached to the draft EIR as Appendix I.
18
Agencies have “substantial discretion in determining the appropriate
threshold of significance to evaluate the severity of a particular impact.”
(Mission Bay Alliance v. Office of Community Investment & Infrastructure
(2016) 6 Cal.App.5th 160, 192.) “Similarly, our Supreme Court stated: ‘A
lead agency enjoys substantial discretion in its choice of methodology’ for
evaluation of the significance of an impact. (Center for Biological Diversity [v.
Department of Fish & Wildlife (2015)] 62 Cal.4th [204,] 228 [(Center for
Biological Diversity)].)” (King & Gardiner Farms, LLC v. County of Kern
(2020) 45 Cal.App.5th 814, 884 (King & Gardiner).)
However, “when the agency chooses to rely completely on a single
quantitative method to justify a no-significance finding, CEQA demands the
agency research and document the quantitative parameters essential to that
method. Otherwise, decision makers and the public are left with only an
unsubstantiated assertion that the impacts . . . will not be significant. (See
Guidelines, § 15064, subd. (f)(5) [substantial evidence to support a finding on
significance includes ‘facts, reasonable assumptions predicated upon facts,
and expert opinion supported by facts,’ but not ‘[a]rgument, speculation, [or]
unsubstantiated opinion’].)” (Center for Biological Diversity, supra,
62 Cal.4th at p. 228.)
With respect to SSE’s assertion that the District’s guidelines mandate
an analysis of both annual and daily emissions, we first observe the District’s
guidelines are not legally binding directives to a lead agency conducting an
environmental review under CEQA. (See Bay Area Air Quality Management
District CEQA Guidelines, May 2011, p. 1-1 [“The purpose of the [District] . .
. Guidelines is to assist lead agencies in evaluating air quality impacts of
projects and plans proposed in the San Francisco Bay Area Basin. . . . The
Guidelines provides [District]-recommended procedures for evaluating
19
potential air quality impacts during the environmental review process
consistent with CEQA requirements.”]; id. at p. 2-5 [“A lead agency should
rely on substantial evidence most appropriate for the project being studied.”];
id. at pp. C-20-C-21 [“This is an advisory document that provides the lead
agency, consultants, and project applicants with uniform procedure for
addressing air quality in environmental documents.”]; see also Robie et al.,
Cal. Civil Practice: Environmental Litigation (2020) § 8.4 [“The Guidelines
set forth indications or outlines to be followed, allowing for flexibility in the
action and conduct of governmental agencies. . . . The Guidelines are subject
to a construction of reasonableness and courts will not seek to impose
unreasonable extremes or inject themselves within an agency’s area of
discretion as to the choice of action to be taken.”].)10
As pertinent here, the District’s guidelines set forth a multi-step
procedure for making a “[s]ignificance [d]etermination.” Step 2 of this
procedure involves “Comparison of Unmitigated Emissions with Thresholds
of Significance,” and is explained as follows: “Sum the estimated emissions
10
In its appellant’s closing brief, SSE asserts the County “adopted” the
District’s guidelines as evidenced by “the EIR’s explicit language that it
‘utilize[d] the impact assessment methodologies’ presented in the [District]
Guidelines [citation] and the fact that Appendix G of the CEQA Guidelines
states that a proposed project would have a significant impact if it violates an
air quality standard.” However, being guided by a District guideline is not
tantamount to “adopting” the guideline as its own mandatory regulatory law.
The draft EIR expressly states the District’s guidelines are advisory.
Moreover, the District’s guidelines, themselves, contemplate adjustments as
a particular situation warrants. (See District Guidelines, at p. 1-3 [“The
recommendations in the CEQA Guidelines should be viewed as minimum
considerations for analyzing air quality impacts. Lead agencies are
encouraged to tailor the air quality impact analysis to meet the needs of the
local community and may conduct refined analysis that utilize more
sophisticated models, more precise input data, innovate mitigation measures,
and/or other features.”])
20
for area, mobile, and stationary sources (if any) for each pollutant as
explained above and compare the total average daily and annual emissions of
each criteria pollutant and their precursors with the thresholds of
significance determined by the lead agency. If daily average or annual
emissions of operational-related criteria air pollutants or precursors do not
exceed the thresholds, the project would result in a less than significant
impact to air quality. . . .”
SSE raised the annual/daily issue before the Planning Commission in
comments on the draft EIR, and the issue was addressed in the response to
comments attached to the final EIR.11
The response points out that “at the time that the [AQ Assessment]
was prepared it was standard practice to use 365 days to determine the
average daily emissions,” and the AQ Assessment “used the CalEEMod model
[California Emissions Estimator Model12] methods in place at the time.”
Therefore, the AQ Assessment was “prepared in a manner consistent with
the default method for analyzing development project air quality impacts.”
11 The final EIR includes the draft EIR, comments and
recommendations received on the draft; a list of persons, organizations and
agencies commenting on the draft EIR, responses of the lead agency to
significant environmental points, and any other information added by the
agency. (Cal. Code Regs., tit. 14, § 15132; 14 Cal. Legal Forms: Transaction
Guide (2020) § 30.B.210 Flowchart Describing Environmental Impact
Evaluation Process.)
12 The California Emissions Estimator Model “is a statewide land use
emissions computer model designed to provide a uniform platform for
government agencies, land use planners, and environmental professionals to
quantify potential criteria pollutant and greenhouse gas . . . emissions
associated with both construction and operations from a variety of land use
projects.” (CalEEMod, California Emissions Estimator Model®,
[as of March 25, 2021].)
21
The response additionally points out that the District was served with
the Notice of Preparation of the draft EIR and a copy thereof, including all
related technical studies—which discussed “how the Project emissions were
evaluated in relation to their CEQA thresholds of significance.” Had the
District had concerns about the emissions analysis, it could have submitted
comments on the draft. It did not, and thus “did not take issue” with the
County’s methodology.13
The response to comments further explains, “the [2009] baseline
annual production level . . . and corresponding baseline emissions levels
reported in the DEIR are the average over five years [2004-2008]. The
Project daily average emissions, as calculated using annual emissions in the
DEIR, would not be reflective of the daily average in the maximum year
which would be the proper comparison to make. Thus, comparing the
average day in the baseline period, the maximum calendar year production
was 17% higher than the average production over the five years. If daily or
monthly production data were available to calculate annual production on a
rolling basis, then a greater annual production could be substantiated.
Nevertheless, this increase in the baseline average day would decrease the
Project average day by a corresponding amount.” Accordingly, the response
13 SSE’s assertion in its appellant’s closing brief that its “expert raised
the omission of daily emissions analysis to the BAAQMD CEQA division
planning manager, who expressed concern with the County’s interpretation of
the BAAQMD thresholds,” thus, goes nowhere. Even assuming its expert
told the Planning Commission prior to its certification of the EIR that in
June 2015 he had called the District and his conversation “elicited concerns”
by the planning manager, this assertion is hopelessly vague. Moreover, it
does not detract from the fact the District was thereafter served with a copy
of the draft EIR and technical attachments and voiced no criticism of the
County’s methodology as fully developed and set forth in the draft EIR and
supporting attachments.
22
concluded, “using [an] annual emissions significance determination . . . as a
surrogate for the average daily emissions significance determination is
appropriate and reflective of the potential Project air quality impacts.”
At the hearing before the Board of Supervisors, the County’s consulting
expert further discussed air quality particulates as follows: “The comment
[critical of the particulate analysis] was, ‘Well, on average, they are only
going to work 350 [sic] days a year.’ And so, obviously, if you divide it by 250
instead of 365, you get a higher number of pounds per day because there’s
fewer days in which to produce the ten tons. So the facility can operate 24/7,
365, but normal operation, like I said, is planned for 250 days per year. [¶]
Using 365 days is appropriate, and here’s why: The baseline annual
production is averaged over five years and doesn’t reflect the daily average.
It reflects a multiple-year annual average, in fact. And so if we were to look
at a daily average of what’s actually daily going on, you would find that you
had some very busy days, and you would find that you had less busy days.”
So, “from my perspective, we did include the daily threshold because it’s the
same as the annual threshold when you look at it the way we looked at it.”
Following the close of the hearing, the Board of Supervisors found that,
“As modeled for the [AQ Assessment] and described in the EIR, criteria air
pollutant emissions (i.e., ROG, NOx, and exhaust PM10 and PM2.5) were
average[d] over the year (i.e. 365 days), however, because the facility
typically operates approximately 250 days/year which is the normal operating
schedule (Draft EIR page 3-14), dividing by fewer operational days would
increase the daily average emissions by 46% (i.e., 365 ÷ 250=1.46) resulting
in emissions of approximately 80 lb/day. The baseline annual production
level (i.e. 810,363 tons/year) and baseline emissions levels identified in the
Draft EIR are averaged over a five year period, therefore, comparing the
23
average day in the five year period with a 365 day maximum per year is a
reasonable approach. (See response to comment in Final EIR, Appendix C,
Air Quality and Greenhouse Gas Emissions for a full discussion on this
issue.) [¶] When the [AQ Assessment] was prepared it was standard practice
to use 365 days to determine the average daily emissions. The project [AQ
Assessment] used the CalEEMod model methods in place at the time (i.e.,
Version 1.x). Furthermore[,] the average annual daily trips . . . used in
CalEEMod are by definition the annual trips divided by 365. Thus, the air
quality impact analysis was prepared in a manner consistent with the default
method for analyzing project air quality impacts. [¶] The [District] provided
comments on the [notice of preparation] in a letter dated July 30, 2009 and
received the Draft EIR in 2013 including the related technical studies. [The
District] did not identify any issues of project emissions evaluation in relation
to CEQA thresholds of significance. [¶] Therefore, using annual emissions
significance determination in the Draft EIR as a surrogate for the average
daily emissions significance determination is appropriate and reflective of the
potential project air quality impacts.”
Thus, at bottom, SSE’s issue as to the truck emissions analysis is that
it is tied to the County’s use of a five-year average annualized approach,
rather than a one-year 250-day approach. This is a disagreement among
experts, which is not a sufficient basis to conclude an EIR is inadequate.
(Town of Atherton v. California High-Speed Rail Authority (2014)
228 Cal.App.4th 314, 349 (Atherton) [“ ‘Disagreement among experts does not
make an EIR inadequate. . . .’ ”].) “ ‘Although others might well assess the
significance of [a] risk . . . differently, it [is] error for the court to substitute
its judgment for that of the Agency.’ ” (North Coast, supra, 216 Cal.App.4th
at p. 640.) “The issue is not whether other methods might have been used,
24
but whether the agency relied on evidence that a ‘ “reasonable mind might
accept as sufficient to support the conclusion reached” ’ in the EIR.” (Id. at
p. 642.) We cannot say that the five-year average annualized approach the
County chose to use was bereft of explanation or not one a reasonable mind
could accept.14
Baseline for Truck Traffic Emissions
SSE also contends the EIR improperly assesses truck emission impacts
by using a baseline production number based on a five-year average (2004-
2008) annual production figure, rather than on 2009 production levels.
Specifically, SSE asserts (1) the “EIR does not make the required showing
that 2009 production levels would be misleading”; (2) the EIR does not
address why use of a five-year average production figure was “required to
provide the most accurate picture practically possible of [the] Project
impacts”; and (3) does not address “why 2009 production levels were not
included” in the five-year average production figure.
Exhaustion
The trial court ruled SSE failed to exhaust its administrative remedies
with respect to these claims.
SSE claims it did exhaust its administrative remedies, pointing to the
following language (which we have italicized) in its Grounds of Appeal in its
appeal packet supporting its appeal of the certification of the EIR (we have
quoted the entirety of the passages from which SSE has selectively quoted):
“A. Ad hoc changes to the EIR document have created a lot of
confusion among staff, commissioners and the public regarding
foundational elements of the Project including:
[¶] . . . [¶]
14Given our conclusion in this regard we need not, and do not, reach
the County’s and Syar’s alternative arguments in defense of the truck
emission analysis.
25
“6. Interchangeable use of ‘total production’ and ‘annual permitted
saleable quantity’ throughout by County staff, consultants and staff
obfuscate actual production for which EIR is performed. [¶] The terms
‘total production’ and ‘annual permitted saleable quantity’ are used
interchangeably throughout the EIR and the EIR process even though
these terms describe different production totals. As a result, the EIR
underestimates the environmental impacts by approximately 50%
because the amount of production required to produce annual
permitted saleable quantities exceeds that amount by approximately
50%. Environmental impacts, including but not limited to air quality,
hydrology and water quality, noise and vibration and greenhouse gases,
determined by the amount of actual production is affected by this
obfuscation such that those environmental impacts are as yet
unknown.” (Underscoring omitted, italics added.)
“C. Baseline conditions are not adequately described.
“The EIR fails to describe baseline conditions with reference to actually
existing physical conditions. Instead, the EIR relies on models
conducted at other sites to analyze the baseline air quality impacts. It
used the standard trip from the County’s traffic model to analyze
baseline traffic conditions. It fails to disclose existing water usage,
relying instead on data for water usage and groundwater levels to be
collected after the expansion is approved. Air quality studies in the
EIR are based on mining industry sponsored tests and models
conducted at other sites and are calculated with controlled conditions
not representative of the Project’s actual conditions. The EIR provides
no basis for relying on modeled conditions instead of measuring the
actually existing physical conditions.” (Italics added.)
“V. DEIR. Misrepresentation of Annual Product Sales.
“1. Throughout the Syar EIR and Lead Agency documents, annual
quarry production is confused with annual quarry sales that in turn
misleads and confused governmental decision makers and the public.
[¶] 2. For instance, in the draft EIR Vol. 1, August 2013, Table 3-3, pg.
3-13, Product Sales (tons) are equated to existing total annual Quarry
production. In the footnotes it is stated: 1 810,364 Tons/Year Sold
(total of Haul Trips and Rail Trips.) This is the total processed not the
total sold. This misleads governmental decision makers and the public.
