Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIN038227, Michael M. Anello and Robert P. Dahlquist, Judges.
HUFFMAN, Acting P. J.
This appeal and the companion appeal, RiverWatch v. County of San Diego Department of Environmental Health, Case No. D049216, are the latest in the lengthy course of litigation that followed 1994 voter approval of Proposition C, an initiative which paved the way for construction and operation of a privately owned solid waste facility in Northern San Diego County. (San Diego County Sample Ballot and Voter Information Pamp., Gen. Elec. (Nov. 8, 1994) (Proposition C).) In the underlying action giving rise to these two appeals, plaintiffs RiverWatch, the Pala Band of Mission Indians (Pala Band), and the City of Oceanside (Oceanside) sought a writ of mandate and declaratory and injunctive relief alleging that defendants County of San Diego Department of Environmental Health and Gary Erbeck, Director of the County of San Diego Solid Waste Local Enforcement Agency, (collectively DEH), violated the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA), Proposition C, San Diego's general plan and zoning ordinances, and the California Code of Regulations when they approved various aspects of the landfill project. The trial court granted the petition in part and denied it in part.
In Case No. D049216, DEH and real party in interest Gregory Canyon, Ltd. (GCL), the project applicant, challenged the June 2006 judgment awarding RiverWatch and Pala Band $239,620 in attorney fees under Code of Civil Procedure section 1021.5. We are simultaneously filing an opinion affirming the attorney fee award. In this appeal, Case No. 48259, RiverWatch, Pala Band and Oceanside challenge the portions of the January 2006 judgment that were adverse to them.
The court takes judicial notice of the record filed in Case Nos. D049216 and D054471. (Evid. Code, §§ 452, subd. (d), 459.)
Plaintiffs argue that the trial court erred in rejecting their claim that the landfill project violates Proposition C and the San Diego County general plan. They also contend that the court erred in ruling that the final environmental impact report (FEIR) adequately identifies and analyzes: (1) private vehicle traffic at the landfill; (2) the design and phased construction of the dual storm water control system; (3) long-term threats to groundwater quality; (4) funding for mitigation of cumulative biological impacts; (5) use of sound walls to mitigate noise impacts; and (6) mitigation measures relating to the Higgins Family Cemetery, a historic resource.
We affirm the judgment for reasons we shall explain.
FACTUAL AND PROCEDURAL BACKGROUND
Proposition C, approved by San Diego County voters in November 1994, amended the San Diego County general plan and zoning ordinance, designating an area known as Gregory Canyon for use as a landfill and recycling center. Plans for the landfill project progressed slowly amid opposition. (See, e.g., Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556; and Pala Band of Mission Indians v. Board of Supervisors of San Diego County (1997) 54 Cal.App.4th 565.) DEH, as the lead public agency, certified a FEIR in February 2003, and issued the solid waste facilities permit approving the landfill project in June 2004. (RiverWatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186, 1195.) In July 2004, RiverWatch, Pala Band and Oceanside filed their petition for writ of mandate and complaint for declaratory and injunctive relief in San Diego Superior Court Case No. GIN038227. Plaintiffs filed a second, separate petition for writ of mandate and complaint in November 2004, after DEH approved a revised solid waste facilities permit. The court consolidated that case with Case No. GIN038227.
In a detailed minute order dated October 3, 2005, the court granted relief as to three specific deficiencies alleged in the petition. First, the FEIR failed to address new information from a traffic needs assessment study, which revealed a drop in the level of service on State Route 76 due to tribal development projects on nearby reservations. Second, the FEIR failed to identify and consider the sources of water necessary to construct and operate the landfill -- specifically, the status and sufficiency of groundwater available under an appropriative rights permit and the contingent availability of riparian water sources. The court highlighted the failure to analyze the impacts of trucking water to the site, an option only "casually mention[ed]" in a 2004 update to the FEIR and "never studied or previously proposed." Third, the mitigation measures set forth in the FEIR for biological resources were inadequate because they relied on acreage already required to be preserved under Proposition C. A peremptory writ of mandate issued on January 20, 2006, setting aside certification of the FEIR and approval of the solid waste facilities permit, statement of overriding considerations and the mitigation monitoring and reporting program for the landfill project.
The October 2005 minute order denied plaintiffs relief on the remainder of their claims. Plaintiffs appealed. On June 22, 2006, we stayed the appeal pending DEH's compliance with the writ and the trial court's reconsideration of the matter. We vacated the stay on July 23, 2008, directing the parties to proceed with briefing and preparation of the appellate record.
In November 2008, the trial court discharged the peremptory writ of mandate, DEH having addressed the last of the deficiencies cited in the October 2005 minute order. Plaintiffs appealed. In its response to this court's request for supplemental briefing, DEH suggested that the appeals in Case Nos. D048259 and D054471 "are related to such a degree that [they] should be consolidated for oral argument...." DEH also stated that the published opinion in RiverWatch v. Olivenhain Municipal Water Dist., supra, 170 Cal.App.4th 1186, "is, at most, indirectly relevant" to this appeal. We disagreed that consolidation would serve judicial economy and proceeded with our consideration of this appeal in the normal course.
DISCUSSION
I
THE LANDFILL PROJECT COMPLIES WITH PROPOSITION C
Relying on Hayward Area Planning Assn., Inc. v. Alameda County Transportation Authority (1999) 72 Cal.App.4th 95 (Hayward), plaintiffs argue that the landfill project approved by DEH and described in the FEIR violates Proposition C because it includes a 65-acre borrow pit not identified or approved by the voters.
