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North Valley Coalition of Concerned Citizens v. City of Los Angeles

Court of Appeals of California, Second Appellate District, Division Two.
Nov 25, 2003
No. B157755 (Cal. Ct. App. Nov. 25, 2003)

Opinion

B157755.

11-25-2003

NORTH VALLEY COALITION OF CONCERNED CITIZENS, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent; BROWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC., Real Party in Interest and Respondent.

The Smith Firm and Kelly T. Smith for Plaintiff and Appellant. Rockard J. Delgadillo, City Attorney, Susan D. Pfann, Assistant City Attorney, and Keith W. Pritsker, Deputy City Attorney, for Defendant and Respondent City of Los Angeles. Weston, Benshoof, Rochefort, Rubalcava & Maccuish, Steven W. Weston and Elaine M. Lemke for Real Party in Interest and Respondent Browning-Ferris Industries of California, Inc.


North Valley Coalition of Concerned Citizens (NVC) appeals from the denial of its petition for writ of mandamus challenging the adoption by the City of Los Angeles (the City) of a mitigated negative declaration (MND) concerning the closure of a portion of the Sunshine Canyon landfill on the ground that the MND does not satisfy the requirements of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). The City determined that the closure will produce no significant environmental impact with appropriate mitigation. NVC contends: I. "Substantial evidence was offered that high winds create a significant dust impact." II. "Woodland and wetland mitigation lacks substantiation; substantial evidence offered of significant impacts." III. "The initial study should have been recirculated after changes to wetland mitigation were made to mollify the Department of Fish and Game."

This case involves approval of a closure plan for part of an inactive portion of the Sunshine Canyon landfill, which is owned by real party in interest Browning-Ferris Industries of California, Inc. (BFI). The area in issue is positioned along the Citys northern border. In 1991, a 25-year variance allowing continued landfill operations within the City expired. Operation of a landfill on the adjacent side of the border with the unincorporated portion of the County of Los Angeles (the County) began in 1996. In 1999, the City approved extension of the County landfill back into about 80 acres of the City by a joint City/County landfill operation. The extension will overlay a portion of the now inactive City landfill.

Operation of the County landfill and expansion back into the City as part of the joint landfill were the subjects of earlier comprehensive environmental reviews. A trial court upheld the Citys environmental impact report (EIR) for the expansion back into the City, and in November 2002, Division I of this court affirmed the trial courts ruling.

The existing inactive landfill and its associated ancillary facilities occupy approximately 258 acres within the 400-acre project site. In 1990, a "Final Closure and Postclosure Maintenance Plan for the Sunshine Canyon Sanitary Landfill" (PMP) was submitted to the City and to various regulatory agencies. The PMP was revised several times over the years, most recently in 1997.

The Citys Environmental Affairs Department is the designated local enforcement agency, and is responsible for closure and post-closure maintenance activities within its jurisdiction. The City directed preparation of an initial study (IS), which was completed in 1999. The City received and responded to comments on the IS. It approved an MND in 2001.

The IS/MND analyzes and reviews closure activities, including final grading, placement of a final cover layer over the existing inactive landfill, re-vegetation of the final cover layer, construction of surface water drainage controls, and construction of a sedimentation basin. It addresses the following issues: land use and planning, population and housing, seismic and other geologic issues, water resources, air quality including dust, transportation, biological resources including wetlands and wildlife, energy and mineral resources, hazards, noise, public services, utilities and service systems, aesthetics, cultural resources, recreation, and mandatory findings of significance. The IS/MND concludes that, with mitigation, there will be no significant impact from the project.

NVC received the IS/MND. The City extended the 30-day comment period for the MND an additional 90 days at NVCs request. Written responses were provided to comments received. After approval of the MND, NVC filed its petition for writ of mandate. The trial court denied the petition and entered judgment for the City and BFI. NVC appealed the ruling, BFI filed an opposition brief, and the City joined in BFIs brief.