Also, any permitting, production, or planning decisions are made using
26
this false basis will be also be inaccurate and false. [¶] 3. Another
example: Draft EIR Vol. II, August 2013, 3.1.1, pg. 11: ‘Between 2004
(period of record) the Quarry’s annual average sales was approximately
810,000 tons, or 81 percent of the current permitted maximum.’ ”
(Original italics omitted, italics added.)
SSE also points to the following language (which we again have
italicized) in its Grounds of Appeal in its second appeals packet in support of
its appeal of the project and permit approvals (and we have again quoted the
entirety of the passages from which SSE has selectively quoted):
“XI. The Findings for Approval of Surface Mining Permit fail to comply
with the requirements of Napa county Code chapter 16.12 for issuance
of surface mining permit, are in error, inadequate and incomplete.
“A. Plans and reports submitted with the application do not adequately
describe the proposed operation. Inadequate and shifting description of
project and its environmental impacts. Baseline production, reserves,
greenhouse gas emissions, truck trips, groundwater usage are
inaccurately and incompletely described. For example, the map
attached as Exhibit 4 depicts an off-site groundwater well to which
Syar has access but was never disclosed or analyzed. Nor does the
permit resolution require any monitoring or other condition related to
this off-site well. Exhibit 5, a page from the 1973 EIR conducted for the
original permit shows groundwater at that time far exceeding that
estimated today—1120.14 acre feet per year historically vs 140.6 acre
feet per year. There is no accurate estimate of groundwater use either
in the EIR or in the permit approval such that the project’s
groundwater use may imperil surrounding properties’ dependence on
groundwater.” (Italics added.)
None of these grounds of appeal comes close to apprising the Board of
Supervisors of the five-year average/2009 actual production issue SSE has
raised in this court action.15 Accordingly, as the trial court concluded, SSE
15 SSE also points to pages in the record wherein its members or other
persons sought information about and made comments pertaining to the
“lack of support for the baseline production level.” None of this, however,
27
failed to exhaust its administrative remedies as to this issue and is barred
from raising it in this court action.
Merits
Even if SSE had exhausted its administrative remedies, its complaint
about the production baseline used to assess truck emissions lacks merit.
“CEQA requires an EIR to ‘focus on impacts to existing environment,
not hypothetical situations.’ [Citation.] ‘[T]he impacts of a proposed project
are ordinarily to be compared to the actual environmental conditions existing
at the time of CEQA analysis. . . .’ [Citation.] [¶] To accomplish this, CEQA
directs an EIR to include what is called an environmental baseline, a
description of the project site’s physical and environmental conditions at the
time the EIR is prepared. ‘An EIR must include a description of the physical
environmental conditions in the vicinity of the project, as they exist at the
time the preparation is published . . . from both a local and regional
perspective. This environmental setting will normally constitute the baseline
physical conditions by which a lead agency determines whether an impact is
significant.’ (CEQA Guidelines, § 15125, subd. (a).) [¶] ‘An inappropriate
baseline may skew the environmental analysis flowing from it, resulting in
establishes that SSE exhausted its administrative remedies pursuant to the
County appeals ordinance. As the ordinance specifies, and the Board of
Supervisors’ decision reflects, the only grounds considered and addressed on
appeal by the Board are those identified in an appeal packet, and in neither
of SSE’s appeal packets did it identify as a ground for appeal the issue it has
raised in this court action. Nor did the Board, in turn, address such ground
in its decisions rejecting SSE’s appeals. While SSE claims it did not have
sufficient information to raise as a ground for appeal the five-year
average/2009 actual production issue it is now pursuing, that is not so. It
was clear the County was utilizing a five-year average methodology to assess
impacts, and the legal challenge SSE is now making could have been
advanced before the Board.
28
an EIR that fails to comply with CEQA.’ [Citations.] The ‘normal[]’ rule is
that the baseline must reflect the ‘physical conditions existing at the time
[the] environmental analysis’ begins. [Citation.] [¶] However, ‘ “the date for
establishing [the] baseline cannot be a rigid one. Environmental conditions
may vary from year to year and in some cases it is necessary to consider
conditions over a range of time periods.” [Citation.]’ (Communities, supra,
48 Cal.4th at pp. 327-328; see also San Francisco Baykeeper, Inc. v. State
Lands Com. (2015) 242 Cal.App.4th 202, 218-219 . . . [(Baykeeper)] [five-year
average of mining volumes was appropriate baseline].) Thus, ‘despite the
CEQA Guidelines’ reference to ‘. . . the time environmental analysis is
commenced’ [citation], ‘[n]either CEQA nor the CEQA Guidelines mandates a
uniform, inflexible rule for determination of the existing conditions baseline.
Rather, an agency enjoys the discretion to decide, in the first instance,
exactly how the existing physical conditions without the project can most
realistically be measured, subject to review, as with all CEQA factual
determinations, for support by substantial evidence.” [Citation.]’ (Neighbors
for Smart Rail v. Exposition Metro Line Construction Authority[, supra,]
57 Cal.4th 439, 449 . . . (Neighbors for Smart Rail).)” (San Franciscans for
Livable Neighborhoods v. City and County of San Francisco (2018)
26 Cal.App.5th 596, 614-615.)
Here, recognizing that “levels of operations vary . . . seasonally and
with economic conditions,” the County chose to use the “recent 5-year average
annual rate” of production (2004 to 2008) instead of using only 2009
production data to calculate the production baseline. In short, in its AQ
Assessment, the County both explained the methodology by which it
established the production baseline, and provided a reasonable explanation
for that choice. That SSE and its expert would use a different methodology is
29
not a basis for finding the EIR inadequate. (See Atherton, supra, 228
Cal.App.4th at p. 349; North Coast, supra, 216 Cal.App.4th at pp. 640, 642.)
Citing Neighbors for Smart Rail, supra, 57 Cal.4th 439, SSE asserts
the County relied on a hypothetical and unsupported baseline without
showing an existing conditions analysis would be misleading. SSE’s reliance
on Neighbors is misplaced. There, the lead agency used an exclusively
“future conditions baseline for assessment of the project impacts on traffic
and air quality.” (Id. at p. 446.) “[W]hile an agency preparing an EIR does
have discretion to omit an analysis of the project’s significant impacts on
existing environmental conditions and substitute a baseline consisting of
environmental conditions projected to exist in the future,” said the court, the
agency also “must justify its decision by showing an existing conditions
analysis would be misleading or without environmental value.” (Id. at p. 457,
italics added.)
Here, as we have discussed, the County did not use a future projected
baseline analysis, rather it based the production baseline on production
during the immediately preceding five years in order to account for variations
in production caused by multiple factors.
What SSE is actually arguing is that any deviation “from CEQA’s
normal baseline”—i.e., existing conditions at the time of the notice of
preparation is published—“must be supported by a demonstration in the EIR
that analyzing project impacts under the normal baseline would be
‘misleading or without informational value’ ” (Association of Irritated
Residents v. Kern County Bd. Of Supervisors (2017) 17 Cal.App.5th 708, 730
(Kern County)) and that a reasoned explanation of how and why the agency
has used historic data to determine the baseline is insufficient.
30
However, cases have rejected the assertion that the standard for a
future conditions based baseline established in Neighbors for Smart Rail
applies to every situation where a lead agency determines it is more
reasonable to determine the baseline by considering data from a time period
other than the date of publication of the notice of preparation. (See Kern
County, supra, 17 Cal.App.5th at pp. 730-731 [determining test for future
conditions baselines applies only “to baselines that use hypothetical future
conditions” and not to “an agency’s decision about how to measure existing
conditions when the activity creating those conditions has fluctuated,” italics
omitted]; see also, e.g., Baykeeper, supra, 242 Cal.App.4th at pp. 218-219
[lead agency did not abuse its discretion in determining baseline for
measuring project impacts by using a five-year average of annual mining
volumes was a better indicator of existing conditions; the agency’s
determination was supported by “meaningful analysis”].)
Baykeeper is closely analogous to the case at hand. In that case, the
Lands Commission granted real parties a 10-year extension of a 10-year
mineral extraction lease authorizing them to continue dredging sand from
certain lands. (Baykeeper, supra, 242 Cal.App.4th at pp. 210-211.) The
Commission published the notice of preparation of the EIR in 2007. In the
EIR, the lead agency explained that rather than using 2007 data to fix
baseline conditions, it determined “a five-year average of annual mining
volumes was a better indicator of existing mining conditions.” (Id. at p. 216.)
The EIR explained that “the volume of sand mined from the leased areas
during 2007 was not an accurate reflection of existing baseline conditions
because (1) limiting the baseline to any single calendar year would fail to
account for the fact that the ‘annual quantity of sand mined fluctuates
substantially due to changes in demand, economic conditions, capacity, and
31
other facts,’ and (2) the volume of sand that was mined in 2007 was in the
‘low range compared with previous years.’ ” (Id. at p. 217.) These points
were reinforced in the response to comments to the draft EIR, wherein staff
acknowledged the notice of preparation date normally fixes the baseline, but
explained that using the average volume of sand mined per year from 2002 to
2007 “ ‘recognizes that sand mining activity levels can fluctuate substantially
from year to year. ’ ” (Ibid.) In the court action, the challenger contended the
EIR was “deficient because the baseline conditions were artificially inflated
and not reflective of current mining conditions in the projected area.” (Ibid.)
The Court of Appeal upheld the commission’s determination,
concluding substantial evidence supported its utilization of “a five-year
average of annual mining volumes was a better indicator of existing mining
conditions than the 2007 rate in light of the financial crisis of 2007, and the
general nature of the mining industry.” (Baykeeper, supra, 242 Cal.App.4th
at p. 218.) This evidence included data from the California Geological Survey
which showed “ ‘California’s residential construction slowdown during [2007]
contributed to a significant decrease in both production and value of
construction aggregate’ ” and statistics “regarding the permitted and actual
sand mining volumes from the lease areas during the previous [ten year]
lease period” which supported the commission’s conclusions about the “fluid
nature of mining activities in general.” (Ibid.)
SSE maintains Baykeeper is distinguishable and the County failed to
provide any “meaningful analysis . . . and supportive evidence” to support its
use of a five-year average baseline. Specifically, SSE complains that unlike
the Lands Commission in Baykeeper, the County did not “provide a 10-year
average of production for comparison” nor the “annual statistics” for 2004 to
2008. Cases will, of course, differ, and there is no rule that only data
32
identical to that in Baykeeper can support a baseline based on historic data.
Further, the County referenced the California Geological Survey (2013),
which noted that many factors including population, “major public
construction projects,” and the economy can impact the demand for aggregate
production.16 The survey states, “Should unforeseen events occur, such as
massive urban renewal, infrastructure projects, reconstruction in the wake of
disaster, or major economic recession,” the demand for aggregate could
“change considerably.” This fluctuation in demand can be seen in the
provided data on the “recorded aggregate production” at the Syar quarry for
the years 1960 through 2010. The data shows a varied course of production
over this 50-year span, including during the baseline production years at
issue here. The average production levels were 7,500,000 (2004), 7,943,000
(2005), 6,413,000 (2006), 6,778,000 (2007), and 4,753,000 (2008). (The
average production for 2009 was 4,190,000 tons.)
The County and Syar maintain the production differential in 2009
reflects “a year of substantial economic downt[urn].” SSE maintains, in turn,
that respondents “do not provide evidence for that statement or that the
economic conditions impacted aggregate production levels in 2009.” While we
think it may be a matter of judicial notice that our state’s economy was in
serious distress during that time frame, the precise cause for the lower
production level is immaterial. What the historic production numbers show
is that aggregate production can vary considerably, supporting the County’s
16 Contrary to SSE’s claim that the County referenced this document in
the final EIR only “to demonstrate the Project site is classified as containing
mineral deposits, not to support the claimed baseline conditions,” the County
actually referenced the document several times in its response to comments,
including in response to a comment discussing the average truck trip
distance, on-road emissions, aggregate consumption, and the production
baseline of 810,363 tons per year.
33
determination that a five-year average is a reasonable means by which to
assess the impacts of an expanded operation.
In sum, that SSE disagrees with the County’s chosen methodology for
determining the production baseline is insufficient to show an abuse of
discretion. (See Baykeeper, supra, 242 Cal.App.4th at p. 219.)17
Insufficient Mitigation for Loss of Carbon Sequestration Capacity
Due to Loss of Oak Woodlands
SSE maintains the EIR also insufficiently addresses greenhouse gas
emission impacts caused by the loss of oak woodland. Specifically, SSE
claims Mitigation Measure 4.4-9 relies on “illusory oak tree preservation”
(through conservation easements on existing woodlands) to mitigate the loss
of carbon sequestration capacity provided by living trees, since the approved
project would “deforest 121 acres of California oak woodland,” but the
mitigation measure requires that replacement trees be planted on only 12
acres.
Exhaustion
The County and Syar maintain SSE failed to exhaust its administrative
remedies because it did not identify in either appeal packet the greenhouse
gas/loss of oak woodlands issue it raises in this court action.
SSE first responds that the County and Syar forfeited exhaustion, as it
was not raised as an affirmative defense in the trial court. As we have
recited, however, the courts have repeatedly stated that exhaustion,
particularly in CEQA cases, is a jurisdictional prerequisite and not a matter
of judicial discretion. (E.g., Clews, supra, 19 Cal.App.5th at p. 184.)
Furthermore, the exhaustion requirement is based on important public
We need not, and do not, address the alternative arguments the
17
County and Syar make to support the production baseline.
34
policies, including that the public agency has had a fair opportunity during
the environmental review process to address and, if necessary, to correct,
asserted deficiencies in its environmental review. (E.g., North Coast, supra,
216 Cal.App.4th at p. 623.) Failure to exhaust administrative remedies can
also preclude the development of a full administrative record as to an issue
subsequently challenged in a court action. This not only prejudices the public
agency, but also impedes the court’s ability to review the agency’s action.