By its terms, Proposition C amended the San Diego County general plan and zoning ordinance to designate Gregory Canyon for use as a landfill and recycling center. Because of those amendments, plaintiffs' claim that the landfill project is inconsistent with Proposition C is, in effect, a claim that the project is inconsistent with the general plan. Thus, DEH's approval of the landfill project is subject to review under the standard applicable to claims challenging a project's consistency with the county's general plan. (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782 (Endangered Habitats).) "These [project approvals] are quasi-legislative acts reviewed by ordinary mandamus, and the inquiry is whether the decision is arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair. [Citations.] Under this standard, [courts] defer to an agency's factual finding of consistency unless no reasonable person could have reached the same conclusion on the evidence before it. [Citation.]" (Ibid.) An agency determination that the project is consistent with the general plan comes before the reviewing court with a strong presumption of regularity. (Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 717.)
Given this well established standard of review of project approvals, we reject plaintiffs' assertion based on Hayward, supra, 72 Cal.App.4th at pages 104 to 105, that their challenge presents a "question of statutory interpretation of Prop C" subject to de novo review. Plaintiffs' reliance on Hayward is misplaced for several reasons. On appeal following summary judgment, the Hayward court properly applied de novo review to the question whether funds generated for a highway project along the specific route identified in a ballot measure could be diverted and applied to fund the project along "a route significantly different from that which was described to the voters...." (Id. at p. 99.) The ballot measure also specified "the procedure to be used to amend the county... expenditure plan after the voters [had] approved it." (Id. at p. 100.) Applying rules of statutory construction, the court ruled that the language of the ordinance limited use of generated funds to the projects specifically described in the ballot language, and state highway authorities could not change routes without voter approval. (Id. at pp. 106-107.) Here, there is no dispute that Proposition C, as presented to the voters, amended the general plan to include a landfill project whose "main features" included "a borrow and stockpile area." Nor is there dispute that the landfill project, as described in the FEIR, included two borrow pits, one comprising 22.4 acres and another comprising 65 acres. Moreover, as we shall explain, plaintiffs concede that Proposition C allowed for changes in proposed operations and facilities in subsequent, more detailed, site plans. Thus, we are not presented with a question of statutory construction. Instead, the question is whether, given this admitted change in the proposed facilities, DEH acted arbitrarily and capriciously in approving the landfill project described in the FEIR. (Endangered Habitats, supra, 131 Cal.App.4th at p. 782.)
The trial court ruled that plaintiffs failed to sustain their burden of showing that DEH "acted inappropriately by approving the project because it ultimately changed in size and added a borrow pit that may not have been adequately described in Proposition C." It found that plaintiffs cited no authority to support their challenge and failed to persuade the court that the inclusion of the 65-acre borrow pit caused them any prejudice. The record supports a finding that DEH's approval of the landfill project as amended to add a second borrow pit did not violate Proposition C and was not arbitrary or capricious.
Unlike Hayward, where any significant change in the routing of the highway project required approval of the voters (Hayward, supra, 72 Cal.App.4th at pp. 99-100), the language of Proposition C not only permitted but also anticipated changes in the proposed landfill project as GCL developed a more detailed site plan. Section 3A described the project as follows: "The main features of the Project include a lined landfill, construction of a new access road and bridge providing access to the site from Highway 76, a scale area, a recycling collection center, a facilities and operation area, a borrow and stockpile area, a leachate collection system, and storm-water retention facilities.... The Applicant shall be entitled to adjust the size and location of solid waste operations and to alter the proposed facilities based on a detailed site plan to be submitted to the Integrated Waste Management Board for its review and approval as part of the solid waste facilities permit." (Italics added.) Section 8D of Proposition C described the Gregory Canyon project as "the recycling collection center and landfill and associated structures and improvements as described in Section 3 of this initiative as subsequently modified by a detailed site plan submitted by Applicant to the Integrated Waste Management Board as part of the solid waste facilities permit." (Italics added.)
Plaintiffs acknowledge that section 3A allowed the applicant to "adjust" the size and location of operations and "alter" proposed facilities, but argue that "this language did not give the applicant the right to add an entirely new 65-acre borrow pit to the Project. [¶]... Because [Proposition C] did not identify Borrow/Stockpile Area B as one of the elements of the Project, it could not be altered or changed. This provision also did not allow the applicant to add elements to the Project that were not identified... in the initiative, especially a 65-acre, 150-foot deep rock and gravel mining pit." Contrary to plaintiffs' argument, nothing in the language of Proposition C limits the features of the landfill project to a single borrow/stockpile area or the amount of acreage that could be devoted to that purpose. On this record, plaintiffs failed to show that no reasonable person could have reached the same conclusion as DEH. (Endangered Habitats, supra, 131 Cal.App.4th at p. 782.)
II
THE LANDFILL PROJECT IS CONSISTENT WITH THE GENERAL PLAN
As we explained, Proposition C amended San Diego County's general plan and zoning ordinances to provide for the construction and operation of the landfill project on "approximately 270 acres within the 1683 acre Gregory Canyon site...." The FEIR describes a site made up of "approximately" 1,770 acres with 308 acres set aside for the landfill activities. Plaintiffs alleged in their petition that "87 acres of the Landfill project site [was] not zoned for or designated in the County's General Plan for use as a landfill," and therefore DEH's "approval of the Landfill on this cite [is] inconsistent with the adopted General Plan and Zoning Ordinance and must be set aside."
County zoning ordinances and other land use decisions must be consistent with the general plan. (Gov. Code, § 65860, subd. (a); Corona-Norco Unified Sch. Dist. v. City of Corona (1993) 17 Cal.App.4th 985, 994 (Corona-Norco).) " 'An action, program, or project is consistent with the general plan if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment.' " (Ibid., quoting General Plan Guidelines, p. 212, Governor's Office of Planning and Research, 1990; see also Gov. Code, § 65860, subd. (a)(2).)
