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A Mendocino County Quarry Project Can’t Keep the ACE in the Hole, Court Finds Inadequate the EIR’s Farmland Conversion Analysis


On July 27, 2010, Mendocino County approved the Kunzler Terrace Mine Project, a 65.3 acre sand and gravel quarry one mile north of Ukiah. Project opponents sued, alleging various CEQA violations. The First District Court of Appeal ruled in favor of the challengers and published the portion of the decision addressing impacts to agricultural lands. The court disagreed with the County and ruled that Agricultural Conservation Easements (ACEs) are not legally infeasible mitigation for site-specific farmland conversion impacts. The court did not publish the remaining portions of the decision, including required recirculation of the EIR with new biological mitigation measures and the adequacy of truck traffic mitigation measures.

Forty-five of the Project’s 65.3 acres are designated prime farmland by the Department of Conservation’s Farmland Mapping and Monitoring Program (FMMP). The project’s EIR concluded there was no feasible mitigation available for the conversion of prime farmland and found the impact to agricultural lands significant and unavoidable. The EIR explained that on-site mitigation is infeasible because the aggregate resources are located directly beneath the farmland and the finished grade after mining will be below the groundwater level. The EIR further explained that off-site mitigation, typically the acquisition of an Agricultural Conservation Easement (ACE), would not mitigate the conversion of farmland. According to the EIR, ACEs only address indirect and cumulative effects of farmland conversion, of which this project has none.

The court stated, “the legal feasibility of a mitigation measure is not a question of fact reviewed for substantial evidence but rather is a question of law that we review de novo.” The court then disagreed with the agency’s legal conclusion and found the “ACEs may appropriately mitigate for the direct loss of farmland when a project converts agricultural land to a nonagricultural use, even though an ACE does not replace the onsite resources.” The court left open the possibility that off-site ACEs may be economically infeasible, but rejected the assertion that ACE’s are legally infeasible.

The court also held that the County failed to adequately respond to a comment letter from the Department of Conservation recommending in-lieu fees as an alternative to the purchase of ACEs. The comment suggests in-lieu fees could be donated to a local, regional, or statewide organization or agency for the purpose of acquiring ACEs. The County’s response stated that the County was legally precluded from accepting in-lieu fees for ACE acquisition because it does not have a comprehensive farmland mitigation program. The court held the County’s response did not address the recommendation that in-lieu fees be paid to entities other than the County and thus failed to explain whether in-lieu fees are feasible mitigation.

The feasibility of mitigating farmland conversion has been a controversial CEQA issue for many years. This case, should it stand, clarifies the legal parameters for farmland conversion analysis required in an EIR. The decision does not address whether ACEs can reduce site-specific farmland conversion impacts to a less than significant level. The court, however, clearly rejected the County’s determination that ACEs are legally infeasible for mitigating site-specific impacts.



dateAugust 5th, 2013byby


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