Finally, whether an objector exhausted its administrative remedies is a legal
question that can be as readily decided on appeal as in the trial court. (Id. at
p. 624.)
We therefore need not automatically dispense with the exhaustion
requirement solely because it was not raised in the trial court. (See Sea &
Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417
[“appellate courts have . . . permitted a party to raise belatedly ‘a pure
question of law which is presented on undisputed facts’ ”].) Given that nearly
eight years of environmental review before the Planning Commission and the
Board of Supervisors was devoted to the project at issue, resulting in an
administrative record exceeding 29,000 pages in length, we decline to
dispense with this jurisdictional prerequisite here.18
18 SSE cites to Golden Door Properties, LLC v. Superior Court (2020)
53 Cal.App.5th 733 (Golden Door III), as though it holds exhaustion must
first be raised in the trial court and if not, this prerequisite is forfeited. The
case holds no such thing. Golden Door III involved an original writ
proceeding challenging an order on a motion to augment the administrative
record. (Id. at p. 50.) Specifically, the appellate court addressed whether a
lead agency must retain documents, including e-mails, regardless of any
automatic document destruction protocols. The court answered in the
affirmative. (Id. at pp. 42-43.) It’s only mention of exhaustion was in
explaining why the discovery referee had erred in refusing to consider the
showing the petitioner made in its reply memorandum, responding to an
exhaustion argument the respondent made in its opposing discovery
35
SSE secondly responds that it did exhaust its administrative remedies
as to the greenhouse gas/loss of oak woodlands issue it has raised in this
court action.
We have reviewed the entirety of SSE’s grounds of appeal in both
appeal packets. While there are a number of generic assertions of inadequate
analysis of greenhouse gases, nowhere in SSE’s grounds of appeal pertaining
to greenhouse gases is there any reference to trees at all, let alone an
assertion the greenhouse gas analysis is deficient due to failure to adequately
account for and mitigate loss of carbon sequestration capacity.
For example, on the pages of its appeals packets to which SSE cites, we
find the following language, which we presume is the language to which SSE
must be referring, since each page has extensive, single-spaced text and SSE
provides no further assistance as to what language it believes is relevant to
exhaustion:
“The EIR’s greenhouse gas emissions calculations and the air quality
assessment are calculated on the basis of the number of truck and
vehicle trips associated with the quarry operation. However, the EIR
does not identify the length of the truck or vehicle trips. This
information is essential for determination of the emissions associated
with each and cumulative trips. A California Public Records Act
request was made for the weigh tags, which identify the actual
destination of each truck trip, thereby allowing calculation of the
emissions associated with it. The County refused to provide the weigh
tags and acknowledged that it does not have the information requested.
After the lengthy EIR process, the administrative record still does not
contain evidence of the amount of aggregate used locally or the future
local need for aggregate or the reserves present in the unexpanded
quarry. Failure to evaluate the emissions associated with the actual
memorandum. The appellate court stated the petitioner had no obligation in
its discovery moving papers to anticipate the respondent’s exhaustion
argument and properly countered the argument in its reply. (Id. at pp. 63-
64.)
36
trips renders the EIR’s greenhouse gas emissions calculations and air
quality assessment invalid. The Planning Commission’s conclusion
that the environmental impacts of the project on greenhouse gas
emissions and air quality are ‘less than significant’ is not supported by
substantial evidence.”
“The EIR finds the proposed expansion would have significant air
quality and greenhouse gas emission impacts yet fails to require
feasible mitigation that would eliminate or substantially lessen these
impacts. The EIR does not include a greenhouse gas mitigation plan.
Quantification of Syar’s greenhouse gas emissions data is unverified.
The EIR does not identify or analyze the cumulative environmental
impacts of the Project’s contribution to greenhouse gases. . . . [T]he EIR
was certified without an accurate inventory of existing emissions so the
impact of the Project’s current operations or proposed expansion cannot
be comprehensively analyzed.”
“Mitigation measures are inadequate to address environmental effects
of project.” “[G]reenhouse gas emissions . . . are inaccurately,
inadequately and incompletely described.”
Rather, the only mention of trees in SSE’s stated grounds of appeal in
either appeal packet is in section XVI of its grounds of appeal of the project
and permit approvals, wherein SSE stated in pertinent part:
“XVI. The Conditions of Approval (COA) are flawed because they are
based on flawed/inadequate mitigation measures. In addition, the
following are examples of other issues with the COA. Again, due to the
time allowed to file the appeal, an exhaustive list of flaws in the COA
cannot be provided at this time. [¶] . . . [¶]
“7. COA—PROJECT SPECIFICATION CONDITIONS, ITEM N:
requires replacement of oak woodlands at a ratio of 2:1, but a tree count
was not included in the EIR or in the Conditions of Approval from
which the number of replacement trees can be determined.
“8. COA—PROJECT SPECIFICATION CONDITIONS, ITEM O: does
not address inadvertent removal of trees.”
37
Again, this ground did not begin to fairly apprise the Board of
Supervisors of the greenhouse gas/loss of oak woodlands carbon sequestration
issue SSE has raised in this action. The Board, in turn, understandably, did
not perceive SSE to be raising any such issue by virtue of this stated ground,
as evidenced by its decision rejecting SSE’s appeals and specifically
addressing this ground as follows:
“Appellant’s Position:
Appellant SSE alleges that the conditions of approval are flawed
because they are based on flawed/inadequate mitigation measures.
Appellant SSE includes the following examples of other issues with the
COA and contends that due to the time allowed to file the appeal, an
exhaustive list cannot be provided in time. [¶] . . . [¶]
“7. COA—PROJECT SPECIFICATION CONDITIONS, ITEM N:
requires replacement of oak woodlands at a ratio of 2:1, but a tree count
was not included in the EIR or in the Conditions of Approval from
which the number of replacement trees can be determined.
“8. COA—PROJECT SPECIFICATION CONDITIONS, ITEM O: does
not address inadvertent removal of trees. [¶] . . . [¶]
“Findings and Decision. [¶] . . . [¶]
“The Conditions of Approval are detailed, voluminous, enforceable, and
subject to review every five years at a noticed public hearing before the
Planning Commission. (See COA No. 1(F).) This review is in addition
to the Annual Compliance and Assurance Update Report submitted to
the Planning, Building and environmental Services Department per
COA NO. 2(L). [¶] . . . [¶]
“Regarding COA Nos. N and O, the project replaces oak woodlands at
this scale on an acreage basis, not on an individual tree basis.
Mitigation includes the appropriate acreage of replacement oak
woodland to satisfy the 2:1 replacement ratio.”
38
SSE additionally cites to two other pages of the record—which are not
part of its stated grounds of appeal but are attachments to its second appeal
packet. However, as the County’s appeal ordinance makes explicit, and the
Board of Supervisor’s decision makes clear, only specified grounds are
addressed on appeal. For the same reason, SSE cannot rely on written
comments submitted to the planning department by the Quercus Group three
months after SSE filed its second appeal packet identifying its “Grounds of
Appeal” of the project and permit approvals. These comments discussed
“direct and indirect biogenic GHG emissions [that] occur when native forest
resources are harvested” and referenced “Mitigation Measure 4.4-9.”19 ( SSE
has not directed our attention, however, to any action by it to augment its
stated grounds of appeal either as to the certification of the EIR or approvals
of the project and permit. Accordingly, as we have recited, the Board of
Supervisors, in accordance with the County’s appeal ordinance, addressed
and made findings only as to the stated grounds before it.
In short, SSE did not raise as a Ground of Appeal to the Board of
Supervisors the greenhouse gas/loss of oak woodlands issue it raises in this
court action. Thus, SSE did not exhaust its administrative remedies as to
this issue.
Merits
Indeed, as to this issue, SSE’s failure to exhaust its administrative
remedies—and thus its failure to afford the County the opportunity to
19During one of the hearings before the Board, an individual, not from
SSE, but an organization called Bay Area 350, spoke about biogenic
greenhouse gases, Mitigation Measure 4.4-9, and also read parts of the
Quercus Group report into the record.
39
address this ground during the environmental review process—creates an
impediment to full judicial review.
As we have recited, the Board had no cause to understand SSE was
attacking either the certification of the EIR or the approvals of the project
and permit on the ground the greenhouse gas analysis was deficient due to
failure to sufficiently mitigate loss of carbon sequestration capacity provided
by existing oak trees, and the Board therefore did not address this issue.
Rather, the Board addressed the only ground pertaining to trees SSE
identified—that the conditions of approval of the project and permit were
“flawed” because condition N requiring tree replacement at a 2:1 ratio did not
include a “tree count” and condition O did not address the “inadvertent
removal of trees.” And as to that ground, there is no dispute that the Board
provided a reasonable explanation as to why it rejected SSE’s assertions as to
conditions N and O.
The EIR explains that Mitigation Measure 4.4-9 specifies that “[d]irect
and indirect impacts to approximately 130 acres of native oak woodlands
shall be compensated at a total mitigation ratio of 2:1, including [a]
combination of onsite avoidance and preservation . . . , onsite replacement . . .
and offsite.” (Boldface and italics added.) More specifically, “mitigation may
be accomplished through a combination of onsite avoidance/preservation,
partial onsite replacement/preservation, and additional preservation in
accordance with a plan prepared by a qualified biologist. The additional
preservation will be achieved through onsite or offsite mitigation, in-lieu fee
payment to the Oak Woodlands Conservation Fund or through other
mitigation activities. . . .”
As to tree replacement, the EIR states “[a] site evaluation of oak
woodlands on the project site by an ecologist mapped out areas that appeared
40
suitable for initiating oak replacement plantings. . . . These areas amount to
approximately 12 acres of suitable area for potential onsite replacement for
partial mitigation of impacts to oaks. . . .”
The EIR goes on to state that, under the mitigation measure, “[t]he
proposed project would avoid [any future disturbance of] 136 acres of on-site
oak woodlands. . . . These areas shall be protected via deed restriction in a
form acceptable to the County and shall be recorded prior to any new
vegetation removal activities.” A further provision of the mitigation measure
provides that “[a]n additional 111 acres off-site shall be permanently
preserved via easement or deed restriction or in-lieu fee payment to the Oak
Woodlands Conservation Fund consistent with Public Resources Code section
21083.4. . . . Offsite location(s) shall be located within Napa County and be of
like quality and habitat value as those being removed. . . .”
The combination of mitigation measures required by Mitigation
Measure 4.4-9 is consistent with the Oak Woodlands Preservation Act
(§ 21083.4), which provides in part: “As part of the determination made
pursuant to Section 21080.1,[20] a county shall determine whether a project
within its jurisdiction may result in a conversion of oak woodlands that will
have a significant effect on the environment. If a county determines that
there may be a significant effect to oak woodlands, the county shall require
one or more of the following oak woodlands mitigation alternatives to
mitigate the significant effect of the conversion of oak woodlands: [¶] (1)
Conserve oak woodlands, through the use of conservation easements. [¶]
(2)(A) Plant an appropriate number of trees, including maintaining plantings
20 Section 21080.1 provides in part: “The lead agency shall be
responsible for determining whether an environmental impact report, a
negative declaration, or a mitigated negative declaration shall be required for
any project which is subject to this division.” (§ 21080.1, subd. (a).)
41
and replacing dead or diseased trees. [¶] (B) The requirement to maintain
trees pursuant to this paragraph terminates seven years after the trees are
planted. [¶] (C) Mitigation pursuant to this paragraph shall not fulfill more
than one-half of the mitigation requirement for the project. [¶] (D) The
requirements imposed pursuant to this paragraph also may be used to
restore former oak woodlands. [¶] (3) Contribute funds to the Oak Woodlands
Conservation Fund, as established under subdivision (a) of Section 1363 of
the Fish and Game Code, for the purpose of purchasing oak woodlands
conservation easements, as specified under paragraph (1) of subdivision (d) of
that section and the guidelines and criteria of the Wildlife Conservation
Board. A project applicant that contributes funds under this paragraph shall
not receive a grant from the Oak Woodlands Conservation Fund as part of
the mitigation for the project. [¶] (4) Other mitigation measures developed by
the county.” (§ 21083.4, subd. (b)(1)-(4).)
The combination of mitigation measures required by Mitigation
Measure 4.4-9 is also consistent with the oak woodlands provisions of the
County’s general plan. It provides, as to oak woodland habitat, that the
County shall “[m]aintain and improve oak woodland habitat to provide for
slope stabilization, soil protection, species diversity, and wildlife habitat
through appropriate measures including” compliance with section 21083.4
and providing “replacement of lost oak woodlands or preservation of like
habitat at a 2:1 ratio when retention of existing vegetation is found to be
infeasible.”
In sum, through the combination of mitigation measures required by
Mitigation Measure 4.4-9, the impact on 121 acres of oak woodlands is being
mitigated by way of planting and preserving a collective total of 242 acres of
such woodlands, and the EIR, thus, concludes the mitigation measure “would
42
reduce the potential impacts on coast live oak and habitat to a less-than-
significant level by implementation of avoidance, restoration and/or
replacement.” (Boldface & italics added.)
However, SSE is not, at this juncture, complaining about the
sufficiency of the mitigation measures to address the impact on the native
oak woodlands, but rather about its sufficiency to mitigate greenhouse affects
and, specifically, loss of carbon sequestration capacity.
The EIR separately analyzes greenhouse gas emissions, including
changes to carbon sequestration capacity resulting from the clearing of the
trees. Specifically, section 4.17 of the EIR, entitled “Greenhouse Gases,”
explains “[w]hen land is cleared, some percentage of the carbon stored is
released back to the atmosphere as CO2. Land clearing or the loss of carbon
stock is thus a type of [greenhouse gas] emission.” The EIR concludes the
proposed project “would have a potentially negative effect on the County’s
current level of carbon sequestration functions. . . . This impact is considered
potentially significant.”
