75A - PH - EIR 1584 E SANTA CLARA AVE

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9788 Dally Appellate Report Monday, July 29,:2018 that recentsurveys had documented the presence of Frogs at a bridge crossing the Russian River bridge approximately three miles southeast of the Project site. Accordingly, Fish & Game believed that Frogs were 'Tikely to exist along riparian areas of Ackerman Creek and the Russian River;' and recommended that the special status species table be amended to list the potential for Frog occurrence at the site as "high," not "low." The table was amended in the Ea A discussion of potentially significant impacts to the Frog was added, and mitigation measures were proposed that reduced the impacts to insignificance. The impacts would . arise from operations that would impact potentially suitable upland habitat adjacent to the Russian River and Ackerman Creek. Mitigation measures included retention of current riparian vegetation to the extent possible, biological monitoring of the effects of construction on the Frog, and halting of construction if impacts to the Frog became evident (b) Review Masonite argues that the EIR should have been recirculated for public comment because it contained significant new information regarding the Frog. Masonite submits the EIR disclosed "[a] new significant environmental impact' on the Frog (Guidelines, - §15085.5, subd, (a)(1)), and that the 'situation here is the same as that in Sierra Club v. Gilroy City Council (1990) 222 Cal. App.3d 30 (Sierra Club), where "the presence on the project site of the potentially endangered California tiger salamander was discovered after the close ofthe publiecommegtperiodfor the draft. EIR... The'new iufortnadon, die presence of the tiger salamander, demonstrated that the draft EIR had not addressed a potentially substantial adverse environmental effect. Therefore, revision and recirculation were required .:'.." (Laurel Heights 11, supra, 6 CalAth at p. 1131.)4 Masonite questions whether the mitigation measure adopted in the EIR for the Frog would reduce impacts to insignificance and submits that in any event the adequacy of those mitigations, should have been a topic of public 'comment.' ' ` . Respondents maintain that Guidelines section 15088.5, subdivision (a)(2), not (a)(1), applies because under subdivision (a)(2), recirculation is necessary when a disclosure shows that "[a] substantial increase in the severity of an environmental impact' would result unless mitigation measures are adopted that reduce the impact to a level of insignificance." _ R,espondents argue that recirculation is not required here in the EIR will reduce the newly disclosed impact on the Frog to insignificance. Respondents also distinguish the Sierra Club case on the ground that the Draft here at least discussed the Frog, whereas the Draft m SNetter' a Club apparently did not mention the bgecet, mander, (Sierra ,Club, supra, 222 Cal.'App 3dpa36) ' But Masonite hasjtlt argutliedta. This case is indistinguisl ble from Sierra Club as described in Laurel H t hts11,, where recirculation an endangered species was present at the project site. We acknowledge, as respondents argue, that Guidelines section 15088.5, subdivision (a)(2) could possibly apply here. The Draft stated that the Frogs potential occurrence was "low' rather than "unlikely," and could thus be construed to disclose a possible minor impact on the Frog, and when the likelihood of the Frogs presence was changed from "low" to "high," the EIR disclosed a "substantial increase in the severity of [that] impact" (Guidelines, § 15088.5, subd. '(a)(2)). But regardless of Guidelines section 15088.5, subdivision (a)(2), recirculation Was required under Guidelines section 15088.5, subdivision (a)(1). We disagree with respondents 'suggestion that recirculation can be avoided simply because the Draft disclosed some possible impact on the Frog. The Draft did not suggest that the Project would have any potentially significant impact on that species. Such an impact was disclosed for the first time in the -EIR, and was both "new" and "significant" within the meaning of Guidelines section 15088.5, subdivision (a)(1).: A contrary conclusion would contravene Vineyard, supra, 40 Cal.4th at page 447 mid Laurel Heights H, supra, .6 Cal.4th at page 1129, by depriving the .public of an opportunity to effect that were first identified in also Silverado Modieska Reereada u County of Orange (2011).197 % 308 [new information that mated Bd. of Supervisors (2001) 87 Cal.AppAth 99, 131 [recirculation gives the public 'an. opportunity to evaluate the new information and the validity of conclusions draws from it].) ' The mitigation measures to be employed to minimize the impacts on other special status species were changed after public comment on the Draft' The same is possible for the measures to be employed to minimize impacts on the Frog.. The sections of the EIR discussing the Frog must be recirculated. (Vineyard, supra, at p. 449 [discussing the scope of a recirculation].) C. Mitigation for Loss of Prime Farmland : , Forty-five acres of the Project site are prime farmland, meaning they are "designated by the Department of Conservation FMMP [Farmland Mapping and Monitoring Prograral -as prime farmland, farmland of statewide importance, k or runique farniland." One of the significant t; . unavoidable effects of the project identified ia' 7'•� the Draft is the loss of these 45 acres of prime agricultural. land. Masordni contends that,. the County erred when it determined that no mitigation was feasible for the loss of this prime:. farmland. Masonhe argues that this impact could have been mitigated by acquisition of agricultural conservation easements on Wake properties, or payment of "in -lieu" fees to fund uch acquisitions. tF. 75A -67