Bay Area Clean Environment v. Santa Clara Co. ( 2016 )

Filed 8/31/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
BAY AREA CLEAN ENVIRONMENT, H040789
INC., (Santa Clara County
Super. Ct. No. 1-12-CV229236)
Plaintiff and Appellant,
v.
SANTA CLARA COUNTY et al.,
Defendants and Respondents;
LEHIGH SOUTHWEST CEMENT
COMPANY et al.
Real Parties In Interest and
Respondents.
The Permanente Quarry (Quarry) is a 3,510-acre surface mining operation
producing limestone and aggregate for the manufacture of cement, and is located in an
unincorporated area of Santa Clara County. The Quarry has been in existence since
1903, and is currently owned by Lehigh Southwest Cement Company and Hanson
Permanente Cement (collectively “Lehigh”).
At issue in this case is the Santa Clara County Board of Supervisors’ (County)
2012 approval of a reclamation plan amendment for closing and reclaiming the Quarry’s
mining operations over a 20-year period. The County approved the reclamation plan
amendment following a review under the California Environmental Quality Act (CEQA)
(Pub. Resources Code, § 21000, et seq.) and certification of an environmental impact
report.
Bay Area Clean Environment, Inc. (Bay Area) is a non-profit organization that
represents residents of Santa Clara County. On July 26, 2013, Bay Area filed a petition
for peremptory writ of mandate challenging the County’s approval of the reclamation
plan amendment. Bay Area asserted claims under the Surface Mining and Reclamation
Act (SMARA) (Pub. Resources Code, § 2710, et seq.) and CEQA.
The trial court denied Bay Area’s writ petition, affirming the County’s approval of
the reclamation plan amendment. Bay Area appeals the denial of the petition, arguing
that the trial court erred in affirming the County’s decision, because the reclamation plan
amendment does not comply with SMARA and CEQA.1
STATEMENT OF THE FACTS AND CASE2
The Quarry is located at the end of Permanente Road, which is the continuation of
Stevens Creek Road in unincorporated Santa Clara County near the western border of the
1
The Towns of Los Altos Hills and Atherton, and the cities of Cupertino and Los
Altos filed an application to file an amicus curiae brief in support of Bay Area. County
requested leave to file an objection to the application. We granted County leave to file
the objection, and deferred consideration of the application and the objection with the
appeal. County’s objection to the application to file an amicus brief is overruled and the
application is granted.
2
Bay Area filed a request for judicial notice that we deferred for consideration
with the appeal. The first item that is the subject of Bay Area’s request is the fact that
Midpeninsula Regional Open Space District brought an action against Santa Clara
County alleging the same claims as were alleged in the trial court in this case.
Midpeninsula filed a notice of appeal in this court in case number H040839 and later
dismissed the appeal. We take notice of the action under Evidence Code section 452,
subdivision (c).
Bay Area’s request that we take judicial notice of information contained in the
Federal Register about aquatic life is denied, because it is not properly noticeable under
Evidence Code section 452.
2
city of Cupertino. Since 1903, the Quarry has been conducting a surface mining
operation producing limestone and aggregate.
In 1939, The Permanente Corporation (Permanente) purchased the Quarry
property, which at that time consisted of approximately 1,300 acres. From the date of the
original purchase in 1939, Permanente expanded the Quarry’s operations, opening new
mining areas on the property, and acquiring adjacent land. By 2011, the Quarry had
grown to 3,510 acres.
The Quarry has a central pit where limestone and other rock are mined. There are
two overburden3 storage areas surrounding the pit. The Quarry also contains a rock
crushing area and administrative offices. The quarry operates within the upper portion of
the Permanente Creek watershed. The creek flows east and borders the south side of the
pit, then leaves the Quarry property and runs to the bay.
The Quarry’s first reclamation plan was approved by the County in 1985, and was
meant to be updated after a 25-year period. In 2006, the Department of Conservation
found that the Quarry was in violation of SMARA, because the 1985 reclamation plan
did not provide a solution for slope instability. In response to the Department of
Conservation’s finding, the County issued a notice of violation to the Quarry in
October 2006, ordering that the 1985 plan be amended to address slope instability, and to
expand the boundaries to encompass all areas disturbed by mining.
In addition to slope instability occurring in the Quarry, selenium levels
downstream of the Quarry were discovered to be above normal levels. The elevated
selenium levels could adversely affect aquatic life in the downstream areas. The
selenium levels were the result of mining operations that caused limestone surfaces to be
exposed to oxygen and water.
3
Overburden in mining is the “material overlying a deposit of useful geological
materials or bedrock.” (Merriam-Webster 10th Collegiate Dict. (2001) p. 826.)