DISCUSSION

I. Standard of review

Upon judicial review of a negative declaration of environmental impact, both the trial and appellate courts review the record to determine whether there is substantial evidence in light of the whole record supporting a fair argument of significant environmental impact. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 617; Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1603.) The person challenging the adoption of the negative declaration has the burden of proving by citation to the record that there is substantial evidence supporting a fair argument of significant environmental effects. (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 498-499; Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1379 (Gentry).)

II. Dust impacts

A. Waiver

Public Resources Code section 21177, subdivision (a), provides: "No action or proceeding may be brought pursuant to Section 21167 [for violations of CEQA] unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination." Legal commentators have construed section 21177, subdivision (a), as requiring that specific issues raised in litigation must first be raised during the administrative process. (See Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1118-1119.)

NVC contends that the issue of windblown dust was identified in the administrative process. It relies upon its comments with respect to windblown dust in response to the 1990 version of the PMP. In NVCs 1991 letter, it objected to dust and contamination mitigation efforts. The comments on the PMP are, broadly speaking, a part of the administrative process. However, they predate the IS, which was completed in 1999. Although NVC submitted extensive comments on the IS, only one of them refers to dust mitigation. It addressed the following statement in the IS: "[Truck t]ravel over the paved surfaces is calculated in accordance with Section 13.3.1 of AP-42 and is approximately 2.8 pounds of PM 10 per mile traveled. Thus, the PM 10 loading for this travel is calculated at 76.5 pounds per day. Regular watering of the paved road is estimated to attain a minimum of 90 percent control efficiency reducing these emissions to approximately 7.6 pounds per day." NVCs comment states: "The assumption that the proponent will achieve a 90% reduction in PMs [refers to dust] by watering is completely specious."

NVC noted: "The landfill is located in a wind tunnel, and water can become airborne during its application when excessively high winds are present (testimony Dean Wise, Landfill Manager to Zoning Administration). Even water which does reach the surface can contaminate the dirt. This in turn can be carried by the dust which is raised when these high winds blow (public testimony Zoning Administration). Residents living to the east, southeast and south of the landfill are then at risk to whatever toxics and heavy metals which may have been borne in the water vapor or that have been absorbed by the dust particles."

The City responded as follows: "The reference to 90 percent reduction of PM 10 is in regard to watering of paved surfaces to reduce dust emissions generated by construction truck traveling. Soil stockpile areas on the County Landfill side to be used for closure construction are currently treated with a combination of daily watering and a California Regional Water Quality Board approved soil sealant treatment. These methods have proven to be highly effective at controlling fugitive dust from County landfill operations."

The main purpose of the exhaustion doctrine is to ensure that public agencies are given the opportunity to receive and respond to issues before their actions are subjected to judicial review. (Corona-Norco Unified School Dist. v. City of Corona (1993) 17 Cal.App.4th 985, 997; Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1215.) The purpose of an initial study is to determine whether to prepare a negative declaration or an EIR. (See No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74.) Comments made before an agency has identified issues in its initial study are not sufficient because they do not allow the agency to target those issues which the agency must address in determining whether to prepare an EIR. Failing to articulate factual issues and legal theories in connection with the initial study denies the agency the opportunity to do so.

NVCs oblique reference to dust in its comments to the IS is also insufficient to raise the issue. (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197-1198 [generalized environmental comments insufficient to raise procedural issue].) NVC did not identify dust as a significant effect on the environment and did not explain why it believed the plan would generate dust problems. Nor did it question the impact of windblown dust on sensitive populations. The City therefore had no opportunity to address NVCs current position in the administrative proceeding. Failure to raise an issue during the administrative review process bars that claim even if there is evidence in the record to support such a claim. (Id. at p. 1198.)

Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, relied upon by NVC, is not to the contrary. In that case, the agency had been made aware in the administrative proceeding that steelhead trout was an endangered species, that a creek in the project area was a spawning area for steelhead trout, and that care had to be taken to ensure that the trout were protected. (Id. at p. 384.) Here, by contrast, the complaints made by NVC regarding the impact of blown dust on sensitive populations were not made in comments concerning the IS. Accordingly, the issue is waived.

B. Substantial evidence of a significant dust impact

Even assuming NVC did not waive the issue, its position that the record establishes a significant impact from windblown dust is without merit.

