Tull v. >Yuba>
County>



















Filed 1/11/13
Tull v. Yuba County CA3













NOT TO BE PUBLISHED







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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(Yuba)

----


>

FOREST TULL et al., Petitioners and Appellants, v. YUBA COUNTY et al., Defendants and Respondents; A. TEICHERT & SON, INC., Real Party in Interest and Appellant.	C068607 (Super. Ct. No. 03-000774)
FOREST TULL et al., Plaintiffs and Appellants, v. YUBA COUNTY et al., Defendants and Respondents; A. TEICHERT & SON, INC., Defendant and Appellant.	(Super. Ct. No. 07-000762)

A. Teichert & Son, Inc. (Teichert), operates a gravel mine
in Yuba County that produces enough aggregate to fill about 600 large trucks per
day. Teichert’s gravel trucks carry the
gravel to market by driving through a residential neighborhood on Hallwood
Boulevard and Walnut Avenue. Responding
to pleas to circumvent the Hallwood neighborhood, Teichert bought land and started
building a private haul road toward the intersection of Kibbe Road and State
Road 20. Although Teichert secured a
grading permit from Yuba County (County), no environmental impact study was
done before road construction began.

Forest and
Bobbie Tull (the Tullshref="#_ftn1"
name="_ftnref1" title="">[1]) own property adjacent to the haul road. They filed a petition for writ of mandate on
grounds that Teichert and the County failed to comply with the href="http://www.mcmillanlaw.com/">California Environmental Quality Act
(CEQA) (Pub. Resources Code, § 21050 et seq.).href="#_ftn2" name="_ftnref2" title="">[2] The trial court dismissed
the petition as moot because the County began work on a draft environmental
impact report (EIR). We reversed in Tull
v. Yuba County (Jan. 31, 2006, C047900) [nonpub. opn.] (>Tull I), holding that the County
violated CEQA by issuing a grading permit before studying alternate routes and
that the Tulls’ petition was not mooted by the work on the draft EIR.

Following
remand, the Tulls sought attorney fees under the public attorney general doctrine. The trial court awarded fees to the Tulls in
an amount substantially less than they sought.
The Tulls appealed, and this court reversed in Tull v. Yuba County
(July 7, 2008, C054917) [nonpub. opn.] (Tull
II).

After the
remittitur issued in Tull II, a final EIR was certified by the County’s
planning commission. Among the final
EIR’s more important findings was that no feasible alternative existed to
Teichert’s already partially completed private haul road. The Tulls challenged the certification of the
final EIR –- first before the County’s board of supervisors and then in
superior court. The Tulls’ operative
petition for writ of mandate alleged five causes of action for (1) several
violations of CEQA, including inadequacy of the final EIR regarding drainage,
noise, traffic safety, and feasibility of alternate routes for the haul road,
(2) declaratory relief regarding Teichert’s ongoing mining operations at
the Hallwood site, (3) issuance of a vested rights letter by the County to
Teichert in violation of this court’s decision in Calvert v. County of Yuba
(2006) 145 Cal.App.4th 613 (Calvert),
(4) improper reissuance of a grading permit to Teichert after Tull I
but before a final EIR had been properly certified, and (5) declaratory
relief challenging Yuba County ordinance 11.10.580 as violating CEQA Guidelines
section 15090, subdivision (a).

The trial court
ruled the Tulls’ writ petition set forth several valid CEQA claims. However, the court found that the Tulls’
cause of action challenging the vested rights letter was barred by the statute
of limitations, and that the challenged County ordinance did not violate
CEQA.

On appeal,
Teichert contends the trial court erred because (1) substantial evidence
supports the County’s conclusion that alternate routes are infeasible,
(2) the EIR properly studied the traffic noise impacts expected to result
from the project using the correct threshold of significance standard for
assessing the noise generated by the project, (3) the EIR properly analyzed
drainage impacts, and at no point in the proceedings before the County did the
Tulls raise this issue, and (4) traffic safety impacts were also properly
analyzed in the EIR.

The Tulls
cross-appeal, arguing the trial court should have granted relief on the
entirety of their operative petition
because (5) the County reissued the grading permit in violation of Tull
I, (6) the delayed discovery rule renders timely their challenge to
the vested rights letter to Teichert, and (7) the County’s ordinance
conflicts with CEQA by giving the planning commission authority to certify a
final EIR even though it lacks power to approve or reject a project.

As to the appeal
by Teichert, we conclude the final EIR did not properly consider all feasible
alternate routes to Teichert’s private haul road, how the project would result
in noise and vibration impacts, or how the County’s plan to condemn land for an
undisclosed drainage pond would affect the area’s hydrology and hydraulics. However, the final EIR properly assessed and
responded to concerns about the traffic safety impacts arising out of locating
the haul road at the intersection of Kibbe Road and State Road 20.

As to the Tulls’
cross-appeal, we conclude the County erroneously reissued a grading permit for
the private haul road before all feasible alternatives have been properly
assessed in the EIR process. We also
conclude the trial court correctly dismissed the Tulls’ challenge to Teichert’s
vested rights letter on grounds that it was barred by the href="http://www.mcmillanlaw.com/">statute of limitations. Finally, we invalidate Yuba County
ordinance 11.10.580 because it allows a final EIR to be certified without
ever being reviewed and considered by a decisionmaking body with power to
approve or disapprove the project. As
this case illustrates, the County’s procedure allows certification of a final
EIR even in the absence of compliance with Guidelines section 15090,
subdivision (a)(2).

Accordingly, we
reverse and remand the matter with instructions.

BACKGROUND

>The Haul Road’s Initial Negative Declaration>

As the trial
court recounted, the following facts regarding the haul road are
undisputed: “Teichert owns and operates
an aggregate surface mine operation approximately 8 miles east of Marysville on
the north side of the Yuba River, known as the Hallwood mine. Teichert uses existing roads through the
Hallwood neighborhood to the west to haul its gravel to market.

“On
June 12, 2000, the County –- without providing public notice or holding a
public hearing –- issued a letter to Teichert, purporting to ‘confirm’
Teichert’s ‘vested rights’ under SMARA [the Surface Mining and Reclamation Act
(. . . § 2710 et seq.)] to conduct surface mining operations at
its Hallwood mine site.

