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Monday;. duly 29, 2013 Dally Appellate Report 9785
<br />including tbose on behalf of Masonite, the
<br />Pla uming Commission certified the ERt and.
<br />as Guidelines]; Pub.: Resources Code, § 210921.)
<br />' Mile addition of new Information to an EIR
<br />approved the use permit and reclamation plan,
<br />7'he Planniig'Commission adopted a statement
<br />after the close of the public comment period
<br />Is nut'significane unless the EIR is in
<br />of overriding considerations noting, among other
<br />things, that the Project would provide "a ratable
<br />changed
<br />a way that deprives the public of a, meaningful .
<br />20 -year supply of constiuction aggregate in the
<br />Mendocino County area,"
<br />opPort unitytocommentuponasubatantio ladverse
<br />environmental effect of the project or a feasible
<br />Masoimta, and Russian Riverkeeper appealed
<br />the
<br />way to midgets, or avoid such an effect." (Laurel
<br />Her US ImprooementAssn. a Regeno o(Luuuenity
<br />Pla lmli gsommission decislOns to the County
<br />Board of Supervisors, The appeals wore heurdby
<br />o}Caldfornia (1908) 6 Cal.4th 1112,1129 (Laurel
<br />the board a.n4uly27 ,20I0.Thedayofthe fie arIng,
<br />H411ts fn; see also Vineyard, supra 40 Cal 4th
<br />atp ,417, quoting LaurelHeightslL,). Signiflcatt
<br />Masonite filed a 49 -page letter brief challengin g
<br />die EIR on approximately 20groonda. Thebnazd
<br />new information" includes a disclosure showing
<br />that '[a] new significant environmental impact
<br />denied both 4ppeals.
<br />-.Mas inito,�.and Russian Riverkeeper filed
<br />would result from the project. 7" (Guidelines,.
<br />§ 15088,5, subd. (a) (1),}
<br />-
<br />petitions for writ of mandate seelchig to overturn
<br />the ComiVs approval of the Project due to
<br />(2) ProjectAlteri tions
<br />violations of CEQA T11e Petitions were denied,
<br />and Masonite and Russian Riverkeeper appealed
<br />front the judgments. Russian Riverkeepees
<br />The Project was changed in two respects from
<br />tie one originally envisioned,
<br />'
<br />!'
<br />Appeal was dismissed after settlement
<br />(a Pond-River Cannecdon
<br />-;
<br />�!
<br />.. _ H. DISCUSSION
<br />in Lieu of a
<br />Weir and )fuse
<br />A. Scope of Review
<br />Gran'ite's application for die use permit and
<br />"In reviewing agency's compliance with
<br />reclamation plan recograed that, "because of
<br />its proximity to die Russian River and Ackerman
<br />c
<br />ou
<br />-.the courts' inquiry 'shall - extend
<br />only to whether there was a prejudicial abuse
<br />'Creek, the project site has valuable aquatic and
<br />riparian habitats adjacent to it., The aquatic
<br />of discretion.' [Citation.] Such. an abuse is
<br />established. if the agency has not proceeded in a
<br />habitat supports Chinook salmon and steelltead,
<br />both listed as threatened species under the
<br />`
<br />mannerrequired bylawor if the determination or
<br />decision isnotsupported by substantial evidence,"
<br />Endangered species Act 7b'e piimary concern
<br />for these species relative to the proposed project
<br />j
<br />[Citations,]
<br />' Aiiappellatecouresrcviewpftlteadnnirdstrative
<br />is the potential for hall entrapment in. the pit
<br />during floods high enough to Inundate the
<br />+
<br />record for legal error and substantial evidence in
<br />a CEQA case , , , is the same as die trial court's:
<br />site."
<br />The application noted with respect to hydrology
<br />and drainage that, "as an alluvial terrace adjacent
<br />t
<br />71ie appellate court reviews the agency's action,
<br />not, the trial courts decision; In that sense
<br />to the Russian River and Ackerman Creak," the
<br />Project site "is subject to perigl is inindatign..
<br />appellate judicial review under CEQA Is de nova,
<br />[Citations.) We therefore resolve the substantive
<br />, ;
<br />Extensive hydrologicniodelingwas conducted to
<br />designan overflow structure diatwould
<br />CEQA issues ... by Independently determining
<br />whether die administrative record demonstrates
<br />nnnhlli5e
<br />the Potential for fish r4 became entrapped n the
<br />any legal error by the Comity and whether it
<br />pit, and prevent erosion of pit flanks and walls
<br />during a104yearflood event"
<br />contains substantial evidence to support the
<br />County's :factual determinations," (Vineyard
<br />Granite's application, proposed. •to 'address
<br />the potential for flooding and trapped fish with
<br />Area Citizens for,ReV /onslble Crowell, file, it City
<br />afRaucho Cordova (2007) 40 Cal.4di 412, 426.427,
<br />construction ofaf loodomitol.weir.,andfaneplug,
<br />' "the armared�overflow weir gives.the creek and
<br />-_
<br />Ik!
<br />in. omitted (Vlnayard))
<br />river a controlled access and drainage point for
<br />t
<br />E. Recirculadon of the EIR
<br />flood waters without eroding the riling buffer,"
<br />while the erodable ISM fuse plug limbs potential
<br />..(1) Atguinents and Standards
<br />fish entrapmenu" fix May 2008, comments oil the
<br />Project the National Marine Fisheries Service
<br />.
<br />Masonite contends that the EIR should have
<br />( NMFS, ) oftheNationalOceanicandAtmospheric
<br />Administration stated that "reconnecting die pit
<br />r
<br />been recirculated fnr public review because the
<br />Project as approved was "different inarkeW,
<br />to the stream" would provide better. long-term
<br />protection for endangered salmonids than the
<br />t,
<br />from lac one analyzed In die Draft and had more
<br />severe environmental impacts, . and because the .
<br />proposed weir and fuse plug, Granite's study of
<br />the NMFS proposal, attached as.Appendix F to
<br />EIR identified a new significant Impact on the
<br />Frog,
<br />the Draft, concluded thatitwouildbe preferable to
<br />t;
<br />Alead agency is required to recirculate an EIR
<br />use .a connection channel betweenthe mine Pond `
<br />and the Russian River in lieu of the weir and fase
<br />when significant new information 1s added to the
<br />plug. .
<br />EII;, atter public notice is given of the availabifity
<br />of lice draft Ell: for public review but before
<br />",(Cal.
<br />The Project as proposed in the Drat provided
<br />for use.of the weir and fuse plugo but he pond. •
<br />�l`l
<br />cerBfication Code Pegs., tit 14, §15088.5,
<br />subd. (a) [the- CEQA Guidelines In Dal, Code
<br />river connection - bhanneldesignwal.presented
<br />as "Alternative 3" .It.replaced,the,weir and fuse
<br />fn
<br />€I 1
<br />Reis, ht 14., §d5000, or seq. are hereafter cited
<br />plug with 'a culvert (or culverts). suitable for the
<br />5..�'wC'itcsxlzYC
<br />-^�1"2
<br />75A -66 _..._.,...
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