Dry Creek Citizens Coalition v. County of Tulare

70 Cal. App. 4th 20, 82 Cal. Rptr. 2d 398, 99 Cal. Daily Op. Serv. 1332, 99 Daily Journal DAR 1635, 1999 Cal. App. LEXIS 139
CourtCalifornia Court of Appeal
DecidedFebruary 19, 1999
DocketNo. F030405
StatusPublished
Cited by33 cases

This text of 70 Cal. App. 4th 20 (Dry Creek Citizens Coalition v. County of Tulare) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dry Creek Citizens Coalition v. County of Tulare, 70 Cal. App. 4th 20, 82 Cal. Rptr. 2d 398, 99 Cal. Daily Op. Serv. 1332, 99 Daily Journal DAR 1635, 1999 Cal. App. LEXIS 139 (Cal. Ct. App. 1999).

Opinion

Opinion

THAXTER, J.

J.In this appeal we are asked to determine the sufficiency of an environmental impact report (EIR) prepared by Tulare County (County) for the proposed expansion of a surface mining operation by Artesia Ready Mix Concrete, Inc. (Artesia). Appellants are four associations: the Dry Creek Citizens Coalition, the National and Tulare County Audubon Societies and the California Native Plant Society. The novel issue on appeal is whether the water diversion elements of the project are adequately described under title 14, section 15124, subdivision (c) of the California Code of Regulations.1

In addition, appellants challenge the project description with regard to access road improvements, three mitigation measures and the cumulative impacts analysis as to biological resources. They also contend County violated California’s Surface Mining and Reclamation Act of 1975 (SMARA)2 by failing to submit the reclamation plan and financial assurances to the California Department of Conservation for review prior to approving the plan and surface mining permit. We conclude the judgment of the trial court should be affirmed. The EIR complies with the California Environmental Quality Act (CEQA),3 and any violation of SMARA was not prejudicial.

Factual and Procedural Background

Artesia’s sand and gravel mining operation is located in the lower foothills of the Sierra Nevada on the eastern edge of the San Joaquin Valley in Tulare County. The site lies in the Dry Creek floodplain. Dry Creek is an intermittent stream that traverses the center of the site, flowing from north to south. Dry Creek’s average annual runoff is 16,400 acre-feet, with about 95 percent [24]*24of this runoff occurring between December and May. The flow is less than five cubic feet per second (cfs) about two-thirds of the time, and the stream is dry about 40 percent of the time.

Artesia has been mining the site since 1992 under a permit which will expire in 2000. The current project site encompasses 152 acres, of which 35 acres were approved for mining. The present permit does not allow excavation within the stream channel or below the elevation of the streambed in areas adjacent to the channel.

Project Description

In 1994, Artesia applied to County to amend its existing surface mining permit and reclamation plan and for a special use permit to expand its area of sand and gravel excavation in and adjacent to Dry Creek. The amendment also would extend the life of the current permit to the year 2026.

Under the new permit, Artesia would expand its mining and processing area from its current 33.5 acres to 162 acres. The amendment allows excavation to greater depths and within the Dry Creek channel and floodplain. Excavations will extend 20 to 70 feet below the existing surface, eventually forming a pit along Dry Creek. The pit will be reclaimed as a lake to be maintained by surface and subsurface flows associated with Dry Creek. When mining activities are complete, the lake will cover about 45 acres and be surrounded by sycamore woodland vegetation. The lake will be situated 150 feet south of the site’s northern boundary and about 150 feet north of the site’s southern boundary.

The project includes several features to ensure the excavation will not affect water flow on adjacent lands. Because of these features, most of the stream flows each year will be diverted over the project site. However, in time the lake will fill. Thereafter, lake water levels will fluctuate depending on yearly rainfall.

