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29, 2013
<br />voted to approve the project without theAoodp
<br />benching featm -e Deletion of that feature
<br />noted ,when the board of supervisors heard
<br />appeals of the Planning Commission's decision
<br />(c) Analysis
<br />for an int j' "°` °ie"aescnpdonisnecess
<br />emir. a hgent „evaluation of the potenti
<br />ninehtal. effects of a proposed acdviV
<br />(199 et S1 4 JOs Gallinas Valley Sanitary Di,
<br />desgn APP 4th 980, 990), mid a, "unstable
<br />the EIR can "mislead the public and thwar
<br />the EIIR C ants a" (San Joaquin Raptor Rescu
<br />Y fMerced (200'7) 149 Cal
<br />A5, 655,.656): Masonite argues that GAppp.4t
<br />nadequate and inconsistent project description
<br />irevemed informed review and Ojectie a on each
<br />f thepreviously, described changes. However,
<br />oth the Pond- chatmel connection and However
<br />enching were described in the Drag and the
<br />aunty received informed commentary on their
<br />eats.,
<br />that the E1R'mProper1Y gave
<br />signals" about the Project
<br />uln Raptor Rescue Center u
<br />'ra ^149 Cal.APPAtb at p, 656
<br />of
<br />claim is based on he ElR's responseto MasoniteUs
<br />criticism of floodplain benching, but tiie response
<br />addressed Masonite's concerns and made clear
<br />that "[rjevised.Alternadve 3 would eliminate the
<br />channel widening component of the projeck"
<br />I7ie EIR was not misleading because it discussed
<br />Soth the potential benefits of floodplain benching
<br />and Its elimination from a Project alternative,
<br />nclusion of a dplain. benching was an open
<br />Ssue when the EIR was nrepn .ch i
<br />was i
<br />EIR
<br />nation about
<br />may not adequately
<br />Sion maker j
<br />supra, 40
<br />here. an
<br />form th
<br />is
<br />any other interested no indication in the record that Masonite or
<br />the nature of flo dphou party misled about
<br />it would necessarily be included in the project,
<br />The absence of floodplain benching from the
<br />revised reclamation plan was characterized as
<br />"conspicuous[] " by the DOC. TheEIRPerformed
<br />its role as an "informational document" with
<br />respect to the prospect for floodplain benching,
<br />(Pub. Resources Code, 9 21061) The comments
<br />for. and against floodplam benching enabled the
<br />whether Commission o .intelligently weigh
<br />whether to equire it Tbere is no merit o.
<br />arguments that the Project descripoon
<br />was inadequate:
<br />�Norare we persuaded that the p'
<br />rojectchanges
<br />had aay °substantial adverse environmental effect
<br />that required recirtulary'on of the EM (Laurel
<br />Heights ll
<br />om tted I - supra, 6 Cal.4th at p, 1129, italics
<br />) Citing the Draft, Masonite asserts that
<br />Lvn use of the pond -river counted., instead of tY.
<br />was weir and fuse plug "curtailed mitigation
<br />the and a Fish Rescue Plan.t�aH.weveertdh
<br />record reflects that the EIR retained the ever, t
<br />rescue and relocation programs specified ii
<br />connecti on with the weir and fuse plug design
<br />Masonite also notes that adoption of the pond
<br />a ayl river connection led to removal of a mitigatior
<br />mtecess that pandaod annual .inspections and,
<br />ff necessary, repair of the weir and setback areas.
<br />1' Batas 000doutinaleCountystaffreporttothe,
<br />t g Comn»ssion, the pond -river connection
<br />Was considered an environmentally superior
<br />e alternative, in part, because it eliminated the need
<br />th for long -term maintenance of the weir.
<br />s
<br />Mascots also challenges a statement
<br />EIR that removal of floodplain bentttmant m the
<br />not create any flooding impacts relative to
<br />baseline condition." Butthe statementwas correct
<br />because the ehrm radon of floodplain benching
<br />would simply leave Ackerman Creek and the
<br />Russian River in their present state. Masonite,s
<br />proosed o
<br />tsuggest that floodplain benching was
<br />P mitigate the environmental effects of
<br />the Project, but it was not Floodplain benching
<br />was, as Granite said, a `boluntary component" of
<br />the Project that was offered, as noted in the Draft,
<br />as "an effort to improve the current degraded
<br />state of the Ackerman Creek." The enhancement
<br />was eliminated when it appeared that it might do
<br />more environmental harm than good. Masonite
<br />Is in no position to now argue for the necessity
<br />of county inain benching because its expert told the
<br />county comments on the Draft that flood
<br />Unneeded 9 was "[ajrtificial," ,unwarranted "p d
<br />under current conditions.'
<br />(3) Ike Frog
<br />(a) Record -
<br />U the Project area we
<br />status species in the
<br />the potential for.occu.,, ' a, me sne as "high "
<br />medium;' 'low" or. "unlikely" - "IAW potential"
<br />d for a particular species Was defined as follows;
<br />e role project site and /or '
<br />there provide' itedhabitatforap ti�Ujatesptie$ �y
<br />addifion,theknownrangeforapar6 lar8 cies
<br />may be outsides the ire ediatt project area,"
<br />The Draft. discussed the Project's potentially
<br />s�g'niflicant impacts on specieswith a "medium"
<br />or "high" potential for occurrence, and provided
<br />mitigation measures designed to reduce those
<br />impacts toinsigniflcance,
<br />The table of special staus species included
<br />the Frog, The table stated that the Fro
<br />Ibjreeds in shaded stream habitats with rock,•
<br />cobble substrate, usually below 6,000 feet in
<br />elevation. Absent or infrequent when introduced
<br />predators are present" The table estimated the
<br />potential for Frog oceurrence in the Project area
<br />to be 'low," because; "Ackerman Creek may
<br />provide limited habitat, (slow /low flow portions).
<br />Predator speCiespresent jci_both Ackerman Creek
<br />and Russian Rivel;" Thus, the Draft: specified no
<br />mitigation measures for the Frog,.
<br />In its comments to the Drag, Fish & Game said
<br />r.
<br />r
<br />75A -66 _.
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