“In March 2003,
Teichert commenced construction of a new, private access road for its Hallwood
mine site. If completed, Teichert’s new
road will route approximately 600 gravel trucks per day through [the Tulls’]
neighborhood. After completing the road
to within approximately 50 feet of the [State Road] 20/Kibbe [Road]
intersection, Teichert applied for, and the County summarily issued, a grading
permit for the road portion of Teichert’s private project. Teichert then applied to the County for the
encroachment permits from the County and Caltrans needed to connect its newly
constructed road to [State Road] 20 at the Kibbe Road intersection.

“In June 2003,
the County released a draft initial study/mitigated negative declaration
(‘MND’) pursuant to CEQA, discussing the road project’s potential impacts at
the intersection of [State Road] 20 and Kibbe Road. The study described the project as involving
only the intersection improvements required to connect the new road to [State
Road] 20, but asserted that the road Teichert had built was not part of the
project because the road had already been completed under the grading permit.

“In October
2003, [the Tulls] filed this action, challenging the County’s violations of
CEQA in issuing its 2003 grading permit with no environmental review, and by
improperly segmenting or ‘piecemealing’ its CEQA review for the project by
limiting its MND to considering only the intersection improvement portion of
the project. In May 2004, Judge Timothy
Evans of the Yuba County Superior Court dismissed [the Tulls’] action as moot,
reasoning that the County had commenced (but not yet completed) the preparation
of an environmental impact report
(‘EIR’) for the ‘whole’ of the project.”


>Tull I

The Tulls
appealed and argued that the County violated CEQA by segmenting Teichert’s new
road project into two projects for purposes of environmental review and by
issuing the grading permit for the haul road before completing CEQA review of
the entire project. (Tull I, supra, C047900.) The Tulls also argued that their petition was
not mooted by the County’s eventual decision to prepare an EIR for the haul
road. (Tull I, supra, C047900.)

On
January 31, 2006, this court reversed the href="http://www.mcmillanlaw.com/">judgment of dismissal. (Tull I, supra, C047900.) We concluded
that the project had been improperly segmented by the County because “the
undisputed facts demonstrate the project consisted of providing Teichert a new
road from its mine to State Route 20.
The grading and construction of the road, along with the intersection
improvements necessary to connect the road to State Route 20, were all part of
the same project. The plans submitted to
the County for the grading permit disclosed this fact. They expressly contemplated connecting the
road to State Route 20 as part of the project of constructing the road. Moreover, while the road was being
constructed, the County was already preparing the initial study for the
intersection improvements. There can be
no dispute the grading and construction of the road and the construction of the
intersection improvements connecting the road to State Route 20 were one and
the same project. The County erred by
segmenting the project and excluding the grading permit from environmental
review of the whole project.” (>Tull I, supra, C047900.)

In so holding,
we rejected Teichert’s argument that the grading permit did not trigger the EIR
requirement because its issuance by the County was ministerial in nature. We explained that “[e]ven if the grading
permit was ministerial -- an issue we do not decide -- it still would be part
of the whole project. Because part of
the project required discretionary government permits that were not exempt from
CEQA, the whole project, including portions that individually would be exempt
from CEQA, was subject to environmental review.
(Association for a Cleaner Environment v. Yosemite Community College
Dist. (2004) 116 Cal.App.4th 629, 640.)”
(Tull I, supra, C047900.)

Tull I also found that the Tulls’ original petition was not rendered moot
by the ongoing EIR process. This court
noted that “the County has prepared a draft EIR which addresses many of
plaintiffs’ issues. However, the
document is a draft EIR.
It still is subject to revision, completion as a final EIR, and
certification by the County. The need
for the court’s continuing jurisdiction thus still exists.” (Tull I, supra, C047900.) We explained the gravamen of the problem with
the County issuing the grading permit before engaging in the EIR process as
follows: “Here, the error occurred when
the County allowed construction to proceed on the new road without first
analyzing it as part of the entire road and interchange improvement project in
an appropriate environmental document. >Had the County complied with CEQA, the
County may not have approved the road in its current location or may have
imposed mitigation measures which the road does not now incorporate. Thus, the grading permit cannot be allowed to
stand when the potential remains for the County to alter the project or deny
the encroachment permits in order to comply with CEQA.” (Tull
I, supra, C047900, italics added.)

Accordingly,
this court remanded the matter to the trial court with directions “to reinstate
and grant the petition and order issuance of a peremptory writ of mandate in
accordance with the requirements of . . . section 21168.9 and
consistent with the instructions contained in [our] opinion.” (Tull I, supra, C047900.)

>Certification of the Final EIR

While the appeal
in Tull I was pending, the County’s planning commission certified the
final EIR over the Tulls’ objection in January 2006. As the trial court found, the Tulls “appealed
the Planning Commission’s certification of the EIR to the Board of
Supervisors. On June 6, 2006, the
Board denied [the Tulls’] administrative appeal, but made no decisions
regarding 1) whether the Project should be approved; or 2) if so, whether the
Project should be approved at an alternative location, in order to reduce or
avoid the significant impacts identified in the EIR.

“On or about
November 13, 2006, the County’s Public Works Director issued a new grading
permit for the Project. On November 22,
2006, [the Tulls] filed this supplemental proceeding challenging, inter alia,
1) the validity of the County’s June 2000 vested rights letter; and 2) the
County’s failure to comply with CEQA or the Court of Appeal’s January 31,
2006 decision, before summarily re-issuing the invalidated grading permit.

“In August 2007,
the Board of Supervisors met and issued an encroachment permit for the project
over [the Tulls’] continued objections.”
(Citations to the administrative record omitted.)

>Tull II

After remand in Tull
I, the Tulls moved for attorney fees under Code of Civil Procedure section
1021.5. (Tull II, supra, C054917.) The trial court awarded fees but “instead of
determining and using reasonable market rates to calculate the fees to be
awarded, the court used the rates found in the contract between plaintiffs and
their attorneys. It used this method of
reducing the requested rates after determining that part of the litigation was
unnecessary.” (Ibid.) The Tulls appealed,
and we reversed in July 2008.

In Tull II,
supra, C054917 we held that the trial
court erroneously determined part of the Tulls’ action to have been
unnecessary. (Ibid.) Consequently, we
reversed with directions that the trial court make “an award of attorneys’ fees
based on reasonable market rates, as required by section 1021.5.” (Ibid.)

