By Cori Badgley

In Gray v. County of Madera (2008) 167 Cal.App.4th 1099, the Court of Appeal, Fifth Appellate District grappled with several issues related to the California Environmental Quality Act (“CEQA”) along with the Senate Bill 610 water supply analysis, the Surface Mining and Reclamation Act, and general plan consistency. Among the court’s various holdings, the court found examples of improper deferral of mitigation under CEQA. Additionally, the court refined the definition of a “probable future project” for purposes of cumulative impacts. The project at issue involved the development of an aggregate mining operation in the unincorporated area of Madera County ("County").


Impacts to Surface Water and Groundwater

In challenging an EIR, petitioners made the following arguments in relation to impacts to surface water and groundwater: 1) the EIR improperly relied on a groundwater analysis prepared by a consultant, and 2) the mitigation measures were inadequate.

On the issue relating to the groundwater report, petitioners attempted to undermine the report by showing a difference in pumping rates from those proposed by the applicant and those alleged in the report. Since the project’s water supply would be drawn from wells on the property, the report identified the various wells and provided recommendations on the pumping rates for the wells. Instead of following these recommendations, the applicant identified higher pumping rates at two of the wells. These two wells were less likely to impact the neighbors’ drinking water supply, and although the report did not recommend these pumping rates, it had analyzed the wells at the applicant’s desired rates. 

The court found that although the numbers differed, the report still supported the County’s finding that the wells would be sufficient to provide the necessary water to the project. Additionally, the court found that petitioners misstated the contents of the report. Under these circumstances, the court held that no further investigation was necessary and certain inconsistencies between the report and data from the project proponent relating to the amount of water to be produced from each well did not constitute an abuse of discretion. 

As to the challenge to the mitigation measures, petitioners argued that the mitigation measures failed to properly mitigate the impacts to groundwater. Mitigation Measure 3.9-1a provided three options to the project proponent in the event that the neighboring private wells were adversely impacted: 1) “rehabilitate or deepen the private wells;” 2) “provide incremental replacement water by providing a connection to the water system of the Project;” or 3) “provide full replacement water by providing a connection to the water system of the Project.” Mitigation Measure 3.9-1b must be implemented if Measure 3.9-1a fails to provide enough consumptive water. Measure 3.9-1b requires a “hydrology study” and provides the following options: 1) “supply replacement water for consumptive use in the form of bottled water or potable water from some other source;” or 2) build a “water system constructed under federal, state, and county guidelines to supply potable water to affected neighbors.”

In holding that the mitigation measures were inadequate, the court focused on three aspects of the mitigation measures. First, the court found that none of the mitigation measures would “provide neighboring residents with the ability to use water in substantially the same manner that they were accustomed to doing if the Project had not existed.[1]” Not only would this be an inconvenience, but it might result in certain regulatory oversight that was not necessary under the neighbors’ original source of water due to connections that may be created between the various well systems. As to the bottled water, the court pointed out that the landowners will have fluctuating water usage, and it would not be feasible to predict the amount of water needs in advance.

Second, the “EIR does not address the potentially significant impacts associated” with the mitigation measures. What impact would the use of non-potable water to irrigate have on livestock, wildlife and habitats? How would the bottled water be replaced and recycled? What would the impacts of a new water system be? The EIR failed to address any of these issues.

Third, the court found that Measure 3.9-1b improperly deferred mitigation to a later date. Although mitigation may be deferred if there is a specific performance standard associated with the deferred mitigation, the court found that no such performance standard had been adopted. Instead, the County “had committed itself to a specific mitigation goal,” not a specific standard. The court held that this was insufficient.

On these grounds, the court agreed with petitioners and held that the mitigation measures were inadequate.

Economic Impacts

Petitioners attempted to allege that the County had failed to adequately address economic impacts in its EIR. However, as the court curtly pointed out, CEQA does not require an analysis of economic impacts unless those impacts are tied to a physical environmental impact.

