On August 31, 2016, the Sixth District issued a decision in Bay Area Clean Environment v. Santa Clara County (previously published at: 2 Cal.App.5th 1197)* upholding the County’s EIR for a quarry reclamation plan. The non-profit challenger asserted claims under the Surface Mining and Reclamation Act (SMARA) and the California Environmental Quality Act (CEQA). The court concluded that the county had not violated either statute.
The 3,510-acre quarry started producing limestone and aggregate in the early 1900s. In 2006, the Department of Conservation concluded that the quarry was violating SMARA because slope instability issues had not been properly addressed in the earlier 1985 reclamation plan. High selenium levels downstream of the quarry also posed a problem. In 2007 and 2010, Real Party in Interest Lehigh Southwest Cement Company applied to the county for amendments to the 1985 plan that would close one pit while allowing for the opening of new mining areas to replace the reclaimed pit. In particular, the 2010 application proposed a new pit called the South Quarry. But, subsequently, Lehigh applied in 2011 for an amendment to the 1985 reclamation plan that closed the problematic pit without proposing any new pits. This 2011 application superseded all earlier applications.
The county prepared an EIR for the reclamation plan amendment and made the requisite findings under both CEQA and SMARA. The county concluded that the project would result in significant and unavoidable impacts of excess selenium runoff during the 20-year period of reclamation. Bay Area Clean Environment and Midpeninsula Regional Open Space District filed challenges to the project. Midpeninsula ultimately settled with Lehigh, but Bay Area Clean Environment appealed the trial court’s denial of its petition for writ of mandate.
The Sixth District Court of Appeal started by addressing the SMARA claims. First, the court concluded that evidence in the record supported the county’s finding that the reclamation plan complies with SMARA with regard to water quality. The court explained that SMARA provided the county with discretion to allow reclamation activities that may result in adverse impacts—such as the additional deposition of selenium in Permanente Creek—if those actions were necessary to comply with federal and state laws. Second, the court held that evidence in the record supported the county’s conclusion that the project’s impacts to red-legged frogs were mitigated to the extent possible.
The court turned to the CEQA claims next. First, the court rejected the challenger’s argument that the county had failed to analyze the cumulative impact of the potential new South Quarry pit that had been proposed in the earlier 2010 application. The court explained that the South Quarry pit was not a reasonably foreseeable future project because the application for a use permit for the new pit had been withdrawn. The court also noted that the county had not engaged in improper piecemealing because the amendment to the reclamation plan was a stand-alone project that did not depend on the future approval of a South Quarry pit.
Second, the court addressed the argument that the county’s findings about impacts to the red-legged frog were insufficient and not supported by substantial evidence. The EIR reported that direct impacts to the frog would be less than significant. The EIR also determined that impacts to aquatic life, of which the frog is included, from excess selenium runoff in the downstream areas would be significant and unavoidable. The court concluded that substantial evidence in the record supported the EIR’s conclusions about both direct and indirect impacts to the frog. The court also held that a statement of overriding considerations for impacts to the frog was not required because the potential direct impacts to the frog were less than significant. Although it is not clear from the opinion, presumably the county adopted a statement of overriding considerations for the significant and unavoidable impact to aquatic life from excess selenium runoff. The court rejected the petitioner’s argument that a statement of overriding considerations directed specifically to the frog was required.
Finally, the court affirmed the trial court’s decision to grant Lehigh’s motion to augment the administrative record. Lehigh had argued that an email between a herpetologist and staff of the Department of Fish and Wildlife (DFW) should be included in the record under Public Resources Code section 21167.6, subdivision (e)(10). In the email, Dr. Mark Jennings explained to DFW staff that his 2007 report contained typographical errors and that he had in fact never observed the red-legged frog in one particular pond. This email was sent to the consulting firm that prepared the biological resources assessment for the EIR. The court concluded that the email could be properly included in the record as evidence of the presence or absence of the frog in the reclamation area that was relied upon by the consultants who prepared the biological study for the EIR.
* Review Denied and Ordered Not to be Officially Published ,December 14, 2016, per Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125.