Archive for February, 2013


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.

On February 13, 2013, the California Supreme Court granted a petition for review of Tuolumne Jobs & Small Business Alliance v. Superior Court (2012) 210 Cal.App.4th 1006. The appellate court in Tuolumne Jobs had acknowledged creating a split of authority because it chose not to follow Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961.

The Fifth District Court of Appeal in Tuolumne Jobs held that a city council’s decision to approve a development project under Elections Code section 9412, subdivision (a), is not a ministerial decision and does not exempt the project from the California Environmental Quality Act (CEQA). It concluded that CEQA review is necessary where a lead agency approves a project by adopting the text of a voter initiative as an ordinance instead of holding a special election under Elections Code section 9412, subdivision (b).

In its opinion, the Tuolumne Jobs court discussed why it chose not to follow Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano. The court in Native American Sacred Site had held that an agency’s decision to approve a project via adoption of an initiative without holding an election is ministerial because the city was bound by Elections Code section 9414 to either adopt a qualified voter-sponsored initiative or to place it on the ballot. The Fifth District Court of Appeal in Tuolumne Jobs disagreed, concluding that an agency’s policy decision between two choices is discretionary, even if the agency has a mandatory duty to make a choice. Moreover, it found a crucial distinction between the situation where a city is being compelled to hold an election because it failed to act on a petition and the situation where the city chooses to adopt the initiative without submitting it to the voters in an election. Therefore, the court held that CEQA review is required where a lead agency chooses to approve a project submitted to it by voter initiative under Elections Code section 9214, subdivision (a).

The Natural Resources Agency has forwarded the final proposed Infill Guidelines, Public Resources Code sections 21095.6 and 21094.5.5, to the Office of Administrative Law. The OAL’s deadline to complete review and approval of the new Guidelines sections is February 19, 2013.

The proposed Guidelines originated at the Governor’s Office of Planning and Research. The Natural Resources Agency modified the original text of the Guidelines before forwarding them to the Office of Administrative Law.  The changes to the Guidelines are summarized below. 

  • Section 15183.3(c) was modified to clarify that streamlining is permitted even where the effects of the infill project were not reduced to less-than-significant levels in the prior EIR.
  • Section 15183.3(d)(1)(C) was modified to clarify that the inability to determine the significance of effects due to lack of project-specific information may trigger the need for additional review.
  • Section 151583.3(f)(3) was modified to clarify that parcels which were recently converted for agricultural use are not eligible for streamlining, but that agricultural use at some point in a parcel’s history will not automatically preclude it from eligibility. This clarification reserves for the lead agency some discretion to consider this issue in light of the entire record.
  • Appendix M’s definition of “Low Vehicle Travel Area” was modified to mean a traffic analysis zone that exhibits a below average existing level of travel as determined using a regional demand model. Similarly, the definition of “Low-Income Housing” in Appendix M was modified to mean “[a] residential or mixed use project consisting of 300 or fewer residential units all of which are affordable to low income households is eligible if the developer of the development project provides sufficient legal commitments to the lead agency to ensure the continued availability and use of the housing units for lower income households, as defined the Health and Safety Code, for a period of at least 30 years.” Finally, the definition of “Proximity to a Major Transit Stop” was changed to state that  “[o]ffice buildings, both commercial and public, within ½ mile of an existing major transit stop, or ¼ mile of an existing stop along a high quality transit corridor, are eligible.”

Once finalized, the regulations will be effective immediately.