Save Cuyama Valley v. County of Santa Barbara

213 Cal. App. 4th 1059, 153 Cal. Rptr. 3d 534, 43 Envtl. L. Rep. (Envtl. Law Inst.) 20031, 2013 WL 541581, 2013 Cal. App. LEXIS 109
California Court of Appeal·Decided January 10, 2013·No. No. B233318·Published·Cited by 26 cases

Opinion

Opinion

HOFFSTADT, J.*

Plaintiff Save Cuyama Valley (Save Cuyama) appeals from the judgment denying its petition for a writ of mandate. The County of Santa Barbara and its board of supervisors (collectively, the County) granted real party in interest Troesh Materials, Inc. (Troesh), permission to begin sand and gravel mining in the bed of the Cuyama River. Save Cuyama asks us to overturn that decision. Save Cuyama contends that the final revised environmental impact report (Report) that formed the basis for the County’s approval violates the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) in a variety of ways. We reject Save Cuyama’s arguments and affirm the judgment.

FACTS AND PROCEDURAL HISTORY

A. The Diamond Rock Mine Project

Nearly 10 years ago, Troesh applied to the County’s planning and development department for a conditional use permit to begin excavating and [1063] processing sand and gravel in a project called the “Diamond Rock mine.” The mine would be located within the often dry bed of the Cuyama River at a stretch where it is 2,500 feet wide. The mine would excavate approximately 900 feet away from the river’s usual flow, and would process materials at a nearby facility above the riverbed. The mine would be located 5.9 miles southeast of the intersection of State Highways 33 and 166, approximately 1,500 feet upstream from another sand-and-gravel mine. This other mine is the 15-acre GPS mine. The GPS mine has operated in the river’s path since 1969 and has excavated an average of 160,000 tons of material each year. The Diamond Rock mine would be excavated over time in a series of trenches, with a new trench being started once the prior trench reached the maximum depth of 90 feet. The mine would excavate an average of 500,000 tons each year, and by the end of the 30-year permit Troesh sought, would cover 84 acres.

B. The Final Revised Environmental Impact Report

The County commissioned the preparation of an environmental impact report. Over the next several years, the County received comments and made several revisions. The Report was released in May 2007, and the board of supervisors adopted and certified it on September 23, 2008. Among other things,1 the Report and administrative record upon which it is based address the following topics:

1. Hydrological impacts on the Cuyama River

The Cuyama River carries both water and sediment as it flows. Using a methodology developed by the Army Corps of Engineers called the “Hydraulic Engineering Center’s River Analysis System,” the Report’s consultants calculated that the Cuyama River deposits a net surplus of 229,000 tons of sediment each year in the area of the riverbed where the Diamond Rock and GPS mines would operate.2 If both mines were to excavate sand and gravel solely from the river’s flows, their combined annual extraction of one million tons per year (500,000 for the Diamond Rock mine and a new higher limit of 500.000 for the GPS mine) would result in an annual sediment deficit of 771.000 tons in that area. The Diamond Rock mine, however, would not be in the river’s path and would be surrounded by “low flood control berm[s]” (four feet high and 10 feet wide at the base) to direct flows around the mine’s [1064] excavations. The berms would not be impenetrable, however. During seasonal “substantial rain events,” it is expected that the river would overrun the berms and flow into the mine’s excavation pits.

The Report accordingly acknowledges that the Diamond Rock mine “could affect river hydraulics.” The Report identifies three possible hydraulic impacts. First, the mine could cause “downstream channel degradation”; If the river flows into an excavated pit, it would deposit its sediment in the pit and any water leaving the pit (once the pit is lull) would carry less sediment and flow more quickly, which could scour the riverbed immediately downstream of the pit. Second, the mine could cause “headcutting”: If the river flows over the upstream lip of the pit, the water and sediment in that flow could erode the lip and effectively cause the mine’s upstream edge to migrate upriver. Third, the mine could cause “bank erosion”: If the river’s flow is diverted by the mine’s berms, the new flow pattern could erode the banks of the river.

Notwithstanding the possibility of these impacts, the Report opines that they are not likely to occur. No channel degradation had occurred downstream of the GPS mine during the decades of its operation. The Report further reasons that the sediment-laden flood waters, once they fill the Diamond Rock mine’s pits, would flow over those pits and fill in any downstream scouring damage, effectively “resetting” (or filling in) any damage to the channel. Nor is headcutting likely, because the riverbed has a “very low” slope and the bed is composed of “enough large material ... to armor the upstream lip of the pit”—observations confirmed by the absence of any headcutting during the 30-year life of the GPS mine. Bank erosion is also unlikely because the riverbed is over 2,000 feet wide at the mining sites and the river’s flows are typically shallow, a prediction- also confirmed by the absence of any bank erosion over the last few decades of mining.

To assess whether any of these possible but unlikely impacts are significant and in need of further analysis under CEQA, the Report defines a “threshold of significance.” The Reports cites the “Environmental Checklist from CEQA Guidelines Appendix G” (Appendix G) and notes that any of Appendix G’s 10 factors “could trigger a finding of potentially significant impact related to hydrology/flooding.” The Report nonetheless adopts a more tailored threshold of significance for the particular hydrological effects outlined above: “Under CEQA, hydraulic impacts are considered adverse if they cause channel bed degradation and/or bank erosion that: 1) damage public infrastructure such as bridges or pipeline crossings; 2) damage or destroy adjacent developed land uses or structures due to bank erosion or flooding; 3) disturb, convert, or destroy valuable in-channel riparian habitat; or 4) expose people to a new flooding hazard.”

[1065] The Report concludes that the “magnitude” of the three possible impacts previously identified are “expected to be minor” and would likely have no secondary impacts (to infrastructure, adjacent development or habitats). Thus, the Report concludes, the Diamond Rock mine’s hydrological impacts “appear to be less than significant.” Rather than stop there, however, the Report acknowledges “the inherent uncertainty of simulation models and the potential to underestimate [hydrological] effects.” The Report accordingly deems these impacts to be “potentially significant but mitigable.” (Boldface omitted.)

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Save Cuyama Valley v. County of Santa Barbara, 213 Cal. App. 4th 1059, 153 Cal. Rptr. 3d 534, 43 Envtl. L. Rep. (Envtl. Law Inst.) 20031, 2013 WL 541581, 2013 Cal. App. LEXIS 109 (Cal. Ct. App. 2013).

213 Cal. App. 4th 1059 (Save Cuyama Valley v. County of Santa Barbara) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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