by William W. Abbott and Janell M. Bogue
As development continues to occur in areas outside of urbanized metropolitan areas developers are encountering more threatened or endangered species issues in their environmental review process under the California Environmental Quality Act (“CEQA”). A fundamental question which must be addressed is whether there are threatened or endangered species present in the project area and whether the project will affect those species. This is not always a simple question to answer, as it is not clear what studies are necessary in order to adequately analyze biological resources under CEQA. What standards are appropriate to measure the significance of the effects on endangered species? Furthermore, once threatened or endangered species are determined to be affected by the project and potentially significant impacts to biological resources are identified, how does one provide for adequate mitigation in order to mitigate those impacts to a less than significant level? This paper discusses recent CEQA cases dealing with these questions and provide insight on how to address endangered species concerns in order to comply with CEQA.
Endangered Habitats League v. County of Orange (2005) 131 Cal.App.4th 777
The Endangered Habitats League (“EHL”) filed a petition for writ of mandate to set aside approvals for a development project in Orange County. Among other problems, EHL claimed that the EIR was insufficient because it used an incorrect legal standard for evaluating the significance of the project’s impacts on biological resources. The appellate court agreed with EHL and held that since the project approval was flawed, the writ of mandate setting aside the approval should be granted.
CEQA Guidelines section 15065 lists certain conditions which are considered to be mandatory findings of significance. This means that the lead agency must find that a project may have a significant effect on the environment and thereby require an EIR for the project. One such condition that automatically triggers an EIR is if “[t]he project has the potential to substantially degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause population to drop below self sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of an endangered, rare, or threatened species . . . .” Guidelines, § 15065(a). (Section 15065 was amended in 2004 and now reads “…substantially reduce the number or restrict the range of an endangered, rare, or threatened species.) Section 15380 of the CEQA Guidelines defines the terms “species,” “endangered,” “threatened” and “rare.” It is important to note that even if a species is not a California or federally listed species it still may be considered endangered, rare or threatened, if the species can be shown to meet the criteria in section 15380. CEQA also specifically addresses endangered species at Public Resources Code section 21104.2 which provides that a lead agency shall consult with and obtain written findings from the Department of Fish and Game (“DFG”) in preparing an EIR on the project.
In this case, the EIR stated that a significant impact would be found when there was a substantial effect on certain biological resources. Substantial effect was defined as “significant loss or harm of a magnitude which…1) would cause species or a native plant [or] animal community to drop below self-perpetuating levels on a statewide or regional basis; or, 2) would cause a species to become threatened or endangered.” The court held that the standard iterated in the EIR was too narrow and lenient. It would effectively restrict analysis of effects on endangered species when a broader analysis was required by law. The court held that because of the limitation, the certification of the EIR was improper.
Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261
Defend the Bay, an environmental group, argued that the EIR for a specific plan incorrectly concluded that there was no significant impact on biological resources because it improperly deferred mitigation of significant impacts to three species. The court correctly identified that the CEQA Guidelines provide that any project that substantially reduces the habitat of a wildlife species, or reduces the number or range of an endangered, rare or threatened species, is deemed to have a significant impact on the environment as a matter of law. Guidelines, § 15065(a).
The case concerned three species, a bird, a plant and a toad. The bird and plant where conditionally covered under the Habitat Conservation Plan (“HCP”) and Natural Communities Conservation Plan (“NCCP”) that was adopted for the project area and required a specific mitigation plan if the two species were affected. The EIR concluded that with the proposed mitigation measures, the biological impacts of the project would be reduced to a less than significant level. According to the EIR, the bird’s habitat would be impacted by the project and would require mitigation. The type of mitigation turned on the classification of the habitat. If the habitat was of “‘lesser long term conservation value,’ a special mitigation plan must be adopted in consultation with USFWS and DFG. On the other hand, if the area had ‘long term conservation value,’ a permit would be required from USFWS, absent which the impact on the bird would be significant.” The EIR concluded that the data put the area in the lesser conservation value category, but the final determination was to be made by USFWS and DFG. Various mitigation measures were provided, including one requiring that prior to the approval of a tentative map, the landowner must: (1) consult with the USFWS and DFG; (2) conduct surveys during the breeding season to determine if the birds are in fact present; (3) obtain a determination regarding the long-term value of the habitat area; (4) obtain permits from the USFWS and DFG; and (5) coordinate avoidance measures as required by USFWS and DFG.
