Save
Valley
v. County
of Santa Barbara
Filed 1/10/13 Save Cuyama Valley v. County of Santa Barbara CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
SAVE CUYAMA VALLEY,
Plaintiff and Appellant,
v.
COUNTY OF SANTA BARBARA et al.,
Defendants and Respondents;
TROESH MATERIALS, INC.,
Real Party in Interest.
2d
Civil No. B233318
(Super.
Ct. No. 1272650)
(Santa
Barbara County)
Plaintiff
Save Cuyama Valley ("Save Cuyama") appeals from the judgment denying
its petition for a writ of mandate. The County of Santa Barbara and its Board of
Supervisors (collectively, "the County") granted Real Party in
Interest Troesh Materials, Inc. ("Troesh") permission to begin sand
and gravel mining in the bed of the Cuyama River. Save Cuyama asks us to overturn that
decision. Save Cuyama contends that the
Final Revised Environmental Impact Report ("Report") that formed the
basis for the County's approval violates the California Environmental Quality
Act ("CEQA") in a variety of ways.
We reject Save Cuyama's arguments and affirm the judgment.
HISTORY
A. The
Diamond Rock Mine Project
Nearly
10 years ago, Troesh applied to the County's Planning and Development
Department for a conditional use permit to begin excavating and processing sand
and gravel in a project called the "Diamond Rock mine." The mine would be located within the often
dry bed of the Cuyama River at a stretch where it is 2,500 feet wide. The mine would excavate approximately 900 feet
from the river's usual flow, and would process materials at a nearby facility
above the riverbed. The mine would be
located 5.9 miles southeast of the intersection of State Highways 33 and 166,
approximately 1,500 feet upstream from another sand-and-gravel mine. This other mine is the 15-acre GPS mine. The GPS mine has operated in the river's path
since 1969 and has excavated an average of 160,000 tons of material each
year. The Diamond Rock mine would be
excavated over time in a series of trenches, with a new trench being started
once the prior trench reached the maximum depth of 90 feet. The mine would excavate an average of 500,000
tons each year, and by the end of the 30-year permit Troesh sought, would cover
84 acres.
B. The
Final Revised Environmental Impact Report
The
County commissioned the preparation of an environmental impact report. Over the next several years, the County
received comments and made several revisions.
The Report was released in May 2007, and the Board of Supervisors
adopted and certified it on September 23, 2008.
Among other things,
name="_ftnref1" title="">[1]
the Report and administrative record upon which it is based address the
following topics:
1. Hydrological impacts on the Cuyama River
The
Cuyama River carries both water and sediment as it flows. Using a methodology developed by the Army
Corps of Engineers called the Hydraulic Engineering Center's River Analysis
System ("HEC-RAS"), the Report's consultants calculated that the
Cuyama River deposits a net surplus of 229,000 tons of sediment each year in
the area of the riverbed where the Diamond Rock and GPS mines would operate.
gravel solely from the river's flows,
their combined annual extraction of 1 million tons per year (500,000 for the
Diamond Rock mine and a new higher limit of 500,000 for the GPS mine) would
result in an annual sediment deficit of 771,000 tons in that area. The Diamond Rock mine, however, would not be
in the river's path and would be surrounded by "low flood control
berms" (four feet high and ten feet wide at the base) to direct flows
around the mine's excavations. The berms
would not be impenetrable, however.
During seasonal "substantial rain events," it is expected that
the river would overrun the berms and flow into the mine's excavation pits.
The
Report accordingly acknowledges that the Diamond Rock mine "could affect
river hydraulics." The Report
identifies three possible hydraulic impacts.
First, the mine could cause "downstream channel degradation": If the river flows into an excavated pit, it
would deposit its sediment in the pit and any water leaving the pit (once the
pit is full) would carry less sediment and flow more quickly, which could scour
the riverbed immediately downstream of the pit.