As we explained, on review we consider "whether the decision is arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair." (Endangered Habitats, supra, 131 Cal.App.4th at p. 782.) The trial court ruled that "[u]nder the legal standard for plan consistency, the County has plainly acted to 'further the objectives and policies' of the General Plan by approving the landfill as designated in the Plan." We conclude the record supports a finding that there was no abuse of discretion.
Section 8 of Proposition C defined the Gregory Canyon site as "approximately 1683 acres of land located off State Route 76...." (Italics added.) The 1,770-acre figure used in the FEIR is based on an American Land Title Association (ALTA) survey conducted after the passage of Proposition C. However, a comparison of the diagram contained in Proposition C with the diagram included in the FEIR shows that the borders of the project remained the same. Contrary to plaintiffs' characterization, the alleged discrepancy involves acreage designated as open space, not the land designated for the specific activities of landfill project. Because a solid waste general plan or zoning designation was not required for acreage above the 308 acres set aside for the landfill operations, the 87 acres of open space in question complied with the general plan.
III
THE LANDFILL PROJECT COMPLIES WITH CEQA
A
Standard of Review
Plaintiffs' petition for writ of mandate focused on the claim that DEH violated CEQA in certifying the FEIR, adopting the findings and statement of overriding considerations, and approving the solid waste facilities permit for the landfill project. Six alleged deficiencies in the FEIR are before us in this appeal.
California courts recognize that the EIR is the heart of CEQA. (Laurel Heights Improvement Assn. of San Francisco v. The Regents of the University of California (1993) 6 Cal.4th 1112, 1123 (Laurel Heights II); see Cal. Code Regs., tit. 14, § 15003, subd. (a) (CEQA Guidelines).) " 'Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR "protects not only the environment but also informed self-government." [Citation.]' [Citation.]" (Laurel Heights II, supra, 6 Cal.4th at p. 1123.) "CEQA requires an EIR to reflect a good faith effort at full disclosure[, but] does not mandate perfection, nor does it require an analysis to be exhaustive." (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26, citing CEQA Guidelines, § 15151.)
The CEQA Guidelines are promulgated by the State Resources Agency and "are accorded great weight by the court in interpreting the provisions of CEQA." (League for Protection of Oakland's Architectural and Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 899, fn. 1 (League for Protection).)
Public Resources Code section 21168.5 provides: "In any action or proceeding, other than an action or proceeding under Section 21168, to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with [CEQA], the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (Italics added.) The CEQA Guidelines set forth the definition of "substantial evidence" in the CEQA context as "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached." (CEQA Guidelines, § 15384, subd. (a); Laurel Heights II, supra, 6 Cal.4th at pp. 1132-1133.) In applying the substantial evidence standard, the reviewing court " 'must resolve reasonable doubts in favor of the administrative finding and decision.' " (Laurel Heights Improvement Assn. of San Francisco, Inc. v. The Regents of the University of California (1988) 47 Cal.3d 376, 393 (Laurel Heights I).) " 'The court does not pass upon the correctness of the EIR's environmental conclusions, but only upon its sufficiency as an informative document.' " (Id. at p. 392.) Nor does the court resolve conflicting expert opinions. " 'The fact that there are differing opinions arising from the same pool of information is not grounds for holding the EIR inadequate.... [¶]... "It is not required 'that the body acting on an EIR correctly solve a dispute among experts.' All that is required is that in substance the material in the EIR be responsive to the opposition, particularly where opinion and not fact is in issue. [Citation.]" ' [Citation.] 'A court's task is not to weigh conflicting evidence and determine who has the better argument.... We have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so.' " (Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 101-102 (Cadiz), quoting Laurel Heights I, 47 Cal.3d at p. 393.) On appeal, our role "is the same as that of the trial court: that is, to review the agency's actions to determine whether the agency complied with procedures required by law.' [Citation.]" (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1375.) We independently review the administrative record under the same standard of review that governs the trial court. (Id. at pp. 1375-1376.)
As we explain, there is substantial evidence to support the actions of DEH and it did not abuse its discretion in approving the landfill project.
B
Private Vehicle Traffic
Section 15088, subdivision (c) of the CEQA Guidelines provides that "the major environmental issues raised when the lead agency's position is at variance with recommendations and objections raised in the comments must be addressed in detail giving reasons why specific comments and suggestions were not accepted. There must be good faith, reasoned analysis in response. Conclusory statements unsupported by factual information will not suffice." (See, e.g., Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715, 723.) Plaintiffs alleged in their petition that the FEIR violates CEQA by failing to adequately address two public comments that questioned whether the draft EIR underestimated the amount of private vehicle traffic at the proposed landfill.
The trial court expressly found that "[t]he EIR discusses the impacts of private vehicles using the landfill." As for the specific comments referenced by plaintiffs, the court found that they were unsupported by authority or studies supporting the conclusions. The court ruled that the record contained "relevant information that a reasonable mind might accept as sufficient to support [DEH's] determination." Based on our independent review, we conclude the record supports the conclusion that the FEIR adequately addressed the impact of private vehicle use.
The first comment cited by plaintiffs came from a staff member at the Department of Planning and Land Use (DPLU) who stated in November 2001 that the assumption there would be 60 trips per day by private vehicles, including employees, was "underestimated in comparison to other San Diego County landfills accepting 5,000 tons or less per operating day." The DPLU staffer suggested that private vehicle traffic generated by contractors and other businesses, landscapers and the general public could come from southern Riverside County "[u]nless the Gregory Canyon site prohibits self-hauled waste...." DPLU offered no documentation in support of this comment.