The EIR then discusses the mitigation measure “requir[ing]
compensation for loss of oak woodland” (i.e., Mitigation Measure 4.4-921), and
also Mitigation Measure 4.17-2. It explains that “Mitigation Measure 4.4-[9]
would require compensation for loss of oak woodland. Compensation would
include a mix of preservation (either on or off-site), onsite replacement, and
contribution to an in-lieu fee program. . . . Mitigation Measure 4.17-2 would
monitor [greenhouse gas] emissions as the project is implemented and
identify measurable reduction strategies to reduce emissions when emissions
21 The EIR refers to the mitigation measure regarding compensation
for loss of oak woodland as 4.4-8, but this appears to be a typographical error
as 4.4-8 addresses impacts to purple needlegrass, whereas 4.4-9 addresses
loss of oak woodland.
43
exceed the established baseline. . . . As mitigated, the proposed project would
be consistent with the Napa County General Plan, and [the impact] would be
considered less than significant.”
SSE complains that the “ ‘EIR hasn’t provided any mathematical
calculations that demonstrate the proposed mitigation will in fact reduce
direct and indirect biogenic emissions to less than significant’ ” and that the
EIR fails to demonstrate how Mitigation Measure 4.4-9 “would ‘actually
mitigate the [121] acres of lost forest carbon sequestration capacity.’ ”
But because SSE did not identify these complaints as a Ground of
Appeal, they were never addressed during the administrative proceedings.
We are therefore left to observe that SSE cites no authority requiring
mathematical calculations concerning carbon sequestration mitigation. In
fact, the Bay Area Air Quality Management District’s CEQA Air Quality
Guidelines specifically provide: “Biogenic CO2 emissions should not be
included in the quantification of [greenhouse gas] emissions for a project. In
its reply brief, SSE asserts, as we understand it, that it is not claiming
“biogenic” greenhouse gases must be included in the “quantification” of total
green gas emissions, but rather, that the effectiveness of mitigation measures
for loss of carbon sequestration capacity must be demonstrated by
mathematical computation. SSE does not, however, cite to any District
guideline that imposes such a requirement.
SSE also cites to King & Gardiner Farms, LLC v. County of Kern (2020)
45 Cal.App.5th 814 (King), as compelling the conclusion Mitigation Measure
4.4-9’s authorization of conservation easements on other woodlands is, per se,
inadequate mitigation of loss of carbon sequestration capacity. In King, the
project at issue was a Kern County “ordinance to streamline the permitting
process for new oil and gas wells” for which an EIR had been prepared. (Id.
44
at p. 829.) “An important purpose of the proposed amendment was to
eliminate time-consuming and costly review of individual well and field
development activities by establishing a ministerial permit review process
that incorporates mitigation measures identified in the project’s EIR. If the
County correctly determined the permit review process was ministerial—that
is, did not involve the exercise of discretion—the processing of future permit
applications by the County [would] not be subject to additional environmental
review under CEQA.” (Id. at p. 832, fn. omitted.)
One of the issues addressed by the EIR was conversion of agricultural
lands in Kern County. The EIR “estimated annual land disturbances
associated with future oil and gas exploration and production activities would
result in the conversion of 298 acres of agricultural land annually.” (King,
supra, 45 Cal.App.5th at p. 870.) A mitigation measure required loss of
agricultural land to be addressed in a “ ‘1:1 mitigation ratio’ ” via four
different methods, one of which was funding agricultural conservation
easements. (Id. at p. 871.) The court concluded “agricultural conservation
easements . . . do not actually offset the conversion of farmland.” (Id. at
pp. 829-830.) It explained “Entering into a binding agricultural conservation
easement does not create new agricultural land to replace the agricultural
land being converted to other uses. Instead, an agricultural conservation
easement merely prevents the future conversion of the agricultural land
subject to the easement. Because the easement does not offset the loss of
agricultural land (in whole or in part), the easement does not reduce a
project’s impact on agricultural land. The absence of any offset means a
project’s significant impact on agricultural land would remain significant
after the implementation of the agricultural conservation element. . . . At the
end of each year, there would be 289 fewer acres of agricultural land in Kern
45
County. Accordingly, under the thresholds of significance listed in the EIR,
this yearly impact would qualify as a significant environmental effect.
Therefore, we agree with KG Farms’ contention that MM 4.2-1.a does not
provide effective mitigation for the conversion of agricultural land.” (Id. at
pp. 875-876.)
Here, SSE is not challenging the adequacy of Mitigation Measure 4.4-9
to mitigate the impact on (and namely, the loss of) oak woodlands, which
would be the analog of the loss of farmland in King. Rather, SSE has
expressly limited its claim to “the failure of the EIR to formulate effective
mitigation for the Project’s GHG impacts due to carbon sequestration and
storage losses.”
SSE’s reliance on Golden Door Properties, LLC v. County of San Diego
(2020) 50 Cal.App.5th 467 (Golden Door II) is also misplaced. That case
concerned the county’s ongoing efforts to adopt a climate action plan,
guidelines for determining significance of climate change, and a supporting
EIR. (Id. at p. 482.) At the outset of its opinion, the court stated: “To be
abundantly clear, our holdings are necessarily limited to the facts of this
case, and in particular [mitigation measure] M-GHG-1. Our decision is not
intended to be, and should not be construed as, [a] blanket prohibition on
using carbon offsets—even those originating outside of California—to
mitigate GHG emissions under CEQA.” (Id. at p. 483.) In concluding that M-
GHG-1 violated CEQA because its performance standard was unenforceable,
the court rejected the County’s assertion M-GHG-1 was the “equivalent” of a
“cap-and-trade offset[]” program. The court explained M-GHG-1 was
“materially different from Assembly Bill No. 32 compliant cap-and-trade
offsets.” (Id. at p. 511.) For one thing, M-GHG-1 did not require offset
protocols “to be consistent with CARB requirements under title 17, section
46
95972, subdivision (a)(1)-(9) of the California Code of Regulations.” (Id. at
p. 512.) There also were no limits of use of credits, from any place in the
world, to meet greenhouse gas reduction standards. “In sharp contrast, cap-
and-trade offsets cannot[, under the state’s regulatory scheme,] exceed 8
percent of an entity’s entire compliance obligation.” (Id. at p. 513.) In
addition, under the state’s cap-and-trade scheme, “GHG emission reductions
must be additional ‘to any greenhouse gas emission reduction otherwise
required by law or regulation, and any other greenhouse gas emission
reduction that otherwise would occur.’ ” (Id. at pp. 513-514.) “For example,
CARB will not approve a protocol that ‘includes technology or GHG
abatement practices that are already widely used.’ ” (Id. at p. 514.)
Suffice it to say, the court’s discussion in Golden Door II of a
greenhouse mitigation measure enacted in conjunction with the development
of the county’s climate action plan, and specifically in the context of rejecting
the county’s assertion the measure was the equivalent of a statutorily
compliant cap-and-trade program, is not the context with which we are
concerned here. Furthermore, SSE’s reliance on the cap-and-trade discussion
in Golden Door II to bolster its claim that the EIR in this case insufficiently
mitigates greenhouse gas impacts caused by loss of oak woodlands only
magnifies the consequences of its failure to exhaust its administrative
remedies as to this issue—the County had no opportunity to address any
comparative cap-and-trade issue, and the record, in turn, is not developed in
this respect.
Finally, the EIR identifies not only Mitigation Measure 4.4-9, but also
Mitigation Measure 4.17-2. This mitigation measure provides in pertinent
part:
“The Applicant shall prepare a Greenhouse Gas Reduction Plan (GHG
Reduction Plan). The GHG Reduction Plan shall identify the measures
47
to be used to reduce the GHG emissions associated with the proposed
project below the 1,100 MT CO2e annual land use threshold (or
increase of 1,100 MT CO2e over baseline conditions). The effectiveness
of each measure in the GHG Reduction Plan shall be quantified,
indicating its contribution to the reduction of GHG emissions. The
Applicant shall choose from, but not be limited to, the following
measures to incorporate into the GHG Reduction Plan: [¶] Fuel on-road
and off-road vehicles with alternative fuels (such as hybrid, biodiesel,
and electric); [¶] Plant native trees and vegetation that have low
emissions of volatile organic compounds species for carbon
sequestration in locations at the project site not to be disturbed by
quarrying activities; [¶] Replace diesel-powered vehicles with newer
model, low-emission vehicles or replace diesel engines with higher fuel
efficiency engines or use retrofit emission control devices, such as diesel
oxidation catalyst, verified by the California Air Resources Board as old
vehicles or engines no longer become operable; [¶] Develop a monitoring
program that reduces diesel-fueled idling times beyond that required
under the California Air Resources Board Heavy-Duty Vehicle Idling
Emission Reduction Program; [¶] Require that on-road haul trucks that
are under contract with the quarry operator use 2003 model or newer
trucks; [¶] Establish an on-site renewable energy system (such as
solar); [¶] Install an automated load out system; [¶] Contribute to a
State or County offset mitigation program. [¶] The GHG Reduction
Plan shall be reviewed and approved by Napa County and shall be
updated as necessary to address changing conditions and regulations.
[¶] Prior to implementing the GHG Reduction Plan, the Applicant shall
monitor GHG emissions biannually in a GHG inventory submitted to
the County for review. The first inventory shall be calculated as a
three-year average after issuance of the use permit (for example, if the
use permit is issued in 2014, then the first inventory shall be performed
in 2018 for years 2015 through 2017). A three-year average would
accommodate the variability in aggregate sales from year to year. The
inventory shall follow the most recent version of the General Reporting
Protocol of the California Climate Action Registry or other protocol as
appropriate and approved by the County (CCAR 2007). . . . The
purpose of the inventory is to compare emissions from project
operations to the baseline emissions established in this EIR, which is
approximately 7,200 MT CO2e per year (if new baseline emissions are
established as a result of refined reporting methods, the use of a
different baseline is acceptable with approval by the County). At such
time as the inventory indicates GHG emissions are at or over baseline
48
conditions (7,200 MT CO2e per year), then the Applicant shall
implement measures in the GHG Reduction Plan as necessary to avoid
emissions above the 1,100 metric ton threshold (i.e.: 8,300 MT CO 2e per
year–baseline plus threshold).”
The Board of Supervisors addressed and rejected SSE’s complaints that
the “EIR does not include a greenhouse gas mitigation plan,” “[q]uantification
of Syar’s greenhouse gas emissions is unverified,” and the “EIR’s air quality
mitigation measure (Mitigation Measure 4.3) consists essentially of keeping
logs and providing the logs to the County twice a year if the County asks for
it.” (Italics & underscoring omitted.) The Board pointed out that “the Final
Draft Climate Action Plan was publicly available and referenced in Section
4.17 of the Draft EIR. . . . [¶] . . . The [Greenhouse Gas Reduction Plan] will
incorporate one or more of the measures listed in Mitigation Measure 4.17-2,
which would reduce GHG impact to less than significant levels. . . . [¶] . . .
Mitigation Measure 4.17-2 will monitor and begin mitigating emissions as
they approach or exceed the threshold. The project will mitigate any
emissions over the threshold, even if the emissions had already occurred and
the project implements mitigation retroactively. . . . [¶] . . . The mitigation
measures contain performance standards and provides a range of options for
demonstrating compliance. Syar has not asserted that it is infeasible and has
agreed to comply.”
In sum, as to the greenhouse gas issues SSE actually raised in its
appeal to the Board of Supervisors, there is ample discussion in the EIR and
appropriate mitigation measures have been required.
Water Usage Baseline
SSE maintains the water use baseline is “unsupported” and “relies on
layers of uncertainty,” thereby resulting in an “artificially high baseline”
which has resulted in “underreport[ing] the Project’s potential impacts.” As
49
we understand its claims, SSE contends the baseline is inaccurate for two
reasons. One, “there are conflicting amounts” stated “throughout the EIR” as
to annual sand production during 2004-2008 (these five years of production
were averaged to provide the production baseline figure) and the EIR “relies
on the highest estimate.” Two, the baseline determination incorrectly
“assume[d] that the sand production water use” during 2009-2011 which was
determined to be 2.7 percent of the total water usage during those years, was
also 2.7 percent of the total water usage during the preceding five years.
These asserted shortcomings resulted, with no “factual support,” in a
“significant scale-up of the water usage for dust control.”
Exhaustion
Syar and the County maintain SSE failed to exhaust its administrative
remedies in regard to the complaints about the water usage baseline they
have pursued in this court action. They assert SSE’s appeal packets raised
only “the general and nebulous issue that the EIR contains an ‘[i]naccurate
description of current groundwater use.’ ”
SSE maintains it exhausted its administrative remedies, citing to the
following language (which we have italicized) in its grounds of appeal in its
first appeal packet, in support of its appeal of the EIR certification (we again
set forth the entirety of the passages in which the language cited by SSE
appears):
“C. Baseline conditions are not adequately described.
“The EIR fails to describe baseline conditions with reference to actually
existing physical conditions. Instead, the EIR relies on models
conducted at other sites to analyze the baseline air quality impacts. It
used the standard trip length from the County’s traffic model to
analyze baseline traffic conditions. It fails to disclose existing water
usage, relying instead on data for water usage and groundwater levels
to be collected after the expansion is approved. Air quality studies in
50
the EIR are based on mining industry sponsored tests and models
conducted at other sites and calculated with controlled conditions not
representative of the Project’s actual conditions. The EIR provides no
basis for relying on modeled conditions instead of measuring the
actually existing physical conditions.” (Italics added.)
“M. Mitigation deferred and/or inadequate.
“1. 35-year permit period precludes adequate mitigation measures.
“The County admits that ‘pre-design of the mine at each stage of
development is difficult and prone to inaccuracies because the
economics and technology available for material recovery cannot be
accurately evaluated based on what is known today. Mining operations
are inherently market sensitive and market value and need for specific
types of material vary greatly over time.’ The County further admits
that ‘(u)ntil the economic value and market demand for material is
known with precision the cost/benefit of mining and implementing all of
the mitigation measures cannot be evaluated.’ [Citation.]