Defend the Bay argued that the failure to obtain a determination of the long-term conservation value of the bird’s habitat constituted improper deferral of mitigation. The court stated that “[d]eferral of the specifics of mitigation is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed and possibly incorporated in the mitigation plan.” Defend the Bay at 1275 citing Sacramento Old City Association v. City Council (1991) 229 Cal.App.3d 1011. But on the other hand, an agency fails its CEQA duties when it simply requires a project applicant to obtain a biological report and then comply with any recommendations that may be made in the report. Id. citing Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359. As explained in Sacramento Old City Association,
“[F]or the kinds of impacts for which mitigation is known to be feasible, but where practical considerations prohibit devising such measures early in the planning process (e.g., at the general plan amendment or rezone stage), the agency can commit itself to eventually devising measures that will satisfy specific performance criteria articulated at the time of project approval. Where future action to carry a project forward is contingent on devising means to satisfy such criteria, the agency should be able to rely on its commitment as evidence that significant impacts will in fact be mitigated.”
Based on the Sacramento Old City Association case, the appellate court held that there was no improper deferral of bird mitigation. Regardless of which category the habitat fell into, prior to the approval of the tentative map, the developer was required to consult with the agencies, obtain permits and adopted specific avoidance measures in coordination with the agencies.
Similarly, with regard to the plant species, the court held that although the mitigation was deferred it was not improper because the EIR committed the City of Irvine (“City”) to such mitigation and listed what would be required in the mitigation plan. Plant mitigation measures meeting the requirements of the HCP were stated in the EIR and included: (1) design modifications that minimize impacts to habitat; (2) conducting an evaluation of salvage, restoration and management of the same plant species to offset impacts; (3) provide monitoring and management; (4) coordinating with USFWS and DFG. However, the actual mitigation plan was not set out in the EIR. The court found that the City Council made the appropriate findings adopting the mitigation measures set out in the EIR.
Finally, with regard to the toad, Defend the Bay maintained that there was deferred mitigation because there was no timetable for conducting surveys and there was no attempt to avoid impacts. Toad mitigation measures included a mitigation plan if toads were found and the mitigation plan would require the construction of breeding pools to the satisfaction of the USFWS and DFG. The court did not find that there was improper deferred mitigation because the City itself committed to mitigation if the toad was found in the project area, and it had a plan to build satisfactory breeding ponds on nearby protected land. Furthermore, the EIR required that the surveys be undertaken prior to issuance of any grading permit, thus constituting a sufficient timetable.
Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383
This case concerns an application for a conditional use permit to construct a dairy in the County of Madera. Prior to preparing the initial study the County sent DFG a copy of the application and requested review and comment. The DFG responded that it “is not aware of any occurrences of listed or sensitive species on the project site, however specific surveys have not been conducted to determine the presence or absence of wildlife resources on the site…[and that] it may be necessary for a qualified biologist to determine the location and extent of sensitive resources and habitat on the project site.” Association of Irritated Residents at 1393.
Biologists for the environmental consultant conducted reconnaissance level biological field survey on the dairy site by driving the existing roadways and by walking portions of the fields to identify the potential presence of special status species. Prior to conducting the field survey, the California Natural Diversity Data Base (CNDDB) maintained by DFG was consulted to determine if sensitive species had been previously reported on or near the site. The CNDDB indicated that several special status species were present in areas near the proposed project. After conducting the field survey, the biologist wrote that she did not observe any special status species and that the diary site did not support habitat for any special status species. In particular, she specifically noted that no kit foxes or their sign were observed, though she did note that alfalfa fields on the dairy site provided foraging habitat for raptor or carnivore species such as Swainson’s hawk and kit fox and provided suitable prey species. The biologist concluded that if improvement of the area in and along irrigation canals were avoided and the alfalfa fields remained, that no significant impacts to threatened or endangered species or their habitats were expected as a result of the project.