3
In April 2007, Lehigh filed an application to amend the 1985 reclamation plan.
Since that time, three amendment applications have been filed. The 2007 and 2010
amendments included proposals to open new mining areas to replace the reclaimed pit.
Specifically, the 2010 amendment proposed the creation of a new pit in an area south of
Permanente Creek, called the South Quarry. The July 2011 application that is the subject
of this appeal did not in include the South Quarry proposal, and superseded all earlier
applications.
The County issued a draft environmental impact report for public review on
December 23, 2011. The County set a 60-day review period, ending February 21, 2012.
The County Planning Commission held five workshops to receive public input and
comment. In May 2012, the County published the final environmental impact report that
consisted of the draft as well as public comments and revisions to the draft. At the
June 7, 2012 meeting, the Planning Commission approved the reclamation plan
amendment, certified the final environmental impact report, and made CEQA findings.
Following an appeal of the County Planning Commission’s action, the County
reviewed the reclamation plan amendment. On June 26, 2012, the County voted to
approve the reclamation plan amendment and certify the environmental impact report. In
doing so, the County found that the reclamation plan amendment was designed to protect
water quality and was consistent with SMARA and County ordinances. The County also
found that the reclamation plan amendment would achieve compliance with all applicable
water standards and the 5.0 micrograms per liter selenium standard. The County found
that the potential impacts of excess selenium runoff during the 20-year period of
reclamation were significant and unavoidable, because the effectiveness of the mitigation
measures during that period was uncertain. Finally, based on information provided by
water-quality experts, the County found that a water treatment facility was not feasible
4
because the technology for such a facility would be unproven and the costs were
disproportionately high.4
On July 26, 2012, Bay Area filed a petition for writ of mandate in the Santa Clara
County Superior Court, asserting claims under SMARA and CEQA. On
November 29, 2012, the Midpeninsula Regional Open Space District (Midpeninsula) also
filed suit alleging CEQA claims. The two actions were consolidated for hearing and on
September 13, 2013, the court affirmed the County’s approval of the reclamation plan
amendment. A consolidated judgment was entered denying both petitions for writ of
mandate. Midpeninsula filed a notice of appeal in this court on February 27, 2014, and
Bay Area filed its notice on March 3, 2014.
Midpeninsula settled its dispute with Lehigh, and dismissed its appeal on August
20, 2014. Bay Area proceeds with this appeal.
DISCUSSION
On appeal, Bay Area asserts that in approving the reclamation plan amendment for
the Quarry, the County violated SMARA and CEQA. Bay Area also argues that the trial
court erred in allowing the County to augment the administrative record.
SMARA Claims
Bay Area argues that the County abused its discretion when it determined that the
reclamation plan amendment satisfied SMARA regulatory standards for water quality and
wildlife habitat. (Pub. Resources Code, § 2710, et seq.) The reclamation plan
amendment in this case was designed to reclaim all of the land affected by mining
operations in the Quarry and would occur over a 20-year period.
4
Bay Area filed a motion to strike portions of the County’s brief that included
information regarding Lehigh’s implementation of a water treatment system to reduce
selenium levels. This information was not part of the administrative record and was not
considered by the County. Bay Area’s motion to strike page 19 in the final paragraph
beginning, “These protections . . .” through the end of the paragraph on page 20, and
page 25, last line, parenthetical phrase “(which is now in operation)” is granted.
5
SMARA was enacted in 1975 to implement a comprehensive surface mining and
reclamation policy, which would, among other objectives, prevent or minimize adverse
environmental effects and eliminate residual public health and safety hazards generally
attendant to surface mining. (Pub. Resources Code, § 2712.) Also in 1975, the County
amended its mining ordinance to require mine operators to periodically obtain a
certificate of compliance. A certificate of compliance verifies that existing mining
operations comply with permit conditions, County ordinances, and federal and state
statutes. (Santa Clara County Code, §§ 16.54.020, 16.54.100.) In 1987, SMARA was
amended to require existing mining operations without approved reclamation plans to
submit proposed reclamation plans by March 31, 1998 for approval by the lead agency.
(Pub. Resources Code, § 2770, subds. (a), (b).) “Reclamation” is land treatment that
minimizes the adverse effects of mining operations so that mined lands may be reclaimed
to a usable condition. (Pub. Resources Code, § 2733.)
Approval of a reclamation plan under SMARA is reviewed for abuse of discretion
pursuant to Code of Civil Procedure section 1094.5. (Hansen Bros. Enterprises, Inc. v.