The IS/MND addresses windblown dust, concluding that it will not cause a significant impact. It states that 171.8 pounds of dust will be generated daily, but that mitigation measures will reduce the amount of dust to 46.6 pounds per day, an amount less than significant under standards set by the South Coast Air Quality Management District (SCAQMD). CEQA Guidelines allow a lead agency to conclude impacts will be less than significant if they fall below an oversight agencys threshold levels. (Cal. Code Regs., tit. 14, § 15064.7.) Accordingly, no significant impact is shown.

"[C]ourts should afford great weight to the Guidelines except when a provision is clearly unauthorized or erroneous under CEQA." (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2.)

The generation of dust is broken down as follows. With regard to dust from vehicles delivering concrete and other supplies, the IS/MND notes that "almost the entire onsite access road is paved and, receives an ongoing watering routine to reduce dust associated with County operations" such that the impact would be minimal. The IS/MND states that 76.5 pounds per day of dust would be generated by travel from the soil stockpile, but that the watering would attain 90 percent control efficiency. The 72.7 pounds per day of dust for unpaved travel was expected to be reduced by regular watering and stabilization techniques, achieving 80 percent efficiency. One pound per day would be generated from loading and unloading operations. After mitigation, dust emissions would be less than 47 pounds per day, well below the SCAQMDs daily threshold limit of 150 pounds per day.

No evidence was presented to contradict the analyses in those documents. NVCs opening brief questions the IS/MNDs use of 9.9 miles per hour as an appropriate mean wind speed for the area. NVC points to evidence received prior to the final IS tending to substantiate the existence of high winds at the site. That evidence does not, however, address the issue of the mean wind speed for the area. NVCs recitation of historical complaints about dust generated at the operating landfill and a critique by a City consultant on a draft of the IS made prior to issuance of the final IS do not constitute substantial evidence that the impact may be significant. The evidence does not address the issue of whether the mitigation methods to be employed would be effective in reducing windblown dust.

Many residents and park users testified to the problems of wind-borne dust from the site during the operation of the landfill. A City zoning administrator testified: "One of the ongoing complaints [of operating the landfill] is the result of the notorious winds in the Granada Hills area. Winds are a well-known way of life in this region. The winter winds coming from the high desert areas down through Newhall Pass exit into the San Fernando Valley basin at Sunshine Canyon. Winds in excess of 60 miles an hour are not abnormal, and constant winds of 25 miles per hour are the norm."

A City-retained consultant, Julia Witz Baucke, recommended mitigation addressed to the high winds due to the extensiveness of the complaints regarding windblown dust in comments to the PMP. The IS addresses dust mitigation measures.

NVC also points to the existence of a public controversy concerning windblown dust from the landfill. A public controversy is not sufficient in itself to require preparation of an EIR. (Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337,1359 (Leonoff); Pub. Resources Code, § 21082.2, subd. (b): "The existence of public controversy over the environmental effects of a project shall not require preparation of an environmental impact report if there is no substantial evidence in light of the whole record before the lead agency that the project may have a significant effect on the environment.")

There was evidence that windblown dust had created a public controversy, reflected in a March 1988 Los Angeles Times article which described 60 mile-per-hour winds whipping clouds of dust in the area.

NVCs statement in its comments to the IS merely questions the conclusion reached, without providing any countervailing evidence. (Gentry, supra, 36 Cal.App.4th at p. 1417 [in the absence of a factual foundation, predictions of non-experts do not constitute substantial evidence]; Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 756 ["[S]peculative possibilities are not substantial evidence of environmental impact"]; Leonoff, supra, 222 Cal.App.3d at p. 1352 [unsubstantiated opinions, concerns, and suspicions about a project do not rise to the level of substantial evidence].) NVC has not presented substantial evidence to create a fair argument that a significant impact will be caused by the mitigated project.