>The Operative Petition

In March 2009,
the Tulls filed a first amended supplemental
petition for writ of mandate and complaint for declaratory and injunctive
relief. The petition named as
defendants: Yuba County, the Yuba County
Board of Supervisors (Board), the Yuba County Planning Commission, and the Yuba
County Community Development Department (collectively, County agencies). Teichert was listed as the real party in interest. The petition alleged five causes of action
for (1) violations of CEQA due to inadequate EIR for the proposed haul
road, (2) declaratory relief regarding Teichert’s ongoing mining
operations at the Hallwood site, (3) a mandamus violation due to the
vested rights letter issued by the County to Teichert, (4) a mandamus
violation in the County’s reissuance of a grading permit to Teichert, and
(5) declaratory relief challenging the County (planning commission)
authority to approve the haul road project.


Teichert and the
County demurred to the third, fourth, and fifth causes of action. The trial court sustained the demurrers with
leave to amend as to the third cause of action and without leave to amend as to
the fourth and fifth causes of action.
The court stayed the second cause of action for declaratory relief
pending resolution of the Tulls’ first and third causes of action. The Tulls amended their petition, restating
their third cause of action. After
briefing by the parties and a hearing, the trial court dismissed the third
cause of action on the merits after finding that the statute of limitations had
expired. The trial court subsequently
ruled the County committed several procedural violations of CEQA in certifying
its EIR and approving the project.

After the Tulls
voluntarily dismissed their second cause of action for declaratory relief, the
trial court entered a final judgment.
From the judgment, Teichert appealed, and the Tulls cross-appealed.href="#_ftn3" name="_ftnref3" title="">[3]

OVERVIEW OF CEQA

“‘[T]he purpose
of CEQA is to protect and maintain California’s environmental quality. With certain exceptions, CEQA requires public
agencies to prepare an EIR for any project they intend to carry out or approve
whenever it can be fairly argued on the basis of substantial evidence that the
project may have a significant environmental effect . . . .’ (Communities for a Better Environment v.
California Resources Agency (2002)
103 Cal.App.4th 98, 106–107, fns. omitted.) The California Supreme Court has ‘repeatedly
recognized that the EIR is the “heart of CEQA.”
[Citations.] “Its purpose is to
inform the public and its responsible officials of the environmental
consequences of their decisions before they are made. Thus, the EIR ‘protects not only the
environment but also informed self-government.’”’” (Center for Sierra Nevada Conservation,
supra, 202 Cal.App.4th at
p. 1169, quoting Laurel Heights Improvement Assn. v. Regents of
University of California (1993) 6 Cal.4th 1112, 1123 (Laurel Heights II) fn. omitted.)

To comply with
CEQA, “[p]ublic agencies must ‘prepare, or cause to be prepared by contract,
and certify the completion of, an [EIR] on any project that they intend to
carry out or approve which may have a significant effect on the
environment.’ (§ 21151, subd. (a).) Section 21065 defines ‘project’ to include ‘an
activity which may cause either a direct physical change in the environment, or
a reasonably foreseeable indirect physical change in the environment, and which
is any of the following: [¶] (a) An activity directly undertaken by
any public agency. [¶] . . . [¶] (c) An activity that involves the
issuance to a person of a lease, permit, license, certificate, or other
entitlement for use by one or more public agencies.’ The Guidelines further define project as ‘the
whole of an action, which has a potential for resulting in either a direct
physical change in the environment, or a reasonably foreseeable indirect
physical change in the environment, and that is any of the following: [¶] . . . [¶]
(3) An activity involving the issuance to a person of a lease,
permit, license, certificate, or other entitlement for use by one or more
public agencies.’ (Guidelines,
§ 15378, subd. (a)(3).) Under CEQA,
‘“‘Project’ is given a broad interpretation . . . to maximize protection of the
environment.”’” (Center for Sierra
Nevada Conservation, supra, 202 Cal.App.4th at pp. 1169-1170, quoting Riverwatch
v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186, 1203.)

“In reviewing an
agency’s compliance with CEQA in the course of its legislative or
quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether
there was a prejudicial abuse of discretion.’
(. . . § 21168.5.)
Such an abuse is established ‘if the agency has not proceeded in a
manner required by law or if the determination or decision is not supported by
substantial evidence.’
[Citations.]” (Vineyard Area
Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40
Cal.4th 412, 426–427 (Vineyard), fns. omitted.) “Judicial review of these two types of error
differs significantly: while we
determine de novo whether the agency has employed the correct procedures,
‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’
[citation], we accord greater deference to the agency’s substantive factual
conclusions. In reviewing for
substantial evidence, the reviewing court ‘may not set aside an agency’s
approval of an EIR on the ground that an opposite conclusion would have been
equally or more reasonable,’ for, on factual questions, our task ‘is not to
weigh conflicting evidence and determine who has the better argument.’ [Citation.]”
(Id. at p. 435.) “A public agency’s decision to certify the
EIR is presumed correct, and the challenger has the burden of proving the EIR
is legally inadequate.” (Santa Monica
Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1545-1546, citing Sierra
Club v. City of Orange (2008) 163 Cal.App.4th 523, 530; Save Our
Peninsula Com. v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th
99, 117.)

In reviewing the
record in a CEQA case, we review the agency’s action rather than the trial
court’s subsequent decision. We “resolve the substantive CEQA
issues on [appeal] by independently determining whether the administrative
record demonstrates any legal error by the County and whether it contains
substantial evidence to support the County’s factual determinations.” (Vineyard, supra, 40 Cal.4th at p.
427.) Mindful of these principles of
review, we proceed to consider Teichert’s contentions.

APPEAL BY TEICHERT



I



>Whether the County Properly Considered Alternative

>Routes for the Haul Road

Teichert
contends the trial court erred in requiring the County to reassess alternate
routes to the private haul road, including a route along an irrigation canal
(Cordua Canal route), because substantial evidence supports the County’s
conclusion that these alternate routes are infeasible. We disagree.
As we explain, after characterizing the Cordua Canal route as “environmentally
superior,” the County rejected it as infeasible because eminent domain
proceedings would be required to acquire the land. This was error because the County was
perfectly willing to use eminent domain proceedings to acquire land to complete
the private haul road.

A.

>The County’s Rejection of the Cordua Canal Route as
Infeasible

In Tull I,
this court held that the County violated CEQA requirements by issuing a grading
permit to Teichert before properly assessing the project to determine where the
haul road would best be located. (>Tull I, supra, C047900.) On this point, we noted that “[h]ad the
County complied with CEQA, the County may
not have approved the road in its current location or may have imposed
mitigation measures which the road does not now incorporate.” (Ibid.,
italics added.)