Second, the mine could cause "headcutting": If the river flows over the upstream lip of
the pit, the water and sediment in that flow could erode the lip and
effectively cause the mine's upstream edge to migrate upriver. Third, the mine could cause "bank
erosion": If the river's flow is
diverted by the mine's berms, the new flow pattern could erode the banks of the
river.
Notwithstanding
the possibility of these impacts, the
Report opines that they are not likely to occur. No channel degradation had occurred
downstream of the GPS mine during the decades of its operation. The Report further reasons that the
sediment-laden flood waters, once they fill the Diamond Rock mine's pits, would
flow over those pits and fill in any downstream scouring damage, effectively
"resetting" (or filling in) any damage to the channel. Nor is headcutting likely, because the
riverbed has a "very low" slope and the bed is composed of
"enough large material . . . to armor the upstream lip of the
pit"—observations confirmed by the absence of any headcutting during the
30-year life of the GPS mine. Bank
erosion is also unlikely because the riverbed is over 2,000 feet wide at the
mining sites and the river's flows are typically shallow, a prediction also
confirmed by the absence of any bank erosion over the last few decades of
mining.
To
assess whether any of these possible but unlikely impacts are significant and
in need of further analysis under CEQA, the Report defines a "threshold of
significance." The Reports cites
the "Environmental Checklist from CEQA Guidelines Appendix G"
("Appendix G") and notes that any of Appendix G's 10 factors
"could trigger a finding of potentially significant impact related to
hydrology/flooding." The Report
nonetheless adopts a more tailored threshold of significance for the particular
hydrological effects outlined above:
"Under CEQA, hydraulic impacts are considered adverse if they cause
channel bed degradation and/or bank erosion that: 1) damage public infrastructure such as
bridges or pipeline crossings; 2) damage or destroy adjacent developed land
uses or structures due to bank erosion or flooding; 3) disturb, convert, or
destroy valuable in-channel riparian habitat; or 4) expose people to a new
flooding hazard."
The
Report concludes that the "magnitude" of the three possible impacts
previously identified are "expected to be minor" and would likely
have no secondary impacts (to infrastructure, adjacent development or
habitats). Thus, the Report concludes,
the Diamond Rock mine's hydrological impacts "appear to be less than
significant." Rather than stop
there, however, the Report acknowledges "the inherent uncertainty of
simulation models and the potential to underestimate [geomorphological]
effects." The Report accordingly
deems these impacts to be "potentially significant but mitigatable."
The
Report then proposes Mitigation Measure W-2 ("MM W-2"), which Troesh
must implement as a condition of the County's granting Troesh a conditional use
permit to operate the mine. MM W-2
requires Troesh to: (1) conduct a
semi-annual survey of river bottom elevations in three locations (in the middle
of the Diamond Rock mine pit, at 1,000 feet upstream and at 1,000 feet
downstream of the mine); (2) submit this data for review by the State's Office
of Mine Reclamation ("OMR"), the County's Planning and Development
Department, and the County's Flood Control Distribute as part of the OMR's
annual Surface Mining and Reclamation Act ("SMARA") compliance
review; and (3) should "adverse hydraulic conditions [be] evident, or
appear to be developing, which could result in off-site impacts," to
confer with the County agencies to modify the mining pit layout, width and/or
depth to avoid these impacts.
2. Impacts
on water resources
The
Report analyzes two aspects of the Diamond Rock mine's effect on the local
water supply pertinent to this appeal:
usage and quality.
The
Diamond Rock mine operation, along with its adjacent processing plant, would
draw water locally for dust control and for processing, although Troesh
anticipates a 74 percent recycling rate.
To evaluate whether the mine's water consumption is significant within
the meaning of CEQA, the Report uses the threshold of significance formally
adopted by the County in its Environmental Threshold and Guidelines Manual
("Manual"). Although the most
recent update to the groundwater thresholds was in August 1992, the County
confirmed its continued validity by conferring with agency staff and by
evaluating more recent studies. The
Manual defines significance by referring to how a project's water usage would
affect the water supply of the alluvial aquifer underlying the entire 1,140
square mile Cuyama River watershed.