The DEH response cited a June 2002 analysis of delivery trips prepared by Herzog Contracting Corp., a company that operated San Diego County landfills from 1982 to 1995 and was under contract with GCL to operate the Gregory Canyon landfill project. In language apparently incorporated in the FEIR, Herzog stated that "private vehicles using the landfill would be very limited. Typically, private loads would primarily be landscapers, which have various options. It is likely that private users would continue to take their loads where they are currently taking them, which would be transfer stations.... The private hauler is likely to go to the location that is most convenient as cost is less likely to be an issue since the load is small (light). In addition, there are locations within the County where the landscape waste is processed at reused. Therefore, the private haulers that will utilize the Gregory Canyon Landfill should be minimal."
A second comment came from an environmental consultant who stated in February 2000 that "[u]se of the landfill by the public as a refuse disposal site [had] not been considered. This would increase vehicle traffic considerably on a daily basis [from] 1400 to 2200 trips per day."
The FEIR responded expressly to this comment by noting that Table 4.5-4 of the revised draft EIR, presumably the same figure that appears in the FEIR, shows that public access was evaluated as part of the traffic analysis. Moreover, the FEIR analysis of traffic impacts on State Route 76 included use by private "service/visitor" vehicles for an estimated total of 20 daily trips to and from the proposed landfill. It explained that "[w]hile the site will be open to the public, including individuals, private contractors, and landscapers, for the delivery of waste, virtually all of the waste [would] be delivered to the site by commercial refuse vehicles. Since the majority of the waste will be brought to the site in commercial vehicles, the operator can control the daily trips entering the site and will limit the total number of trips per day, including public trips, to the volume documented in the traffic study."
The record also supports DEH's claim that the FEIR, in fact, overestimates the number of daily trips made by all types of vehicles. The traffic analysis is based on the assumption that the proposed landfill will accept 5,000 tons of solid waste per day. However, the solid waste facilities permit sets stricter limitations: (1) an annual cap of solid waste deliveries at one million tons; (2) a daily cap of 5,000 tons; and (3) and daily cap of 675 vehicles. Because the one million tons of solid waste per year translates to an average of 3,200 tons per day, the FEIR presents a worst case scenario.
C
Storm Water Impacts
The FEIR acknowledges that the infiltration of surface water into solid waste produces leachate, which can contaminate groundwater. It describes a storm water control system designed to "divert and convey stormwater [sic] flows in a controlled manner, to minimize erosion, channel/control sediment and to inhibit the potential infiltration of surface water run-on or precipitation into the refuse disposal areas." Plaintiffs' petition generally alleged that the FEIR failed to "adequately analyze and disclose hydrological and water quality impacts, including but not limited to, failing to address reasonably foreseeable impacts (including natural drainage patterns...)" On appeal they raise two issues relating to the storm water control system.
"Leachate means liquid that has passed through or emerged from solid waste and contains soluble, suspended or miscible materials removed from such wastes." (40 C.F.R. § 257.2 (2009).)
1. Discharge of Silt:
Public Resources Code section 21100, subdivision (c) provides that the EIR "shall... contain a statement briefly indicating the reasons for determining that various effects on the environment of a project are not significant and consequently have not been discussed in detail in the environmental impact report." (See Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1109.)
Plaintiffs describe the draft EIR as stating that all storm water generated on the landfill site would be collected in perimeter channels and discharged into de-silting basins. They argue that the design changed in the review process to bypass the de-silting basins. Plaintiffs contend that the FEIR fails to analyze the impact of discharging sediment-laden water from the storm water control system directly into the San Luis Rey River. They maintain that such an analysis is important because the 2002 Final Biological Technical Report for the landfill project "warned that sedimentation from the Project 'could degrade the quality of riparian habitat and change the hydrology of the San Luis Rey River.' " They challenge DEH's claim that there will be no significant impact from discharging storm water directly into the river because the velocity will be " 'maintained at less than or equal to pre-development conditions through the use of energy dissipaters.' "
The trial court acknowledged that the revised draft EIR was unclear in describing the two drainage systems incorporated in the landfill project, and expressly found that "[t]he Final EIR simply clarifies the two systems discussed in the Revised Draft EIR. The disturbed portions of the property will have drainage systems that will collect in desilting [sic] basins and be treated before release into the San Luis Rey River. The undisturbed portions of the property will have drainage systems that mimic natural drainage, which will drain directly into the San Luis Rey River as if no landfill had been constructed." The court concluded that the FEIR did not create a new substantial impact and did not increase an identified adverse impact. Having independently reviewed the record, we agree with the trial court's findings.
The FEIR describes two drainage systems in detail. Plaintiffs' argument ignores the clear distinction that the FEIR makes between the drainage system used to channel run-off from "disturbed" areas of the landfill project, which will be routed to the de-silting basins, and the drainage system used to channel run-off from "undisturbed" areas of the landfill project, which will drain directly into the "natural drainage course." The FEIR and the 2003 Joint Technical Document (JTD) explain that perimeter channels are designed to handle flows from off-site surrounding areas and the undisturbed areas within the footprint of the landfill project. Energy dissipaters will maintain water velocity at less than or equal to predevelopment conditions. The perimeter channels will convey water flows from undisturbed areas around the de-silting basins and into the river.
Plaintiffs' citation to the 2002 Final Biological Technical Report is misleading. That report went on to conclude in the next sentence that "potential impacts from erosion/sedimentation would be minimized through the implementation of project design features.... Two desilting [sic] basins would remove sediment loads contained in runoff from the project during its operation.... Therefore, potential impacts from erosion and sedimentation during project construction and operation would be less than significant."