During the EIR
process, several alternatives to Teichert’s private haul road were
proposed. One of the alternatives called
the “alternative haul road” was analyzed in the EIRs. A similar route (Cordua Canal route) that
closely followed the Cordua irrigation canal also was proposed.href="#_ftn4" name="_ftnref4" title="">[4] The Cordua Canal route
presents a slightly longer distance for Teichert trucks to travel between the
gravel mine and State Road 20. However,
unlike the existing Hallwood neighborhood or Teichert’s private haul road to
Kibbe Road and State Road 20, the Cordua Canal route does not route trucks in
close proximity to residences.

The draft EIR
acknowledged the merit of the Cordua Canal route by stating: “When comparing the alternatives, the [Cordua
Canal route] would best meet the project objectives. The No Project/No Development Alternative
fails to meet the first and second objectives because the existing traffic and
noise impacts to the residential neighborhoods along Hallwood Boulevard and
Walnut Avenue would continue and a portion of the trucks associated with
Teichert’s Hallwood facility would continue traveling a long, indirect route to
access and exit the site. Conversely,
the [Cordua Canal route] includes a more direct route than currently exists,
although less direct than the private haul road associated with the proposed
project, and does not pass by any sensitive receptors, minimizing noise
impacts. The [Cordua Canal route]
generally meets all of the project objectives, except the second and third
objectives,[href="#_ftn5" name="_ftnref5" title="">[5]] because it offers a
longer haul route than does the proposed project and because the property owner
has indicated that the land required to implement the [Cordua Canal route] is
not available.” Although the draft EIR
“considered [the alternate route] environmentally
superior to the proposed project [on Teichert’s private haul road]”
(italics added), the draft EIR rejected it as “potentially infeasible in light
of the difficulty of property acquisition.”

Commenters on
the draft EIR noted the inconsistency in the County’s approach to eminent
domain. Specifically, the County
indicated that it was willing to exercise its power of eminent domain to
complete Teichert’s private haul road at the Kibbe Road intersection but was
not willing to consider eminent domain to acquire the Cordua Canal route. As one commenter stated, “it is absolutely
clear that if you can exercise the power of eminent domain for the preferred
project, you can also do so for the environmentally superior one.”

Charles
Matthews, the Cordua Irrigation District chairman, stated at a hearing on the
project: “[W]hen I read your
environmental document, it said that there was no alternatives [>sic] and, I guess, the first alternative
we would wonder about is why the, the road didn’t curve on the south side of a
thing and keep Kibbe Road straight on the north so it was not impacting the
people there. I don’t know if this is
enough of an alternative that it would be mentioned and I know you’re having
the way [sic] to make a negative
declaration so you don’t have to do anymore environmental work and I would urge
you to make sure that, in that part, that says there’s no alternatives [>sic] that somehow it’s discussed.”

The Tulls argued
that “if acquiring a right-of-way over the [Cordua Canal route] through eminent
domain is infeasible because this is a ‘private project,’ then the project
cannot be approved in the first instance, regardless of location. On the other hand, if the project is
sufficiently ‘public’ to justify the exercise of eminent domain, then the
County’s and CalTrans’ power to condemn applies equally to the proposed project
and the alternative analyzed in the EIR.
The only reason that the Draft EIR presents for the ‘Potential
infeasibility’ of the [Cordua Canal route], is that there is no willing
seller. Therefore, if a
sufficiently public purpose exists to justify condemnation in support of the
project as proposed, the EIR’s determination that the [Cordua Canal route] may
be infeasible is unsupported by substantial evidence.” (Footnotes omitted.)

The final EIR’s response
to the Tulls’ argument states, in its entirety:
“All of the areas of the project site that are proposed to be privately
owned were acquired from willing sellers.
The use of eminent domain is only proposed for those portions of the
project site sought for acquisition by Caltrans or Yuba County.” The County thus proposed to exercise its
power of eminent domain only as to the private haul road’s intersection at
Kibbe Road and State Road 20. As the
final EIR states: “The proposed
intersection improvements at Kibbe Road and [State Road] 20 would serve the
public purposes of improving traffic safety at that intersection.” Notably, the improvement of traffic safety is
not among the County’s stated objectives for the project.

The final EIR
expressly rejects the use of eminent domain for the Cordua Canal route where it
states that this route “would require condemnation of private property for
private haul road purposes (i.e., those areas outside of and not proposed for
inclusion within state and County rights-of-way).” Thus, the Cordua Canal route was rejected
because it did not appear feasible without eminent domain proceedings.

In denying the
Tulls’ appeal of the certification of the final EIR, the County explained that
“County staff researched the feasibility of the Cordua Canal [route], including
a map of the canal right-of-way and the original 1876 deed granting a 20-foot
wide ‘strip of land’ for ‘the purpose of a water ditch.’ Based on this information, the Cordua Canal
[route] is not feasible for two reasons.
First, the canal right-of-way is too narrow to accommodate the proposed
haul road. The canal right-of-way is 20
feet wide, as clearly stated in the original 1876 grant deed. The proposed haul road is more than twice as
wide, with a minimum width of 40 feet, not including required side slopes and
drainage features. . . . Thus, even if
the existing Cordua Canal were placed in [a] culvert underneath the haul road,
the width of the haul road alone would far exceed the width of the Cordua Irrigation
District’s right-of-way.

“Second, the use
of the Cordua Canal right-of-way for haul road purposes would appear to
conflict with the requirements of the 1876 grant deed. Specifically, the 1876 grant deed included
the express requirement that the right-of-way be used for ‘the purpose of a
water ditch.’ The use of the Cordua
Irrigation District’s right-of-way for a private haul road appears to be
inconsistent with this requirement.
Thus, the Cordua Canal [route] proposed by Charles Matthews is not a
feasible alternative to Teichert’s proposed private haul road at Kibbe
Road.”