Environmental Review

In October 1994, County, as lead agency, issued its notice of intent to prepare a draft EIR for the project and received numerous letters in response. In December 1995, County circulated a draft EIR prepared for County by Woodward-Clyde Consultants. The EIR stated the proposed project would result in a number of significant, but mitigatable impacts. Among the comments County received, the Kaweah and St. Johns Rivers Association (Association), a private organization with jurisdiction over the allocated [25]*25surface water rights for those rivers, noted the project could potentially interfere with downstream water flow and affect those rights. As a result, Artesia entered into a memorandum of understanding (MOU) with the Association whereby Artesia agreed to, among other things, construct a bypass channel and diversion structures which will divert water flows of 300 cubic feet per second or less around the mine pit to mitigate the downstream water loss.

Inclusion of the water diversion structures in the project necessitated a revision of the draft EIR. The revised project description included the bypass channel and the inlet and outlet diversion structures. The revised draft EIR identified and analyzed a number of potential significant project impacts, but concluded all could be mitigated by identified measures to a level less than significant. Artesia accepted the mitigation measures, which were made conditions of the project’s approval. In August 1996, County circulated the revised draft EIR among responsible governmental agencies and interested parties for review and received a number of comments. The final EIR (FEIR) incorporates these comments and County’s responses to them.

In November 1996, after public hearings, the planning commission certified that the FEIR was prepared in compliance with CEQA and approved the surface mining permit for the expansion project, subject to 85 conditions. The planning commission found that changes or alterations which had been incorporated into the project or made conditions of project approval mitigated or avoided all the significant environmental impacts identified in the EIR. Appellants appealed that decision to the County Board of Supervisors (Board). After an extensive public hearing, Board found appellants’ challenges to the decision of the planning commission to be without merit. Based on the FEIR and the record before it, Board unanimously agreed the project as mitigated would have no significant effect on the environment and approved the project.

Appellants filed a petition for writ of mandate and complaint for injunc-tive and declaratory relief in the trial court challenging County’s certification of the FEIR and approval of the project on the same grounds raised on appeal. The court denied the petition without explanation.

Discussion

Standard of Review for CEQA Issues

In reviewing an agency’s determination under CEQA, a court must determine whether the agency prejudicially abused its discretion. [26]*26(§ 21168.5.) Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination is not supported by substantial evidence. The court does not pass on the correctness of an EIR’s environmental conclusions, but determines whether the EIR is sufficient as an informational document. (§ 21168.5; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392, 407 [253 Cal.Rptr. 426, 764 P.2d 278] (Laurel Heights I).)

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sicking v. City of Upland CA4/2
California Court of Appeal, 2024
Sierra Club v. City of Glendale CA2/5
California Court of Appeal, 2024
Gooden v. County of Los Angeles
California Court of Appeal, 2024
Save Our Capitol v. Dept. of General Services
California Court of Appeal, 2022
Tiburon Open Space Committee v. County of Marin
California Court of Appeal, 2022
Novaresi v. County of Placer CA3
California Court of Appeal, 2020
Debra Smith v. Ronnie Outen, M.D.
Court of Appeals of Tennessee, 2020
Aqualliance v. U.S. Bureau of Reclamation
287 F. Supp. 3d 969 (E.D. California, 2018)
Mission Bay Alliance v. Office of Community Investment & Infrastructure
6 Cal. App. 5th 160 (California Court of Appeal, 2016)
Citizens for a Sustainable Treasure Island v. City & County of San Francisco
227 Cal. App. 4th 1036 (California Court of Appeal, 2014)
Sierra Club v. Tahoe Regional Planning Agency
916 F. Supp. 2d 1098 (E.D. California, 2013)
City of Long Beach v. Los Angeles Unified School District
176 Cal. App. 4th 889 (California Court of Appeal, 2009)
Save Round Valley Alliance v. County of Inyo
70 Cal. Rptr. 3d 59 (California Court of Appeal, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
70 Cal. App. 4th 20, 82 Cal. Rptr. 2d 398, 99 Cal. Daily Op. Serv. 1332, 99 Daily Journal DAR 1635, 1999 Cal. App. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dry-creek-citizens-coalition-v-county-of-tulare-calctapp-1999.