2. Phased Construction of the System:
Plaintiffs assert that "[t]he FEIR also admitted that construction of the western portion of the perimeter channel stormwater-control system would not begin until sometime 'during the Phase II excavation.' " They argue that the FEIR failed to analyze the impact of "constructing the western section of the stormwater-control system only after more than five tons of garbage already had been disposed in the proposed landfill." Plaintiffs maintain that "[b]ecause the FEIR contains no discussion of how water from a storm event and/or the rupture of any of the pipelines would be controlled prior to construction of the western channel, the FEIR was inadequate as an informational document...."
The trial court found that "the final EIR [was] adequate in its description of the drainage systems and, therefore [plaintiffs'] challenge to water quality based on the alleged confusing drainage description [was] unpersuasive." We conclude that plaintiffs misread the FEIR and the record supports a finding that the FEIR adequately describes the drainage plan.
Phased construction of the perimeter channels is consistent with regulations governing drainage at solid waste facilities. California Code of Regulations, title 27, section 20365, subdivision (c)(5)(B) states that: "Diversion and drainage facilities shall be designed, constructed, and maintained: [¶]... to take into account: [¶]... the Unit's drainage pattern at any given time...."
The FEIR clearly describes phased construction of the western perimeter channel to meet the need for storm water control. The portion of the FEIR cited by plaintiffs actually states that "[c]onstruction of the final western perimeter channel will begin during the Phase II excavation." (Italics added.) Exhibit 3-18 of the FEIR shows that portions of both the eastern and western perimeter channels will be builtduring Phase I. The JTD confirms that construction on the western perimeter channel will start in Phase I. The FEIR further explains, "The stormwater drainage control facilities and the infrastructure for the ultimate configuration will be progressively constructed as waste filling is completed. Interim drainage and sediment control structures along with the erosion prevention measures will be constructed/implemented and periodically relocated as waste filling progresses. This will provide continuous stormwater collection and conveyance in a controlled manner and minimizing erosion, enhancing sediment control, limiting ponding, and the potential for leachate generation and/or surface water contamination." (Italics added.) Figures 21, 22 and 24 of the JTD show the changing configuration of the eastern and western perimeter channels in Phase I, Phase II and Phase III of the landfill project.
D
Impacts on Groundwater Quality
"[A]n EIR must address the impacts of 'reasonably foreseeable' future activities related to the proposed project." (Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428 (Vineyard), citing CEQA Guidelines § 15144.) "CEQA's demand for meaningful information 'is not satisfied by simply stating information will be provided in the future.' " (Id. at p. 431.) Plaintiffs allege in their petition that the FEIR fails to "adequately analyze and disclose... the unreliability of the landfill liner system...." They relied on the comments of Dr. G. Fred Lee and Dr. Anne Jones-Lee that the type of landfill proposed for Gregory Canyon would be "a threat to cause groundwater pollution for a long period of time, extending over thousands of years." While acknowledging that the FEIR addresses short-term impact of the liner system, plaintiffs maintain that its failure to evaluate the long-term effect of likely degradation of the liner system "is particularly alarming given that the proposed landfill would be located on the banks of the San Luis Rey River and adjacent to groundwater aquifers that are a source of drinking water."
The trial court found that the FEIR fully evaluated the landfill project's impacts on groundwater quality. The court noted that "[plaintiffs'] further challenge to the water quality impacts of the Final EIR based on an understated potential for groundwater contamination and an overstatement of the effectiveness of lined landfill rests on the comments of Dr. Lee." Citing Cadiz, supra, 83 Cal.App.4th at page 102, the court found that Dr. Lee's opinions "[did] not render the EIR defective." It determined that there was "significant information in the environmental documents to inform the public and decision makers concerning groundwater issues resulting from the liner design." The record supports the conclusion that the FEIR adequately evaluates impacts on groundwater quality.
The Lees asserted that the draft EIR failed to discuss the "inevitable" leakage of the liner. They identified six potential problems with the liners: (1) holes are often found in the liners at the time the landfill is constructed; (2) holes are created in the liner at the time the landfill is filled with solid waste; (3) the plastic sheeting layer deteriorates over time and allows leachate to pass through the liner at a high rate; (4) even without holes, liners leak because constituents of the leachate cause diffusion; (5) compacted clays can leak at a rate of 120 gallons per acre per day; and (6) even without holes, low molecular weight solvents found in municipal solid wastes will permeate the liners.
Contrary to plaintiffs' claim, the FEIR provides an extensive analysis of the potential degradation of groundwater quality. It states that groundwater monitoring would continue for a minimum of 30 years after the proposed landfill was closed, as required by Title 27 of the California Code of Regulations. The conclusions set forth in the FEIR are based on studies by numerous experts, including hydrogeologic investigations of the proposed site as well as studies of other lined landfills.
The FEIR also responds directly to the Lees' comments. On the question whether the draft EIR addressed long-term impacts, the FEIR explains: "Concerning the assertion that the wastes/leachate from the landfill will remain a threat for thousands of years, it is important to review landfill-specific leachate chemistry data which suggests that leachate quality improves substantially in just a few years after the landfill closes. Since adoption of Title 23 (and now Title 27) regulation, Class III landfills have been prohibited from accepting known hazardous wastes. This requirement has greatly reduced the inflow of hazardous chemicals into the municipal solid waste stream, and the results are evident in the leachate chemistry obtained from such sites. Regardless of the performance of other local landfills, the proposed Gregory Canyon Landfill would be evaluated and regulated based on the actual groundwater quality and leachate chemistry data collected from this site. The [Regional Water Quality Control Board] and [California Integrated Waste Management Board (CIWMB)] have the authority to extend the post-closure maintenance period if they have reason to believe the landfill would threaten the environment beyond this period." (Italics added.)