Impacts to Traffic

Similar to petitioners’ argument relating to surface and groundwater, petitioners claimed that the mitigation measures improperly deferred mitigation. The court again agreed with petitioners. Although petitioners challenged several mitigation measures, the court found that only one mitigation measure was inadequate. This mitigation measure required the project proponent “to pay a long-term maintenance fee based upon annual aggregate tonnage mined.” However, the measure failed to provide a formula for calculating the fee and there was no specific plan for the improvements the fee would pay for. The court found that without a specific improvement plan, there was no definite commitment to make the improvements. Additionally, without a specific improvement plan or other evidence of when the improvements would take place, the improvements may be instituted long after the negative impacts of the project occurred. Therefore, the court held that the mitigation measures were inadequate.

Impacts to Noise

Petitioners’ argument in relation to noise impacts focused not on the mitigation measures, but on the level of significance used by the County in finding that the impacts to noise were less than significant. In agreeing with petitioners, the court found that the EIR failed to take the cumulative noise impacts into account. Although a 2.1 dBA increase may not be significant by itself, the traffic noise already exceeded the County’s maximum acceptable noise level for the area. Thus, it is possible that a 2.1 dBA could be a significant impact. Because the EIR ignored the cumulative impacts, the court held that the noise impact analysis was inadequate.

Impacts to Biological Resources and Wildlife Habitat

Petitioners claimed that the County used an incorrect methodology in evaluating the impacts to biological resources and wildlife habitat, and the County should have used the guidance promulgated by California Department of Fish and Game in cooperation with the United States Fish and Wildlife Service. The court held that CEQA does not require the County to use a specific methodology or perform countless studies, as long as its decision is supported by substantial evidence. In this case, the court found that the studies performed by the County constituted substantial evidence, and therefore, the biological resources impact analysis was adequate.

Impacts to Air Quality

Petitioners attempted to make the same argument as to air quality impacts as it had to biological resources impacts. The court again disagreed with petitioners and held that the studies performed supported the County’s decision.

Impacts to Aesthetics

Similar to the claims relating to water and traffic, petitioners argued that mitigation of lighting and glare had been improperly deferred. Unlike petitioners’ previous arguments on deferred mitigation, the court held that the mitigation was adequate. The mitigation measure stated:

Exterior lighting shall be designed and maintained in a manner such that glare and reflections are contained within the boundaries of the parcel, and shall be hooded and directed downward and away from adjoining properties and public rights-of-way. The use of blinking, flashing or unusually high intensity or bright lights shall not be allowed. All lighting fixtures shall be appropriate to the use they are serving, in scale, intensity and height. Further, all exterior lighting will be designed, installed and operated as required by the Planning Director.

The court found that this mitigation sufficiently committed the project proponent to future mitigation by detailing specific performance standards. Although the specifics of how the specific performance standards would be met was lacking, this aspect of the mitigation could be properly deferred as long as a specific performance standard was in place. Therefore, the court held that the mitigation was adequate.

Cumulative Impacts

Petitioners argued that the EIR failed to adequately analyze the cumulative impacts by ignoring the impacts of other proposed projects and failing to provide information on where the documents relied upon in the EIR could be found. 

The court began by clarifying that only “probable future projects” must be analyzed under the cumulative impacts analysis. The court held that “any future project where the applicant has devoted significant time and financial resources to prepare for any regulatory review should be considered as probable future projects for the purposes of cumulative impact.” This new rule announced by the court may have significant repercussions on the number of projects an EIR must account for. 

In this case, the County could not locate any probable future projects that had been filed for review with the County Planning Department. Therefore, substantial evidence supported the DEIR’s exclusion of these purported future projects. The court also clarified that the County “had the discretion to set the date of the application for the current Project as the cutoff date to determine which projects should be included in the cumulative impacts analysis.”