Board of Supervisors (1996) 12 Cal. 4th 533, 543.) We consider all reasonable inferences
from the administrative record in favor of the agency. (Evid. Code, § 664; Norris v. State
Personnel Bd. (1985) 174 Cal. App. 3d 393, 396.)
Water Quality
SMARA’s water quality provisions state the following: “(a) Surface mining and
reclamation activities shall be conducted to protect on-site and downstream beneficial
uses of water in accordance with the PorterCologne Water Quality Control Act, Water
Code section 13000, et seq., and the Federal Clean Water Act, 33 U.S.C. section 1251, et
seq. (b) The quality of water, recharge potential, and storage capacity of ground water
aquifers which are the source of water for domestic, agricultural, or other uses dependent
on the water, shall not be diminished, except as allowed in the approved reclamation
6
plan. (c) Erosion and sedimentation shall be controlled during all phases of construction,
operation, reclamation, and closure of a surface mining operation to minimize siltation of
lakes and watercourses, as required by the Regional Water Quality Control Board or the
State Water Resources Control Board. (d) Surface runoff and drainage from surface
mining activities shall be controlled by berms, silt fences, sediment ponds, revegetation,
hay bales, or other erosion control measures, to ensure that surrounding land and water
resources are protected from erosion, gullying, sedimentation and contamination. Erosion
control methods shall be designed to handle runoff from not less than the 20 year/1 hour
intensity storm event.” (Cal. Code of Reg., tit. 14, § 3706.)
The County found that the reclamation plan amendment met the standards for
water quality as set forth in SMARA. In making this finding, the County relied on a
hydrologic investigation prepared by Golder Associates that was contained within the
reclamation plan amendment itself. The investigation stated different types of water
sampling, laboratory analysis and testing, and included the collection of water samples in
Permanente Creek and other nearby creeks, groundwater sampling from Quarry wells,
and field “wall wash” tests.
In addition to the investigation report, the reclamation plan amendment also
contained a water quality report that was prepared by Strategic Engineering & Science,
Inc., a company specializing in water analysis. The report contained analysis of water
data that had been collected by Golder, and provided a prediction of future water quality
if the reclamation plan amendment were to be implemented. The report projected that the
strategies stated in the reclamation plan amendment would amount to the water quality
meeting acceptable standards. The specific reclamation strategies included backfilling of
the Quarry pit and placing non-limestone on the exposed areas of limestone which would
reduce the amount of the Quarry’s release of selenium. In addition, the Quarry’s release
of selenium would be reduced by mixing organic matter into the backfill.
7
Bay Area concedes that when completed, the reclamation plan amendment would
meet the requirements of California Code of Regulations, Title 14, sections 3706 and
3710. However, Bay Area argues that during the 20-year interim period of the
reclamation activities, water quality downstream of the Quarry would deteriorate because
there would be an increase in selenium contamination in Permanente Creek. Specifically,
Bay Area asserts that during the interim period, selenium-containing limestone and
overburden would be deposited in and moved around within the Eastern Mineral Storage
Area and the Quarry pit. According to Bay Area, the continued degradation of water
quality due to selenium contamination during the interim period would violate SMARA.
Bay Area’s argument that the reclamation activities would cause further water
contamination and would violated SMARA is inconsistent with the provisions of
SMARA itself. Specifically, California Code of Regulations, Title 14, section 3706,
subdivision (b) provides that water quality may be affected if it is necessary to complete a
reclamation plan. Here, according to SMARA, the County had discretion to allow
reclamation actions that were necessary to achieve compliance with federal and state
water laws, including potential additional selenium deposits in the water. This
occurrence as a result of the reclamation activities does not mean that the reclamation
plan amendment violates SMARA.
Here, the record supports the County’s finding that the reclamation plan
amendment complies with SMARA with regard to water quality. The County did not
abuse its discretion.
Wildlife Habitat
In addition to water quality, Bay Area also argues that the reclamation plan
amendment does not comply with SMARA’s standards for preservation of wildlife
habitat. California Code of Regulations, Title 14, section 3703, subdivision (b) provides:
“Wildlife habitat shall be established on disturbed land in a condition at least as good as
8
that which existed before the lands were disturbed by surface mining operations, unless
the proposed end use precludes its use as wildlife habitat or the approved reclamation
plan establishes a different habitat type than that which existed prior to mining.”
The California red-legged frog (frog) is protected under the Federal Endangered
Species Act, and lives in Permamente Creek downstream of the Quarry pit and the
eastern mineral storage area. The frog was found in the lower segment of the creek
outside of the reclamation plan amendment’s boundary in 1997. The frog has remained
confined to this area since its discovery.
