United States: Save Cuyama Valley v. County Of Santa Barbara: JMBM Scores Significant Victory In CEQA Ruling On Significance Thresholds And Mitigation Measures

Last Updated: February 25 2013
Article by Scott N. Castro

In a decision published on February 8, 2013, the Second Appellate District ruled in favor of the JMBM client Troesh Materials, LLC in a challenge brought pursuant to the California Environmental Quality Act ("CEQA") against the County of Santa Barbara's approval of Troesh's Diamond Rock Sand and Gravel Mine and Processing Facility (the "Diamond Rock Mine"). The decision, Save Cuyama Valley v. County of Santa Barbara (Case No. B233318), ruled on several important grounds under CEQA, and is further notable because it upholds the County's approval of an in-stream mining project within the bed of the Cuyama River. Troesh Materials, LLC was represented before the trial court and court of appeal by JMBM partner Scott N. Castro. The underlying County approval effort for Troesh's Diamond Rock Mine was led by JMBM partner Kerry Shapiro, leader of the Firm's land use group in San Francisco and co-chair of the Firm's Building Materials Group.

Background

The Diamond Rock Mine is located in the Cuyama Valley, in the eastern part of Santa Barbara County. The project proposes to mine an average of 500,000 tons per year sand and gravel from the bed of the Cuyama River, a intermittently dry river. The entitlement process for the project began in 2002, and Troesh submitted its formal application one year later. The County conducted six years of review and CEQA analysis for the project, and prepared iterations of the EIR for the project. During the County's review, extensive comments were received from the public and resource agencies, including multiple, detailed comments from the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers, and the Office of Mine Reclamation, concerning potential effects of the Diamond Rock Mine on the Cuyama River as well as groundwater in the area. In May 2008, the County Planning Commission approved the project. This approval was appealed by appellant Save Cuyama Valley to the County Board of Supervisors, which on September 23, 2008, voted to deny the appeal and approve the project.

The Litigation

Appellant filed an action in superior court challenging the EIR and the County's actions on multiple grounds under CEQA, all of which were rejected by the trial court On appeal, Appellant limited their challenges to the EIR, arguing primarily that the County erred by:

(1) Employing a project-specific significance threshold, rather than the significance thresholds suggested in Appendix G to the CEQA Guidelines G thresholds, to analyze potential hydraulic impacts on the Cuyama River, and failing to adopt formally that project-specific threshold;

(2) Deferring the ultimate formulation of a mitigation measure designed to reduce potential hydraulic impacts to the Cuyama River; and

(3) Employing the same significance threshold to analyze both project specific and cumulative impacts to groundwater quality.

The Court of Appeal rejected appellant's claims in a January 10, 2013 unpublished decision. Subsequently, several parties, including the California State Association of Counties and League of California Cities, requested that the decision be published. On February 8, 2013, the court ordered the decision to be certified for publication.

The Appellate Court Addresses Several Key Claims Under CEQA

Court Rules There is No Requirement to Employ CEQA Appendix G Thresholds or to Formally Adopt Project-Specific Thresholds

The court's ruling directly addressed the latitude a lead agency enjoys in utilizing project-specific significance threshholds. Appellant asserted that the County erred by failing to employ the significance thresholds identified in CEQA Appendix G for assessing potential impacts to the hydraulics of the Cuyama River. The court rejected this claim, noting that CEQA "grants agencies discretion to develop their own thresholds of significance" (CEQA Guidelines, § 15064, subd. (d)). The court also rejected appellant's alternative claim that the County was required to formally adopt the project-specific significance threshold for assessing hydraulic impacts, noting that CEQA "only requires that a threshold be formally adopted if it is for 'general use'--that is, for use in evaluating significance in all future projects" to be evaluated by the lead agency.

Similarly, the court rejected appellant's claim that the County was required to explain why it did not employ the Appendix G thresholds. As noted by the Court, since the Appendix G thresholds are merely suggested, appellant's claim would "elevate Appendix G from a suggested threshold to the presumptive threshold."

Court Upholds Deferral of Mitigation Measure for Hydraulic Impacts

The court also tackled the issue of deferred mitigation. Appellant claimed that a mitigation measure identified to address potential impacts to the hydraulics and "sediment transport" function of the Cuyama River was improperly deferred. Appellant argued that this mitigation measure, called "W-2," contained an inadequate "performance criteria" to determine when corrective action would need to be taken to mitigate potential impacts.

Typically, deferred formulation of mitigation measures is prohibited under CEQA, but the CEQA Guidelines provide that "measures may specify performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way." (Cal. Code Regs., tit. 14, § 15126, subd. (a)(1)(B).) Construing this, the courts have generally concluded that deferral is allowable where there is a demonstrated need for deferral and (1) the agency commits itself to mitigation and (2) identifies potential mitigation options that would meet specific "performance criteria." See San Joaquin Raptor Rescue Ctr. v. County of Merced, supra, 149 Cal.App.4th at 671; see also Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1029 ("the agency can commit itself to eventually devising measures that will satisfy specific performance criteria articulated at the time of project approval.") However, there is no clear legal test for when a deferred mitigation measure has identified sufficient performance criteria.