Because that watershed is in a state of "overdraft" (that is,
more water is used than is naturally replenished), the Manual defines a project
as "significant" if its net consumption exceeds 31 acre-feet per year
("afy"). The Report calculates
the Diamond Rock mine's net consumption to be 28.12 afy, and accordingly
classifies its impact as not significant.
The
Diamond Rock mine could also affect the already "relatively poor"
quality of the water in the Cuyama River basin if excavation exposes
groundwater. Exposed groundwater could
evaporate and leave more concentrated solids in the aquifer. To assess the risk of such exposure, the
Report looked at historical data for nearby wells to see how far below ground
water was typically found. The depth of
standing water in the wells varied from year to year and from season to season,
but was usually between 40 and 110 feet below ground surface ("bgs"). The Report opined that the ground beneath the
mine site was "expected to be saturated." The Report stated also that "[u]nder
most conditions, groundwater would be located below the maximum mining depth
[of 90 feet]."
The
Report classified the mine's impact on water quality as "adverse, but not
significant" for three reasons: (1)
the "very low" frequency with which groundwater would be exposed; (2)
the "very short" duration for which it would be exposed before
percolating back into the ground; and (3) the "very small" surface
area of the exposed groundwater "compared to the groundwater stored in the
basin." The County nevertheless
imposed a protective measure, Condition 64 of the Conditional Use Permit. This measure prohibits excavation "to
the level of groundwater;" requires excavation to remain "at least an
average of six feet above water level"; and obligates Troesh to backfill
any pit to a depth of six feet should any groundwater be exposed.
C. Judicial
Review of Report
petitioned the trial court for a writ of mandate to compel the County to
correct deficiencies with the Report.
The court denied the writ, and this appeal followed.
Our review is limited to
ascertaining whether the County abused its discretion in approving the
Report. (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1375 (
not followed CEQA's procedures for preparing an environmental impact report; or
(2) the report's findings are not supported by "substantial
evidence"—that is, not supported by "enough relevant information and
reasonable inferences from [that] information that a fair argument can be made
to support [the Report's conclusions]."
(Cal. Code Regs., tit. 14, § 15384.)
compliance with CEQA's procedures (Ebbetts
Pass Forest Watch v. California Dept. of Forestry & Fire Protection
(2008) 43 Cal.4th 936, 944), but accord considerable deference to the report's
determinations—presuming them correct and resolving all reasonable doubts in
their favor. (Save Our Peninsula Comm. v. Monterey County Bd. of Supervisors
(2001) 87 Cal.App.4th 99, 117; Sacramento
Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1019 (
report is to provide information to decision makers and the public, (
(1999) 70 Cal.App.4th 238, 242), we are not concerned with the ultimate
(Eureka Citizens for Responsible
Government v. City of Eureka (2007) 147 Cal.App.4th 357, 372). Save Cuyama bears the burden of proving the
Report's inadequacy. (
A. Hydrological
Impacts
Save
Cuyama raises three challenges to the Report's analysis of the Diamond Rock
mine's hydrological impacts on the Cuyama River: (1) the County violated CEQA in defining its
threshold of significance for assessing the impacts; (2) substantial
evidence does not support the Report's finding that the mine's
hydrological impacts are minor; and (3) MM W-2 is too nebulous to satisfy
CEQA.
1. Threshold
of significance
Save
Cuyama asserts that the County's decision to use, as a threshold of
significance, its own four-part definition of "adverse hydraulic
impacts" violated CEQA for three reasons:
(1) the County may not deviate from the threshold of significance in
Appendix G of the CEQA Guidelines ("Appendix G") unless it formally
adopts a different threshold; (2) even if no formal adoption is required, the
Report's citation of two thresholds makes it unclear which one the Report used;
and (3) the County did not in any event explain why it was not using Appendix
G's threshold.
Save
Cuyama's first argument lacks merit.
