An environmental impact report for a proposed quarry in Madera County has been thrown out by an appellate court, which found the document's consideration of water, traffic, noise and cumulative impacts to be inadequate. The court also determined a water supply assessment is needed for a mitigation measure that could require the quarry to connect surrounding property owners with a water system.
Although the Fifth District Court of Appeal upheld portions of the EIR for the proposed Madera Ranch Quarry, the court found a number of shortcomings. The court said the analysis of water issues was acceptable, for example, but found that one mitigation measure defied common sense and another improperly deferred specific action.
Seven years ago, W. Jaxon Baker purchased property in Madera County, about 16 miles northeast of Madera. Baker applied for a conditional use permit to develop and operate a hard rock quarry, and he sought a rezoning and second use permit for a hot mix asphalt plant. The excavation pit for Madera Ranch Quarry would encompass 86 acres, and the remaining facilities would cover about 39 additional acres. At the time of the application, the land was zoned for agriculture, used for cattle grazing and covered by a Williamson Act contract.
There are dozens of residences and at least 55 wells within a mile of the project site. Residents raised many questions about the project, as did the Central Valley Regional Water Quality Control Board. After several public hearings, the Madera County Board of Supervisors in October 2006 approved two conditional use permits, the rezoning and the cancellation of the Williamson Act contract. The board also certified the EIR. Neighbors Sheryl and Bruce Gray sued, arguing the county violated the California Environmental Quality Act (CEQA), the Surface Mining and Reclamation Act (SMARA) and the Madera County general plan. Madera County Superior Court Judge Charles Wieland ruled for the county.
Area residents and the Regional Water Quality Control Board were concerned that the quarry would dry up area wells and that the quarry's pit would serve as a well tying together disconnected aquifers, possibly polluting aquifers residents use for drinking water. The county approved two mitigation measures to ensure neighbors were not harmed. Measure 3.9-1a provided Baker with three options: rehabilitate or deepen the private wells; provide "incremental replacement water" with a connection to the quarry's water system, or provide full replacement water with a connection to the quarry's system. Measure 3.9-1b permitted Baker to provide bottled water to neighbors or build a "water system constructed under federal, state and county guidelines" to provide potable water to affected neighbors. The Grays argued there was inadequate evidence the mitigations were feasible or effective, and the Fifth District agreed.
"[O]ur common sense informs us that the mitigation measures will not effectively replace the water that could be lost by the neighboring landowners," Presiding Justice James Ardaiz wrote for the unanimous three-judge panel. "It is true that the mitigation measures will provide a replacement for the lost amount of water. However, neither Mitigation Measure 3.9-1a nor Mitigation Measure 3.9-1b will provide neighboring residents with the ability to use water in substantially the same manner that they were accustomed to doing if the project had not existed and caused a decline in the water levels of their wells."
The only true mitigation would be connecting neighbors to a water system, but the county never examined the feasibility or impacts of such a system, the court determined.
"While we generally agree that CEQA permits a lead agency to defer specifically detailing mitigation measures as long as the lead agency commits itself to mitigation and to specific performance standards, we conclude that here the county has not committed itself to a specific performance standard. Instead, the county has committed itself to a specific mitigation goal – the replacement of water lost by neighboring landowners because of mine operations," Ardaiz wrote.
Because building a new water system "is the only effective mitigation measure that was proposed," the court said the county must analyze the impacts of building a system, and the county must either conduct a water supply assessment to determine whether water will be available or explain why a water supply assessment is not required.
To offset traffic impacts, the county required Baker to construct intersection improvements on Highway 41 under Caltrans oversight or to pay fees to Caltrans. Another road mitigation measure required the payment of maintenance fees based upon annual tonnage mined. Again, the court agreed with the Grays that the mitigations were inadequate. There was no evidence Caltrans had scheduled improvements to the highway "in a way that would mitigate the increase in vehicle traffic," the court ruled. Nor was there evidence the county had a plan for maintenance or improvements required by the increased traffic.
The court rejected the county's findings regarding noise because of the "bare conclusion" that an increase of 2.1 decibels in the day-night average was insignificant. In addition, because the area already has noise levels greater than allowable in the general plan, the EIR should have addressed the project's contribution to cumulative noise impacts, the court found. For these reasons, the court found the county's statement of overriding considerations regarding noise to be unacceptable. The county's failure to address cumulative noise impacts also placed the project in conflict with the general plan.
The court rejected the EIR's cumulative impacts section because the county did not document how it determined there would be no substantial cumulative impacts.
The county did not violate SMARA, the court ruled.
The Case: Gray v. County of Madera, No. F053661, 08 C.D.O.S. 13523, 2008 DJDAR 16168. Filed October 24, 2008. The Lawyers: For Gray: Donald Mooney, (530) 758-2377. For the county: Douglas Nelson, county counsel's office, (559) 675-7717. For Madera Ranch Quarry: Thomas Terpstra, (209) 599-5003.