The court determined that the deferral of mitigation was appropriate in part because the County had committed itself to mitigation by conditioning the issuance of Troesh's use permit on compliance with the mitigation measure. Addressing appellant's claim that the measure lacked adequate performance criteria, the court noted that the performance criteria was the avoidance of "adverse hydraulic conditions." Appellant claimed this term "adverse hydraulic conditions" was not defined in the mitigation measure, and thus the performance criteria was vague. The court disagreed, determining that the term "adverse hydraulic impacts" was defined elsewhere in the EIR in the analysis of potential hydraulic impacts, and thus use of this term in the mitigation measure incorporated that definition by reference. The court also found this "trigger" legally sufficient because the mitigation measure required compliance with provisions in the Surface Mining and Reclamation Act ("SMARA") regarding in-stream mining activities, which would be overseen by the Office of Mine Reclamation. The court noted that such compliance with environmental regulations "is a common and reasonable mitigating measure." The court further noted and that the EIR's definition of "adverse" hydraulic conditions "closely tracks the regulatory standard of SMARA set forth in CEQA Guidelines section 3710, subdivision (c)."

Finally, the court concluded that there were sufficient criteria to assess the effectiveness of the mitigation measure because it required Troesh to "avoid" adverse hydraulic impacts. Since such impacts were defined elsewhere in the EIR, the court concluded that "avoidance" of these impacts was a "sufficiently definite" performance standard.

Court Upholds Use of Same Significance Threshold for Assessment of Both Project-Specific and Cumulative Impacts

The court also addressed the use of the same significance threshold for assessing both project-specific and cumulative impacts to groundwater. The EIR employed a significance threshold of groundwater usage of 31 acre-feet per year, above which project impacts on groundwater on both a project-specific and cumulative basis would be considered potentially significant. This threshold, and its application for both project-specific and cumulative impact analysis, were taken directly from the County's Groundwater Thresholds Manual.

Appellant claimed that use of the same threshold is impermissible under CEQA because the project could have no significant direct impact, but when considered with other past, existing and planned projects, its incremental impact could be "cumulatively considerable." The Save Cuyama Valley court, however, examined the significance threshold as detailed in the County's Groundwater Thresholds Manual, and noted that it was "derived from an examination of the tolerable impact of an individual project on the amount of water available basin-wide[,]" and thus adequately assesses cumulative impacts on the basin. Notably, while the court concluded that the EIR lacked an "independent examination of the mine's noncumulative impact on water usage[,]" it nonetheless concluded that such analysis was "unnecessary" because the EIR found no significant cumulative impact "under what is an undoubtedly more stringent cumulative-impact threshold."

Court Applies "Harmless Error" Rule to Conclude that Flaw in EIR's Analysis of Potential Impacts on Water Quality is Not Prejudicial Because County Imposed a Condition to Avoid Such Impacts

The court also applied the "harmless error" rule to conclude that a deficiency in the County's environmental analysis was not prejudicial to appellant. The decision is notable because it found harmless error even though the court agreed with appellant that the EIR's conclusion of no significant impact to groundwater quality was not supported by substantial evidence. The EIR states that under most conditions, groundwater would be located below the proposed maximum mining depth of 90 feet, and thus concluded that groundwater would be exposed infrequently and briefly. The court noted, however that this conclusion "is in tension with the data showing that the groundwater in nearby wells is found anywhere between 40 and 110 feet below ground..." Notwithstanding this, the court found that appellant failed to establish that the EIR's "unsupported conclusion" was prejudicial because Condition 64 for the project requires Troesh to ensure that no groundwater is exposed at any depth. The condition thus ensures that the threatened impact will not occur, and thus the EIR's inconsistency on the underlying evidence results in no prejudicial effect on appellant.

Court Rules County Had No Duty to Consider Unauthenticated Evidence

Though not a focal point of the case, the court also offered important guidance regarding unauthenticated evidence submitted by the appellant during the public hearing process. This is another notable point in the case because there is no published CEQA opinion directly addressing the requirements for authenticating documents submitted by the public during the CEQA process. Appellant had presented to the County in a PowerPoint presentation several photographs purporting to show "headcutting," i.e., upstream degradation of the Cuyama River, in the vicinity of an existing mine (the GPS Mine) located downstream of the Diamond Rock Project. Appellant claimed that the County erred by not taking into account this purported evidence of headcutting. The court, however, ruled that the County had no duty to consider these photographs, and that, the County was under no duty to investigate the photographs on its own: "[w]ithout authentication, follow-up would have been exceedingly difficult, if not impossible." The court's handling of this issue provides some needed guidance in the CEQA arena where unauthenticated evidence is frequently submitted and the lead agency's duties regarding the handling of such evidence is unspecified under the statute.

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