As we explained, courts are not required to resolve conflicts between expert opinions in challenges under CEQA. (Laurel Heights I, supra, 47 Cal.3d at p. 393; Cadiz, supra, 83 Cal.App.4th at pp. 101-102.) Instead, we have only to decide whether the FEIR "address[ed] the impacts of 'reasonably foreseeable' future activities related to the proposed project." (Vineyard, supra, 40 Cal.4th at p. 428.) The record supports the conclusion that it did.
E
Mitigation of Biological Impacts
CEQA requires public agencies to identify feasible mitigation measures that will avoid or substantially lessen the significant environmental effects of projects subject to their approval. (Pub. Res. Code, § 21002; CEQA Guidelines, § 15126.4, subd. (a).) Mitigation measures must be "enforceable through permit conditions, agreements or other measures [in order] to ensure that feasible mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded." (Federation of Hillside and Canyon Assns. v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1260-1261 (Federation), italics omitted; see also CEQA Guidelines, § 15126.4, subd. (a)(1)(A) [distinguishing proposed mitigation measures from those "required as conditions of approving the project"].) Plaintiffs' petition alleges that the FEIR fails to include enforceable mitigation measures for biological impacts. Plaintiffs argue that mitigation measure 4.9-18, which requires management of the restored river area and 1,313 acres of open space set aside pursuant to Proposition C, "was illusory because the FEIR failed to describe a secure source of funding for the long-term management, such as an adequate endowment fund."
The key provisions of mitigation measure 4.9-18 state: "The dedicated open space on site, including the restored river corridor, shall be managed with a financial contribution provided by the project applicant. The project applicant shall work with the [U.S. Fish and Wildlife Service] and the [California Department of Fish and Game] to identify a qualified conservancy or other non-profit organization to be responsible for implementing long-term management activities for the restored river. The type of management activities shall depend upon the condition of the site, the resources present, and the funds available to manage those resources. Management activities shall include restrictions on vehicular and human access through the installation of fencing and signs, control of exotic species..., control of illegal dumping, and monitoring endangered species populations."
Mitigation measure 4.9-18 also provides: "The project applicant shall implement a habitat enhancement plan to improve the San Luis Rey River watershed on site as described below.... [¶] Beyond the mitigation obligation associated with compensating for direct and indirect project impacts to vegetation communities, the project applicant for the Gregory Canyon Landfill shall be required to implement a habitat enhancement program for improvements to the San Luis Rey River watershed. In addition to the proposed open space dedication (1,313 acres), the project applicant shall restore approximately 88 acres of upland and 13 acres of riparian area within the portion of the San Luis Rey River corridor contained on site.... The restoration will likely be phased and not occur all at one time. [¶] The habitat enhancement program shall focus on the restoration of riparian and upland habitats within the San Luis Rey River floodplain on site above and beyond the project's direct mitigation obligation for vegetation community impacts. The San Luis Rey River has been identified as one of the most easily restorable rivers in southern California.... "
The trial court found that mitigation measure 4.9-18 "sets forth a reasonable plan for biological mitigation and funding in compliance with CEQA." The court explained that the FEIR was "not required to specify Gregory Canyon's funding obligations for the project. These measures are enforceable conditions of the Solid Waste Facilities Permit.... In addition, the Final EIR requires the Real Party to work with United States Fish and Wildlife Service and California Department of Fish and Game to identify a qualified conservancy or other similar group to implement the long-term management of the biological resources on the project." We conclude that the record supports the conclusion that mitigation measure 4.9-18 is not illusory but will be implemented in accordance with CEQA requirements.
The language of mitigation measure 4.9-18 supports the conclusion that the FEIR provides a reasonable and enforceable plan for biological mitigation. It describes what GCL "shall" do to implement the habitat enhancement program and specifically states that the program "shall be managed with a financial contribution provided by" GCL. (Italics added.) In this context, "shall" typically "imposes a duty on the subject of the sentence." (See Garner, Dict. of Modern Legal Usage (2d ed. 1995) Words of Authority, pp. 939-941.) "Shall" translates to "must" and is "used in laws, regulations, or directives to express what is mandatory." (Merriam-Webster's New Collegiate Dict. (11th ed. 2006) p. 1143.)
More important from a practical standpoint, the mitigation measures set forth in the FEIR are incorporated as conditions of the solid waste facilities permit. Mitigation measure 4.9-18 is enforceable because GCL cannot move forward with the landfill project unless or until it carries out its management obligation to the satisfaction of DEH and CIWMB. Thus, implementation is ensured because mitigation measure 4.9-18 is "incorporated into the project or required as a condition of project approval." (Federation, supra, 83 Cal.App.4th at p. 1262.)
Relying on Endangered Habitats, supra, 131 Cal.App.4th 777, and Federation, supra, 83 Cal.App.4th 1252, and characterizing mitigation measure 4.9-18 as a fee-based mitigation program, plaintiffs maintain that long-term biological mitigation is illusory in this case. They contend that "[n]othing in Mitigation Measure 4.9-18 requires the applicant to fund the program to any particular level or standard" and therefore no evidence that mitigation will actually occur. There is no merit in this contention.
In Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 141 (Save Our Peninsula), the court ruled that a fee-based traffic mitigation program was adequate under CEQA where the fees were sufficiently tied to the actual mitigation of increased traffic impacts. The court stated, "All that is required by CEQA is that there be a reasonable plan for mitigation." (Ibid.) In the cases cited by plaintiffs, the project proponents failed to establish a sufficient link between the proposed mitigation measures and actual mitigation. In Endangered Habitats, the court rejected the traffic mitigation plan. Unlike the case before us, the board of supervisors failed to show that fees paid by the developer to a road improvement program would reduce traffic impacts on the thoroughfare in question to the level required under the general plan. (Endangered Habitats, supra, 131 Cal.App.4th at pp. 784-785.) The court reached a similar result in Federation where the city acknowledged there was "great uncertainty as to whether the mitigation measures would ever be funded or implemented." (Federation, supra, 83 Cal.App.4th at p. 1261.) Unlike the case before us, in Federation the city adopted the mitigation measures without requiring that they be implemented as a condition of the development. (Ibid.)
