Western Placer Citizens for an Agricultural and Rural Environment v. County of Placer (3^rd Dist. Nov. 9, 2006)

By Maria Pracher and Julie Austin

In this new California Environmental Quality Act (CEQA) case, the Court of Appeal upheld the County’s EIR for a sand, gravel, and granite mining and processing project.  The court ruled on two important issues.  First, the County did not violate CEQA by failing to include and analyze a slightly revised project description submitted by the applicant after the final environmental impact report (EIR) had been prepared.  Coupled with this holding, the court found that the County’s decision not to prepare additional environmental review of the revised project was supported by substantial evidence in the record.  Second, the court determined that the EIR’s water supply analysis was adequate.  The court also found that the plaintiff had exhausted its administrative remedies.

After publication of the final EIR, the project sponsor submitted an application to revise its project to implement the EIR’s Mitigated Design Alternative with two modifications.  One modification proposed a new phasing plan to delay mining operations on land covered by Williamson Act contracts in order to avoid conflicts with those contracts.  A second modification relocated a portable processing plant to the site of the permanent plant.  The County found that the approved project (the modified Mitigated Design Alternative) was considered in the EIR and the modifications did not result in any new impacts.  The trial court concluded that the County was required to include the modifications in the new EIR before it could determine whether these modifications were significant enough to require  recirculation.  The Court of Appeal disagreed and found that CEQA does not require that all changes to a project description made after the final EIR is released but prior to its certification must be included in the EIR.  Instead, the County could determine whether the information is significant enough to require recirculation without including the project changes in the EIR.  In this case, the court determined the record contained substantial evidence supporting the County’s determination that the new information about the project did not require recirculation.  In fact, the County determined that the modifications to the project would further reduce its potential impacts.

The EIR identified multiple sources of water available to the project including a water entitlement from the Nevada Irrigation District, surplus water for sale from the Irrigation District, the project sponsor’s rights to use natural flows from a creek, groundwater, and natural precipitation.  The EIR also included information about pre-project and post-project conditions and demonstrated that, under the worst cast scenario, ample water would be available for the post-project condition.  The EIR noted that the Irrigation District cannot guarantee water supplies will always be sufficient to meet demand.  The court stated that water supplies need not be guaranteed in order to find an EIR sufficient.  By identifying existing, available, and sufficient sources for water or the project, the EIR was sufficient.  The EIR described potential drought conditions.  The court characterized drought conditions as “the status quo” because these impacts would occur with or without the project.  Unless the record showed that the project would exacerbate the severity of a drought or exacerbate the environmental consequences of a drought, the EIR need not contain additional discussion of the possible drought conditions.  The court distinguished this case from projects for which no adequate actual water supplies can be identified or project’s involving changes to the water supply sources.

The court also rejected the developer’s argument that the plaintiff failed to exhaust its remedies because it had not raised its challenges to the EIR with the same degree of specificity later raised in the trial court.  Specifically, the developer claimed that the plaintiff had not exhausted its administrative remedies because it challenged the adequacy of the EIR at administrative level solely on the ground that the revised phasing was significant information that required recirculation under CEQA.  The trial court, on the other hand, had concluded that all new information had to be included in an EIR, whether or not it was significant, before the County could determine that it was not significant enough to warrant recirculation—an argument not raised by the plaintiff at the administrative level but now being argued in court.  The court dismissed this argument and found that the plaintiff had sufficiently apprised the County and developer of its challenge to the adequacy of the EIR due to the failure to include and discuss the changed phasing for the new plan.  The court noted that less specificity is required to preserve an issue for appeal from an administrative hearing than from a judicial hearing.

For more information please contact Maria Pracher or Julie Austin.  Maria Pracher is special counsel in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco Office. Julie Austin is an associate in the Real Estate, Land Use, and Natural Resources Practice Group in San Francisco.