Bay Area argues that the reclamation plan amendment does not comply with the
wildlife provisions of SMARA, because it does not specifically mention the frog. In
addition, Bay Area asserts that the reclamation plan amendment does not protect the frogs
that are located downstream of the Quarry from selenium released by the reclamation
work itself.
While the reclamation plan amendment does not itself mention the frog, the record
in this case shows that a study of wildlife species was appended to the reclamation plan
amendment entitled “Biological Resources Assessment,” which included a description of
the frog’s habitat and results of surveys tracking the location of the frog within the
vicinity of the Quarry. The assessment stated that because the frog was not found within
the reclamation plan amendment boundaries, it would not be directly affected by the
reclamation activities. However, the assessment also provided protective measures such
as pre-construction surveys and daytime only work to limit the potential risk of harming
the frog if it swam upstream into Permanente Creek.
In addition, the environmental impact report analyzed the potential selenium
impact to aquatic wildlife downstream of the creek, including the frog. The report
recommended measures to mitigate the effect of the selenium runoff. These measures
included the study and design of a water treatment facility and water protection measures.
9
However, the report concluded that the impacts of selenium discharge to aquatic life
downstream of the Quarry as a result of reclamation activities were significant and
unavoidable, because the effectiveness of the proposed mitigation measures was
unknown.
In its June 26, 2012 findings, the County adopted the information in the
environmental impact report, and imposed new water protections as suggested in the
report, and concluded that the selenium runoff impacts were significant and unavoidable.
Contrary to Bay Area’s assertion, the record supports the conclusion that impacts
of the reclamation activities on the frog as a result of reclamation activities were
considered by the County, and were mitigated to the extent possible under the
circumstances. The County’s conclusion that the reclamation plan amendment ultimately
protected the frog and its habitat is supported by the record. The record shows that the
reclamation plan will reduce the selenium levels in Permanente Creek and will ultimately
improve the conditions for the frog. The reclamation plan amendment also adopted the
provisions of the environmental impact report to restrict work near the creek and to
conduct pre-construction surveys of the area so that the frog would not be directly
affected by the reclamation.
Office of Mining Reclamation’s Statements Related to SMARA
Bay Area argues that the statements of the Office of Mining Reclamation to the
Department of Conservation that the reclamation plan amendment complied with
SMARA were not substantial evidence to support the County’s findings in this case.
The Department of Conservation is a state agency that oversees the administration
of SMARA in reclamation plans. (See Dept. of Conservation v. El Dorado County
(2005) 36 Cal. 4th 971, 988-989.) The Department of Conservation reviews all new and
amended reclamation plans. (Pub. Resources Code, § 2774, subds. (c) & (d).) In its
10
regulatory role, the Department of Conservation is permitted to appeal and comment at a
public hearing to review a reclamation plan. (Id.)
Here, based on the statements of the Office of Mining Reclamation, the
Department of Conservation made a formal determination that the reclamation plan
amendment complies with the standards set forth in SMARA, including those for water
quality and wildlife habitat. (Code of Regulations, tit. 14, §§ 3703, 3706.) The
Department of Conservation’s conclusion that the reclamation plan amendment complied
with SMARA constitutes substantial evidence upon which the County relied in its
findings.
Conclusion on the SMARA Claims
We find that the County did not abuse its discretion when it determined that the
reclamation plan amendment satisfied SMARA’s regulatory standards for water quality
and wildlife habitat. (Pub. Resources Code, §§ 2710, et seq.) In addition, the statements
of the Office of Mining Reclamation were properly considered by the County and
provided substantial evidence to support the County’s findings.
CEQA Claims
Bay Area asserts that the environmental impact report for the reclamation plan
amendment violates the provisions of CEQA. Specifically, Bay Area argues that the
environmental impact report does not state a sufficient cumulative impact analysis, and
that the County’s CEQA findings supporting certification of the report are not supported
by substantial evidence.
“A public agency must prepare an [environmental impact report] or cause an
[environmental impact report] to be prepared for any project that it proposes to carry out
or approve that may have a significant effect on the environment. (Pub. Resources Code,
§§ 21100, subd. (a), 21151, subd. (a); Guidelines, § 15064, subd. (a)(1).) The
[environmental impact report] must describe the proposed project and its environmental
11
setting, state the objectives sought to be achieved, identify and analyze the significant
effects on the environment, state how those impacts can be mitigated or avoided, and
identify alternatives to the project, among other requirements. (Pub. Resources Code,
§§ 21100, subd. (b), 21151; Guidelines, §§ 15124, 15125.)