In reviewing the
final EIR, the trial court in this case “agree[d] broadly with the [Tulls’]
criticisms of the EIR’s treatment of the alternative routes for the haul
road.” In particular, the court noted
that two issues needed to be further addressed by the County in an EIR:

“The first issue
is the impact of the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Supreme Court’s decision in Kelo v. City of New London,
Connecticut (2005) 545 U.S. 469. If
a project, taken as a whole, has a public purpose it may be possible for a
public agency to use its takings power to condemn private property, even though
the project may benefit a private party.
Kelo, at 480-481, cf: Golden Gate Bridge Highway and
Transportation Dist. v. Muzzi (1978) 83 Cal.App.3d 707, 713-714. Thus, Response 3-2 [citation] seems to be
predicated on an erroneous interpretation of existing law. While the Court does not purport to determine
whether the project, as a whole, has a ‘public purpose,’ the County’s
evaluation of alternative routes must be reconsidered in light of a proper
understanding of the law in this regard.

“The second
salient issue concerns the Cordua Canal [route], and the recitation in the EIR
that construction of the haul road there would be inconsistent with the stated
purpose of a ‘water ditch’ in the original grant deed of 1876. The referenced deed does not appear in the
record. It may be, or maybe not, that
restrictive language in the deed precludes any use other than a ‘water
ditch.’ The mere recitation of the
existence of a deed conveying the land for a ‘water ditch’ does not constitute
substantial evidence that the land cannot also be used as a haul road.”

B. >

>CEQA Requires Consideration of Feasible Alternatives

As the
California Supreme Court has explained, “[T]he core of an EIR is the mitigation
and alternatives sections. The
Legislature has declared it the policy of the State to ‘consider alternatives
to proposed actions affecting the environment.’
(. . . § 21001, subd. (g); Laurel Heights, supra,
47 Cal.3d at p. 400.) Section
21002.1, subdivision (a) . . . provides: ‘The purpose of an [EIR] is to identify the
significant effects of a project on the environment, to identify
alternatives to the project, and to indicate the manner in which those
significant effects can be mitigated or avoided.’ (Italics added. See also . . . § 21061 [‘The
purpose of an [EIR] is . . . to list ways in which the significant effects of
such a project might be minimized; and to indicate alternatives to such a
project.’ (Italics added.)].)

“In determining
the nature and scope of alternatives to be examined in an EIR, the Legislature
has decreed that local agencies shall be guided by the doctrine of
‘feasibility.’ ‘[I]t is the policy of
the state that public agencies should not approve projects as proposed if there
are feasible alternatives or feasible mitigation measures available
which would substantially lessen the significant environmental effects of such
projects. . . . [I]n the event specific
economic, social, or other conditions make infeasible such project alternatives
or such mitigation measures, individual projects may be approved in spite of
one or more significant effects thereof.’
(. . . § 21002, italics added.)” (Citizens of Goleta Valley v. Board of
Supervisors (1990) 52 Cal.3d 553, 564-565 (Goleta Valley).)

CEQA does not
require a public agency to consider every imaginable alternative. “CEQA establishes no categorical legal
imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts,
which in turn must be reviewed in light of the statutory purpose.” (Goleta Valley, supra, 52 Cal.3d at p. 566.) Nonetheless “an EIR for any project subject to
CEQA review must consider a reasonable range of alternatives to the project, or
to the location of the project, which:
(1) offer substantial environmental advantages over the project
proposal (. . . § 21002); and (2) may be ‘feasibly
accomplished in a successful manner’ considering the economic, environmental,
social and technological factors involved.
[Citations.]” (>Ibid.)
And, as our high court noted, “the government’s power of eminent domain
and access to public lands suggest that alternative sites may be more feasible,
more often, when the developer is a public rather than a private agency.” (Id. at pp. 574-575 [collecting authority].) Thus, the willingness to resort to eminent
domain to complete a project demands that the other alternatives made possible
by eminent domain must also be
considered.

C.

>The County Failed to Properly Consider the Cordua
Canal Route

The County
improperly dismissed the Cordua Canal route as infeasible. The impetus for Teichert’s search for an
alternate route arose out of the noise, vibration, and safety problems that
arose when hundreds of gravel trucks traveled through the residential neighborhoods
of Hallwood Boulevard and Walnut Avenue.
The neighbors around Kibbe Road feared that the same problems would
plague the use of Teichert’s private haul road.
Thus, the Tulls and others suggested a route that would largely avoid
any private homes by following an existing irrigation canal.

The Cordua Canal
route requires consideration under CEQA because the County’s own analysis
acknowledged it to be an environmentally superior route. Even so, the alternate route is not perfect. From an environmental perspective, the Cordua
Canal route is slightly longer than Teichert’s private haul road route. However, the search for an alternative to the
Hallwood Boulevard and Walnut Avenue route does not originate from a quest for
a shorter route, but from a search for a route that eliminates the disturbance
of many heavy trucks rumbling past private homes. To this end, the Cordua Canal route appears
to offer a viable alternate to the Kibbe Road location –- which would simply
shift the noise and safety risks from one set of homes to another.

In the final
EIR, the reasons stated for rejecting the Cordua Canal route as infeasible are
inconsistent with other parts of the EIR.
The final EIR characterizes the Cordua Canal route as infeasible on
grounds that eminent domain proceedings would be necessary to acquire the
land. However, Teichert’s private haul
road is endorsed by the EIRs as the best route even though eminent domain would
be necessary to complete the road. It is
logically inconsistent for eminent domain to be an option for one route but not
another route. Moreover, as the
California Supreme Court has held, the exercise of eminent domain power for a
project means that a public agency errs insofar as it fails to consider other
alternatives that may be possible with the same eminent domain power. (Goleta Valley, supra, 52 Cal.3d at pp. 574-575.) Here, the environmentally superior route was
excluded through selective omission of eminent domain as an option.

The County
attempted to justify the use of eminent domain for the private haul road route
but not the Cordua Canal route. It
reasoned that eminent domain would only be necessary for the Kibbe Road/State
Road 20 intersection if the private haul road route were employed. Such reasoning perpetuates the County’s error
in attempting to segment the project into two separate parts: the intersection and the private haul
road. We rejected such improper
segregation of the project in Tull I, supra, C047900. The only reason for use of eminent domain for
the Kibbe Road intersection is to complete Teichert’s haul road. There would be no need for a new intersection
in the absence of the private haul road.