Here, in addition to the fact that mitigation measure 4.9-18 is included as a condition for issuance of the solid waste facilities permit, the habitat enhancement plan obligates GCL to work in cooperation with state and federal wildlife agencies to identify the group to implement long-term management of the biological resources, using the funds contributed by GCL.
F
Noise Mitigation
"If a mitigation measure would cause one or more significant effects in addition to those that would be caused by the project as proposed, the effects of the mitigation measure shall be discussed but in less detail than the significant effects of the project as proposed." (CEQA Guidelines, § 15126.4, subd. (a)(1)(D); see Save Our Peninsula, supra, 87 Cal.App.4th at p. 130.)
Plaintiffs alleged in their petition that the FEIR fails to analyze the potential impacts on the movement of wildlife caused by sound walls or other noise mitigation barriers installed as mitigation for noise impacts on the least Bell's vireo. While acknowledging that the FEIR identifies numerous sound barriers, plaintiffs assert that the FEIR did not include a map identifying their location or discuss the impact of the walls on the movement of terrestrial animals into upland areas. Citing mitigation measures 4.9-12a, 4.9-12b, 4.9-13, 4.9-15b and certain project design features, they maintain that the lack of detail concerning the sound barriers precludes meaningful analysis and comment on the issue. The trial court described two sides of this issue and impliedly resolved it in favor of DEH.
1. Exhaustion of Remedies:
Public Resources Code section 21177, subdivision (a) states that "[n]o action or proceeding may be brought pursuant to Section 21167 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." Like the trial court, we begin by rejecting DEH's claim that as to mitigation measures 4.9-12a, 4.9-12b, 4.9-13 and the project design features, plaintiffs failed to preserve their argument for appeal.
In this case, plaintiffs could not have challenged the project design features because they were added to the FEIR after the public comment period ended and not included in the revised draft EIR that was subject to public comment. There is no dispute that mitigation measures 4.9-15a and 4.9-15b were challenged in the comment process. Land Protection Partners also raised the issue of mitigating the impacts of the noise mitigation barriers, stating, "Mitigation measure 4.9-12 does not evaluate the biological impacts of implementing the measure itself, nor does it sufficiency describe the proposed barriers to allow analysis." We conclude these comments were sufficient to preserve the general question whether the FEIR adequately addressed the impact of temporary and permanent noise barriers.
2. Merits of Noise Mitigation Claim:
As we explained, the FEIR may discuss the effects of the mitigation measure "in less detail than the significant effects of the project as proposed." (CEQA Guidelines, § 15126.4, subd. (a)(1)(D).) The trial court found that the FEIR and supporting technical study adequately addressed habitat fragmentation impacts in the stockpile area but did not mention impacts in the river area. Having independently reviewed the record, we conclude that the FEIR was sufficiently detailed to satisfy CEQA's informational requirements with respect to the impact of noise barriers.
The record does not support plaintiffs' claim that the location of the numerous sound barriers "were only vaguely described in the text" of the FEIR. Mitigation measure 4.9-12 clearly involves noise generated by bridge construction and use of the low-flow crossing. This mitigation measure requires noise monitoring by an acoustician during initial construction. In the event noise levels exceed 60 decibels, the "acoustician shall work with the construction contractor to make additional operational changes or to install other barriers that would reduce noise..." presumably in the same location. Similar procedures apply to mitigation of noise generated by habitat creation and restoration along the river under mitigation measure 4.9-13. Mitigation measure 4.9-15 describes barriers that would be constructed to reduce noise produced by landfill equipment near Borrow/Stockpile Area A. Also shown as project design features are the noise barriers to be installed "along the northern boundary of Borrow/Stockpile Area A from the haul road westward wrapping around the western boundary of Borrow/Stockpile Area A" and "at the base of the flare."
We also reject the assertion that the FEIR "did not discuss the impacts of these walls on the movement of terrestrial animals into upland areas away from the river, including impacts on the endangered arroyo toad." However, the FEIR analyzes impacts caused by barriers described in mitigation measures 4.9-12a and 4.9-13. It notes that some of the barriers will be in place for the short term and as to the others, "significant impacts to biological and cultural resources would not occur as any potential barriers would be constructed in already disturbed areas." The supporting biological report provides extensive analysis of the project's more general impacts on birds and reptiles, including the arroyo toad, and explains why potential impacts on wildlife movement will be less than significant.
G
Impacts on the Higgins Family Cemetery
Public Resources Code section 21060.5 defines the "environment" to include historic conditions in the area affected by the proposed project. (League for Protection, supra, 52 Cal.App.4th at p. 905; see also Pub. Resources Code, § 21084.1.) The EIR must address significant impacts on historical resources. (League for Protection, supra, 52 Cal.App.4th at p. 906.) CEQA requires the lead agency to "identify potentially feasible measures to mitigate significant adverse changes in the significance of an historical resource." (CEQA Guidelines, § 15064.5, subd. (b)(4).) Section 15126.4, subdivision (b) of the CEQA Guidelines provides additional guidance on how to minimize significant adverse impacts. Although preservation in place is the preferred manner of mitigating impacts on historical or archeological sites, the Guidelines allow data recovery through excavation under certain conditions. (CEQA Guidelines, § 15126.4, subds. (b)(3)(A) & (C).) In this case, FEIR acknowledges that mitigation measures are required because the Higgins Family Cemetery -- presently located in what will become the central portion of the western borrow/stockpile area -- will be destroyed by the landfill project.
