Second District Court of Appeal Upholds Environmental Impact Report for a Sand and Gravel Mining Project against Challenge to Report’s Analysis of Hydrological Impacts

On February 8, 2013, the Second District Court of Appeal in Save Cuyama Valley v. County of Santa Barbara et al. (2013) __Cal.App.4th__ (Case No. B233318) upheld the Santa Barbara County Superior Court’s determination that an Environmental Impact Report (EIR) for a sand and gravel mining project complied with CEQA.

Troesch Materials applied to Santa Barbara County for a conditional use permit to excavate and process approximately 500,000 tons of sand and gravel (the “Diamond Rock mine”) annually. The mine would be located within the frequently dry bed of the Cuyama River at a stretch where the river is about 2,500 feet wide. The mine would excavate approximately 900 feet from the river’s usual flow, and would process materials above the riverbed at a nearby facility. The mine would be located approximately 1,500 feet upstream from another sand-and-gravel mined, called the “GPS mine.”

After the County certified an EIR for the project, Petitioner sued under CEQA, claiming: (1) the thresholds of significance for hydrological impacts were wrong; (2) substantial evidence did not support the EIR’s findings that the project’s hydrological impacts are minor; and (3) the mitigation measure imposed on the project for hydrological impacts is too nebulous; and (4) the EIR’s analysis of water supply and water quality impacts was deficient. The court rejected each of these contentions.

Thresholds. Petitioner first asserted that the County’s use of its own four-part definition of an “adverse hydraulic impact” violated CEQA because it deviated from the threshold of significance set forth in Appendix G of the CEQA Guidelines. Petitioner urged that such deviation was impermissible unless the County formally adopted a different threshold. The court rejected this argument, explaining that CEQA only requires an agency to formally adopt a threshold of significance if it is for “general use” in evaluating all future projects. CEQA does not, however, prohibit an agency from informally developing a threshold of significance to use in individual EIR.  

Petitioner further argued that it was unclear which threshold of significance the EIR applied because the EIR used both Appendix G and the County’s own thresholds. The Court of Appeal explained that the EIR was neither ambiguous nor misleading. According to the court, the EIR explained that the factors cited in Appendix G could trigger a finding of significant impact, but then clearly defined its own threshold for analyzing hydraulic impacts. As noted, CEQA permits an agency to define its own project-specific thresholds, so the County’s approach did not violate CEQA. 

Petitioner also argued that the EIR was required to explain why it did not use Appendix G’s thresholds. The court found, however, that the Appendix G questions are only suggestions; to require any deviation from those suggestions to be documented and justified would improperly elevate Appendix G to a presumptive threshold.

Substantial Evidence Supporting the Agency’s Findings. The court concluded that the EIR adequately explained why the combined sediment deficit created by the proposed Diamond Rock mine and the upstream GPS mine would not translate into adverse hydrological impacts. The EIR adequately explained that the riverbed would be replenished by surplus sediment that would be deposited by flows from previously scoured areas. The court also found that the substantiality of the County’s evidence was not undermined by the differing expert opinions of the U.S. Environmental Protection Agency and Petitioner’s experts.

Mitigation. Next, Petitioner argued that the mitigation measure adopted by the County for hydraulic impacts was too vague. The County conservatively imposed mitigation for this less-than-significant impact as a condition of approval. The mitigation required the applicant to: (1) conduct a semi-annual survey of river bottom elevations in three specified locations; (2) submit this data to various specified agencies for review; and (3) should any “adverse hydraulic conditions be evident, or appear to be developing, which could result in off-site impacts” to confer with the County to modify the mining pit to avoid these impacts. Petitioner attacked the measure as vague and imprecise since it required action when “adverse hydraulic conditions [were] evident.”  Because this terminology seemed to be tied to the impact analysis, the court found it to be sufficiently definite.

The court acknowledged one possible defect in the mitigation measure—that it is triggered not only when “adverse hydraulic conditions” are “evident,” but also when those conditions “appear to be developing.” Despite this defect, the court explained that it had found no authority precluding an agency from requiring mitigation prior to a fixed and clear trigger condition when doing so is more protective of the environment.

EIR’s Water Supply Analysis Was Adequate. Petitioner further argued that the EIR’s analysis of water supply impacts was flawed because the EIR used the same threshold of significance to assess the project’s individual and cumulative impacts. The court found that the EIR did not actually include a project-specific water supply impact analysis, only a cumulative impact analysis. The court concluded, however, that a project-specific impact analysis was not required because the EIR used an “undoubtedly more stringent” cumulative-impacts threshold. Because substantial evidence demonstrated that the project would not have a significant cumulative water supply impact, the project could not be said to have a project-specific water supply impact.

EIR’s Water Quality Analysis Was Adequate. Lastly, Petitioner challenged the EIR’s water-quality analysis. The EIR found that the proposed mine would not have a significant impact on water quality. Nevertheless, the County imposed, as a condition of approval, a mitigation measure requiring that the applicant to keep the bottom of its mine pits at least six feet above any groundwater to mitigate this impact. Petitioner argued that the County lacked substantial evidence to support the EIR’s finding that the project’s water quality impact was less than significant. The court agreed, but nevertheless court found that the EIR’s erroneous conclusion was not prejudicial. The court explained that the EIR set forth all the pertinent data and followed all the procedures, but came to the wrong conclusion in classifying the severity of the impact. Notwithstanding the EIR’s incorrect conclusion, the error was not prejudicial since the County required the applicant to mitigate the impact to a less-than-significant level.