Citations
- 144 Cal. App. 4th 890
Full opinion text
Opinion
NICHOLSON, J.
The superior court determined a county’s environmental impact report analyzing a proposed aggregate mine violated the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq. (CEQA)) by failing to include and analyze a slightly revised project description submitted by the applicant after the final environmental impact report was prepared, and by inadequately analyzing water supply issues. We reverse.
FACTS
In December 1994, real party in interest Teichert, Inc. (Teichert), submitted permit applications for a 100-year project to mine and process sand, gravel, and granite on 945 acres of a 1,878-acre site located four miles north of Lincoln in unincorporated Placer County. Coon Creek, a perennial stream, traverses the central portion of the site and flows south westward. Doty Ravine crosses the southern tip of the site flowing westward, then joins Coon Creek. The site is currently operated as a cattle ranch with most of the level land in permanent pasture, hayfield or livestock food crops, and the remaining land used primarily as rangeland. The state Department of Conservation has designated virtually all of the site as prime farmland and farmland of local importance.
In December 1994, defendant County of Placer (County) issued a notice of preparation of an environmental impact report (EIR). It received numerous comments and complaints, in particular opposing Teichert’s plan to locate the mine’s processing plant near existing residences and to direct truck traffic to and from the site on narrow, substandard roads abutted by existing residences. Teichert withdrew its proposal in 1995.
Subsequently, Teichert purchased 1,577 acres west of the original project site. It redesigned the project in response to many of the public’s concerns. It moved the processing plant to a remote location away from the residences, provided a direct truck route to Highway 65 to avoid using existing roads, and increased setbacks from abutting property owners.
In 1996, Teichert submitted revised permit applications incorporating these changes. The new proposal called for an 85-year project to mine and reclaim 1,000 acres of the now 3,455-acre site. Teichert would process 37 million tons of sand and gravel and 122 million tons of granite. Aggregate mining and reclamation would occur in nine successive phases, beginning on the site’s southwest area (phase 1) and moving in order to the northeast (phases 2-9).
The County and its consultant released a draft EIR in 1999, more than two years after Teichert submitted its revised applications. The draft EIR analyzed several project alternatives, including one that came to be designated as the “Mitigated Design Alternative.” This proposal would reduce the project’s length from 85 years to 40 years and reduce the mining and processing areas from 1,000 acres to 785 acres.
The County publicly circulated the draft EIR for 100 days, and received numerous comments. In response, the County revised 11 chapters of the draft EIR and six technical appendices. The County then recirculated the revised chapters and appendices for another 60 days (the revised draft EIR (RDEIR)), and received additional comments thereon.
Portions of the land proposed to be mined were covered by California Land Conservation Act of 1965 (Williamson Act) contracts that would prohibit mining. During 2000 and 2001, Teichert met with County staff regularly to resolve this and other issues. As a result of such a meeting held in November 2001, Teichert proposed to implement the Mitigated Design Alternative as its project, except it would change the phasing. Under the new phasing, mining would occur so as to avoid mining on those lands affected by the Williamson Act contracts until the contracts expired. Thus, instead of moving in order from southwest to northeast, aggregate mining and reclamation in general would begin in the middle of the site, go back southwest, then jump over the middle and continue to the northeast, still in nine phases. Using the former phase designations, mining would begin in former phase 4, proceed northeast to former phase 5, go back to former phases 3, 2, and 1, then go northeast again from former phase 6 through phase 9.
The County released the final EIR (FEIR) on January 21, 2002, some seven years after Teichert filed its initial application. This document incorporated the County’s responses to the comments received during both circulation periods. The FEIR mentioned the project could avoid conflicts with the Williamson Act by delaying mining on those lands affected by Williamson Act contracts. It did not, however, include a revised description of the project reflecting Teichert’s decision to proceed with that suggestion and change its phasing to avoid the affected lands, nor did it analyze whether the change in phasing created additional impacts.
Four days later, January 25, 2002, Teichert submitted a revised project application to implement the Mitigated Design Alternative project with the change to the phasing. A second proposed change involved relocating the portable processing plant to the site of the permanent plant. Teichert’s latest proposal became known as the Revised Mitigated Design Alternative.
Before the County Planning Commission, plaintiff Western Placer Citizens for an Agricultural and Rural Environment (WPCARE) and others objected to the proposed project and the adequacy of the FEIR on numerous grounds. On November 12, 2002, the planning commission certified the FEIR and unanimously approved the project.
WPCARE appealed the decision to the board of supervisors (the Board). On December 17, 2002, the Board denied the appeal, approved the revised project, and directed its staff to prepare findings and conditions of approval. On February 4, 2003, the Board formally approved the project.
WPCARE filed a petition for writ of mandate, alleging the County’s review of the project violated CEQA in numerous respects. The trial court disagreed with WPCARE on all but two grounds. It concluded the FEIR violated CEQA by (1) not describing the Revised Mitigated Design Alternative project with its new phasing; and (2) inadequately analyzing the availability of a long-term water supply. The court ordered a writ of mandate issue directing the County to set aside its approval of the project and certification of the FEIR, and to refrain from granting further approvals pending certification of a revised FEIR.
Teichert and the County challenge the trial court’s mling.
DISCUSSION
I
Standard of Review
We review the record de novo to determine whether the County prejudicially abused its discretion in certifying the FEIR and approving the project. Under CEQA, an abuse of discretion occurs if the County did not proceed in the manner required by law, its decision was not adequately supported by findings, or its findings were not supported by substantial evidence in light of the whole record. (Pub. Resources Code, §§ 21168, 21168.5.)
II
Revised Project Description
Teichert argues the trial court erred in determining the FEIR violated CEQA by not identifying and addressing the new phasing. It claims CEQA does not per se require a revised project description be included in the FEIR itself, and substantial evidence in the record demonstrated the changed phasing was not significant new information requiring additional analysis in, or recirculation of, the FEIR. We agree with Teichert.
A. Additional background information
WPCARE complained about the new project description not being included in the FEIR for further review. Responding to the complaints, County staff noted it had distributed Teichert’s new project description to the public at the Rural Lincoln Municipal Advisory Council on February 4, 2002, as part of a document it called a supplemental entitlement detail. The County asserted there was no requirement for a public review of the supplemental entitlement detail “because it serves as the project description upon which the staff prepares their recommendations.”
County staff agreed there were changes between the Revised Mitigated Design Alternative and the Mitigated Design Alternative, but “[i]n all cases the changes reflect an improvement in the environmental condition when compared to the original project or the mitigated design alternatives.”
Staff stated no further modification of the FEIR was required because the FEIR adequately analyzed the project and its impacts. The changes incorporated into the final proposed project “meet the intent of CEQA (i.e., lessening or eliminating environmental impacts) and show responsiveness to the issues raised.” A new draft EIR was not required because the “proposed project is, in all substantive respects, identical to the mitigated design alternative which was examined in the FEIR. The mitigated design alternative was specifically selected as the project description because of its ability to reduce and/or eliminate significant effects.”
Approving the project, the Board found the project “as approved is a modification of the mitigated design alternative that was considered in the FEIR. The modifications to the mitigated design alternative does [sic] not result in any additional impacts that were not analyzed in the FEIR.”
The trial court, however, concluded the Board could not make that finding without first including the new phasing in the EIR: “In their arguments, the parties treat the new phasing as raising a single question: [f] Was the new phasing ‘significant new information’ as defined in Guideline 15088.5(a), requiring that it be added to the RDEIR and that the RDEIR be recirculated before certification of the FEIR[?]
“But it really raises two questions: [