“The agency must notify the public of the [draft environmental impact] report,
make the draft [environmental impact report] and all documents referenced in it available
for public review, and respond to comments that raise significant environmental issues.
(Pub. Resources Code, §§ 21091, subds. (a), (d), 21092; Guidelines, §§ 15087, 15088.)
The agency also must consult with and obtain comments from other agencies affected by
the project and respond to their comments. (Pub. Resources Code, §§ 21092.5, 21104,
21153; Guidelines, § 15086.) It must prepare a final [environmental impact report]
including any revisions to the draft [environmental impact report], the comments received
from the public and other agencies, and responses to comments. (Guidelines, §§ 15089,
subd. (a), 15132.)
“An agency may not approve a project that will have significant environmental
effects if there are feasible alternatives or feasible mitigation measures that would
substantially lessen those effects. (Pub. Resources Code, §§ 21002, 21002.1, subd. (b);
Guidelines, § 15021, subd. (a)(2); [citation].) An agency may find, however, that
particular economic, social, or other considerations make the alternatives and mitigation
measures infeasible and that particular project benefits outweigh the adverse
environmental effects. (Pub. Resources Code, § 21081, subds. (a)(3), (b); Guidelines,
§ 15091, subd. (a)(3).) Specifically, an agency cannot approve a project that will have
significant environmental effects unless it finds as to each significant effect, based on
substantial evidence in the administrative record, that (1) mitigation measures required in
or incorporated into the project will avoid or substantially lessen the significant effect;
(2) those measures are within the jurisdiction of another public agency and have been
12
adopted, or can and should be adopted, by that agency; or (3) specific economic, legal,
social, technological, or other considerations make the mitigation measures or
alternatives identified in the [environmental impact report] infeasible, and specific
overriding economic, legal, social, technological, or other benefits outweigh the
significant environmental effects. (Pub. Resources Code, §§ 21081, 21081.5; Guidelines,
§§ 15091, subds. (a), (b).) A finding that specific overriding project benefits outweigh
the significant environmental effects (Pub. Resources Code, § 21091, subd. (b)) is known
as a statement of overriding considerations. (Guidelines, § 15093.)
“Thus, a public agency is not required to favor environmental protection over
other considerations, but it must disclose and carefully consider the environmental
consequences of its actions, mitigate adverse environmental effects if feasible, explain
the reasons for its actions, and afford the public and other affected agencies an
opportunity to participate meaningfully in the environmental review process. The
purpose of these requirements is to ensure that public officials and the public are aware of
the environmental consequences of decisions before they are made.” (Federation of
Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal. App. 4th 1180, 1197-
1198, fns. omitted.)
CEQA depends on the environmental impact report. “An environmental impact
report is an informational document” the purpose of which “is to provide public agencies
and the public in general with detailed information about the effect which a proposed
project is likely to have on the environment; to list the ways in which the significant
effects of such a project might be minimized; and to indicate alternatives to such a
project.” (Pub. Resources Code, § 21061) According to our Supreme Court, “The
purpose of an [environmental impact report] is to give the public and government
agencies the information needed to make informed decisions, thus protecting ‘ “not only
the environment but also informed self-government.” ’ [Citation.] The [environmental
13
impact report] is the heart of CEQA, and the mitigation and alternatives discussion forms
the core of the [environmental impact report].” (In re Bay-Delta Etc. (2008) 43 Cal. 4th
1143, 1162.)
Once the environmental impact report has been adopted, the scope of judicial
scrutiny proceeds along two paths. “ ‘Section 21168.5 [of the Public Resources Code]
provides that a court’s inquiry in an action to set aside an agency’s decision under CEQA
“shall extend only to whether there was a prejudicial abuse of discretion. Abuse of
discretion is established if the agency has not proceeded in a manner required by law or if
the determination or decision is not supported by substantial evidence.” As a result of
this standard, “The court does not pass upon the correctness of the [environmental impact
report’s] environmental conclusions, but only upon its sufficiency as an informative
document.” [Citation.]’ [Citations.] ‘We may not set aside an agency’s approval of an
[environmental impact report] on the ground that an opposite conclusion would have
been equally or more reasonable.’ [Citation.] [¶] ‘An appellate court’s review of the
administrative record for legal error and substantial evidence in a CEQA case, as in other
mandamus cases, is the same as the trial court’s: The appellate court reviews the
agency’s action, not the trial court’s decision; in that sense appellate judicial review
under CEQA is de novo.’ [Citation.]” (In re Bay-Delta Etc., supra, 43 Cal. 4th 1143,
1161-1162.)