Although an agency must determine whether "any of the
impacts of [a] project will, in fact, be significant" (
Amador Water Agency (2004) 116 Cal.App.4th 1099, 1109), CEQA grants
agencies discretion to develop their own thresholds of significance (CEQA
Guidelines, § 15064, subd. (d)).
More to the point, 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. (
was specific to this Report (and hence not for "general use"), Save
Cuyama is incorrect in asserting that formal adoption was required. (Oakland
Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 896.)
We also
reject Save Cuyama's argument that it was unclear what threshold the Report
applied. As noted above, the Report
cited Appendix G's factors as those that "could trigger a finding of
significant impact." But when the
Report turned to the hydrological impacts of the Diamond Rock mine, it defined
and applied its own "adverse hydraulic impacts" threshold. This is not ambiguous. Nor is the Report misleading when it refers
to its project-specific threshold as being "under CEQA." CEQA permits an agency to define its own
project-specific thresholds, so any threshold so adopted is "under
CEQA." (CEQA Guidelines,
§ 15064, subd. (d).)
Further,
the court was not required to explain why it did not use Appendix G's
thresholds of significance. Those
thresholds are "only" a "suggest[ion]." (CEQA Guidelines, § 15063, subd.
(f).) To require any deviation from them
to be documented and justified, as Save Cuyama suggests, is to elevate Appendix
G from a suggested threshold to the presumptive threshold. This flatly contradicts both CEQA's
description of Appendix G as only suggested and CEQA's mandate that agencies
have the power to devise their own thresholds.
(Ibid.)
2. Substantial
evidence to support impact analysis
Save
Cuyama challenges three different findings the County makes in its analysis of
the Diamond Rock mine's hydrological impacts as unsupported by substantial
evidence. Each challenge fails.
First,
Save Cuyama argues that the Report does not support its finding that any
hydrological impact of the Diamond Rock mine on the Cuyama River will be of
"minor" "magnitude."
In Save Cuyama's view, the combined extraction load of the Diamond Rock
and GPS mines will create a sediment deficit of 771,000 tons each year, and the
impact of such a deficit is necessarily significant. This impact, moreover, cannot be minimized or
explained away by reference to anecdotal evidence regarding the hydrological
impact of the lower-yield GPS mine alone.
Relatedly, the Report is wrong in finding that any hydrological damage
will be temporary because periodic heavy floods will repair any damage. These deficiencies in the Report, Save Cuyama
asserts, were noted by the United States Environmental Protection Agency
("EPA") and Save Cuyama's own experts.
The
Report's assessment of the Diamond Rock mine's hydrological impacts is
supported by substantial evidence. To
begin with, the Report explains why the sediment deficiency does not inevitably
translate into adverse hydrological impacts.
In particular, the Report explains that the mine would for the most part
extract material from the river's bed,
not the river's flows (or, more to
the point, from the sediment those flows carry). Although, as the Report acknowledges, the
Diamond Rock mine will sometimes capture some of the annual 229,000 tons of
surplus sediment naturally deposited in that portion of the riverbed when the
mine's berms are overrun, the Report explains in detail why downstream channel
degradation and headcutting are nonetheless unlikely to occur or to have any
"adverse hydraulic impact."
The
Report also adequately explains why the cumulative prior impact of the smaller
GPS mine is relevant in assessing the combined future impact of the GPS and
Diamond Rock mines. The absence of any
headcutting or downstream channel degradation with the GPS mine sheds light on
the vulnerability of the riverbed in this area to those impacts. This vulnerability turns on considerations
such as the composition of the rock, and not on the volume of the sediment
extracted.
Furthermore,
the Report sufficiently explains why the riverbed would be replenished by the
surplus sediment that would be deposited by flows passing over previously
scoured areas once any upstream pits in the path of the river were filled. The substantiality of evidence is not, as
Save Cuyama suggests, undermined by the differing expert opinions of the EPA
and Save Cuyama's experts. (CEQA
Guidelines, § 15151 ["[d]isagreement among experts does not make an
[environmental impact report] inadequate"]; California Native Plant Society v. City of Rancho Cordova (2009)
172 Cal.App.4th 603, 626.)
Second,
Save Cuyama contends that the Report's findings are deficient because they did
not consider two photographs Save Cuyama proffered, as part of a PowerPoint
presentation, that allegedly show headcutting.