“Even assuming that the impact analysis is correctly done, which it
clearly was not, mitigation is inadequate. The document relies on
infeasible mitigation measures in several major resource areas which
are insufficient to reduce potential impacts to a less than significant
level for other impacts and other resource areas. Some examples
include:
“a. Groundwater
Assessment of existing water usage and groundwater levels will
not occur until after Project approval. This constitutes
impermissible deferred mitigation.
“Given the fractured bedrock nature of the aquifer, the mitigation
measure meant to prevent excess loss of groundwater through
seepage (Mitigation Measure 4.8-2) is infeasible. The mitigation
measure relies on borings to determine whether mining may be
planned close to the groundwater table; in fractured bedrock,
where groundwater flow occurs primarily through fractures,
borings will not be able to correctly predict the location of the
groundwater table. The County’s experience with the MST
amply demonstrates that groundwater elevations, groundwater
51
quality, and groundwater flowrates can vary tremendously
between wells located in close proximity.
“The mitigation measure (Mitigation Measure 4.8-3) intended to
ensure that groundwater consumption does not exceed the
currently stated level of 140 acre feet per annum (afa) is
inadequate because it fails to account for new consumptive uses
associated with increased loss to evaporation from new/larger
ponds, and the greatly increased surface area of the rock face. No
effort was made to assess the potential extent of seepage
(although Syar should have been able to provide some
characterization of current seepage levels.) See Parker
Groundwater Report in the administrative record.”22
SSE’s also cites to the following language (which we have italicized) in
its “Grounds of Appeal” in its second appeal packet in support of its appeal of
the project and permit approvals (we again set forth the entirety of the
passage in which the language cited by SSE appears):
“XI. The findings for Approval of Surface Mining Permit fail to comply
with the requirements of Napa County Code Chapter 16.12 for issuance
of surface mining permit, are in error, inadequate and incomplete.
“A. Plans and reports submitted with the application do not adequately
describe the proposed operation. Inadequate and shifting description of
project and its environmental impacts. Baseline production, reserves,
greenhouse gas emissions, truck trips, groundwater usage are
inaccurately, inadequately and incompletely described. For example,
the map attached as Exhibit 4 depicts an off-site groundwater well to
which Syar has access but was never disclosed or analyzed. Nor does
the permit resolution require any monitoring or other condition related
to this off-site well. Exhibit 5, a page from the 1973 EIR conducted for
the original permit shows groundwater at that time far exceeding that
estimated today-1120.14 acre feet per year historically vs. 140.6 acre
22 The Parker Groundwater Report was attached to a June 2, 2015
letter to the Planning Department from Kathy Felch, “on behalf of” Syar.
Contrary to SSE’s claim, the appeal packet did not “incorporate” this report
by this reference, nor did the packet identify where, in the massive
administrative record, the report was to be found.
52
feet per year. There is no accurate estimate of groundwater use either in
the EIR or in the permit approval such that the project’s groundwater
use may imperil surrounding properties’ dependence on groundwater.”
(Italics added.)
The excerpts on which SSE relies, particularly when read in context,
can only be described as “ ‘[r]elatively . . . bland and general references to
environmental matters,’ ’’ “ ‘unelaborated comment[s].’ ” (North Coast Rivers,
supra, 216 Cal.App.4th at p. 623.) Such generic objections do not satisfy the
exhaustion requirement. (Ibid.)
Moreover, SSE’s statements certainly did not apprise the Board of
Supervisors of the sand production related issues SSE has pursued in this
court action, as the Board’s decision reflects.
The Board summarized SSE’s “baseline” ground of appeal as follows:
“Baseline conditions are not adequately described. The EIR fails to
describe baseline conditions with reference to actually existing physical
conditions. Instead, the EIR relies on models conducted at other sites
to analyze the baseline air quality impacts. It used the standard trip
length from the County’s traffic model to analyze baseline traffic
conditions. It fails to disclose existing water usage, relying instead on
data for water usage and groundwater levels to be collected after the
expansion is approved. Air quality studies in the EIR are based on
mining industry sponsored tests and models conducted at other sites
and are calculated with controlled conditions not representative of the
Project’s actual conditions. The EIR provides no basis for relying on
modeled conditions instead of measuring the actually existing physical
conditions.”
As to this ground, the Board concluded in relevant part:
“Substantial evidence supports the EIR’s determination of baseline
conditions for groundwater. There is no historical metering of
groundwater use at Syar Napa Quarry because groundwater use
metering has not been a County requirement of pre-existing
groundwater wells in the MST. The lack of groundwater extraction
data is not unique in Napa County or the State of California. Due to
53
the unavailability of groundwater metering data in 2009 (when the
County published the NOP), metering was conducted as part of the
baseline studies for the project during 2011. The EIR used this data to
calculate the groundwater used during the baseline year of 2009 by
adjusting for differing production volumes between 2009 and 2011, as
recorded in the Syar Napa Quarry Water Supply Assessment found in
the Draft EIR, Appendix K.”
The Board summarized SSE’s mitigation deferred/inadequate ground of
appeal in pertinent part as follows:
“35-year permit period precludes adequate mitigation measures. [¶]
The County admits that ‘pre-design of the mine at each stage of
development is difficult and prone to inaccuracies because the
economics and technology available for material recovery cannot be
accurately evaluated based on what is known today. Mining operations
are inherently market sensitive and market value and need for specific
types of material vary greatly over time.’ The County further admits
that ‘(u)ntil the economic value and market demand for material is
known with precision the cost/benefit of mining and implementing all of
the mitigation measures cannot be evaluated. [¶] Even assuming that
the impact analysis is correctly done, which it clearly was not,
mitigation is inadequate. The document relies on infeasible mitigation
measures in several major resource areas which are insufficient to
reduce potential impacts to a less than significant level for other
impacts and other resource areas. Some examples include: [¶] a.
Groundwater. [¶] Assessment of existing water usage and groundwater
levels will not occur until after Project approval. This constitutes
impermissible deferred mitigation. [¶] Given the fractured bedrock
nature of the aquifer, the mitigation measure meant to prevent excess
loss of groundwater through seepage (Mitigation Measure 4.8-2) is
infeasible. The mitigation measure relies on borings to determine
whether mining may be planned close to the groundwater table; in
fractured bedrock, where groundwater flow occurs primarily through
fractures, borings will not be able to correctly predict the location of the
groundwater table. The County’s experience with the MST amply
demonstrates that groundwater elevations, quality, and flowrates can
vary tremendously between wells located in close proximity. [¶] The
mitigation measure (Mitigation Measure 4.8-3) intended to ensure that
groundwater consumption does not exceed the currently stated level of
54
140 acre-feet per year is inadequate because it fails to account for new
consumptive uses associated with increased loss to evaporation from
new/larger ponds, and the greatly increased surface area of the rock
face. No effort was made to assess the potential extent of seepage
(although Syar should have been able to provide some characterization
of current seepage levels.) (See Parker Groundwater Report in the
administrative record.)”
As to this ground, the Board concluded in relevant part:
“Groundwater Mitigation: [¶] A licensed hydrologist prepared a
comprehensive groundwater analysis and recommended appropriate
mitigation measures to reduce impacts as set forth in the EIR. For
projects for which an EIR has been prepared, where substantial
evidence supports the approving agency’s conclusion that mitigation
measures will be effective, courts will uphold such measures against
attacks based on their alleged inadequacy. (Laurel Heights,
supra,47 Cal.3d at p. 407; Sacramento Old City Assn. v. City Council
(1991) 229 CaI.App.3d 1011, 1027.) Similarly, substantial evidence
shows the mitigation measures were adequate. (See Mira Mar Mobile
Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 495 . . .
[mitigation may include ‘minimizing impacts by limiting the degree or
magnitude of the action’ and ‘compensating for the impact by replacing
or providing substitute resources or environments’].) The Board has
considerable discretion in determining the effectiveness of mitigation
measures. (Vineyard Area Citizens for Responsible Growth, Inc. v. City
of Rancho Cordova (2007) 40 Cal.4th 412, 435 . . . [‘the reviewing court
“may not set aside an agency’s approval of an EIR on the ground that
an opposite conclusion would have been equally or more reasonable” ’;
court cannot ‘ “determine who has the better argument’ ”]; see also
Banning Ranch Conservancy v. City of Newport Beach (2012)
211 CaI.App.4th 1209, 1233.)
“With respect to evaporative losses, they were addressed by Mitigation
Measure 4.8-2, which protects against potential persistent open water
bodies created when mining intersects the groundwater elevation,
substantially increasing evaporation losses. Evaporative loss can also
occur when the groundwater recharge mechanisms are interfered with,
such as when subsurface flow in fractures or soil is exposed or
intercepted by mining. However, Mitigation Measure 4.8-2 requires
that any subsurface flow in fractures or soil that is exposed or
55
intercepted by the excavation be re-infiltrated within the same
watershed boundaries. This mitigation also includes spring season
monitoring concurrent with the SWPPP monitoring (required by
Mitigation Measure 4.8-1) to verify that springs and subsurface flow
exposed as a result of mining activities are infiltrated back into the
subsurface before reaching the surface flow channels.”
As to SSE’s claim of inadequate “plans and reports” to support approval
of the mining permit ground, the Board quoted the ground verbatim. And as
to “Wells and Water Use,” the Board concluded:
“The Draft EIR accurately describes baseline water use of the project
and future project demand in Appendix K. Appellant SSE’s reference
to one page from a 1973 EIR does not reflect the current water use at
the quarry and in fact the reference to one million gallons a day
appears to be a description of the wells daily production, not the water
use occurring at the quarry. As discussed in the Draft EIR, Final EIR,
the Appendices, and other responses to comments, the majority of
water use at the quarry is associated with the application of water for
dust control purposes, which in the 1973 EIR is stated as 80,000
gallons per day, therefore, to assume that the quarry utilized an
additional 920,000 gallons a day is mere speculation. Most importantly
even assuming for argument sake that the quarry prior to Syar
Industries purchase of the site utilized 1,000,000 gallons of water a
day, the evidence in the record establishes that it no longer does so.
The Draft EIR accurately measure baseline water use and requires
ongoing monitoring and reporting to [e]nsure that the baseline water
use of 140.6 acre-feet per year is not exceeded. The Draft EIR
evaluated the two wells utilized by the project for water supply, the
Quarry Well and Latour Court Well. No other wells are currently being
utilized. Mitigation Measure 4.8-4 requires monitoring and restricts
groundwater use to a maximum of 140.6 acre-feet per year.” 23
23 SSE also points to what appears to be a PowerPoint document
prepared for a hearing on March 22, 2016. That document lists, under the
heading “Stop Syar Expansion Appeal Grounds,” the ground of “Inadequate
impact and mitigation assessment due to incorrect baseline and modeling
techniques primarily associated with [¶] Air Quality and Health Risk [,]
Noise[,] Groundwater Hydrology and use[,] Aesthetics.” This, however, was
simply another articulation of SSE’s generic complaints about the baselines
56
In short, the Board of Supervisors, in accordance with the County’s
appeal ordinance, addressed and made findings only as to the stated grounds
before it, none of which fairly raised the sand production-related issues SSE
has pursued here.
The trial court nevertheless concluded SSE had exhausted its
administrative remedies, stating: “[T]he Court interprets Petitioner’s
arguments relating to the EIR’s water supply analysis more broadly, as an
assertion that the EIR fails to adequately analyze the existing water supply,
and the water supply planning for the Project. The court finds that
Petitioner did raise these issues in its appellate packet [citation] in a manner
sufficient to give the County ‘the opportunity to evaluate and respond to
them.’ ”
We agree that SSE “broadly” raised the issue of the water usage
baseline, but that is not the standard for exhaustion. Rather, “ ‘ “ ‘the exact
issue’ ” ’ must have been presented to the administrative agency.” (South of
Market, supra, 33 Cal.App.5th at p. 347; North Coast Rivers, supra,
216 Cal.App.4th at p. 623.) Objections must be “ ‘sufficiently specific’ ” to
apprise the agency of the asserted deficiency, so it can “ ‘evaluate and
respond’ ” and have an “ ‘ “ ‘ “opportunity to act and to render litigation
unnecessary.” ’ ” ’ ” (North Coast Rivers, at p. 623.) The Board of Supervisors
was not so apprised as to the sand production related issues about the water
usage baseline SSE has pursued here. Thus, SSE did not exhaust its
administrative remedies in this regard.
and did not apprise the Board of the water usage baseline complaints related
to sand production it has raised in this court action.
57
Merits
Even assuming SSE exhausted its administrative remedies, there is no
merit to its challenge to the water usage baseline.
The water usage baseline and the EIR’s water impact analysis is based
on the “Syar Napa Quarry Water Supply Assessment” (Water Supply
Assessment) prepared by County consultants during the environmental
review process.24 The assessment explains how the usage baseline was
determined as follows:
Syar operates two water supply systems associated with the quarry.
The systems are supplied by two wells, the Latour Court Well and the Quarry
Well, and by surface water detention ponds.
Water is used at the quarry for dust suppression, sand and gravel
washing, bathrooms at the Syar site offices, and irrigation of “reclamation re-
vegetation.” The Latour Court Well supplies potable water to the Syar
offices, as well as to the offices of other companies. The Quarry Well supplies
“non-potable water for quarry operations.” The surface water detention
ponds supply water for dust suppression and for “washing sand and
aggregate materials.”
The quarry facilities are not connected to a municipal water source.
During the years the quarry has been in existence, “there has not been a need
to account for the amount of water required [because]. . . [w]ater has always
been available in abundance by way of a water well field that was developed
by the C&H Sugar Company many years ago. . . .”
The Water Supply Assessment relied in part on the production
baseline, which was determined, as we have discussed, by averaging annual
quarry production for the preceding five years.
24 This assessment is attached to the EIR as Appendix K.
58
Because water usage had, historically, not been measured and was not
measured during that five-year period, the assessment next examined three
sources of data to arrive at a baseline water usage number.