“The agency is the finder of fact and a court must indulge all reasonable inferences
from the evidence that would support the agency’s determinations and resolve all
conflicts in the evidence in favor of the agency’s decision. [Citation.] ‘ “Technical
perfection is not required; the courts have looked not for an exhaustive analysis but for
adequacy, completeness and a good-faith effort at full disclosure.” ’ [Citation.] ‘A
court’s task is not to weigh conflicting evidence and determine who has the better
argument when the dispute is whether adverse effects have been mitigated or could be
14
better mitigated. We have neither the resources nor scientific expertise to engage in such
analysis, even if the statutorily prescribed standard of review permitted us to do so.’
[Citation.] ‘[T]he relevant inquiry here is not whether the record establishes compliance
but whether the record contains evidence [the agency] failed to comply with the
requirements of its . . . regulatory program. In the absence of contrary evidence, we
presume regular performance of official duty. (Evid.Code, § 664.)’ ” (Gilroy Citizens
for Responsible Planning v. City of Gilroy (2006) 140 Cal. App. 4th 911, 918-919.) Every
court “presumes a public agency’s decision to certify the [environmental impact report] is
correct, thereby imposing on a party challenging it the burden of establishing otherwise.”
(Sierra Club v. City of Orange (2008) 163 Cal. App. 4th 523, 530.)
Legal error, in the form of failure to comply with CEQA, is reviewed
independently, but all factual determinations are reviewed according to the substantial
evidence standard. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of
Rancho Cordova (2007) 40 Cal. 4th 412, 426-427, 435.) “The substantial evidence
standard is applied to conclusions, findings and determinations. It also applies to
challenges to the scope of an [environmental impact report’s] analysis of a topic, the
methodology used for studying an impact and the reliability or accuracy of the data upon
which the [environmental impact report] relied because these types of challenges involve
factual questions.” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004)
124 Cal. App. 4th 1184, 1198.)
A substantial evidence challenge is subject to an important proviso: “As with all
substantial evidence challenges, an appellant challenging an [environmental impact
report] for insufficient evidence must lay out the evidence favorable to the other side and
show why it is lacking. Failure to do so is fatal. A reviewing court will not
independently review the record to make up for appellant’s failure to carry his burden.”
(Defend the Bay v. City of Irvine (2004) 119 Cal. App. 4th 1261, 1266.)
15
Cumulative Impact of the Reclamation Plan Amendment
Bay Area asserts that the environmental impact report for the reclamation plan
amendment was inadequate, because it failed to address the cumulative impact of the new
South Quarry pit that had previously been proposed to replace the reclaimed pit.
Specifically, Bay Area argues that the reclamation plan amendment implicitly relies on
the establishment of a new pit in the South Quarry to replace the reclaimed North Quarry
pit, and the new pit was not included in the reclamation plan or considered in the
environmental impact report.
Bay Area cites the primary objectives of the reclamation plan amendment, which
were to “maintain a local, reliable, and economic source of cement-grade limestone and
to continue operations of the existing quarry.” (Emphasis omitted.) Bay Area asserts that
the only way to achieve the stated objective was to open a new quarry pit to replace the
one being reclaimed.
Bay Area notes that the 2010 comprehensive plan amendment that immediately
preceded the approved 2011 reclamation plan amendment included an application for a
use permit for a new South Quarry pit. Bay Area theorizes that in order for Lehigh to
achieve quick approval of the reclamation plan amendment so that it could continue to
supply cement to California public agencies, it removed the application for a use permit
for South Quarry pit from the reclamation plan amendment.
Bay Area argues that the new quarry pit was a reasonably foreseeable future
project, and it should have been included in the environmental impact report in order to
comply with CEQA. Bay Area makes this argument based in part on the concept that
segmentation of proposed projects should be avoided. “Segmentation” refers to the
division of a project into pieces, thereby avoiding review of the physical impact of the
project as a whole. “A public agency may not divide a single project into smaller
individual projects in order to avoid its responsibility to consider the environmental
16
impacts of the project as a whole.” (Sierra Club v. West Side Irrigation Dist. (2005) 128
Cal. App. 4th 690, 698.) “CEQA mandates that environmental considerations do not
become submerged by chopping a large project into many little ones, each with a
potential impact on the environment, which cumulatively may have disastrous
consequences.” (Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233
Cal. App. 3d 577, 592.) “A project under CEQA is the whole of an action which has a
potential for resulting in a physical change in the environment, directly or ultimately, and
includes the activity which is being approved and which may be subject to several
discretionary approvals by governmental agencies.” (Ibid.)
