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Solimar Research

Understated Project Description And Impacts Prompt EIR Rejection

Jun 29, 2007

The environmental impact report for an aggregate mine expansion in Merced County has been invalidated by an appellate court because the document's description of the project was "curtailed and shifting," water and traffic impacts were understated, baseline assumptions were not identified and mitigation measures were deferred.

Much of the EIR's inadequacy stemmed from confusion over whether the project would increase annual mine production levels. The EIR was unclear on actual production, stating that the previous four years had seen an average production of 240,000 tons of aggregate per year, and that the project would provide for an additional 30 years of mining at 260,000 tons annually. However, the conditional use permit that was the subject of the EIR would allow production of up to 550,000 tons of aggregate annually.

"By giving such conflicting signals to decision-makers and the public about the nature and scope of the activity being proposed, the project description was fundamentally inadequate and misleading," the Fifth District Court of Appeal ruled.

In 2000, Jaxon Enterprises applied for a modification to a 1993 conditional use permit (CUP) for an aggregate mine and processing operation outside of Le Grand, roughly 15 miles east of Merced. The original 90-acre mining site was expected to remain productive for only five more years, and the proposed expansion of up to 304 total acres would provide for an additional 30 years of activity. The Merced County Planning Commission approved the project and certified the EIR in November 2004. The following month, the Board of Supervisors rejected project opponents' appeal.

The San Joaquin Raptor Rescue Center, a group called Protect Our Water, and the Le Grand Community Association sued the county, alleging numerous California Environmental Quality Act (CEQA) and general plan discrepancies. Merced County Superior Court Judge Ronald Hansen rejected all of the opponents' contentions. A unanimous three-judge panel of the Fifth District, however, overturned the lower court.

On appeal, the project opponents argued that the project description was unstable and misleading. The court agreed. Much of the EIR's analysis was based on a production level of 260,000 tons per year, even though the permit was for a maximum of 550,000 tons annually.

"These curtailed and inadequate characterizations of the project were enough to mislead the public and thwart the EIR process," Justice Stephen Kane wrote for the court.

Using this same reasoning, the court upheld some of opponents' objections to the EIR's analysis of groundwater, surface water and traffic impacts because the analysis did not consider the 550,000-ton maximum production level.

As for the baseline for measuring project impacts, the county apparently used a production level of 240,000 tons. The court ruled that evidence supported use of that baseline figure but that the EIR never explained it.

"[E]xisting conditions are not defined or quantified," Kane wrote. "And although the four-year production average of 240,000 was apparently used in the impact section of the EIR, nowhere is that fact plainly stated. Such an omission clearly falls short of the requirement of a good faith effort at full disclosure. The decision-makers and general public should not be forced to sift through obscure minutiae or appendices in order to ferret out the fundamental baseline assumptions that are being used for purposes of the environmental analysis."

The court also found that the EIR improperly deferred mitigation of potential impacts to vernal pool and burrowing owl habitats. The EIR called for follow-up surveys and subsequent management plans that would have to be approved by state and federal agencies. The county argued that the EIR followed provisions in the CEQA Guidelines regarding subsequent management plans that are based on performance standards in an EIR. But the court found that the EIR contained no performance standards or criteria for future management plans.

"The success or failure of mitigation efforts in regard to impacts on such vernal pool species may largely depend upon management plans that have not yet been formulated, and have not been subject to analysis and review within the EIR," the court ruled. "The fact that the future management plans would be prepared only after consultation with wildlife agencies does not cure these basic errors under CEQA, since no adequate criteria or standards are set forth."

In an unpublished portion of the opinion, the court ruled that the EIR's analysis of project alternatives was adequate, and that the project did not conflict with the county general plan. But the court did find that some responses to comments on the draft EIR were inadequate.

The Case:
San Joaquin Raptor Rescue Center v. County of Merced, No. F050232, 2007 DJDAR 4721. Filed April 10, 2007. Modified April 11, 2007 at 2007 DJDAR 4865.
The Lawyers:
For San Joaquin Raptor Rescue Center: Donald Mooney, (530) 758-2377.
For the county: James Fincher, county counsel , (209) 385-7564.
For Jaxon Enterprises: Thomas Terpstra, Herum, Crabtree, Brown, (209) 472-7700.

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