First, the assessment looked at the extraction rates from the Latour
Court Well, which was metered starting in 2011. Second, as to the Quarry
Well, the assessment looked at a combination of metered flow for a six-month
period in 2009 and actual truck counts filling from the well. It then
approximated extraction for the remaining months of 2009 “by scaling the
pumping rates [from the six-month period] to match the percent
increase/decrease observed in the Latour Court Well.” Third, to estimate
water use from the surface-water detention ponds, the assessment used the
number of water truck fillings during a 20-day period in May 2009, and based
on this, arrived at “a typical monthly pond extraction rate.”
Based on this data, the Water Supply Assessment estimated the
annual total water usage for 2009 to 2011 from the Latour Court Well as
17,974,900 gallons, from the Quarry Well as 13,515,00 gallons, and from the
surface ponds as 9,714,000 gallons (which assumed pumping occurred only
from May through September25). Thus, the assessment concluded the
average total annual water usage for the years 2009-2011 was 41,203,900
gallons
The Water Supply Assessment then compared average annual sand
production for this same time period, 44,329 tons, and factored in that it
takes 25 gallons of water to produce one ton. The assessment thus calculated
the amount of water used for sand production for 2009-2011 as 1,108,225
25The assessment pointed out water usage from the ponds for dust
suppression occurs only from May through September.
59
gallons. This, in turn, was 2.7 percent of the total annual water usage for
those years.
The assessment then returned to the baseline sand production—49,474
tons (an average of the “known sand production” for the preceding five years).
Multiplied by the sand production water usage figure of 25 gallons per ton,
this resulted in a baseline water usage of 1,236,850 gallons for sand
production. The assessment then factored in that water usage for sand
production during the 2009-2011 period accounted for only 2.7 percent of
total usage, and using this same percentage, calculated the baseline total
water usage as about 45.8 million gallons.26
SSE complains the EIR water usage baseline “scrapes together an
assortment of information regarding water use” from 2009-2011, resulting in
an “unsupported estimate” of quarry water usage, which is then “significantly
scaled-up to form the baseline water usage” and “fails to provide the most
accurate picture.”
As detailed above, the EIR does, indeed, rely on “an assortment of
information regarding water usage.” Neither the data on which it relies, nor
the methodology used to estimate baseline water usage, however, are
“unsupported.” Rather, because there had always been ample water for the
aggregate operation and because metering was not required as of the baseline
date, the water supply assessment had to devise a reasonable methodology
for estimating the baseline water usage.
26 The County commissioned a second water assessment that used an
entirely different methodology. It calculated baseline water usage “by
combining the site description and geological setting information with
monitoring data from: rainfall, evaporation/evapotranspiration, stream
gages, pond gages, groundwater elevation piezometers, and field
observation.” The study concluded the estimated baseline annual quarry
water usage was about 48.8 million gallons.
60
As we have recited, SSE maintains the Water Supply Assessment used
by the County is deficient in two respects.
First, it takes issue with the baseline sand production number of
49,474 tons (the average annual production during the five-year baseline
period).27 SSE claims “[t]here are conflicting amounts used throughout the
EIR” regarding the amount of sand production during that time period and
the EIR “relies on the highest estimate.” Specifically, SSE points to a lower
annual sand production number of 37,688 tons, found in the “Air Quality and
Health Risk Impact Assessment” (AQ Assessment) prepared by another
consultant and attached as Appendix I to the Draft EIR. That lower number,
however, is in a chart covering that same five-year timeframe titled “Total
Quarry Production Shipped by Truck.” (Italics added.) The AQ Assessment,
of course, was concerned with emissions from truck traffic, so focused on
truck records and not the actual “known” sand production amounts used in
the Water Supply Assessment.
SSE also claims the Water Supply Assessment incorrectly “assumes
that sand production water use would also be 2.7 percent of the total water
usage in 2004-2008.” SSE does not explain, however, why it was not
reasonable for the County to make the assumption that the percent of the
total water usage used for sand production during the 2009 to 2011
timeframe would be similar to that during the preceding five year timeframe.
27 The Water Assessment states it is based on “the five-year average
production rates from 2004 through 2009.” As the trial court noted, a five-
year period includes 2004, 2005, 2006, 2007 and 2008, but does not include
2009. It also appears to have been assumed that the five-years of production
figures that were averaged to provide the production baseline figure were the
five years preceding the 2009 date of publication of the notice of preparation.
61
In sum, the Water Supply Assessment and EIR explain in considerable
detail the methodology the County chose to use to determine the water usage
baseline and the reasons for that choice. This discussion adequately allowed
for public discussion and informed decision-making. (See South of Market,
supra, 33 Cal.App.5th at p. 354 [“ ‘ “CEQA requires an EIR to reflect a good
faith effort at full disclosure; it does not mandate perfection, nor does it
require an analysis to be exhaustive.” ’ ” Quoting Chaparral Greens v. City of
Chula Vista (1996) 50 Cal.App.4th 1134, 1145].)
SSE claims water usage for dust control does not increase
proportionally with increased production and therefore there is “no
evidentiary support for the scaling-up of water usage during the baseline
years beyond the approximately 2.7 percent of the water used for sand
washing.” “There is,” according to SSE, no “factual support for the
[assessment’s] significant scale-up of the water usage for dust control.” We
are at a loss as to SSE’s point. As we have discussed, the Water Supply
Assessment determined that 2.7 percent of the total water usage during the
2009-2011 timeframe was for sand processing and the remaining 97.3 percent
was used for other purposes. It then applied that same correlation to the
preceding five-year time period, and based on known sand production for that
period, arrived at a total water usage number for both sand production and
for other uses during that prior time period. We fail to see how this
“significantly scaled up” the water usage for dust control during the
preceding five-year timeframe and, in turn, the baseline.
In fact, the Water Supply Assessment recognized there is not
necessarily a proportional increase in both quarry production and water
usage for dust control, stating: “The proposed increase in mining production
does not necessarily relate to a proportional increase in water consumption,
62
because the same number of roads and stockpiles will require dust
suppression regardless of the total production amounts.” (Italics added.) But
as between the preceding five-years and the 2009-2011 time periods, there
was no increase in the size of the quarry operation, suggesting the water
required for dust control would likely be reasonably equivalent during both
time periods.
SSE cites to Save Our Peninsula Committee v. Monterey County Bd. of
Supervisors (2001) 87 Cal.App.4th 99 (Monterey). In that case, the draft EIR
established a “baseline of 45 acre-feet per year, based on the representation
by the owners that 21 acres were irrigated.” (Id. at p. 120.) It acknowledged,
however, there was “ ‘no documentation’ ” of “any substantial irrigation prior
to 1997,” the year of the draft EIR, and no well reports regarding the
property. (Id. at pp. 109, 120-121.) “[S]parse” records of water use on the
property existed for five years. (Id. at p. 121.) There was also “a temporary
aquifer test conducted in 1991 [which] produced 1.20 acre-feet,” and aquifer
testing in 1992 which produced “40.68 acre-feet.” (Ibid.) In the three years
before the development application, “water production totals were 11.58 acre-
feet, 0.40 acre-feet, and 1.08 acre-feet.” (Ibid.) After the development
application was submitted, water production was measured at 78.34 acre-
feet, 34.04 acre-feet in 1998, and 41.14 acre-feet for a portion of 1999. (Id. at
p. 123.)
In the “Supplemental Information and Errata” to the EIR, “several
possible combinations and averages of these production numbers” were
suggested. (Monterey, supra, 87 Cal.App.4th at p. 123.) The baseline figure
adopted by the Board, 51 acre-feet per year, was “an average of the water
meter readings in the past three years.” (Ibid.)
63
The Monterey court had “no objection to the EIR’s methodology of
estimating historical water use on property where no documentation is
available to verify actual use.” (Monterey, supra, 87 Cal.App.4th at p. 121.)
Indeed, the court explained “If the determination of a baseline condition
requires choosing between conflicting expert opinions or differing
methodologies, it is the function of the agency to make those choices based on
all of the evidence.” (Id. at p. 120.)
The court noted, however, that the data on which the calculation was
based was “clearly faulty” because “several of the figures on the water
production chart do not represent water actually used for irrigating the
property.” (Monterey, supra, 87 Cal.App.4th at p. 123, italics omitted.) It
noted, as an example, that the 78.34 acre-feet figure for 1997 included 52-
acre-feet produced during aquifer testing. (Id. at p. 123.) “A baseline figure,”
said the court, “must represent an environmental condition existing on the
property prior to the project. There is simply no justification for using a total
of 78.34 acre-feet of water as part of a baseline calculation for this property,
when the evidence was that 52 acre-feet of this amount was pumped for the
purpose of aquifer testing and was discharged into the Carmel River.” (Ibid.)
“[E]stimating water used for irrigation where there was no substantial
evidence to show that the property was in fact irrigated does not accurately
reflect existing conditions.” (Id. at p. 121.)
The baseline calculation here has no comparable “clearly faulty” figure.
The water usage baseline was estimated by using “known” sand production
amounts during all referenced time periods, using an undisputed gallon
figure required for sand production, and using water use data for time
periods for which there were records. None of this information was plainly
erroneous, unlike in Monterey.
64
At bottom, SSE disagrees with the County’s chosen methodology for
determining the baseline given the lack of complete water usage records for
2009 and no records for the preceding five years on which the baseline was
based. However, as Monterey, itself, confirms, where “the determination of a
baseline condition requires choosing between conflicting expert opinions or
differing methodologies, it is the function of the agency to make those choices
based on all of the evidence.” (Monterey, supra, 87 Cal.App.4th at p. 120.)
The EIR, which incorporates the Water Supply Assessment, explains the
County’s choice of methodology and reasons for it, and it cannot be said that
the County’s approach is marred by plainly faulty data or is unreasonable.
(See South of Market, supra, 33 Cal.App.5th at p. 334 [“when assessing the
legal sufficiency of an EIR, we do not look for perfection, but ‘adequacy,
completeness, and a good faith effort at full disclosure’ ”].)
Water Use Mitigation Measure
In a related vein, SSE maintains Mitigation Measure 4.8-4 is
inadequate because it sets a cap on quarry groundwater usage based on the
asserted “hypothetical” water usage baseline. SSE additionally claims an
“enforcement mechanism” for the usage cap is “lacking.”
Again, even assuming SSE exhausted its administrative remedies as to
these complaints (we note none of its grounds of appeal mention Mitigation
Measure 4.8-4), they are without merit.
We have already determined SSE’s challenge to the supposedly
“hypothetical” water usage baseline lacks merit. We therefore consider here
only SSE’s complaint that there is no “enforcement” of Mitigation Measure
4.8-4’s usage “cap.”
As we have discussed, the Water Supply Assessment explained that
water usage was not metered during the five-year baseline period because
65
water was drawn from private sources and there was always ample water for
quarry production. The assessment further discussed that it was anticipated
that the project would continue to use extracted water at the baseline rate,
and if additional water is needed, it will be procured from other sources,
including the Napa Sanitation District’s recycled waste water program. The
assessment went on to estimate that some 16 million additional gallons of
water might be needed for the projected increased production. This would be
met through several means, including: “recycled water from the City of
Napa,” “water recovery system at its sand plant to recycle the water that is
used in washing the sand,” and/or reduced water demands by alternative
dust suppression methods, such as gravel application to roads and spray
surfactants.
As set forth in the draft EIR, Mitigation Measure 4.8-4 provided:
“Avoid depleting groundwater supplies by water reuse and obtaining new
supplies of additional water for operations.” The explanation of the
mitigation measure provided: “If additional [water] is required for the
proposed project, this additional water will be obtained from off-site
sources. . . . Off-site sources of recycled water are available and water can be
purchased from public or private sources. If additional water sources are not
available then production volume will be reduced to the extent that the water
use does not exceed the maximum allowable annual usage [of] 45.8 million
gallons (140.6 acre-ft) per year.” The draft further explained, “[n]o additional
water from on-site resources is available to accommodate the additional
water demand of the proposed project. The maximum allowable annual
usage is 45.8 million gallons. . . . This mitigation measure includes metering
to verify that demands upon on-site water are not exceeded.” “In order to
monitor the use of the existing on-site sources, metering and record keeping
66
are required. Mitigation would include metering of all water use at the
site. . . . [¶] . . . [¶] . . .The total of groundwater/surface water used for quarry
operations would be totaled and reported annually. The annual usage would
be compared against the baseline usage on an annual basis.”
During the review process, Mitigation Measure 4.8-4 was augmented
with the following language: “Any new or additional water sources for
Quarry operations shall [be] subject to additional environmental review
pursuant to CEQA and modification of this surface mining permit. The
County Engineering and Conservation Division shall monitor this
requirement. Compliance [with] this measure shall be subject to Article VI
(Enforcement) of Napa County Code Chapter 16.12 (Surface Mining and
Reclamation).”
Thus, the “cap” imposed by the Mitigation Measure is enforceable, both
through metering and the enforcement provisions of the County Code. (See
Napa County Code, §16.12.660, subd. (a) [“Any person who operates,
maintains or causes to be operated or maintained any surface mining
operation which is not in conformance with the provisions of this chapter, the
exploration or surface mining permit issued, or any requirement, term or
condition of a master mining plan approved for the site being mined is guilty
of a misdemeanor.”])
Water Quality Impacts
As to water quality, SSE asserts the EIR (1) failed to disclose baseline
water quality conditions, and (2) failed to analyze water quality impacts of
using a surfactant, a substance added to water to enhance effectiveness for
dust control.
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Exhaustion
The trial court ruled SSE failed to exhaust its administrative remedies
as to these water quality issues.
SSE claims it did so, citing to the following language (which we have
italicized) in its first appeal packet supporting its appeal of the EIR
certification (again, we quote the entirety of ground):
“f. Groundwater depletion and increased sediment effect on steelhead
trout and Western Pond Turtles.
“Both steelhead trout, on the Endangered Specie[s] List as threatened
status, and Western Pond Turtles, a specie of concern warranting full
protection of their habitat, are found in Project’s expansion area.
