by William W. Abbott

An unheralded side effect of urbanization in California has been its effect on the dairy industry. Over the years, established dairies have been forced to relocate to new pastures in order to avoid the conflict between farm and urban uses. In flight from southern California’s Inland Empire and the pricey Bay Area, the new operations are settling into the Central Valley. As these operations relocate and expand in size, many face CEQA challenges. These challenges primarily focus on the side effects of air and water quality, along with odor and waste disposal. In Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, the Court of Appeal for the Fifth Appellate District recently affirmed the certification of an EIR for one of these new dairies.

The Diamond H. Dairy reflects modern operations, involving roughly 9000 cows. The operation consisted of approximately 200 acres of hard facilities, separation ponds and lagoons. Other aspects of the operation involved extensive field crops chosen for their nitrogen uptake capability. While the lead agency, Madera County, initially prepared a negative declaration, this was appealed to the board of supervisors who, in turn, ordered an EIR be prepared. The subsequently prepared EIR noted that the project would cause significant, unavoidable adverse effects on groundwater quality, air quality and odors. The Board certified the EIR and approved the project. Residents and an environmental group filed suit.

As with nearly all CEQA lawsuits, many of petitioners’ challenges were constructed around an argument that relevant information had been omitted. While the omission of information is not automatically reversible by a court, the appellate court affirmed CEQA’s role as a public disclosure statute. The role of public disclosure is so important such that even if there is substantial evidence to support the lead agency’s certification of the EIR, it may still be appropriate for the court to set aside the EIR certification if key information is omitted. Thus, it is not enough for an EIR to contain supporting evidence.

Next, the appellate court reviewed the EIR’s consideration of impacts to the kit fox. The EIR was based upon field studies, and had determined that quality habitat was lacking. As the project involved a relatively minor modification for existing agricultural operations, that impact would be less than significant. The appellate court expressly rejected the requirement that CDFG survey protocols were required as a mandatory element of EIR certification. These protocols were not requested by CDFG or USFWS, nor did these agencies comment negatively on the field surveys employed in the EIR. Rather, the demand for the survey came from the petitioners.

The appellate court also correctly noted that CEQA did not mandate the lead agency to make a determination regarding the need for a federal “take” permit under the ESA.

The petitioners also challenged the Board’s rejection of a project alternative of an 1800 head facility. The EIR noted that there would be proportionate reductions in various impact categories, and acknowledged the unanswered question of the economic feasibility of a smaller operation. The board of supervisors heard evidence that the smaller operation was infeasible and would not meet the applicant’s objectives. The appellate court ruled that information regarding economic feasibility was not required to be circulated as part of the EIR, but could be brought forward outside of the EIR and as part of review of the project merits.

Not surprisingly, the petitioners challenged the cumulative impact analysis as being conclusionary and without evidentiary support. The appellate court rejected this claim finding that the EIR analyzed other dairy operations in the valley, evaluated (and found unlikely) that there would be cumulative effects but rather that the impacts would be project specific. The lead agency also found that the petitioner’s cited study of groundwater contamination was factually distinguishable because the cited study involved animal concentrations which were significantly greater.

There are five morals to this story: First, CEQA does not require that every study requested by a petitioner be performed. Second, CEQA is not required to resolve federal ESA requirements. Third, economic feasibility of alternatives may come from a variety of sources. Fourth, cumulative impact considerations need not be exhaustive. Fifth and finally, when in doubt, the lead agency should err on the side of finding impacts to be significant and not mitigated to a less than significant level.

Make mine a latte, extra milk please.

William W. Abbott is a partner with Abbott & Kindermann, LLP in Sacramento. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.