In one of the first published opinions upholding an environmental impact report’s water analysis, the Third District Court of Appeal has overturned a lower court’s ruling favoring opponents of a gravel mine proposed in Placer County.

The Third District ruled that the water analysis was adequate and that Placer County did not have to revise the EIR after the project applicant altered the project and its phasing. On the later point, the court ruled there was substantial evidence to support the county’s decision that the project changes created no new environmental impacts.

The decision appears to clear the way for a mining project originally proposed 12 years ago. Attorney Susan Brandt-Hawley, who represented a citizens group fighting the project, said she was surprised by the decision but declined to discuss it in detail.

Attorney John Taylor, who represented mining company Teichert, said the court upheld the water analysis because the court noted the project “amounted to the status quo” for water usage. “It makes little difference whether it’s used for agriculture or for mining and reclamation,” Taylor said.

In December 1994, Teichert submitted an application for a sand, gravel and granite mine on 945 acres of an 1,878-acre site, about four miles north of Lincoln. After concerns were raised about traffic and the site’s proximity to residents, Teichert acquired an additional 1,577 acres and revised the project. It proposed mining 1,000 acres of a 3,455-acre site in nine phases over 85 years. Much of the site has been a cattle ranch.

The county released a draft EIR in 1999 that included a “mitigated design alternative” that limited mining to 40 years and 785 acres. In November 2001, Teichert accepted the mitigated design alternative but changed the phasing so that the company would avoid land covered by the Williamson Act until the Williamson Act contracts (which prevent development) expire.

The county released the final EIR in January 2002. Four days later, Teichert submitted a revised project application to reflect the mitigated design alternative, new phasing and a relocated processing plant. In November 2002, the Planning Commission certified the FEIR and approved the project, which was called the “revised mitigated design alternative.” The Board of Supervisors upheld the decision in early 2003.

A group called Western Placer Citizens for an Agricultural and Rural Environment (WPCARE) sued, alleging a number of violations of the California Environmental Quality Act (CEQA). Retired Mendocino County Superior Court Judge James Luther, sitting by assignment in Placer County, ruled that the county violated CEQA by not describing the revised project and new phasing in the EIR, and by inadequately analyzing the availability of a long-term water supply.

On appeal by Teichert and the county, the Third District overturned the lower court.

The Third District first addressed the question of new information in the EIR.

“The trial court determined the EIR had to be revised to include the changes made to the project before the county determined whether the changes were significant enough to require recirculation,” Justice George Nicholson wrote for the unanimous appellate panel. “The authority the court cited to support its holdings does not expressly do so. The parties have directed us to no provision in CEQA or the Guidelines, and we have found none, that requires all changes made to a project after the final EIR is released but prior to certification to be included in the EIR.”

According to the court, the question is whether substantial evidence supports the county’s decision that the new information was not significant enough to require revision and recirculation of the EIR. The court concluded that such evidence did exist, as the county had determined the last round of project modifications were environmentally superior to the mitigated design alternative.

On the issue of water, the trial court found that the analysis was inadequate because there was not substantial evidence that Teichert had a dependable annual water supply to implement the reclamation plan, which calls for continued agricultural uses and creation of two lakes on 345 acres.

But the Third District said that Judge Luther made a factual error. The appellate court said Teichert has a right to 2,437 acre-feet of water from Nevada Irrigation District, may purchase surplus water from the district, has rights to a creek that flows through its property, and has the right to groundwater beneath its property.

“Teichert asserts, and WPCARE concedes, that to be sufficient, an EIR need not identify a guaranteed source of water. We agree,” Nicholson wrote. “No water supplier can guarantee an adequate supply of water in all circumstances. If an EIR were required to identify a guaranteed source of water, then no EIR would ever be sufficient. The EIR identifies existing, available and sufficient sources of water for the project and in that respect is sufficient.”

The court contrasted the situation to that in other cases where courts have rejected water analyses. In Stanislaus Natural Heritage Project v. County of Stanislaus, (1996) 48 Cal.App4th 182, the court rejected an EIR because the proposed project needed a new source of water that had not been identified (see CP&DR Legal Digest, September 1996). In Santa Clarita Organization for Planning the Environment v. County of Los Angeles, (2003) 106 Cal.App.4th 715, the court rejected an EIR that relied on water from the oversubscribed State Water Project (see CP&DR Legal Digest, April 2003). In Friends of Eel River v. Sonoma County Water Agency, (2003) 108 Cal.App.4th 859, the court threw out an EIR that failed to analyze the impacts of separate projects that called for different uses of the same water (see CP&DR Legal Digest, July 2003).

The Teichert project, on the other hand, does not need a new water supply, has identified and available water sources, and does not rely on water supplies that may be changed, the court determined.

Although the facts of the case may limit the decision’s scope as a precedent, the opinion could support an argument in a case where planned urban development would require the same amount of water as previous agricultural uses on the same site, attorney Taylor said.

The Case:
Western Placer Citizens for an Agricultural and Rural Environment v. County of Placer, No. C049364, 06 C.D.O.S. 10396, 2006 DJDAR 14839. Filed November 9, 2006.
The Lawyers:
For WPCARE: Susan Brandt-Hawley, (707) 938-3908.
For the county: Valerie Flood, county counsel’s office, (530) 889-4044.
For Teichert, Inc.: John M. Taylor, Taylor & Wiley, (916) 929-5545.