By William W. Abbott
Unlike residential or commercial development projects with somewhat predictable levels of activity (and in turn, environmental effects), mining projects involving rock, sand and gravel can vary widely based upon local economic conditions. The recent case of San Joaquin Raptor v. County of Merced (April 10, 2007) 2007 Cal. App. LEXIS 516 examines the duty of the lead agency to also evaluate impacts associated with periodic or sustained peaks, and not just to rely upon historic averages. The decision also addresses deferred mitigation in the area of biological impacts.
The San Joaquin Raptor case involves an existing mining operation. The mine operator requested an amended conditional use permit (“CUP”), which would expand the physical breadth, depth and term of the existing operation. If granted, the CUP would operate to extend the expected useful life of the mine from five to thirty years, depending upon actual demand levels. The Board of Supervisors eventually granted the CUP and nearby property owners subsequently filed suit challenging the EIR. The trial court ruled for the County and the real party in interest, but the Fifth Appellate District reversed.
During the four years prior to the CUP amendment request, the mine operated with an average production rate of 240,000 tons per year (“TPY”), with a high of 312,890 tons. For CEQA purposes, the project was described as having an average production of 260,000 TPY in the DEIR, but the CUP would allow for a maximum production level of 550,000 TPY. The court pointed out that there were numerous assurances in the DEIR that there would be no increase in production. The EIR also evaluated the effect of nighttime operations. This practice was necessitated by delivery specifications of certain users such as CalTrans. During these nighttime operations, the EIR stated that no mining operations would occur. Activities would be limited to batch plant operations and loadout. The EIR’s air quality analysis looked at a higher mining production of 550,000 TPY, reflecting that the total amount of mined material would exceed the amount available for offsite delivery.
The opponents’ first attack was on the project description. Although the EIR and record set forth the proposition that the proposed project was essentially an extension of the existing operation, the court noted that there were numerous provisions which allowed the mining to increase up to 500,000 TPY. Because the discussion of the potential level of activity was not stable in the document, the court felt the document misled the public. The court went on to observe that the allowance for fluctuating production levels tainted the impact analysis as well. For example, the road impact analysis and related mitigation measures were based upon 260,000 TPY, not the 550,000 TPY. If the mine operated at maximum production, presumably the impacts would be greater, but no added mitigation was mandated.
The opponents also challenged the baseline for determining impacts. As a result of prior case law, lead agencies can use the existing mine operation as the baseline, and base the impact analysis on the increment of change over and above that operation. The question then was whether the County adequately described the baseline. In perhaps what was an overly critical reading of the EIR, the appellate court found the lead agency’s description of the baseline to be lacking for necessary detail. The main EIR text included a generalized discussion of the existing level of baseline activity, but it lacked much in the way of detail, such as quantification of production levels. The court said, “The decision makers and general public should not be forced to sift through obscure minutiae or appendices in order to ferret out the fundamental baseline assumptions that are being used for purposes of the environmental analysis.”
Turning next to the specific impact discussions of water supply, water quality, traffic and biological resources, the court also ruled that the EIR’s approach was invalid. As noted above, the EIR’s focus was on impacts at the average production level of 260,000 TPY. Since the court had determined that actual production could reach 550,000 TPY, the EIR’s consideration of water supply and water quality lacked substantial evidence to support the conclusion that the project impacts would merely be a continuation of existing impact levels.
As road impacts were calculated based upon impacts to roads measured over a 20 year time period, the court said that determining impacts based upon the annual average of 260,000 TPY was not unreasonable, but that the EIR was required to include some discussion of the impacts associated with higher production years. For air quality, the DEIR examined the impacts based upon 260,000 TPY. In response to comments, the FEIR examined impacts at the maximum production number. As the impacts remained the same based upon the San Joaquin Valley Air Pollution Control District thresholds of significance, no recirculation was required.
Finally, with respect to biological impacts, the EIR established setbacks and protective measures for vernal pools on the project site. The EIR assumed (a point highlighted by the court) that sensitive species were present, and included an additional 300-foot setback from vernal pools or ephemerally wet drainage swales. Protocol species surveys were required, and if the species were detected, either the 300-foot setback remained in place or the project could proceed based upon management plans approved by CDFG and USFWS. The opponents challenged this practice as the management plans would be approved outside of the public review and CEQA disclosure steps. In agreeing, the court did not invalidate the practice in every instance and instead noted that in this case there was a lack of performance criteria or standards. The court also reached a similar result with respect to burrowing owl impacts and mitigation, stating:
Although many valid mitigation measures are described, no reason is given for deferral of the land management plan …, nor are any criteria or standards of performance set forth. We conclude the EIR improperly deferred formulation of this mitigation measure as well.
In terms of the practical ramifications, this case stresses the need for EIRs to examine not just average effects, but circumstances involving sustained peaks. The court’s holding regarding biological impacts warrants review as well. The court did not invalidate the use of later prepared plans, but certainly made it more difficult. If the plans are not prepared concurrently with the EIR, then the document needs to set forth the rationale for why the plans cannot be prepared as part of the EIR, but also include criteria and/or performance standards.
 In the event that production hit the maximum number, there was no provision for an offsetting limitation. In other words, the mine could operate at maximum production every year, resulting in a use twice as intensive as actually studied.
 The use of assumptions as to the presence of species is common practice and should be fostered. The results of this case may likely encourage the opposite practice.
Bill Abbott is a partner with Abbott & Kindermann, LLP. 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.