Either the
County is willing to exercise the power of eminent domain for this project or
it is not. If so, the County cannot be
willing to condemn land for the private haul road route but not the Cordua
Canal route. (Goleta Valley, supra, 52 Cal.3d at pp. 574-575.) If not, then the project cannot be approved
because the record is clear that the private haul road cannot connect to State
Road 20 without the County or CalTrans resorting to eminent domain.href="#_ftn6" name="_ftnref6" title="">[6]

The County’s
steadfast willingness to resort to eminent domain at the proposed Kibbe Road
intersection means that the rejection of the same for the Cordua Canal route
was error. Consequently, the final EIR
failed to properly consider the viability of the Cordua Canal route. “Certification of an EIR which is legally
deficient because it fails to adequately address an issue constitutes a
prejudicial abuse of discretion regardless of whether compliance would have
resulted in a different outcome.” (Citizens
to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421,
428.) The trial court correctly
concluded the County erred in certifying the final EIR for failure to properly
consider feasible alternate routes.

>II

>Traffic Noise and Vibration Impacts Analysis

Teichert asserts
the final EIR properly studied the potential noise and vibration impacts of the
private haul road project. While we
agree with Teichert that the County used an appropriate threshold of
significance standard for assessing noise generated by the project, we must
disagree that the final EIR properly accounts for all potentially significant
noise and vibration impacts.

A. >

>Noise and Vibration Impacts from Teichert’s Trucks>

Teichert began
exploring alternates for its haul route because of complaints from the
residents of Hallwood Boulevard and Walnut Avenue.

The draft EIR
referred to the degraded noise environment in selecting its threshold of
significance for the project. As the
draft EIR explained: “[B]ecause the
measured ambient noise levels currently exceed the County’s objectives prior to
the construction of the proposed project, this analysis focuses on the change
in ambient conditions [in the project vicinity]. [¶] In
general, an increase of at least 3 dB is usually required before most people
will perceive a change in noise levels, and an increase of 5 dB is required
before the change will be clearly noticeable.
A common practice in cases where existing traffic noise levels without
the project exceed the local noise standards is to assume that a clearly
noticeable increase of 5 dB is required for a finding of
significance. [¶] . . . [T]he County’s Noise Element was
adopted in 1978; the noise level objectives are not in keeping with current
convention. Nonetheless, for residential
uses, the objective is 50 dB for both day and nighttime periods. . .
. The measured ambient noise levels . .
. are already well in excess of these objectives. As a result, this analysis focuses on the
degree by which the proposed project would cause ambient noise levels to
increase at existing noise-sensitive land uses located along the segment of
Kibbe Road south of the [State Road] 20/Kibbe Road intersection and along
[State Road] 20 itself, as required by CEQA.”


The draft EIR
concluded that no mitigation measures were necessary because the private haul
road would generate only an average of 68 decibels of noise –- only 1 decibel
higher than the ambient at State Road 20.
That conclusion, however, did not reveal the results of a study of
slow-moving trucks on Walnut Road. That
study measured the noise of 33 trucks at a distance of 50 feet from the center
of the road. The noise ranged from a low
of 76 decibels to a high of 85 decibels –- all in excess of both the 50-decibel
County standard and the 68-decibel average used in the draft EIR.

At hearings on
the proposed project, residents of the Hallwood area described the noise and
vibration disturbances caused by the Teichert trucks. One Hallwood Boulevard resident stated: “[The Teichert trucks] line up at 5:20 (am)
at my house and we have them from 5:30 (am) all the way to 8:00 at night. On a slow day, we have 85-90 trucks and on a
real busy day, when they haul two types of material we have about
150-160.”

Another Hallwood
resident complained: “I don’t need an
alarm clock anymore. I get one at 5:18
every morning. The trucks come except
Sunday.”

Similarly, a
Walnut Avenue resident stated that the trucks are “[l]ined up ready to go at
5:30 and they start and you want to talk about noise, at 5:30 am we get
vibrated out of our beds practically every morning including Saturday.”

At one of the
hearings, Forrest Tull stated that “if Teichert is permitted to use the Kibbe
haul road it will impact the noise in our area greatly as trucks will be using
Jake brakes to slow down as well as trucks engines [sic] roaring as they gear down and accelerate from this
intersection.” The Tulls also provided
additional argument that the “County failed to adequately disclose or analyze
the subject project’s potentially significant noise impacts including
invocation of a higher ‘threshold of significance,’ failing to consider the
effects of ‘single event’ noises, and failure to consider or address how the
use of ‘jake brakes’ may increase noise.”


The final EIR
rejected these concerns of traffic noise and vibration by concluding that
Teichert’s trucks already exceeded Yuba County noise standards. Specifically, the final EIR found: “In this case, the existing noise levels
along [State Road] 20 already exceed the applicable Yuba County General Plan
Standards, so the project would not ‘result’ in that exposure. Accordingly, the noise analysis for the
project addressed whether the project would result in a ‘substantial permanent
increase’ in ambient noise levels. The
noise analysis prepared for this project indicates that the project will result
in an increase of approximately 1 dB on [State Road] 20 west of Kibbe Road, 0
dB on [State Road] 20 east of Kibbe Road, and decreases ranging from 2 to 20 dB
on the roadways currently utilized by Teichert truck traffic which will no
longer be utilized following implementation of the project. Because traffic noise level increases of 1 dB
or less are not considered to be substantial or, for that matter, perceptible,
no finding of significant noise impact was warranted for those roadways. Because the traffic noise level increase on
the new haul road is predicted to be substantial (5 dB) with the project, a
significant impact was identified for that segment.”

In response to
Forrest Tull’s statements, the final EIR responded: “The commenter is correct in noting that the
use of engine brakes generates higher noise levels than trucks decelerating
without engine brake usage. The extent
by which trucks utilizing engine brakes are louder is partially a function of
the age of the truck. BBI [the County’s
acoustic consultant’s] experience has been that newer generation trucks have
considerably quieter engine brakes than older trucks. BBI is unaware of information that states the
majority of trucks will utilize engine brakes at the site. BBI’s experience has been that engine brake
usage is typically observed in locations where more rapid deceleration is
required (such as at locations where the stopping point is not visible from a
distance and drivers are unaware a stop is coming). Engine brake usage is often observed on steep
downgrades where additional braking power is necessary. However, at locations where the stopping
point is visible from a distance, or where steeper grades do not exist, such
rapid deceleration is usually unnecessary.
Because the proposed intersection improvements and private haul road are
located in an area with adequate site distance, as discussed on pages 3.3-24
and 25 of the DEIR, and is not characterized by steep grades, the noise
analysis appropriately assumed that use of Jake brakes for trucks traveling to
the Hallwood plant from locations east of the project site would not be
substantial and that traffic noise impacts along [State Road] 20 east of the
project site are less than significant.”