III. Woodlands and wetlands mitigation

The IS/MND recognizes potential impacts to biological resources, primarily woodlands and wetlands. It states: "Due to the construction of surface water drainage improvements along water courses, plant community habitats such as arroyo willow series, southern willow scrub, [c]oast live oak woodland, and chamise chaparral would be affected. Approximately 3 acres of [c]oast live oak woodlands would be affected by closure activities." NVC contends that it has offered substantial evidence that the mitigation proposed in the MND may not reduce the impacts below a level of significance because woodlands will not be replaced as required and the wetlands and habitat mitigation is illusory.

A. Woodlands mitigation

NVC urges that the project will impact trees occurring in the riparian habitat and coast live oak woodlands. The IS proposes mitigation by planting a 2:1 ratio of replacement trees in the 100-acre open space area south of the existing landfill or in other suitable areas. The replacement plantings are 15-gallon specimens. NVC points to the comments of Ms. Baucke, who noted that the replacement oak trees would not be as large as the mature trees lost, the comments of the California Department of Fish and Game (Fish and Game), which recommended a replacement ratio of 10:1 for native tree species within the stream-zone area, and a comment of a City consultant recommending replacement of mature oak trees on a 3:1 ratio.

The IS/MND states that approximately 3.8 acres of arroyo willow and southern willow scrub will be lost. It also states that coast live oak woodlands covers 39.3 acres within the closure area, and that approximately 3.3 acres of coast live oak woodlands would be affected by closure activities.

1. Willow trees

NVC urges that the IS/MND fails to consider the possibility of avoiding loss of willow and other trees that typically grow along stream channels and rivers. The IS/MND states that the loss of these trees is unavoidable due to the construction of surface water drainage improvements along the water courses.

NVC also urges that the ratio of replacement trees to trees lost is insufficient. The IS/MND states that replacement is provided so that no net loss will result. The ratio of replacement trees is consistent with the mitigation reporting and monitoring program for closure of the landfill — a 2:1 ratio if 15-gallon trees are used, or 5:1 ratio if 3-gallon trees are used. Additional mitigation is discussed with respect to mitigation of wetlands. The record indicates that this ratio has been successfully utilized for replanting oak trees in other areas of Sunshine Canyon. The same ratio used at the County landfill exceeded the required success rate by about 20 percent. No evidence in the record contradicts those results or supports NVCs position that a larger number of replacement trees is required.

While Fish and Game initially recommended 10 replacement trees for each one removed, it subsequently concurred with the proposed plan as adequate. The response to Fish and Games comment explained the successful mitigation in the County landfill using the suggested ratio. The City agreed that trees removed from the stream-zone areas, under the jurisdiction of Fish and Game, would be planted at a ratio satisfactory to Fish and Game.

NVC also challenges the use of off-site mitigation. While on-site mitigation is preferred in the IS/MND, it is not mandated. Mitigation off-site by replacing or providing substitute resources or environments is permissible under the CEQA Guidelines. (Cal. Code Regs., tit. 14, § 15370, subd. (e) [Mitigation may include "[c]ompensating for the impact by replacing or providing substitute resources or environments"].)

Off-site mitigation for willow trees is unavoidable because the only appropriate locations for drainage improvements and a sediment basin are along water courses where the trees are located. The IS/MND provides that mitigation tree planting will primarily occur within the 100-acre open-space area located south of the existing landfill; willows are to be planted along Bee Canyon, East Canyon Creek or other appropriate areas. As an alternative, if the sites are unavailable, the IS/MND provides for purchasing wetland credits or funding an invasive species eradication program. NVC provides no legal authority or evidence requiring that mitigation occur onsite. (See Gentry, supra, 36 Cal.App.4th at pp. 1410-1411 [upholds the use of off-site mitigation, consisting of the payment of mitigation fees and implementation of a local habitat conservation plan, but holds that in that case the mitigation measures improperly required future formulation of a mitigation plan].)

2. Oak trees

Mitigation of oak tree loss also is reported to reduce the projects impact to less than significant. The IS/MND states that the mitigation measures will comply with the requirements of the Citys oak tree ordinance (L.A. Mun. Code, ch. I, art. 7, § 17.05, subd. (R)(4)(a).). The replacement trees will approximate the value of the trees removed. The proposed type and method of mitigation has been shown historically to be successful, as discussed above.