The record contains no support for Bay Area’s assertion that the County
segmented the review of the reclamation plan amendment. The application for a use
permit for the South Quarry was withdrawn before the final iteration of the reclamation
plan amendment was subjected to the environmental impact report. The new pit (if it
were a subsequent project) would not change the scope of the nature of the reclamation of
the North Quarry pit or the reclamation’s environmental effects. (See Laurel Heights
Improvement Assoc. of San Francisco, Inc. v. The Regents of the University of California
(1988) 47 Cal. 3d 376, 396.) The reclamation plan amendment in this case is a stand-
alone project and does not require approval of a future project, such as the South Quarry
pit for reclamation of the North Quarry to occur.
City of Antioch v. City Council (1986) 187 Cal. App. 3d 1325 (City of Antioch),
relied upon by Bay Area, is distinguishable. In that case, the project at issue was an
infrastructure system on four parcels of undeveloped land, which was designed to serve
subsequent development on the land. It was conceded that the sole and exclusive purpose
of the infrastructure development at issue was “to provide a catalyst for further
development in the immediate area.” (Id. at p. 1337.) The court addressed the question
of whether a negative declaration was a sufficient environmental document for this
17
project. It found that an environmental impact report must be prepared since it was
reasonably certain that development would follow, even though permits had not been
applied for. The infrastructure by itself had no independent utility and served no purpose
other than to facilitate development at that site. By issuing the permit for the first stage
of the development, the agency had committed itself to the second phase. Therefore, the
court concluded, “[c]onstruction of the roadway and utilities cannot be considered in
isolation from the development it presages.” (Id. at p. 1336.)
In contrast to City of Antioch, here the reclamation plan amendment is not a first
phase in a larger development. It is the complete process by which the North Quarry will
be reclaimed, and does not require approval of other future projects to be completed.
In sum, the environmental impact report sufficiently reviewed the project
proposed in the reclamation plan amendment, and did not omit to review a possible
replacement quarry pit.
Adequacy of the County’s CEQA Findings to Support Certification
Bay Area argues that the County’s findings supporting certification of the
environmental impact report were insufficient, because they were not supported by
substantial evidence. Specifically, Bay Area asserts that the findings are insufficient
because they do not state that the impacts of the plan on the frog were significant and
unavoidable, or that the impact could be adequately mitigated. In addition, Bay Area
argues that the statement of overriding considerations was deficient because it did not
address the significant impacts on the frog.
Impact 4.4-4 is entitled “Project activities could result in adverse negative effects
on special status aquatic organisms. (Less than significant impact).” (Emphasis in
original.) The Impact states “[The frog] is the only special status aquatic species of
concern in the Study Area. However, no [frogs] have been found during surveys in the
Project Area. Upland migration habitat for [the frog] is not present in the Project Area,
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preventing significant movements of this species in the Project Area [record citation].
[¶] Consequently, it is considered unlikely for the species to occur in the Project Area and
therefore no direct impacts to special status aquatic species would be expected to result
from Project activities.”
With regard to the direct impacts on the frog from reclamation activities, the
environmental impact report states that the impacts were less than significant. This
conclusion is supported by substantial evidence in the record. Most notably, the evidence
of less than significant impact is demonstrated by the facts that support the finding that
the plan complies with SMARA.5 Under CEQA, additional findings regarding mitigation
of impact are required only when the findings show a significant impact. (Pub.
Resources Code, § 21081; Cal. Code Regs., tit. 14, § 15091.) If the direct potential
impacts are less than significant, no additional findings are required. Here, in Impact 4.4-
4, the environmental impact report concluded that the direct potential impacts of the
reclamation plan on the frog were less than significant. As a result, contrary to Bay
Area’s assertion, additional findings regarding Impact 4.4-4 were not required.
(Environmental Protection Information Center v. California Dept. of Forestry and Fire
Protection (2008) 44 Cal. 4th 459, 522; Mira Mar Mobile Community. v. City of
Oceanside (2004) 119 Cal. App. 4th 477, 492-493.)
To the extent Bay Area is referring to the indirect potential impacts to the frog
from reclamation activities, Impact 4.4-5 of the environmental impact report discusses
the risks to aquatic life, of which the frog is included, from excess selenium runoff in the
downstream areas. The report states that the potential impact is significant and
unavoidable. Consistent with the requirements of CEQA, Impact 4.4-5 also states the
5
Bay Area also asserts that the findings are insufficient because they rely in part
on a conclusion that the reclamation plan amendment does not violate SMARA. As
stated supra, the County properly found that the reclamation plan amendment satisfied
the provisions of SMARA.