The trial court
concluded that the “County’s analysis impermissibly focuses on ‘project level,
not cumulative impacts,’ whereas analysis of the cumulative impacts is
required. [Citation.] [¶]
Moreover, given the comments in the record concerning persistent, even
daily ‘single event’ disruptions [citations], the County prejudicially abused
its discretion in certifying an EIR which relied only on averages without
taking into account single event disruptions.
[Citation.]”



B.



An EIR Must
Accurately Describe the Potentially Significant Environmental Impacts of a
Proposed Project

For purposes of
CEQA, “[a] project will have a significant effect on the environment if it will
cause ‘a substantial, or potentially substantial, adverse change in’ ‘the
physical conditions which exist within the area which will be affected by [the]
project, including land, air, water, minerals, flora, fauna, noise, objects of
historic or aesthetic significance.’ (CEQA, §§ 21060.5 [defining
‘environment’], 21068 [defining ‘significant effect on the
environment’].)” (Protect The
Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th
1099, 1106 (PHAW).)

To comply with
CEQA, “in preparing an EIR, the agency must consider and resolve every fair
argument that can be made about the possible significant environmental effects
of a project, irrespective of whether an established threshold of significance
has been met with respect to any given effect.
Once the agency has determined that a particular effect will not be
significant, however, the EIR need not address that effect in detail. Instead,
the EIR need only ‘contain a statement briefly indicating the reasons for
determining that various effects on the environment of a project are not
significant and consequently have not been discussed in detail in the
environmental impact report.’ (CEQA,
§ 21100, subd. (c); see also Guidelines, § 15128.)” (PHAW, supra, 116 Cal.App.4th at
p. 1109.)

The EIR must
properly account for potentially significant environmental effects of a project
because “‘“[o]nly through an accurate view of the project may affected
outsiders and public decision-makers balance the proposal’s benefit against its
environmental cost, consider mitigation measures, assess the advantage of
terminating the proposal . . . and weigh other alternatives in the balance.”’” (Center for Sierra Nevada
Conservation, supra, 202 Cal.App.4th at p. 1171, quoting >City of Redlands v. County of San Bernardino
(2002) 96 Cal.App.4th 398, 406.) In
short, “the EIR ‘protects not only the environment but also informed
self-government.’” (Center for Sierra Nevada Conservation, supra, at
pp. 1177-1178.)



C.



The EIRs Failed
to Properly Assess the Noise and Vibration Impacts

for the Private
Haul Road

A review of the
draft and final EIR’s explanations for the conclusion that the private haul
road would not result in any significant noise or vibration impacts leaves us
perplexed. While the County used an
appropriate threshold of significance standard for assessing noise generated by
the project, the County’s reasoning in the draft and final EIRs does not
follow.

>1. The
Five-Decibel Threshold of Significance

The parties spar
over whether the County erred in selecting a 3-decibel or a 5-decibel threshold
of significance for the project. As
Teichert notes, under either standard the difference between the ambient noise
at State Road 20 and the impact of the project at Teichert’s private haul road
site, the same conclusion of no significant impact is the result. The Tulls argue that the County arbitrarily
selected 5 decibels based on the already-degraded sound environment near State
Road 20. As the Tulls note, a
degraded environment does not justify further degradation on that basis. In Kings County Farm Bureau v. City of
Hanford (1990) 221 Cal.App.3d 692, the Court of Appeal rejected reliance on
bad air quality for a region as a grounds for allowing further pollution. The Kings County court recounted that
“the EIR reasons the air is already bad, so even though emissions from the
project will make it worse, the impact is insignificant. [¶]
The point is not that, in terms of ozone levels, the proposed Hanford
project will result in the ultimate collapse of the environment into which it
is to be placed. The significance of an
activity depends upon the setting.
(Guidelines, § 15064, subd. (b).)
The relevant question to be addressed in the EIR is not the relative
amount of precursors emitted by the project when compared with preexisting
emissions, but whether any additional amount of precursor emissions should be
considered significant in light of the serious nature of the ozone problems in
this air basin.” (Id. at p. 718.)

Nonetheless, we
are not persuaded by the Tulls that the selection of 5 decibels is clearly
premised on the violation of Yuba County standards. Instead, the draft EIR explained that it
selected 5 decibels as the differential in noise that is clearly noticeable to
the average person. We must defer to the
County’s reasoned analysis of its choice to employ 5 decibels as the threshold
of significance.

However, even
accepting the County’s conclusion that a 5-decibel change in noise in the
environment is significant, we must reject the County’s conclusion that the
project at Kibbe Road will not have a potentially significant impact. As we explain more fully below, at a minimum,
the quietest of the Teichert trucks will be 8 decibels louder than the ambient
noise at the State Road 20 interchange and the loudest Teichert trucks will be
17 decibels louder.



2. Failure to Account for the Changes around

the Private Haul
Road

The draft EIR is
unclear about the scope of the environment considered for the noise and
vibration impact from Teichert’s trucks.
The EIRs appear to rely on the 67 decibels that are the ambient noise
for the busy State Road 20 in order to extend that degraded noise environment
onto what is now an incomplete (and therefore unused by Teichert) haul
road. The final EIR also seems to assume
that the Teichert trucks already generate noise and vibration that would remain
largely the same regardless of the location of their route to market. The EIRs are evasive about the true noise and
vibration impact on homes around Teichert’s private haul route that will result
with the addition of hundreds of gravel trucks.


The significant
impact from turning a largely unused route into a haul road for gravel trucks
is obvious. As noted by Steve Pettyjohn,
an acoustics consultant for the Tulls:
“The DEIR starts by saying that sound can interfere with sleep and can
cause stress. Then it states that
because levels at which stress occurs varies [sic] too much so they will ignore it and they say nothing about
sleep disturbance. This does not meet
the requirements of CEQA for discussing the impacts. Neighbors along the existing route have
discussed the stress and negative impacts that the heavy truck movements have
on their lives. Expecting anything less
for those living along the proposed private haul road would be
incomprehensible.”