The comments of Ms. Baucke do not provide substantial evidence of an unmitigated significant impact. Ms. Baucke points out that the replacement trees are much smaller than the mature oak trees to be replaced, but does not state that the Citys oak tree ordinance, which provides for the smaller trees, is inadequate. The plan complies with CEQA because compliance with standards of regulatory agencies indicates that the impacts are less than significant. (See Cal. Code Regs., tit. 14, § 15064.7.) Ms. Baucke also comments that where oak trees are to be preserved, measures must be taken to avoid indirect impacts. The IS/MND, however, does just that. While the draft biological assessment of Sunshine Canyon landfill states that mature oak trees must be replaced using a 3:1 ratio under the Citys oak tree ordinance, the draft misstates the ordinances requirements.

BFI notes in its respondents brief on appeal that off-site mitigation is appropriate given the historical and existing landfill operations in Sunshine Canyon. The need for off-site mitigation of oak tree loss is presumably affected by expansion of landfill activities back into the project site.

The draft states: "Pursuant to the ordinance, where impacts cannot be avoided, the applicant would be required to provide an oak tree mitigation program for replacement at not less than three trees per tree removed. This mitigation program is required for submittal to the City of Los Angeles." The ordinance provides: "The oak tree [shall] be replaced within said property by at least two oak trees of a variety included within the definition set forth in Section 17.02 of the Code, [ex]cept where the oak tree is relocated pursuant to Section 17.05-R2(a). Each replacement tree shall be a 15-gallon, or larger, specimen in size, measuring one inch or more in diameter at a point one foot above the base, and not less than seven feet in height, measured from the base. The size and number of replacement trees shall approximate the value of the tree to be replaced." (L.A. Mun. Code, ch. I, art. 7, § 17.05, subd. (R)(4)(a).)

B. Habitat and wetlands mitigation

1. Habitat mitigation

The IS/MND discusses 47 sensitive species that are "known to or potentially occur within" the Sunshine Canyon site. Ten of those sensitive species had been observed on the landfill site. According to the IS/MND, two sensitive species might be significantly impacted by the closure: the least Bell vireo and the Western burrowing owl. Neither had been observed or found on the site, despite surveys of the area.

The IS/MND provides for replanting of southern willow and arroyo willow scrub in order to provide replacement habitat. It also establishes that a re-survey of the closure site will be made prior to grading to check for the sensitive species. If either the least Bell vireo or the Western burrowing owl is found, mitigation will be implemented to reduce any impact to less than significant. If the least Bells vireo is found, then the United States Fish and Wildlife Service is expected to require that replacement of habitat be increased from a ratio of 1:1 to 5:1. If Western burrowing owls are found, BFI will consult with Fish and Game to determine an appropriate relocation program.

Contrary to NVCs position, the IS/MND reports that no raptors would be significantly impacted by the plan. While breeding and foraging habitat is present for white-tailed kite, Coopers hawk, and long-eared owl, other suitable habitat for them exists within the vicinity of the project site. Potential foraging habitat for the California spotted owl and potential breeding habitat for the Western burrowing owl also exists, although the species were not observed. Winter foraging habitat exists for the Northern harrier, ferruginous hawk, sharp-shinned hawk, merlin, and prairie falcon, as well as year-round foraging habitat for the golden eagle. Because of the large amount of foraging habitat available for the raptor species in the vicinity of the project site, impacts were not considered significant.

Any loss of active raptor nests is considered a significant impact. No active raptor nests, however, are reported. The IS/MND provides that if habitat removal is proposed during the raptor breeding season, a survey will be conducted for active nesting areas. If found, no construction will take place within 500 feet of an active nest until the young have fledged. Trees containing nests will be removed only during the non-breeding season. Thus, mitigation will be employed to reduce any impact to below a level of significance.