Plaintiffs alleged that the FEIR fails to adequately assess impacts related to relocating the Higgins Family Cemetery "which will completely destroy the resource...." They maintain that the cemetery's historical significance is due, in part, to its location and contend that the mitigation measures 4.11-2 and 4.11-3 will not fully mitigate impacts to the site. Plaintiffs assert that the FEIR should have identified those impacts as significant and unavoidable.
The trial court found that "[b]ecause the historic significance of the Higgins cemetery is the fact that pioneers are buried there, not the view, the Court agrees with [DEH] that potential impacts are fully mitigated." Based on our independent review, we conclude that the record supports the conclusion that mitigation measures set forth in the EIR adequately address impacts from relocation of the cemetery.
There is no dispute that the Higgins Family Cemetery is a historical resource. However, the parties disagree on the basis for that designation and, therefore, whether the proposed mitigation measures are adequate. CEQA Guidelines section 15064.5, subdivision (b)(2)(A) states that "[t]he significance of an historical resource is materially impaired when a project: [¶] (A) demolishes or materially alters in an adverse manner those physical characteristics of an historic resource that convey its historical significance and that justify its inclusion in, or eligibility for, inclusion in the California Registry of Historical Resources." (Italics added.) Here, the record demonstrates that the experts based their findings of historical significance on who is buried at the Higgins Family Cemetery, not its scenic location. A January 1999 evaluation of cultural resources within the proposed landfill project lists the Higgins Family Cemetery as a significant historical resource because of its connection with pioneer farming families in the region. A March 1999 archeological evaluation states that "[t]he probability that numerous burials exists at... the Higgins Cemetery establishes the site as a historical resource eligible for inclusion in the California Register of Historical Resources.... No collections have been made from the cemetery, but it is clear that the cemetery contains data important to an understanding of regional history."
To support their claim that the cemetery's significance arose from its location, plaintiffs rely on an "elderly gentleman's" written remembrance of visiting the cemetery with his grandfather in 1923. He recounted that they "climbed to the crest of a hill to the east that overlooked the valley with a magnificent panoramic view." DEH did not abuse its discretion in rejecting this claim in approving the landfill project.
Mitigation measure 4.11-1 deals specifically with destruction of the Higgins Family Cemetery and removal of the historically significant graves. It provides that "[p]rior to project activity occurring at the cemetery, the applicant shall remove the cemetery by excavation of burials and rebury in a nearby active cemetery. Exhumation and re-interment of all remains from this cemetery shall be conducted in accordance with Section 7050.5 of the California Health and Safety Code." However, in the event additional graves are discovered beyond what is believed to be the site of the cemetery, mitigation measures 4.11-2 and 4.11-3 will apply. Mitigation measure 4.11-2 reads in part: "In the event that human remains are discovered, other than those located at the Higgins Family Cemetery, during the monitoring program there shall be no further excavation or disturbance of the site, nor shall there be any disposition of such human remains, other than in accordance with the procedures and requirements set forth in Section 7050.5 of the California Health and Safety Codes."
Health and Safety Code section 7050.5, subdivision (b) reads: "In the event of discovery or recognition of any human remains in any location other than a dedicated cemetery, there shall be no further excavation or disturbance of the site or any nearby area reasonably suspected to overlie adjacent remains until the coroner of the county in which the human remains are discovered has determined, in accordance with Chapter 10 (commencing with Section 27460) of Part 3 of Division 2 of Title 3 of the Government Code, that the remains are not subject to the provisions of Section 27491 of the Government Code or any other related provisions of law concerning investigation of the circumstances, manner and cause of any death, and the recommendations concerning the treatment and disposition of the human remains have been made to the person responsible for the excavation, or to his or her authorized representative, in the manner provided in Section 5097.98 of the Public Resources Code. The coroner shall make his or her determination within two working days from the time the person responsible for the excavation, or his or her authorized representative, notifies the coroner of the discovery or recognition of the human remains." Public Resources Code section 5097.98 describes disposition of Native American remains.
Plaintiffs argue that mitigation measure 4.11-1 is inadequate because it did not include four recommendations made by CGL's archeology expert as mitigation for removal of the cemetery, specifically: "A. Excavate all graves, recovering all physical and artifactual remains. Excavation must be accomplished in a sufficiently wide area to insure that all burials are retrieved. Excavation must be accomplished in a manner that insures there is no damage to remains or accompanying artifacts, and that all associations are maintained. Skeletal remains should be examined by an osteologist or physical anthropologist to determine, if possible, sex, age, stature, pathology and any other pertinent data. [¶] B. Place remains in new burial furniture and rebury with appropriate markers in a nearby active cemetery. As nearly as possible, the original orientations and associations of remains and artifacts are to be maintained. [¶] C. Archeologically monitor the cemetery area during the initial grading stages, unless entire cemetery area was explored during prior steps. [¶] D. Prepare a report describing all activities. The report must include supplemental site recording forms for the site." However, both mitigation measures 4.11-1 and 4.11-2 refer to Health and Safety Code section 7050.5, which, in turn, references the procedures set forth in Public Resources Code section 5097.98 for removal of human remains. We therefore conclude that the record supports the conclusion that the mitigation measures are adequate.
DISPOSITION
The judgment is affirmed. Respondents County of San Diego Department of Environmental Health and Gary Erbeck, Director of the County of San Diego Solid Waste Local Enforcement Agency, are awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
WE CONCUR: HALLER, J., AARON, J.