The County noted, however, that the photos were meaningless unless
authenticated. Nor did the County err in
failing to investigate those photos on its own.
Without authentication, follow-up would have been exceedingly difficult,
if not impossible.
Third,
Save Cuyama argues that the Report is internally inconsistent because it finds
the hydrological impacts to be minor, but nonetheless declares them
to be significant but mitigatable.
Worse yet, the Report makes no effort to quantify them. We see no inconsistency. The Report frankly acknowledges no present or
likely impacts of any significant magnitude, but out of an abundance of caution
and due to the uncertainties of predicting and quantifying these impacts,
elects to treat the impacts as more
significant than they currently appear to be.
3. Sufficiency
of MM W-2
Save
Cuyama levels three attacks on MM W-2.
As an initial matter, Save Cuyama contends that MM W-2 is defective
because its "trigger" for requiring corrective action—"adverse
hydraulic conditions"—is undefined or, at best, inconsistently defined.
CEQA
usually requires mitigation measures to be defined in advance. (CEQA Guidelines, § 15126.4, subd.
(a)(1)(B); Sacramento Old City Assn.,
But deferral is permitted if, in addition to demonstrating some need for
deferral, the agency (1) commits itself to mitigation; and (2) spells out, in
its environmental impact report, the possible mitigation options that would
meet "specific performance criteria" contained in the report. (Sacramento
Old City Assn., supra, at pp.
1027-1029; Pub. Resources Code, § 21100, subd. (b)(3);
Orange (2005) 131 Cal.App.4th 772, 793.)
The
County has demonstrated its commitment to mitigation by conditioning the
issuance of Troesh's conditional use permit on compliance with MM W-2. MM W-2's trigger is also legally
sufficient for two intertwined reasons.
First, MM W-2's reference to "adverse hydraulic conditions"
with "offsite impacts" tracks the language of "adverse"
"hydraulic impacts" contained in the Report and thereby incorporates
that definition. Second, MM W-2 requires
compliance with SMARA, which is administered by the OMR. "'[A] condition requiring compliance
with environmental regulations is a common and reasonable mitigating
measure.' [Citation.]" (Gentry,
119 Cal.App.4th 1261, 1276.)
Furthermore, these two definitions dovetail neatly, for the Report's
definition of "adverse" "hydraulic impacts" closely tracks
the regulatory standard of SMARA set forth in CEQA Guidelines section 3710,
subdivision (c).
We
reject Save Cuyama's related argument that reliance on the Report's definition
of "adverse hydraulic impacts" is inconsistent with MM W-2's
requirement that Troesh be vigilant for "evidence of headcutting or
channel degradation." MM W-2's
citation to these two conditions, by its plain terms, sets forth what is to be
monitored—not when action is required.
Indeed, the only wrinkle we find is that MM W-2 is triggered not only
when "adverse hydraulic conditions" are "evident," but also
when those conditions "appear to be developing." However, we have 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.
Save
Cuyama next asserts that MM W-2 does not spell out the criteria by which its
effectiveness will be evaluated. A
deferred mitigation measure should set forth a "specific and mandatory
performance standards to ensure that the measure[], as implemented, will be
effective." (Communities for a Better Environment v. City of Richmond (2010) 184
Cal.App.4th 70, 94.) MM W-2 requires
Troesh to "avoid these impacts."
This necessarily refers to the "adverse hydraulic conditions
. . . which could result in off-site impacts" that, as noted
above, are sufficiently definite.