2. Wetlands mitigation

The IS/MND provides that implementation of the closure plan will cause a loss of about 3.8 acres of riparian habitat, resulting in potentially significant impacts on wetland and riparian habitats. The plan commits to mitigating the loss to a level of no net loss of the resources. The IS/MND identifies three potential sites for mitigation. It describes each of the possible project areas, and states that other sites may be considered. The IS/MND recognizes that mitigation in any of the areas requires approval and consultation with various agencies and acknowledges that finalized detailed mitigation and selection of the site will be determined cooperatively by Fish and Game, the United States Army Corps of Engineers, the California Water Resources Control Board, and other regulatory agencies in conjunction with the City and BFI. If the mentioned sites are not available, the plan provides for purchasing wetland credit and funding an invasive series eradication program as alternatives.

According to the Citys response to comments by Fish and Game, a reference to 1.25 acres of jurisdictional stream zone areas in the IS/MND, refers to wetlands subject to the jurisdiction of the United States Army Corps of Engineers.

Despite containing elements of future mitigation, the treatment of wetlands and habitat mitigation does not amount to improper deferred mitigation. "[A] mitigation condition that depends on the future formulation of a mitigation plan may be valid, provided the lead agency recognizes the significance of the potential environmental effect, commits itself to mitigating the impact, and articulates specific performance criteria for the future mitigation." (Gentry, supra, 36 Cal.App.4th at p. 1411.) Gentry recognized that a condition requiring compliance with public agencies is permissible. (Id. at p. 1394.) Improper deferred mitigation, by contrast, is characterized by future action without the benefit of compliance standards. (Id. at p. 1411.)

The IS/MND meets the requirements stated in Gentry, supra, for appropriate mitigation. The impact on wetlands is recognized, the effects are to be mitigated to no net loss, and mitigation is to comply with the requirements of the relevant regulatory agencies. (See also Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1030 [EIR calling for seven types of alternative measures to be studied, analyzed, and possibly incorporated into the transportation management program was acceptable future mitigation].) Fee-based mitigation measures, such as fees paid for infrastructure programs and restoration of off-site environments, are appropriate under CEQA where they are sufficiently tied to the mitigation of the impacts in question. (See Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 141 [traffic impact mitigation fees sufficient]; and see 1 Kostka & Zischke, Practice under the Cal. Environmental Quality Act (Cont.Ed.Bar 1st ed. 2003 update) Mitigation Measures, § 14.12, p. 567 ["In practice, agencies frequently impose fees as mitigation measures . . . . Assessment of a fee is an appropriate form of mitigation when it is linked to a specific mitigation program"].)

San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, relied upon by NVC, is distinguishable. There, the court concluded that creation of a mitigation bank setting aside habitat land to be used as mitigation by future projects could lead to a future taking of, and other significant effects on, endangered and threatened species. (Id. at pp. 397-398.)

In the present case, the IS/MND commits to mitigation that results in no net loss of riparian/wetland habitat. It states that as an alternative, BFI will "purchase wetland credit through an established mitigation bank as a result of consultation with regulatory agencies. The project proponent would be required to pay an amount established by the mitigation bank developer (i.e., public, nonprofit, or private entity) as compensatory mitigation." In addition, BFI might fund an invasive species eradication program, providing for removal of invasive, exotic plants from United States waters, including wetlands within the jurisdiction of the Los Angeles District Army Corps of Engineers. Thus, the payment of fees is sufficiently tied to mitigation of the loss of riparian habitat.

NVC also notes that the IS/MND does not identify a source of money for future mitigation. The Regional Water Quality Control Board (RWQCB) commented in a 1996 letter that "Should a 401 Water Quality Certification Permit or streambed alteration permit be required for construction of the sedimentation basin, then the postclosure maintenance plan and cost estimates should specify the long-term maintenance requirements of such permits, and the cost of such maintenance added to the estimated postclosure maintenance cost contained in `Appendix L of the Final Closure Plan."