Neither the EIR nor the responses to public comments adequately
address the Project’s exacerbation of groundwater depletion in the MST
Groundwater Deficient Area and its destruction of the Cayetano and
Marie creeks and their watersheds. There is no adequate discussion of
the biological/aquatic resource impacts from the Project’s increase in
toxic sediment discharges to the Cayetano/Marie watersheds. There is
no analysis or mitigation proposed for the destruction of habitat for the
steelhead and the turtles. See comment letter from Living Rivers
Council in administrative record.” (Second italics added.)
SSE also points to the following language (which we have italicized) in
its second appeal packet supporting its appeal of the project and permit
approvals (again, we quote the language in context):
“IX. PERMIT APPROVAL DOES NOT COMPLY WITH SMARA
“SMARA requires, inter alia, that a reclamation plan contain a
description of the manner in which contaminants will be controlled.
See Public Resources Code section 2772. There is no evidence in the
record of a description of how contaminants will be controlled.”
68
Neither of these stated grounds of appeal comes close to advising the
Board of Supervisors as to the water quality issues SSE has advanced in this
court action.
SSE also cites to another ground set forth in its second appeal packet,
entitled: “XIX. POPE CREEK QUARRY SHUT DOWN DURING
PENDENCY OF SYAR APPICATION.” However, this ground concerned a
different, “much smaller” quarry that was shut down in 2011, and as to which
the County had some difficulty in enforcing waste and debris mitigation.
Again, there is no way the Board of Supervisors would have divined from this
ground, that SSE was complaining about the lack of a water quality baseline
and the use of surfactant to enhance dust control.
SSE also maintains its explicit “incorporation” of the Parker
Groundwater Report in its first appeal packet sufficed to raise the water
quality issues it raises here. But SSE did not “incorporate” that report and
instead merely referenced it—“See Parker Groundwater Report in the
administrative record” (at a location it did not mention)—as support for a
different ground of appeal. Indeed, this reference was in support of a claim
there were no sufficient mitigation measures “to prevent excess loss of
groundwater through seepage,” as “[n]o effort was made to assess the
potential extent of seepage.” SSE is not, in this appeal, complaining about
groundwater loss through seepage.
SSE’s claim that the “County’s response to the appeal understood this
comment to address inadequacies of the SWPPP and water quality
mitigation” is likewise meritless. SSE cites to a page in a “Staff Report for
Napa County Board of Supervisors Syar Appeal Hearing,” without identifying
any specific language. That page discusses “Contaminant Control” in the
context of hazardous waste removal and identifies licensed waste transport
69
contractors. It mentions “control of contaminants also extends to air quality,”
but makes no mention of water quality.
Not surprisingly, the Board of Supervisors decision reflects it did not
understand SSE to be claiming the EIR was deficient because it failed to
establish a water quality baseline and failed to assess the impact of
surfactant use. Rather, as the Board’s decision shows, the Board addressed
only the grounds that were fairly before it—namely the adequacy of analysis
of impacts on steelhead and turtles, and compliance with Surface Mining Act
requirements pertaining to reclamation of mined areas.
As to the surfactant issue only, SSE additionally points out the Board
of Supervisors addressed the issue in its 37-page decision addressing the
appeal of another objector, Skyline Park Citizens Association (Skyline Park).
Among its stated grounds of appeal, Skyline Park included, as issue #4, the
following: “The EIR fails to identify an adequate supply of water to serve the
Project at the approved production levels, fails to evaluate the environmental
impacts of reasonably foreseeable means whereby the Project’s existing water
supply can and will need to be supplemented to sustain those production
levels, and fails to adequately protect groundwater resources in the MST
groundwater deficient area.” As we discuss below, the Board recounted how
this ground embraced the use of surfactant, and addressed Skyline’s concern
at length.
We have considerable doubt that SSE can point to the efforts of another
objector to establish that SSE exhausted its administrative remedies. The
Napa County appeals ordinance requires an appellant to state its grounds of
appeal and expressly states grounds not raised are waived. (Napa County
Code, § 2.88.050(C)(4)-(6).) And in accordance with the dictates of the
ordinance, the Board of Supervisors rendered separate decisions as to each
70
appellant and, as to each, addressed only the grounds raised by that
appellant.
Furthermore, Skyline Park filed its own court action challenging the
Board’s decision denying its administrative appeal. And in that court action,
Skyline raised the issue of surfactant use, alleging “The EIR fails to analyze
the environmental impacts of Syar’s use of chemical dust suppressants to
achieve its water conservation goal.” Skyline eventually reached a
settlement with the County, and its action was then dismissed with
prejudice. Given that this dismissal constituted a final judgment on the
merits, it had preclusive effect not only as to the claims Skyline raised, like
the use of surfactants, but also as to claims it could have raised. (See
Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896–897.)
SSE points out it was not a party to Skyline Park’s court action.
However, it is now well-established that an objector will be precluded from
relitigating CEQA issues where a final judgment has been entered in a court
action brought by another objector and there is a community of interest—or,
privity—between the two objectors. (See Inland Oversight Committee v. City
of San Bernardino (2018) 27 Cal.App.5th 771, 781–782; Atwell v. City of
Rohnert Park (2018) 27 Cal.App.5th 692, 699; Citizens for Open Access ect.
Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1071–1072.) We have
no difficulty concluding there was such privity between SSE and Skyline
Park. After all, SSE is relying on Skyline Park’s administrative appeal
efforts to establish that it exhausted its administrative remedies. We fail to
see how SSE can align itself with Skyline Park for purposes of exhausting
administrative remedies, but then disclaim any community of interest for
purposes of the preclusive effect of Skyline Park’s litigation efforts.
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Merits
In any case, even assuming SSE exhausted its administrative
remedies, neither of its complaints about water quality have merit.
As we have recited, the first of SSE’s water quality complaints is that
the EIR fails to disclose baseline water quality conditions. Specifically, SSE
complains the EIR “fails to disclose that the Quarry’s water quality baseline
is one of recurrent pollution.”
However, the EIR discloses exactly that, stating as follows: “The
project could result in a violation of water quality standards or waste
discharge requirement by employing quarry practices that would cause
substantial erosion or sedimentation on- or off-site. . . . The Syar Napa
Quarry currently has a SWPPP [Stormwater Pollution Prevention Plan] as
part of Syar NPDES Permit for Industrial Activities and would continue to do
so under the project. The SWPPP describes and dictates management
practices to prevent contaminants from entering storm water discharge and
prevent unauthorized non-storm water discharges. . . . Compliance with
sediment discharge limits is monitored by comparing the discharge from the
site to EPA suggested benchmarks. Monitoring of storm water discharges
from the Syar Napa Quarry has indicated that EPA suggested benchmark
standards have been exceeded. A tabulation of surface water sampling
results is provided in Appendix D of the Winzler & Kelly 2012 report,”
attached to the DEIR.
SSE maintains this discussion is inadequate due to its reference to
Appendix D, a disclosure which, according to SSE, must be “made in the EIR
itself and not buried as an afterthought, tacked onto an appendix.” SSE cites
to Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918(Banning) and Vineyard Area Citizens for Responsible Growth Inc. v. City of
72
Rancho Cordova (2007) 40 Cal.4th 412 (Vineyard). These cases stated, “[t]he
data in an EIR must not only be sufficient in quantity, it must be presented
in a manner calculated to adequately inform the public and decision makers,
who may not be previously familiar with the details of the project.
‘[I]nformation “scattered here and there in EIR appendices” or a report
“buried in an appendix,” is not a substitute for “a good faith reasoned
analysis.” ’ ” (Vineyard, at p. 442; see Banning, at pp. 940–941.)
In Vineyard, the court observed, “A reader of the FEIR could not
reasonably be expected to ferret out an unreferenced discussion in the earlier
Water Forum Proposal, interpret that discussion’s unexplained figures
without assistance, and spontaneously incorporate them into the FEIR’s own
discussion of total projected supply and demand.” (Vineyard, supra,40 Cal.4th at p. 442, italics & bold added.) Thus, “[t]o the extent the County,
in certifying the FEIR as complete, relied on information not actually
incorporated or described and referenced in the FEIR, it failed to proceed in
the manner provided in CEQA.” (Ibid., italics added; see Banning, supra,
2 Cal.5th at pp. 940–941.)
Here, in contrast, discharge containment was both generally discussed
in the EIR and the detailed analytical data was expressly referenced in an
identified appendix. Thus, the information was “presented in a manner
calculated to adequately inform the public and decision makers.” (Vineyard,
supra, 40 Cal.4th at p. 442.)
SSE’s second water quality complaint is that the EIR failed to analyze
the potential impact of using surfactants.
The draft EIR noted that “[n]o additional water from on-site resources
is available to accommodate the additional water demand of the project.”
Accordingly, Mitigation Measure 4.8-4 stated in pertinent part: “Mitigation
73
also will be applied by off-setting the need for additional water by reuse of the
water and gains in process efficiency. This could include gravel application
for roadways and production areas to reduce dust generation and the need for
dust suppression by water application.” The draft EIR also discussed
“fugitive dust,” and in that regard referenced Mitigation Measure 4.3-2B
which provided in pertinent part: “Maintain chemical dust suppressant,
equivalent dust suppressant that achieves similar control, on the unpaved
road surfaces as described in the manufacturer’s specifications. Material
used for chemical dust suppressant shall not violate State Water Quality
Control Board standards. Materials accepted by the California Air Resources
Board and the US EPA, and which meet State water quality standards shall
be considered acceptable.”
As we have discussed, Skyline Park raised the issue of sufficient water
for mining operations, and Board of Supervisors addressed the issue,
including the use of surfactants to enhance existing water resources, in its
decision on Skyline’s appeal. The Board first discussed the background of the
issue, explaining that during the environmental review process, and in
response to Skyline’s concern about the use of alternative water resources,
Syar had “determined it could feasibly achieve the reduced maximum annual
production rate of 1.3 million tons without exceeding baseline water use via
water conservation technologies, as discussed in the Draft EIR mitigation
measures, Water Availability Analysis, and Air Quality Analysis. The water
conservation technologies include graveling or paving roads, using
surfactants, reusing wash water, and other methods that reduce the use of
water for dust suppression.” Syar and the County’s EIR consultant then
“provided evidence regarding the feasibility of achieving full production
within the maximum water use limitations. [Syar’s] evidence of feasibility
74
was focused on the use of surfactants on heavy traffic areas due to the readily
available information regarding its effectiveness in reducing water demand.
In practice, [Syar] would use numerous technologies to increase water use
efficiency and make adjustments based on monitoring data to achieve
compliance with the maximum allowable groundwater use of 140.6 acre-feet
per year.”
The Board then turned to Skyline Park’s concern that Syar’s “agreeing
not to exceed its baseline water use via increased efficiencies and water
conservation” raised, in turn, concern “that the use of such technologies, like
surfactants on road surfaces was a change in the mitigation measure or new
information that would require additional environmental review.” The Board
stated it had “received evidence from both the Applicant and Appellants and
heard testimony from the County EIR Consultant.” The consultant “stated
that the EIR already considered the use of surfactants and other technologies
in the project’s Water Availability Analysis and Air Quality Modeling and
that such use was consistent with the proposed mitigation measures.
Notably, under Mitigation Measure 4.3-2B, the Applicant may only use dust
suppressants that the California Water Quality Control Board, the California
Air Resources Board and the United States Environmental Protection Agency
has approved. While some types of surfactants could have environmental
impacts, the EIR Consultant stated that many surfactants were composed of
nontoxic plant material and do not result in any impacts. The Board also
head from County staff that environmentally friendly surfactants were in
common use throughout the Napa Valley in agricultural areas. Further, the
Project’s Industrial Storm Water Permit monitors water quality impacts and
would effectively address any possible impacts. The EIR consultant also
clarified that the use of surfactants was not new information since the use of
75
surfactants was expressly provided for in air quality mitigation and discussed
in the Draft EIR and its appendices.”
The Board went on to explain that “[i]n response,” it had “directed staff
to clarify in the mitigation measures, consistent with the Draft EIR, that only
non-toxic surfactants would be allowed. . . .”
The Board then set forth the entirety of the three pertinent and lengthy
mitigation measures, indicating the modifications. For example, Mitigation
Measure 4.8-4 was augmented with language stating, inter alia, “The
Permittee shall review the monitoring data on a monthly basis to confirm the
status of its annual water use. The total of groundwater/surface water used
for quarry operations shall be totaled and reported monthly to the County.”
Mitigation Measure 4.8-4 was also modified to eliminate any reliance on new
water sources to meet quarry demand. Instead, “[t]he Permittee shall also
off-set additional water demands by reusing water and increasing processing
efficiencies. This could include gravel, pavement, and surfactant application
to roadways and production areas to reduce dust generation and the need for
dust suppression by water application, as discussed in Mitigation Measure
4.3-2b and Draft EIR, Appendix J.” As modified, the measure further
specified, “[t]his permit does not authorize the consumptive use of water for
any source in excess of 140.6 acre-ft per year, regardless if obtained outside
the MST.”
Mitigation Measure 4.3-2b was also augmented with the following
language: “Materials used for chemical dust suppressant shall include any
non-toxic chemical or organic dust suppressant or stabilizer and shall not
violate State Water Quality Control Board standards. Materials accepted by
the California Air Resources Board and the U.S. EPA, and which meet state
water quality standards shall be considered acceptable. The permittee shall
76
maintain records on dust suppressant use and any other supporting
documentation to verify compliance with the conditions above. Such records
shall include type of control measure(s) used, location and extent of coverage,
date of use, amount, and frequency of application, including product
information sheets that identify the name of the dust suppressant(s) and
application instructions. Records shall be maintained for five (5) years, and
shall be submitted to the PBES Department annually, as required by COA
No. 2 (L).”