Save
Cuyama lastly contends that MM W-2's remedial alternatives—"modifying the
mining pit lay-out, width and/or depth"—do not go far enough because they
do not include reduction of the annual extraction load. Substantial evidence therefore does not
support a finding the MM W-2 will be effective, as required by
Cal.App.4th 1099, 1116-1119. The impacts
to be mitigated here, however, are channel degradation and headcutting having
the offsite impacts as defined in the Report and in CEQA Guideline section
3710, subdivision (c). Because these impacts
are caused by how water flows into and out of the mining pits, measures to
reconfigure the orientation of those pits (that is, their layout, width and
depth) address those impacts.
B. Water
Impacts
1. Water
usage
Save
Cuyama argues that the Report's analysis of the Diamond Rock mine's effect on
the water supply of the Cuyama Valley is deficient because: (1) the Report uses the same threshold of
significance—31 afy—to assess the project's individual and cumulative impacts;
and (2) the 31 afy standard is out of date.
Under
CEQA, a project having no significant effect on the environment when considered
by itself may nonetheless have such an impact when considered in conjunction
with—or cumulatively to—other past, existing or planned environmental influences. (CEQA Guidelines, §§ 15130, subd. (a)
& 15064, subd. (h)(1).) This is why
the "[a]ssessment of a project's cumulative impact on the environment is a
critical aspect of the [environmental impact report]." (Los
Angeles Unified Sch. Dist. v. City of Los Angeles (1997) 58 Cal.App.4th
1019, 1025.) Because, in most cases, the
threshold for assessing the significance of the impact of a project on its own
will be higher than the threshold for assessing its cumulative impact, Save
Cuyama reasons that Report's threshold must be invalid for using the
and cumulative impact.
We
disagree. The County's 31 afy threshold
of significance assesses cumulative impact. It was derived from an examination of the
tolerable impact of an individual project on the amount of water available
cumulative impact of the Diamond Rock mine on the water supply of the Cuyama
River basin. What the Report lacks is an
independent examination of the mine's noncumulative impact on water usage. Such an examination is unnecessary, however,
because the Report already finds the mine has no significant cumulative impact
under what is an undoubtedly more stringent cumulative-impact threshold.
Nor does
the Report suffer from the analytical flaws found in Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d
692, Communities for a Better Environment
v. California Resources Agency (2002) 103 Cal.App.4th 98, or
of Los Angeles, supra,
a project's impact as insignificant merely because that impact was a "drop
in the bucket" to an already existing environmental problem.
The
Report's finding that the 1992 threshold remains relevant is supported by
substantial evidence. Although there had
been some additional agricultural water usage in the basin since 1992, the
County consulted with its water agency and examined more recent studies and, on
that basis, found that the 1992-defined threshold was still valid. Save Cuyama's disagreement does not undermine
this substantial evidence.
2. Water
quality
Save
Cuyama challenges the Report's finding that Diamond Rock mine will not have a
significant impact on water quality and that Condition 64 is a feasible means
of mitigating adverse impacts.
There
was no deficiency with Condition 64's requirement that Troesh fill in any water
it encounters and at all times keep the bottom of its mine pits at least six
feet above any water. This mitigation
measure is a requirement of Troesh's conditional use permit, sets forth a
specific standard, and would be effective in halting exposure of water except
in times of seasonal floods (when the pits will be flooded anyway).
However,
we agree with Save Cuyama that the Report's conclusion that the Diamond Rock
mine's impact on water quality is "not significant" is not supported
by substantial evidence. This conclusion
appears to rest on the Report's observation that "under most conditions,
groundwater would be located below the proposed maximum mining depth" of
90 feet. This statement ostensibly forms
the basis for the Report's finding that the groundwater would be exposed
infrequently and briefly, and hence for the Report's conclusion that the mine's
impact on water quality will not be significant. Yet this statement is in tension with the
data showing that the groundwater in nearby wells is found anywhere between 40
and 110 feet below ground, as well as with other statements in the Report
itself recounting the underlying well data.