The Citys response states: "An application for a streambed alteration agreement is to be filed with the California Department of Fish and Game. In addition, an application for a Section 404 Permit from the Corps of Engineers and a request for a 401 Water Quality Certification from the RWQCB will be submitted to these regulatory agencies. BFI and its wetlands consultants met with the Corps of Engineers in February 1997 and obtained guidelines for permit application submittal. Permit applications will be prepared in March 1997 and will be submitted to the appropriate regulatory agencies once comments are received on this Addendum and on the Negative Declaration for landfill closure construction. The costs of these permits are accounted for in the revised Closure and Post-Closure Maintenance Cost Estimates included as Appendix C of Volume I of this Addendum. These Closure and Post-Closure Estimates have been revised to reflect design changes and revisions contained in this Addendum." RWQCB subsequently completed a detailed review of the closure plan, and approved it conditioned upon "a 401 Water Quality Certification Permit be[ing] obtained for the proposed sedimentation basin for the lower portion of a natural canyon." NVC does not explain how the Citys response is deficient to address the issue raised.

IV. Recirculation of the initial study

NVC contends that because changes to the closure plan were made in response to comments by Fish and Game after the IS had been circulated for public comment, the document should have been recirculated. We disagree.

When public review demonstrates that the initially proposed mitigation measures will adequately reduce potential effects to insignificance, the imposition of additional mitigation does not require further public review. (Gentry, supra, 36 Cal.App.4th at pp. 1392-1393; Leonoff, supra, 222 Cal.App.3d at p. 1357.)

"A lead agency is required to recirculate a negative declaration when the document must be substantially revised after public notice of its availability has previously been given pursuant to Section 15072, but prior to its adoption." (Cal. Code Regs., tit. 14, § 15073.5, subd. (a).) Section 15073.5, subdivision (b) defines substantial revision to mean: "(1) A new, avoidable significant effect is identified and mitigation measures or project revisions must be added in order to reduce the effect to insignificance; or [¶] (2) The lead agency determines that the proposed mitigation measures or project revisions will not reduce potential effects to less than significance and new measures or revisions must be required." Recirculation of the MND is not required when "[n]ew project revisions are added in response to written or verbal comments on the projects effects identified in the proposed negative declaration which are not new avoidable significant effects." (Cal. Code Regs., tit. 14, § 15073.5, subd. (c)(2).)

Fish and Game asserted in its comments to the MND that more acreage was included under its jurisdiction than the amount set forth. The response explained how Fish and Game had miscalculated the acreage and pointed out that any final mitigation plan would require Fish and Game approval. It indicated that a new mitigation area, Chatsworth Reservoir, was among the sites that would be considered for habitat creation or restoration. The IS had stated, however, that areas in addition to the three identified would be considered. Thus, the responses merely clarify the mitigation identified in the IS/MND.

The response also clarifies the type of mitigation that would occur in Bull Creek, an area already proposed in the IS/MND. Any such mitigation would be required to meet the standards of various agencies, including Fish and Game, and would ensure no net loss of resources. Fish and Game agreed in writing to the mitigation measures adopted by the City. Thus, the initially proposed mitigation reduced the impact to less than significant and no new mitigation requiring recirculation is included. (See Leonoff, supra, 22 Cal.App.3d at pp. 1356-1357 [recirculation not required where the lead agency added three mitigation measures requiring compliance with state and local environmental laws]; Long Beach Sav. & Loan Assn. v. Long Beach Redevelopment Agency (1986) 188 Cal.App.3d 249, 262-263 [recirculation not required when the agency added two minor mitigation measures in response to public comments].)

DISPOSITION

The judgment appealed from is affirmed. The City of Los Angeles and Browning-Ferris Industries of California, Inc., shall recover their costs of appeal from the North Valley Coalition of Concerned Citizens.

We concur: BOREN, P.J., DOI TODD, J.


Summaries of

North Valley Coalition of Concerned Citizens v. City of Los Angeles

Court of Appeals of California, Second Appellate District, Division Two.
Nov 25, 2003
No. B157755 (Cal. Ct. App. Nov. 25, 2003)
Case details for

North Valley Coalition of Concerned Citizens v. City of Los Angeles

Case Details

Full title:NORTH VALLEY COALITION OF CONCERNED CITIZENS, Plaintiff and Appellant, v…

Court:Court of Appeals of California, Second Appellate District, Division Two.

Date published: Nov 25, 2003

Citations

No. B157755 (Cal. Ct. App. Nov. 25, 2003)