Lack of Engineering Details Does Not Invalidate Study
The lack of precise engineering plans in an environmental impact report's project description of a proposed gravel mine expansion did not violate the California Environmental Quality Act, the Fifth District Court of Appeal has ruled.
"CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive," Justice James F. Thaxter wrote in the unanimous decision for the three-judge panel.
When considering an EIR, the court must determine if an agency favored a project proponent, constituting a prejudicial abuse of discretion. The court does not decide whether the EIR's environmental conclusions are correct, Thaxter wrote. "The absence of information in an EIR does not per se constitute a prejudicial abuse of discretion. A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decision making and informed public participation, thereby thwarting the statutory goals of the EIR process."
The case centers on Tulare County's review of a proposal Artesia Ready Mix Concrete Inc. submitted in 1994. Artesia asked to expand an existing gravel mine in the Dry Creek floodplain, on the eastern edge of the San Joaquin Valley. Artesia wanted to increase its mining and processing area from 33.5 acres to 162 acres, and excavate up to 70 feet. As part of its reclamation of the site, Artesia would create a 45-acre lake surrounded by wooded areas.
At the request of Kaweah and St. Johns Rivers Association, a private organization with jurisdiction over the allocated surface water rights, Artesia altered its proposal to include a bypass channel and diversion structures. The channel was intended to carry water flows of 300 cubic feet per second or less around the mine pit to mitigate downstream water loss during dry months. Artesia signed a memorandum of understanding with the association.
The county Planning Commission in November 1996 certified the final EIR and approved the surface mining permit, subject to 85 conditions. The Planning Commission found no impacts that could not be mitigated. The Dry Creek Citizens Coalition, plus the national and Tulare County Audubon Societies and the California Native Plant Society, appealed the decision to the Board of Supervisors. After the Board of Supervisors denied the appeal, the organizations sued the county.
Dry Creek Citizens Coalition contended it was improper for the county to certify the EIR while using only conceptual descriptions of the diversion channel and related in-stream structures. Furthermore, the organizations said, the EIR simply assumed the structures would function as intended. And the EIR defers approval of the final engineering designs until after project approval, preventing the public from commenting upon the designs, the coalition complained.
Tulare County Superior Court Judge Kenneth E. Conn rejected those arguments and upheld the EIR's validity. The appellate court affirmed Conn's ruling.
The court determined that the EIR contained adequate detail for decision-makers to decide on the proposal. "In fact, engineered drawings may well supply ‘extensive detail beyond that needed for evaluation and review of the environmental impact' in violation of Guidelines §15124," Thaxter wrote.
Thaxter noted that a downstream property owner, John Dofflemyer, had argued that greater design detail would enable him to determine how the proposed diversion channel would affect his water supply. At the same time, Dofflemyer challenged the EIR's conclusion that the impact would be insignificant. "Appellants do not point out how additional detail regarding the diversion structure would enhance environmental review in this regard," the court wrote. "Dofflemyer's contrary opinion regarding the significance of this project impact does not render the project description inadequate."
The court said the county had a reasonable basis to assume in-stream structures would function as designed.
As for the county's deferral of the final channel design until after approving the project, Dry Creek Citizens Coalition likened the situation to Stanislaus Natural Heritage Project v. County of Stanislaus (1996), 48 Cal. App.4th 182, 194-195 (See CP&DR Legal Digest, September 1996). In that case, the county deferred an analysis of water supply for a 5,000-home subdivision and resort until after approving the development. The appellate court in that case ruled the county had circumvented CEQA by not informing the public and officials about environmental consequences of approving the project until after a decision was made.
But the appellate court said the gravel mine case is different.
"The ‘conceptual' description of the diversion structures for the mining project in this case is not comparable to the failure to identify a water source in Stanislaus Natural Heritage. Here, the technical and environmental characteristics of the structures are described and illustrated in general terms in compliance with Guidelines § 15124, subdivision C. Further, there are well established design criteria for each," Thaxter wrote.
The citizens coalition also contended the county violated California's Surface Mining and Reclamation Act. However, the court ruled "any violation of SMARA was not prejudicial."
Dry Creek Citizens Coalition v. County of Tulare, No. F030405, 99 Daily Journal, XXXX, 99 C.D.O.S. 1332 (filed February 19, 1999).
For Dry Creek Citizens Coalition: J. William Yeates, (916) 446-5475.
For County of Tulare: Robin Cochran and Penelope Alexander-Kelley, Gresham, Savage, Nolan & Tilden, (909) 884-2171.