Teichert
attempts to defend the EIRs on the issues of noise and vibration by pointing
out that the issues were studied and analyzed.
Without citing authority in support of the proposition, Teichert asserts
that “[o]nly outright omissions can . . . be employed to establish a
procedural violation and no such outright omissions occurred with respect to
these matters.” An EIR must include the
potentially significant impacts from a project to be certified. (Laurel Heights II, supra, 6 Cal.4th at p. 1123.) Here, the EIRs do not adequately describe the
noise and vibration impacts to the environment surrounding the private haul
road that would result if Teichert were to begin using it as its route for
transporting gravel to market.



3. Selection of a Measure that Disguises the

Noise Impact of
the Project

The EIRs employ
a measure of noise that the County itself acknowledged masks the full impact of
the trucks on the surrounding environment.
Specifically, the EIRs use a 24-hour average that artificially lowers
the decibels that can be expected to result from the project. The County’s own noise analysis acknowledged
the “24-hour average . . . tends to disguise short-term variations in
the noise environment.” The County used
this 24-hour average even though a study of 33 slow-moving trucks on Walnut
Avenue showed that not a single one of them fell below the 24-hour
average. Instead, the study showed that
even the least loud truck generated 76 decibels. The three loudest trucks generated 85
decibels –- significantly more than the County’s average figure. The selection of an average that tends to
disguise short-term but very loud noises means that the EIR conveys an
inaccurate description of the expected environmental consequences. (Berkeley Keep Jets Over the Bay Com. v.
Board of Port Cmrs (2001) 91 Cal.App.4th 1344, 1380-1382.)

>4. Analysis
of “Jake Brakes”

The trial court
concluded the County erred in failing to “address how the use of ‘jake brakes’
may increase noise” resulting from the project.
We agree.

The Tulls
objected to certification of the final EIR, in part based on the failure to
adequately address the issue of noise arising from the use of “jake brakes” as
follows: “It is a fact, as personally observed by [Forest Tull], based on
his long time experience from living in the [State Road] 20 / Kibbe Road
neighborhood, walking along [State Road] 20, and observing the trucks that do
turn from [State Road] 20 onto Kibbe Road, that a majority of trucks turning onto Kibbe Road from [State Road] 20
do use Jake brakes to slow for such
turns. It is also a fact that 1) the entire
intersection portion of the project will, at least initially, be entirely
unsignalized, and 2) the proposed right turn lane that will connect
eastbound [State Road] 20 [/] Kibbe Road south, and provide access for
approximately 75% of the trucks seeking to enter the Hallwood mine site is designed to be a through turn that will not require
stopping even after the intersection
is signalized. It is reasonable to
infer, from this combination of facts, that a majority of the hundreds of
gravel trucks that will be entering Kibbe Road south from [State Road] 20 at
the very early hours of the morning will slow to make this turn using their
Jake brakes, thus inducing low frequency sounds and vibrations that are not at
all disclosed, analyzed or mitigated in the EIR.” (Italics omitted.)

Teichert
dismisses the Tulls’ concerns that are founded on their observations of the
gravel trucks. However, it is well
established that personal observations by area residents are properly
considered for this purpose. (Pocket
Protectors v. City Of Sacramento (2004) 124 Cal.App.4th 903, 932.) Consequently, the final EIR was required to
provide an adequate and considered response to the Tulls’ noise and vibration
concerns. It did not do so.

Teichert defends
the final EIR by touting the expertise of the County’s acoustic
consultants. Teichert relies on Apartment
Assn. of Greater Los Angeles v. City of Los Angeles (2001) 90 Cal.App.4th
1162, a case in which a residential
landlord association sued to oppose a proposed code enforcement program on
grounds that the City had to first assess its impacts in an EIR. (Id.
at p. 1165.) The association introduced
an expert’s declaration to the effect that repairs might have “a significant effect on the environment because these
construction and repair projects will involve ‘use [of] hazardous chemicals to
control pests and rodents, and potentially disturb hazardous building
materials (e.g., asbestos and lead paint) in older structures.’” (Id.
at p. 1175.) The expert’s
speculation was held not to constitute substantial evidence of potentially
significant environmental effects. As
the Apartment Assn. court
elaborated: “[A]n expert’s
opinion which says nothing more than ‘it is reasonable to assume’ that
something ‘potentially . . . may occur’ constitutes the substantial evidence
necessary to invoke an exception to a categorical exemption. ‘Substantial evidence’ is defined in the CEQA guidelines to include
‘expert opinion supported by facts.’ It
does not include ‘[a]rgument, speculation, unsubstantiated opinion or
narrative.’” (Id. at p. 1176, fns. omitted.)

The County’s
reliance on the acoustics expert in this case is similarly unavailing. Here, the County recognized the use of jake
brakes yields noise greater than the noise that results if only wheel brakes
are used. Although “newer” generation
trucks are purported to be quieter, the EIR contains no information as to
whether Teichert employs the quieter trucks or how much less noise such trucks
make than older vehicles. The consultant
is cited as stating that jake brakes are “typically” used on steep inclines and
“usually unnecessary” when the stopping point is visible from a distance. However, BBI did not consider whether the
Kibbe Road intersection had an atypical or unusual factor that might result in
frequent use of the jake brake. By
contrast, the Tulls submitted information based on personal observation and
long-time experience of trucks employing jake brakes at exactly the
intersection at issue.

There is no
indication the County properly considered whether the Kibbe Road intersection
in specific would likely yield jake brake usage. Moreover, the final EIR does not assesses the
level of noise currently generated by jake brakes at the intersection or how
that ambient level would be affected by completion of the project at that
site. Consequently, the final EIR does
not contain substantial evidence in support of its conclusion that jake brake
usage would be nonexistent or insignificant for the project if located at Kibbe
Road.

>III

>Drainage Analysis

Teichert also
contends drainage impacts of completing the project at the intersection of
Kibbe Road and State Road 20 were properly assessed in the final EIR. We are not persuaded.

>A.

>The Undisclosed
Drainage Pond

The draft EIR
did not analyze or discuss the cumulative drainage impacts for the project if
located at Kibbe Road and State Road 20.
After releasing the draft EIR, the County received several comments
urging the study of hydrology for completion of the private haul road. For example, CalTrans commented: “The Draft EIR for the proposed project at
the intersection of [State Road] 20 . . . and Kibbe Road is
incomplete. Anticipated project impacts
on hydrology/hydraulics in the project area were not addressed in the
report. The alteration of this
intersection could have significant impacts on drainage pathways inside and
outside of the State’s highway right of way.”


In the final
EIR, the County responded that “[t]he