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The 6th District Court of Appeal recently ruled in favor of Santa Clara County's approval of a reclamation plan amendment under the Surface Mining and Reclamation Act (SMARA, Public Resources Code Section 2700, et seq.) and certification of an environmental impact report (EIR). The decision, Bay Area Clean Environment, Inc. v. Santa Clara County, is notable for its combined ruling on both SMARA and California Environmental Quality Act (CEQA) matters.
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Background
Operating since 1903, the Permanente Quarry is an existing limestone and aggregate mine in unincorporated Santa Clara County. The County approved the Permanente Quarry Reclamation Plan Amendment (RPA), which defines closure and reclamation activities over a 20-year period. An EIR was certified in 2012. Key environmental issues consisted of quarry slope instability, elevated downstream selenium contamination that could harm aquatic life, and whether the RPA would influence future consideration of a new quarry on the site (called the “South Quarry pit”).
The Bay Area Clean Environment, Inc. (Bay Area) filed litigation challenging the County’s SMARA approval and CEQA compliance. The trial court ruled in favor of the County. Bay Area appealed and the Court of Appeal affirmed the lower court decision.
SMARA Compliance Issues
Bay Area argued that the County abused its discretion when it determined that the RPA satisfied SMARA water quality standards for selenium during the 20-year reclamation period and habitat preservation for the California red-legged frog (CRLF), which is listed as “threatened” under the Endangered Species Act.
Regarding the SMARA claims, the Court first identified that the standard of review for approval of a reclamation plan is abuse of discretion, pursuant to Code of Civil Procedures Section 1094.5, for which the court must “consider all reasonable inferences from the administrative record in favor of the agency.” Using this standard of review, the Court of Appeal determinations included:
- The record supported the County’s finding that the RPA complies with SMARA’s water quality standards (Cal. Code of Reg., tit. 14, Section 3706). The Court noted that regulations allow water quality to be temporarily affected, if it necessary to complete a reclamation plan. The Court confirmed that SMARA gives the County discretion to allow short-term increases in selenium levels from actions necessary for long-term reclamation. The EIR addressed selenium water quality impacts during reclamation and described mitigation measures adopted by the County.
- Bay Area argued that the RPA did not comply with SMARA habitat preservation requirements, because it did not mention CRLF (Cal. Code of Reg., tit. 14, Section 3703). The Court disagreed, citing a study appended to the RPA that addressed CRLF, including protection measures, as well as CRLF mitigation measures contained in the EIR. Consistency with SMARA requirements can include consideration of not only the reclamation plan, but also the supporting studies and EIR.
CEQA Compliance Issues
Bay Area argued that the County violated CEQA by not conducting a sufficient cumulative impact analysis, because the analysis did not include a previously proposed South Quarry pit. Also, Bay Area argued that the County’s CEQA Findings were not supported by substantial evidence and the trial court erred in allowing the County to augment the administrative record. The Court ruled in favor of the County and made the following determinations:
- The cumulative impact analysis did not need to evaluate a previously proposed South Quarry pit, because there was no substantial evidence that the new mine was reasonably foreseeable, recognizing the application for it had been withdrawn. In response to an argument that omitting the South Quarry would be improper segmentation, the Court relied on evidence supporting the RPA as an independent, stand-alone project, not reliant on approval of the South Quarry pit. A key takeaway is the reminder to carefully consider how to define the whole of a project and confirm that it has “independent utility” from other projects and actions.
- CEQA Findings were determined by the Court to be supported by substantial evidence in the record. While Bay Area argued that the findings failed to identify significant and unavoidable impacts to CRLF, the Court cited specific findings that demonstrated direct impacts to CRLF were properly determined to be less than significant after mitigation, and indirect impacts to aquatic life (including CRLF) were noted as significant and unavoidable.
- The County sought to correct a biological report by adding an email exchange to the approved administrative record.The trial court granted the request.The Court of Appeal found that the emails were within the definition of an administrative record under Public Resources Code Section 21167.6(e)(10). This ruling offers both the encouragement that helpful corrections in emails can be considered by the Court, and the cautionary reminder that certain emails are allowable as part of the record.
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If you have any questions regarding this case, please contact Pat Angell, Senior Director at (916) 732-3324. We are thrilled that Pat Angell recently joined Ascent in Sacramento as a senior leader in our environmental practice. He has extensive experience with aggregate mining, urban development, and community planning in support of local governments and project applicants.
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Ascent Environmental is a dynamic environmental, natural resources, and planning consultancy with offices in Sacramento, Lake Tahoe, Bay Area, and San Diego. We offer our extensive CEQA and NEPA, urban design and planning, climate adaptation and GHG reduction planning, and biological sciences experience with the goal of providing personal service and high-quality results to our clients on their most important projects. We are certified as a small business and women-owned business enterprise.
This article is intended to offer helpful practice information and not legal advice. Please contact an attorney if you need legal counsel regarding this topic.
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