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mitigation measures that would be applicable, including interim storm water control and
sediment management, and an interim storm water monitoring plan in the eastern
material storage area of the Quarry. These specific mitigation measures are described in
detail in the environmental impact report. These statements of the indirect impacts to the
frog are supported by substantial evidence in the record and comply with the CEQA
requirements.
Finally, Bay Area argues that the statement of overriding considerations was
defective because it did not specifically direct significant impacts to the frog. However,
as discussed above, the finding that there was a less than significant impact on the frog
from the reclamation activities is supported by substantial evidence. As a result, CEQA
does not require a statement of overriding considerations because the potential direct
impacts to the frog were found to be less than significant. (Cal. Code Regs., tit. 14,
§ 15093.)
Augmentation of the Administrative Record
Bay Area argues that the trial court erred in granting Lehigh’s motion to augment
the administrative record to include an e-mail exchange between Dr. Mark Jennings, a
herpetologist who conducted studies and contributed reports about the frog during the
environmental review process, and David Johnston of the California Department of Fish
and Wildlife. The e-mail discussed inconsistencies in Jennings’s prior reports about his
observation of the frog in Pond 13, which is within the boundaries of the reclamation plan
amendment.
In his 2006 and 2007 reports, Jennings stated that the frog inhabited Pond 13, a
location farther upstream from where it had ever been previously found, and within the
boundaries of the reclamation plan amendment. In subsequent reports, however,
Jennings did not include any reference to the frog being located in Pond 13.
20
Jennings sent an e-mail to Johnston in 2009, stating that he had erred in his 2007
report when he said that he had observed the frog in Pond 13. Jennings opined that the
error was likely the result of a typographical mistake in the numbering of the map of the
Quarry. Jennings further reiterated to Johnston that he had never observed the frog in
Pond 13, and that this was consistent with what he had told Johnston in the field.
The contents of the administrative record, are governed by Public Resources Code
section 21167.6, subdivision (e), which states: “The record of proceedings shall include,
but is not limited to, all of the following items . . . .” Subdivision (e) includes 11
categories of material that must be included in the administrative record. (Madera
Oversight Coal. , Inc. v. County of Madera (2011) 199 Cal. App. 4th 48, 63, disapproved
on other grounds in Neighbors for Smart Rail v. Exposition Metro Line Const. Authority
(2013) 58 Cal. 4th 439.)
In the present case, the e-mail exchange falls within subdivision (e)(10) of the
Public Resources Code section 21167.6, which states that an administrative record
includes “any other written materials relevant to the respondent public agency’s
compliance with this division or to its decision on the merits of the project, including the
initial study, any drafts of any environmental document, or portions thereof, that have
been released for public review, and copies of studies or other documents relied upon in
any environmental document prepared for the project and either made available to the
public during the public review period or included in the respondent public agency’s files
on the project, and all internal agency communications, including staff notes and
memoranda related to the project or to compliance with this division.”
Here, the e-mail exchange was properly part of the administrative record. Jennings
wrote the e-mail in 2009, and that e-mail was communicated to the firm that prepared the
biological resources assessment for the environmental review process. The draft
environmental impact report relied on the biological resource assessment in stating its
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findings. Evidence of the presence or absence of the frog in the reclamation area that was
relied upon by the firm completing the biological study for the environmental review
process falls within the parameters of Public Resources Code section 21167.6,
subdivision (e) for inclusion in the administrative record.
Conclusion on the CEQA Claims
We find that the County properly certified the environmental impact report and
approved the reclamation plan amendment in compliance with CEQA. The County’s
findings regarding the direct and indirect environmental impacts from the reclamation
plan amendment were sufficient under CEQA. Finally, the administrative record
properly included information about the location of the frog relevant to the reclamation
area boundaries.
DISPOSITION
The order denying Bay Area’s petition for writ of mandate is affirmed.
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______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA, J.
Bay Area Clean Environment, Inc. v. Santa Clara County et al.
H040789
23
Trial Court: Santa Clara County Superior Court
Superior Court No.: 1-12-CV229236
Trial Judge: The Honorable Joseph Huber
Attorneys for Plaintiff and Appellant Stuart M. Flashman
Bay Area Clean Environment, Inc.:
Attorneys for Defendants and Respondents Office of the County Counsel
Santa Clara County et al.:
Orry P. Korb
Elizabeth G. Pianca
Harrison, Temblador, Hungerford &
Johnson
Mark D. Harrison
Sean K. Hungerford
Attorneys for Amicus Curiae: Babak Naficy
Towns of Los Altos and Atherton and the
Cities of Cupertino and Los Altos:
Bay Area Clean Environment, Inc. v. Santa Clara County, et al.
H040789
24