In sum, as the Board of Supervisors recognized, the Draft EIR did
analyze the use of surfactants and did so specifically in the context of their
use—to control dust. Moreover, the issue was adequately examined during
the administrative appeal process. And while SSE suggests it was improper
to modify and enhance the pertinent mitigation measures during that
process, that is incorrect. One of the important purposes of the exhaustion
doctrine is to allow agencies the opportunity to review, and to address,
asserted deficiencies in the environmental review. (See State Water
Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 794; quoting Napa
Citizens for Honest Government v. Napa County Bd. of Supervisors (2001)
91 Cal.App.4th 342, 384.) Indeed, “[a]fter a project has been approved and
while it is still being developed a mitigation measure or condition of approval
may be changed or deleted if the measure has been found to be impractical or
unworkable.” (Lincoln Place Tenants Assn. v. City of Los Angeles (2005)
130 Cal.App.4th 1491, 1508–1509.)
Consistency with General Plan
SSE lastly contends the EIR failed to address the project’s asserted
inconsistencies with the County’s general plan.
77
Not A CEQA Issue
In the trial court, the County and Syar pointed out an EIR must
address only inconsistencies with a general plan. Because the County
determined the project is consistent with its general plan, they maintained
the EIR is not deficient in this regard. Further, to challenge the County’s
consistency determination, the County and Syar maintained SSE was
required to proceed by way of a separate cause of action under Code of Civil
Procedure section 1085 for ordinary mandamus, or a separate proceeding for
such—neither of which SSE pursued. The trial court agreed and therefore
did not consider the merits of SSE’s general plan consistency argument.
In The Highway 68 Coalition v. County of Monterey (2017)
14 Cal.App.5th 883, 893–894 (Highway 68), the Court of Appeal explained,
“the issue of whether a proposed project is consistent with a county’s general
plan is not a CEQA issue, and therefore the mandate procedures provided for
CEQA violations at section 21168.9 do not apply. The CEQA Guidelines
provide: ‘The EIR shall discuss any inconsistencies between the proposed
project and applicable general plans, specific plans and regional plans.’
(Guidelines, § 15125, subd. (d).) Thus, as this court has stated, ‘ “ ‘[w]hile
there is no requirement that an EIR itself be consistent with the relevant
general plan, it must identify and discuss any inconsistencies between a
proposed project and the governing general plan. [Citation.]’ [Citation.]
‘Because EIRs are required only to evaluate “any inconsistencies” with plans,
no analysis should be required if the project is consistent with the relevant
plans. [Citation.]’ [Citation.]” [Citation.]’ (Pfeiffer, supra, 200 Cal.App.4th
at p. 1566.)”
Rather, an “ ‘agency’s decisions regarding project consistency with a
general plan are reviewed by ordinary mandamus.’ (San Francisco
78
Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498,
515. . . .)” (Highway 68, supra, 14 Cal.App.5th at p. 894.)
The Highway 68 court went on to explain, “[u]nder the Government
Code, every county and city is required to adopt ‘ “a comprehensive, long-term
general plan for the physical development of the county or city. . . .” (Gov.
Code, § 65300.) . . . “ ‘[T]he propriety of virtually any local decision affecting
land use and development depends upon consistency with the applicable
general plan and its elements.’ [Citation.]” [Citation.]’ (Friends of Lagoon
Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 815. . . .) [¶] ‘ “ ‘An
action, program, or project is consistent with the general plan if, considering
all its aspects, it will further the objectives and policies of the general plan
and not obstruct their attainment.’ [Citation.]” [Citation.] State law does
not require perfect conformity between a proposed project and the applicable
general plan. . . .’ (Friends of Lagoon Valley, . . . at p. 817.)” (Highway 68,
supra, 14 Cal.App.5th at p. 896.)
The Highway 68 court then addressed the applicable standard of
judicial review. “ ‘When we review an agency’s decision for consistency with
its own general plan, we accord great deference to the agency’s
determination. This is because the body which adopted the general plan
policies in its legislative capacity has unique competence to interpret those
policies when applying them in its adjudicatory capacity. [Citation.] . . . A
reviewing court’s role “is simply to decide whether the city officials considered
the applicable policies and the extent to which the proposed project conforms
with those policies.” [Citation.]’ ” (Highway 68, supra, 14 Cal.App.5th at
p. 896, quoting Monterey, supra, 87 Cal.App.4th at p. 142.)
“Accordingly, an agency’s ‘findings that the project is consistent with its
general plan can be reversed only if it is based on evidence from which no
79
reasonable person could have reached the same conclusion. [Citation.]’ (A
Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal.App.4th 630,
648. . . .) The party challenging a city’s determination of general plan
consistency has the burden to show why, based on all of the evidence in the
record, the determination was unreasonable. (California Native Plant Society
v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 639. . . .)” (Highway
68, supra, 14 Cal.App.5th at p. 896.)
Despite its attention having been directed to Highway 68, SSE did not,
in the trial court, ask for leave to amend its writ petition to add a cause of
action for ordinary mandamus under Code of Civil Procedure section 1085.
Nor did it make any general plan inconsistency argument based on the
standards of judicial review applicable to ordinary mandamus and,
specifically, to an agency’s consistency determination.
On appeal, SSE maintains it was not required to challenge the
County’s determination that the project is consistent with its general plan by
way of ordinary mandamus. Rather, as we understand SSE’s argument, it
contends “consistency” and “inconsistency” for purposes of CEQA mean
something different than in the context of general planning and land use law.
SSE explains as follows: “The injury that [it] claims is not the Project’s
inconsistency with the General Plan as a whole as would be addressed by a
Planning and Zoning Law (Gov. Code, § 65000 et seq.) action, but rather the
failure to adequately inform the public and decisionmakers about
inconsistencies with any policies as required by CEQA. Such information
would apprise the public and decisionmakers with the potential impacts of
the inconsistency and advise the public of the basis for the County’s
determination.” In fact, SSE expressly states it “is not arguing that the
Project approval must be set aside due to inconsistency with the General
80
Plan as a violation of the Planning and Zoning law, but rather that the EIR
failed to disclose inconsistencies with the General Plan as a violation of
CEQA’s informational requirement.”
Try as SSE might to explain that it is not challenging the County’s
substantive consistency determination, that appears to be exactly what SSE
is doing, as it repeatedly maintains the EIR “failed to disclose
inconsistencies” with the General Plan. It also appears that SSE’s specific
complaint is that the EIR failed to address asserted inconsistencies with
“AWOS” (agriculture, watershed, and open space) designated lands.
Furthermore, SSE cites no authority supporting its assertion that
“inconsistency” for CEQA purposes is different than for purposes of general
planning and land use law. It points to CEQA guideline section 15125,
subdivision (d). But as the Highway 68 court pointed out, this guideline
states: “The EIR shall discuss any inconsistencies between the proposed
project and applicable general plans, specific plans and regional plans.”
(Guidelines, § 15125, subd. (d).) The guideline in no way suggests that as
used in CEQA, the term “inconsistency” has an altogether different meaning
than under basic planning and land use law. Indeed, while SSE maintains a
different understanding of “inconsistency” must apply in the context of
CEQA, it fails to articulate the standard for identifying such
“inconsistencies.” At some points in its briefing, SSE seems to suggest
“potential” inconsistencies must be identified and addressed. But that is not
what the guideline requires in a final EIR. And while SSE deems it readily
apparent that there are general plan “inconsistencies” for purposes of CEQA,
the County determined otherwise, suggesting SSE is advocating an eye-of-
the-beholder approach. But such a subjective measure is even further
removed from the mandate of the guideline. (Cf. South of Market, supra,
81
33 Cal.App.5th at p. 353 [“ ‘applicable plan’ within meaning of Guidelines,
§ 15125, subd. (d) is plan that has already been adopted and thus legally
applies to project; draft plans need not be evaluated,’ ” quoting Chaparral
Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1145, fn. 7].)
In fact, we note that in Golden Door II, cited by SSE as support for
other asserted deficiencies in the EIR, the Court of Appeal addressed whether
the county-wide Climate Action Plan at issue was consistent with the
County’s general plan update that called for the reduction of greenhouse
gases and adoption of a Climate Action Plan. (Golden Door II, supra,
50 Cal.App.5th at pp. 482, 486.) The appellate court did not treat this as a
CEQA “informational” issue; rather, it applied the standard of judicial review
applicable in ordinary mandamus to review an agency’s consistency
determination and concluded, “in light of the highly deferential standard of
review,” the trial court had erred in ruling the Climate Action Plan was
“inconsistent” with County’s general plan.28 (Id. at p. 501.)
28 At oral argument, SSE cited to Pocket Protectors v. City of
Sacramento (2004) 124 Cal.App.4th 903 (Pocket Protectors) and Friends of the
Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859 (Eel
River), in support of its assertion Highway 68 is in error as to the content of
an EIR and scope of judicial review of a consistency determination. Both
cases are distinguishable. The issue in Pocket Protectors was whether there
was a “fair argument” the proposed project was inconsistent with the
applicable PUD (Planning Unit Development) designation, requiring the
preparation of an EIR. The court specifically contrasted the “much lower”
standard applicable in this context than in the context of reviewing an EIR
and an agency’s ultimate consistency determination. (Pocket Protectors,
supra, at pp. 933–936.) The issue in Eel River was whether the agency was
required to consider whether the proposed project was consistent with local
county general plans. The court concluded it was not, as the statute required
only compliance with zoning and building ordinances. (Eel River, at p. 879.)
Neither case dealt with a challenge to an agency’s consistency determination
made in the course of preparing a full EIR.
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Merits
Even assuming SSE’s “informational” standard of general plan
“consistency” under CEQA has merit (and we do not believe it does), the
project’s consistency with the general plan was addressed throughout the
environmental review process. The draft EIR, for example, included detailed
discussion—“each technical section of the DEIR (Chapter 4.1 through 4.17)
has been evaluated for consistency with policies contained in the existing
Napa County General Plan (2008).” The County also prepared a “Syar Napa
Quarry Surface Mining Permit P08-0037 General Plan Consistency Analysis”
that was considered during the proceedings before both the Planning
Commission and the Board of Supervisors. This provided ample basis for
public discussion of the project’s consistency with the general plan and
informed decision-making. (See North Coast Rivers, supra, 216 Cal.App.4th
at pp. 632–633 [detailed discussion of consistency with general plan not
required].)
We also observe that the Board of Supervisors addressed SSE’s various
claims that the project was inconsistent with the general plan, including its
claim that it was inconsistent with AWOS-designation. In this regard, the
Board’s decision states:
“General Plan Consistency:
“The General Plan and Zoning consistency analysis in the EIR is for
informational purposes only and to disclose potential conflicts. (CEQA
Guidelines Section 15125(d).) It is not binding on the Commission or
the Board which are the bodies charged by law with interpreting the
County’s land use policies and rendering the final determination on a
project’s consistency or lack thereof. (San Francisco Upholding the
Downtown Plan v. City & County of San Francisco (2002)
102 Cal.App.4th 656, 668.) To assist the Commission with its
determination, staff prepared and released a detailed General Plan and
Zoning consistency analysis in August 2015. Although the project
evaluated in this analysis was reduced production and reduced
83
footprint hybrid, the conclusions are still valid as to the Syar Modified
Project Plus Area C—approved by the Planning Commission—since
both the project evaluated in the analysis and the approved project
include reduced production and reduced footprints from the originally
proposed project evaluated in the EIR.
“The parcels within the Syar holding have General Plan Designation of
AWOS, I and PI. The Conservation and Recreation and Open Space
(ROS) Elements provide the bulk of the County’s goals and policies
regarding conservation of natural areas and open space. The ROS
Element includes preservation of natural resources and the managed
production of resources as one of the uses and benefits of open space.
[Citation.] The Conservation Element has policies and actions that are
intended to conserve open space lands that contain important natural
resources that are associated with open space land use benefits.
[Citation.] Within the Conservation Element the managed production
of resources is specifically identified and addressed. This element
states that preserving open space resources to meet the community’s
conservation goals while also addressing local needs for productive raw
natural materials requires a balanced approach and contains specific
goals and policies that address open space as it pertains to the
conservation of natural resources, and stresses the conservation and
prudent management to the County’s mineral resources for current and
future generations. [Citation.] Agricultural Preservations and Land
Use Policy AG/LU-93 further provides that the ‘County supports the
continued concentration of industrial uses in the South County area as
an alternative to the conversion of agricultural land for industrial use
elsewhere in the county.’
“As discussed above, aggregate mining and processing activities are
allowed on the permittee’s property, including the Pasini Parcel, with a
surface mining permit. The General Plan policies contemplate mining.
Because the current land use and zoning designations allow mining,
neither a general plan land use re-designation nor a rezoning of the
holding are necessary to accommodate the project. Both the Quarry
and the zoning code that allows for surface mining in any zoning
district pre-date Measures J and P. The Quarry has been in existence
since the 1800s and . . . since 1955 the County Code has permitted
surface mining in any zoning district with an approved surface mining
permit and Measure J and P did not change this provision of the
County Code. (County Code Section 18.120.010(B)(3).)
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“Furthermore, the project site, and portions thereof, are also mapped or
classified by 1) the State Geologist as Resource Sector H, Mineral
Resource Zone MRZ-2 (a), which indicates that significant deposits are
present, and 2) the County Land Use Map as a Mineral Resource . . .
area, which is applied to known mineral resources based on mapping
prepared by the State of California. These [mineral resource]
designations further reinforce that mining within the project site’s land
use and zoning designations is a contemplated and allowed use.”
In sum, consistency with the general plan was discussed at length
throughout the project review process. And while SSE’s perspective is that
the project is “inconsistent” with the County’s general plan, on this record, it
was the prerogative of the County to conclude otherwise. “Determining
whether a project is consistent with general plan policies is left to the lead
agency; ‘[i]t is, emphatically not the role of the courts to micromanage’ ” such
decisions. (North Coast Rivers, supra, 216 Cal.App.5th at p. 632, italics
added.)
DISPOSITION
The trial court judgment is AFFIRMED. Each party to bear its costs on
appeal.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Margulies, J.
A158723, Stop Syar Expansion v. Napa County
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