Save
Cuyama must still establish that the Report's unsupported conclusion regarding
the severity of the environmental impact is prejudicial. (Pub. Resources Code, § 21005, subd. (a);
Sunnyvale City Council (2010) 190 Cal.App.4th 1351, 1385 (
to comply with a mandatory CEQA procedure or when a report omits information
and thereby precludes informed decision making.
(Lighthouse Field Beach Rescue v.
City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1182 (Lighthouse); Schoen v. Dept.
of Forestry & Fire Protection (1997) 58 Cal.App.4th 556, 565.) We cannot overlook a prejudicial error by
surmising that the project would have gone forward anyway. (Sunnyvale,
But no
prejudicial error occurred here.
Instead, what we have is a report that sets for all the pertinent data
and follows all the procedures, but comes to the wrong conclusion in
classifying the severity of an environmental impact.
Save
Cuyama has not shown how this error matters.
Notwithstanding the Report's erroneous conclusion that the impact was
not significant, the County still insisted that Troesh implement Condition
64. Critically, this condition obligates
Troesh to ensure that no groundwater is exposed—at whatever depth it is encountered.
Although Save Cuyama contests the condition's efficacy, it does not
dispute that the condition—if feasible—would be wholly effective in negating
the mine's adverse impact on water quality.
Consequently, on these facts, the Report's unsupported conclusion
regarding significance is of no moment.
In
these respects, this case is similar to Federation
of Hillside & Canyon Associations v. City of Los Angeles (2004) 126
Cal.App.4th 1180. There, the court found
no prejudice arising from the City's erroneous conclusion that mitigation of a
significant impact was not feasible. The
court so held after determining that report's mistaken conclusion had no effect
on the report's informational content or its recommendations. (Id.
at pp. 1206-1207.) The same is true
here.
of Merced (2007) 149 Cal.App.4th 655, cited by Save Cuyama, is not to the
contrary. In that case, the
environmental impact report incorrectly described the underlying project as
not increasing them. This sent
"conflicting signals to decisionmakers." (Id.
at pp. 655-656.) Put differently, the
report's internal inconsistency "precluded informed decision making"
and was, for that reason, prejudicial.
(See Lighthouse,
However, not all inconsistencies are prejudicial: "It is not enough . . . that [an
environmental impact report] misstate[s] an aspect of a proposed
project." (Mount Shasta Bioregional Ecology Center v. County of Siskiyou
(2012) 210 Cal.App.4th 184, 226.)
The
inconsistency here was not prejudicial.
Unlike the report in San Joaquin
Raptor Rescue Center, the Report here did not inconsistently describe the
Diamond Rock mine. Instead, the Report
offered a summary of the well data (or perhaps an opinion to be drawn from that
data) that was arguably inconsistent with the data itself—at least if one looks
solely at the data and ignores the annual and seasonal variations in water
levels. At most, this inconsistency
spawned the erroneous conclusion regarding the significance of the mine's environmental
impact. However, as we have explained,
any error in that conclusion was not prejudicial.
We
affirm the judgment denying the petition for a writ of mandate.
The parties shall bear
their own costs on appeal.
NOT
TO BE PUBLISHED.
HOFFSTADT,
J.
We concur:
YEGAN,
Acting P. J.
PERREN,
J.
>
James F. Rigali, Judge
Superior Court County of Santa Barbara
______________________________
Law
Offices of Babak Naficy, Babak Naficy for Plaintiff and Appellant.
Santa
Barbara County Counsel, Dennis A. Marshall, County Counsel, Michael C.
Ghizzoni, Chief Assistant County Counsel and Rachel Van Mullem, Senior Deputy
County Counsel for Defendant and Respondent.
Jeffer
Mangels Butler & Mitchell, Kerry Shapiro and Scott N. Castro for Real Party
in Interest.
name="_ftn1" title=""> [1] We only discuss those portions of the Report
challenged on appeal.
name="_ftn2" title=""> [2] The study
calculated that, on its own, the river deposits 314,000 tons per year and
carries away 85,000 tons per year, amounting to an annual net surplus of
229,000 tons.
