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Madera County EIR's Approach To Species Upheld

An environmental impact report for a dairy in Madera County has survived a challenge from an organization that fights dairy expansion in the Central Valley. The Fifth District Court of Appeal rejected arguments that the EIR's handling of endangered species issues, project alternatives and cumulative groundwater impacts was inadequate. Thomas Terpstra, the attorney for Diamond H Dairy and the county, said the ruling is important because the Fifth District undertook an independent analysis of some agency comments on the draft EIR. In some past California Environmental Quality Act (CEQA) cases, the Fifth District has given "undue deference to third party comments," Terpstra said. In this case, the U.S. Fish & Wildlife Service (USFWS) had found that the dairy would cause the loss of habitat for the endangered kit fox, so the agency made recommendations for mitigations. The final EIR, however, relied on a biologists' report that found no evidence of kit fox habitat; the EIR did not mandate the USFWS mitigations. Instead, the document said the developer would be required to meet the requirements of the Endangered Species Act (ESA). Terpstra said there was nothing that triggered the ESA, so proposed mitigations were unnecessary. Project opponents have asked the state Supreme Court to review decision. That appeal focuses on the Fifth District's ruling that an analysis of a smaller alternative project did not have to appear in the EIR. The court ruled that the alternatives analysis could be presented as evidence during a public hearing. In 1999, Greg Hooker and Diamond H Dairy applied for a conditional use permit to construct a dairy on 158 acres of an existing 1,925-acre cotton and grain farm southeast of Chowchilla. The applicant sought permission to develop a dairy with 4,480 milk cows, 700 dry cows and 4,000 replacement heifers, along with the associated barns. Processing was proposed to take place off-site. The county initially approved a mitigated negative declaration for the project. When the Center on Race, Poverty and the Environment (CRPE) appealed, the Board of Supervisors ordered preparation of an EIR. The county issued the draft EIR in February 2001 and it concluded the dairy would cause significant, unavoidable impacts on groundwater quality, air quality and odors. Four months later, the Board of Supervisors adopted the EIR, including findings of overriding consideration, and approved the project. An organization called Association of Irritated Residents and CRPE sued. Madera County Superior Court Judge Charles Wieland ruled for the county, so the project opponents appealed. A unanimous three-judge panel of the Fifth District upheld Judge Wieland. During the litigation, the dairy was built and began operating. The kit fox, an endangered species, was a key part of the appeal. Project opponents argued that the field study of kit fox habitat in the EIR did not constitute "substantial evidence" because it was not completed within survey guidelines issued by the state Department of Fish and Game (DFG). The survey concluded that the dairy site did not provide habitat for any listed species. Opponents also contended the project developer must obtain an "incidental take" permit because of impacts to kit fox habitat. The court rejected both arguments. Neither DFG nor the USFWS commented on the methodology of the field survey in the EIR, the court noted. "CEQA does not require a lead agency to conduct every recommended test and perform all recommended research to evaluate the impacts of a proposed project. The fact that additional studies might be helpful does not mean that they are required," Justice Timothy Buckley wrote for the court. "The response to CRPE's comment [on the draft EIR] adequately explains why a protocol level study in conformity with the survey guidelines was not conducted; no quality natural habitat was present on the site, no sensitive species or their sign was detected during the field survey and the NDDB [Natural Diversity Data Base] query showed only one kit fox sighting a decade ago and it was over eight miles south of the dairy site," Buckley continued. As for the take permit, the court found that the EIR "did not limit the federal government's jurisdiction under the Endangered Species Act or impair its ability to enforce the provisions of this statute." Regarding the alternatives analysis, the project opponents challenged the Board of Supervisors' finding that a smaller dairy was infeasible. The opponents said evidence supporting the board's decision — such as an analysis by a dairy consulting firm — should have appeared in the EIR so the public could comment. This argument is also the basis for the appeal to the state Supreme Court. "We disagree," Buckley wrote. "First, CEQA Guidelines § 15131 provides that economic data is not required to be included in an EIR. Second [Public Resources Code] § 21081.5 states that a finding of infeasibility shall be based ‘on substantial evidence in the record.'" The analysis and a letter from a lender saying it would not finance the smaller dairy "constitute substantial evidence," the court ruled. The court also rejected opponents' arguments regarding cumulative effects on groundwater quality. Opponents said the EIR's discussion of cumulative impacts amounted to conclusory statements unsupported by evidence. But the EIR satisfied the court. "The conclusions concerning salinity and nitrogen loading are supported by adequate analysis and factual detail," Buckley wrote. "The DEIR explained why nitrogen loading is not likely to be a cumulative problem. The agency was not required to provide evidence supporting every fact contained in this section. … Appellants' argument to the contrary is premised on the mistaken position that the cumulative impacts section of an EIR must be as detailed as the consideration of the proposed project itself. This is incorrect." Brent Newell, an attorney for CRPE, said the court ignored two studies the organization submitted regarding groundwater in San Joaquin and Stanislaus counties. "The court seemed to be pretty generous to the agency's interpretation of the applicability of evidence," he said. But Terpstra said the EIR's handling of cumulative impacts was solid. A comprehensive geology/hydrology report and an analysis of the regional dairy industry were included, he said. The court simply applied the "rule of reason" to the cumulative impacts section, he said. The Case: Association of Irritated Residents v. County of Madera, No. F041012, 03 C.D.O.S. 3392, 2003 DJDAR 4305. Filed April 1, 2003. Ordered published April 17, 2003. The Lawyers: For AIR: Brent Newell, Center on Race, Poverty and the Environment, (415) 346-4179. For the county and Diamond H Dairy: Thomas Terpstra, Herum, Crabtree & Brown, (209) 472-7700.
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