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Monday, ,July 29, Moss Daily Appellate Report 97$5
<br />including those on behalf of Masonite, the
<br />Planning Commission certified the EIR and
<br />approved the Use permit and reclamation plan,
<br />The Planning Commission adopted a statement
<br />of overriding considerations noting, among other
<br />things, that the Project would provide "a reliable
<br />20 -year supply of construction aggregate in the
<br />Mendocino County area."
<br />. Masopitq, and Russiaa Riverkeeper appealed
<br />the Plalming;corrmission decisions to the County
<br />Board of Supervisors. The appeals were heard by
<br />the board onjuly 27, 2010. The day of the hearing,
<br />Masonite filed a 49 -page letter brief challenging
<br />the EIR on approximately 20 grounds. The board
<br />.ivtasomte_:.and Russian Riverkeeper filed
<br />Petitions for writ of mandate seeking to overturn
<br />the COWAYs approval of the Project due to
<br />violations of CEQA The petitions were denied,
<br />and Masonite and Russian Riverkeeper appealed
<br />from the judgments. Russian Riverkeeper's
<br />appeal was dismissed after settlement.
<br />II. DISCUSSION
<br />A Scope of Review
<br />"In reviewing an agency's compliance with
<br />CEQA . the courts' inquiry 'shall extend
<br />only to. whether there was a prejudicial abuse
<br />of discretion.' [Citation.] Such an abuse is
<br />established 'if the agency has not proceeded in a
<br />manner required by law or if the deternunation or
<br />decision is not supported by substantial evidence,'
<br />[Citations.]
<br />" Anappel latecourt 'sreviewoftlieadministrative
<br />record for legal error and substantial evidence in
<br />a CEQA case ... is the same as the trial court's:
<br />The appellate court reviews the agency's action,
<br />nut, the trial court's decision; in that sense
<br />appellate judicial review under CEQA is de novo,
<br />[Citations.) We therefore resolve the substantive
<br />CEQA issues ... by independently determining
<br />whether the administrative record demonstrates
<br />any legal error by the Comity and whether it
<br />contains substantial evidence to support the
<br />County's .factual determinations." (Vineyard
<br />Area Citizens for Responsible Growth, Inc. v. City
<br />of Rancho Cordova (2007) 40 Cal.4th 412,426-427,
<br />in. omitted (Vineyard).)
<br />B, Recirculation of the EJR
<br />(1) Arguments and Standards
<br />Masonite contends that the EIR should have
<br />been recirculated for public review because the
<br />Project as approved was "different markedly'.'
<br />from the one analyzed in the Draft and had more
<br />severe environmental impacts, and because the
<br />EIR identified a new significant impact on the
<br />Frog,
<br />"Alead agency is required to recirculate an EIR
<br />When significant new information is added to the
<br />EIR,after public notice is given of the availability
<br />of the draft EIR for public review , but before
<br />certhicat[mL" (Cal. Code Regs., tit. 14, § 15088.5,
<br />solid. (a) the CEQA Guidelines in Cal, Code
<br />Regs., ht. 14, §15000, et seq, are hereafter cited
<br />as Guidelines]; Pub. Resources Code, § 21092.1)
<br />"[T)he addition of new information to an EIR
<br />after the close of the public comment period
<br />is not'siguificane Unless the EIR is changed in
<br />a way that deprives the public of a. meaningful
<br />opporhmity to commentupon asubstantial adverse
<br />environmental effect of the project or a feasible
<br />way to mitigate or avoid such an effect." (Laurel
<br />of California (1993) 6 Cal.4th 1112, 1129
<br />Heights In; see also Vineyard, supra, 40
<br />at p, 447, quoting Laurel Heights H.) "Sig
<br />new information" includes a disclosure
<br />that "[a] new significant environmental
<br />would result from the project..,," (Gut
<br />§ 15088,5, subd. (a) (1))
<br />(2) ProjectAIIteratiom
<br />The Project was changed in two respects from
<br />the one originally envisioned.
<br />(a) Pond -River Connection in Lieu of a
<br />Weir and Fuse Plug
<br />Granite's application for the use permit and
<br />reclamation plan recognized that, "because of
<br />its proximity to the Russian River and Ackerman
<br />Creek, the project site has valuable aquatic and
<br />riparian habitats adjacent to it. The aquatic
<br />habitat supports Chinook salmon and steelhead,
<br />both listed as threatened species under the
<br />Endangered Species Act. The primary concern
<br />for these species relative to the proposed project
<br />is the potential for fish entrapment in the pit
<br />during floods high enough to inundate the site."
<br />The application noted with respect to hydrology
<br />and drainage that, "as an alluvial terrace adjacent
<br />to the Russian River and Ackerman Creek," the
<br />Project site "is subject to Periodic Inundation....
<br />Extensive hydrologic modeling was conducted to
<br />design an overflow structure thatwould minimize
<br />the potential for fish to become entrapped in the
<br />pit, and prevent erosion of pit banks and walls
<br />during a 100 -year flood event".
<br />Granite's application proposed, to address
<br />the potential for flooding and - trappedfish with
<br />construction of a flood control weir, and fuse plug.
<br />"The armored overflow weir gives.the creek and
<br />river a controlled access and drainage point for
<br />flood waters without eroding the mining buffer,
<br />while the erod'able [sic] fuse plug limits potential
<br />fish entrapment" In May 2008, continents on the
<br />Project, the National. Marine :Fisheries Service
<br />(NMFS) of the National Oceanic and Atmospheric
<br />Administration stated that "reconnecting the pit
<br />to the stream" would provide better long -term
<br />Protection for endangered sahnouids than the
<br />proposed weir and fuse plug. Granite's study of
<br />the NMFS proposal, attached as Appendix F to
<br />the Draft, concluded that itwould. be preferable to
<br />use a connection channel between the mine pond
<br />and the Russian River in lieu of the weir and fuse
<br />plug.
<br />The Project as proposed in the Draft provided
<br />for use.of the weir and fuse plug,;butthe pond•
<br />river connection channel design was presented
<br />as "Alternative 3" .It replaced the, weir and fuse
<br />Plug with "a culvert (or culverts) suitable for the
<br />
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