Lead Agencies not Bound by Appendix G in Setting CEQA Thresholds

Save Cuyama Valley v. County of Santa Barbara

(2013) ___ Cal.App.4th ___

In Save Cuyama Valley v. County of Santa Barbara (2013) ___ Cal.App.4th ___, a California Court of Appeal has ruled that a lead agency need not use the CEQA Guidelines Appendix G ("Appendix G") thresholds of significance to evaluate a project's impacts under the California Environmental Quality Act ("CEQA"), and may instead craft its own project-specific thresholds of significance. The Court also offered an interesting evaluation of an Environmental Impact Report's ("EIR") groundwater impacts analysis, holding that an EIR's erroneous finding with respect to an aggregate quarry's groundwater impacts was "of no moment" when a measure contained in a conditional use permit would adequately mitigate the potential groundwater impacts. A copy of the decision can be found here.

Santa Barbara County ("County") prepared and certified an EIR for a sand and gravel mining project on the Cuyama River. In assessing the project's hydrological impacts, the EIR noted that any of the 10 thresholds contained Appendix G's Hydrology and Water Quality section "could trigger a finding of potentially significant impact related to hydrology/flooding." The EIR nonetheless adopted a project-specific threshold of significance for potential hydrological impacts, which was not contained in Appendix G. The EIR concluded that, against this threshold, any hydrological impacts on the Cuyama River would be "minor."

An environmental group challenged the County's use of its own project-specific threshold of significance. The Court rejected the challenge, holding that CEQA grants agencies broad discretion to develop their own thresholds of significance, and only requires that a threshold be formally adopted if it is for "general use", i.e., for use in evaluating significance in all future projects. Accordingly, because the EIR's threshold was specific to this particular project, the Court rejected the environmental group's assertion that formal adoption was required. The Court further held that the County was not required to provide an explanation as to why it did not use the Appendix G thresholds of significance. The Court noted that the Appendix G thresholds are only "suggested" and accordingly, any deviation from their use need not be documented or justified.

Turning to a separate claim, the Court also upheld the EIR's conclusion that the project would not significantly impact water quality. As support for this conclusion, the EIR looked solely at historical data for nearby wells to see how far below groundwater was typically found. According to this data, the EIR found that under most conditions, groundwater would be located below the maximum mining depth of 90 feet. Accordingly, the EIR concluded that the projects impacts on water quality would be less than significant.

The Court held that the EIR's conclusion as respects groundwater impacts was unsupported by the evidence in the record. The EIR's findings regarding nearby wells, according to the Court, was "in tension" with data showing that the groundwater in nearby wells is found anywhere between 40 and 110 feet below ground. The Court nonetheless upheld the EIR's conclusion, finding that the conclusion, while erroneous, was not prejudicial. The Court noted that any potential groundwater impacts would be addressed by a conditional use permit measure which prohibited excavation "to the level of groundwater," required excavation to remain "at least an average of six feet above water level," and obligated the operator "to backfill any pit to a depth of six feet should any groundwater be exposed." This measure, according to the Court, would be "wholly effective in negating the mine's adverse impact on water quality." On this point, the Court found that the EIR's mistaken conclusion was "of no moment" and had "no effect on the [EIR's] informational content or its recommendations."

The Save Cuyama Valley decision is notable for two main reasons. First, the Court's endorsement of project-specific thresholds of significance serves as a reminder that Appendix G Guidelines thresholds are "suggestions" only and need not be used in every instance. Second, the Court's decision to uphold the EIR's conclusion as respects the project's groundwater impacts demonstrates that courts may be more willing to tolerate erroneous conclusions, so long as measures exist that would mitigate significant impacts to a level of insignificance.

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