Although the court found for the respondents on the substantive issues, the court held that the cumulative impacts analysis was inadequate because it failed to identify the planning documents used to conduct the analysis and state where those documents could be viewed by the public. Because of this failure, the court found that there was no substantial evidence supporting the EIR’s analysis of cumulative impacts.

Growth Inducing Impacts

Petitioners claimed that the growth inducing impacts were not adequately analyzed because the EIR failed to conclude that the reduced cost of aggregate in the area would be a growth-inducing impact. In disagreeing with petitioners, the court found that although reducing the cost of aggregate might lower one of the barriers to growth, there were other barriers that the DEIR could reasonably conclude still existed. Therefore, the County adequately analyzed the growth inducing impacts.

Non-CEQA Issues

General Plan Consistency

The court emphasized that “the County is entitled to considerable deference in the interpretation of its own General Plan.” The DEIR concluded that the project was consistent with the general plan except in relation to air quality and noise. As the court invalidated the noise analysis in a prior portion of its opinion, the court found that the “Statement of Overriding Considerations did not properly consider the inconsistency of the Project’s cumulative noise impacts,” and therefore, the County improperly approved the project.

Surface Mining and Reclamation Act (“SMARA”)

Petitioners attempted to argue that the Reclamation Plan failed to meet the requirements of SMARA, but petitioners based their argument on a previous version of the Reclamation Plan. The court held that in light of petitioners’ failure to attack the new plan, petitioners’ writ of mandate in relation to this claim was denied.

Senate Bill 610 (“SB 610”)

The court began by noting that the project, by itself, did not impact a “public water system,” and therefore, it was not required to conduct a water supply assessment pursuant to SB 610. However, the court looked back to its discussion under surface and groundwater impacts and found that the inadequate mitigation measure that may result in construction of a water system brought the project under SB 610. Therefore, a water supply assessment must be conducted to evaluate the potential construction of a water system, or the County must provide an explanation as to why it does not have to comply with SB 610.

Although the court may have reached the proper conclusion, its analysis appears to conflict with the actual requirements under SB 610. SB 610 begins by explaining that a water supply assessment must be done for every project and then goes on to define what a project is. SB 610 then identifies who will prepare the SB 610 assessment. According to the SB 610 Implementation Guidebook, “[i]f the lead agency is unable to identify a water supplier (public water system as defined in SB 610), the lead agency is responsible for compliance with the requirements of SB 610.” 

Here, the court stated that “SB 610 . . . requires a water supply assessment only if a ‘public water system’ is impacted by the project.” On the contrary, SB 610 requires a water supply assessment, but it is to be conducted by the lead agency and not the water supplier. Because the court’s analysis is based on the faulty premise that the impact on a public water system is determinative, it is unclear whether the court’s conclusion is correct. If the mine does not qualify as a project, then no water supply assessment is necessary, regardless of any potential future water system. On the other hand, if the mine does qualify as a project, a water supply assessment is necessary, regardless of whether or not a public water system will be impacted in the future.


In spite of finding the majority of the EIR adequate, the court invalidated the EIR based on improper deferral of mitigation measures relating to water supply and traffic and inadequate analyses of noise and cumulative impacts. This case illustrates the importance of a specific standard of performance if the details on how an impact will be mitigated must be deferred. Additionally, this case announced a high standard for what constitutes a “probable future project” for purposes of conducting a cumulative impact analysis – “any future project where the applicant has devoted significant time and financial resources to prepare for any regulatory review.”

Cori Badgley is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP 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.

[1] This appears to be a court manufactured standard. The court cites no statutory or case law reference to support this standard. Appendix G of the CEQA Guidelines provides a sample checklist for determining whether there will be potential impacts to certain resources and what the probable level of impact will be. If the questions listed in the checklist are answered affirmatively, the impact is potentially significant. Section VIII(b) states: “Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre-existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)?” Section XVI(b) states: “Require or result in construction of new water or waste water treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects?” The standard pronounced by the court requiring that the mitigation provide water in “substantially the same manner” does not logically connect with the standards presented in Appendix G.