The biological resources section of the EIR was based entirely on the biologist report and repeated the report virtually verbatim. DFG did not comment on the EIR. However, the Center for Race, Poverty and the Environment (“CRPE”) and the USFWS commented. CRPE stated that the EIR’s conclusion that biological resources would not be significantly impacted by the dairy lacked substantial evidence because the field study did not follow survey guidelines for sensitive species that were issued by DFG to determine the presence of species. It asserted that the County was required to conduct a protocol level study that complied with the survey guidelines. A field survey was not one of the methods included in the survey guidelines. In response to CRPE’s comment, the EIR stated that during the field survey no sign of threatened or endangered species was observed and that was the basis for concluding that protocol surveys were not warranted at that time.
The court held that the field study constituted substantial evidence supporting the board of supervisor’s finding that the dairy will not have a substantial impact on the kit fox. The court expressly rejected the argument that CEQA compels compliance with the DFG survey guidelines. “The survey guidelines are not codified in the Public Resources Code, the Fish and Game Code or the California Code of Regulations…” Id. at 1396. CRPE failed to establish that the survey guidelines were meant to be applied where a reconnaissance level study did not detect either quality habitat or any sign of the species. Nor did DFG refer to the survey guidelines or comment negatively on the methodology utilized in the field survey employed in the EIR. The court held that the County is not required to conduct a protocol level study merely because it was requested in a comment. “CEQA does not require a lead agency to conduct every recommended test and perform all recommended research to evaluate the impacts of a proposed project. The fact that additional studies might be helpful does not mean that they are required. The agency has discretion to reject a proposal for additional testing or experimentation.” Id. at 1396. In this case, the response to CRPE’s comment adequately explained why a protocol level study in conformity with the survey guidelines was not conducted; no quality habitat was present, no sensitive species or their sign was detected during the field survey and the CNDDB query showed only one kit fox sighting a decade ago and it was over eight miles away from the dairy site. Thus, the biological report constituted substantial evidence which supported the determination reached in the EIR and the finding adopted by the board of supervisors.
The USFWS commented that it had concluded that construction of the dairy would result in the take 158 acres of kit fox habitat. The USFWS also stated that it may issue an incidental take permit after the applicant completed a satisfactory conservation plan. The USFWS also requested that the EIR should include a mitigation measure requiring consultation and the avoidance of listed species and provide compensation for any loss of habitat associated with the project. In response to the USFWS comment the EIR stated that “[t]he issue is whether project activities, most of which constitute no change from existing agricultural condition, would result in the take of San Joaquin kit fox within the meaning of the Endangered Species Act (“ESA”). Modification of habitat alone does not constitute ‘take’ according to well-established legal precedent.” Nonetheless, the EIR added a mitigation measure stating that “[t]he applicant shall be responsible for compliance with the requirements of the ESA, including obtaining an incidental take permit, if it is determined that ‘take’ will occur.”
The Association argued that CEQA required the County to compel the dairy to obtain an incidental take permit. The court correctly noted that “CEQA neither requires a lead agency to reach a legal conclusion regarding ‘take’ of an endangered species nor compels an agency to demand an applicant to obtain an incidental take permit from another agency. The finding that the dairy would not significantly impact biological resources did not limit the federal government’s jurisdiction under the ESA or impact its ability to enforce provisions of the statute.” Id. at 1397. The court held that disagreement on an issue does not compel invalidation of an EIR. The board of supervisors was free to reject the USFWS position on the take issue. “When evidence on an issue conflicts, the decisionmaker is ‘permitted to give more weight to some of the evidence and to favor the opinions and estimates of some of the experts over the others.” Id.
What are the lessons to be learned from these cases?
Endangered Habitats League shows that the proper legal standard must be used in determining the significance of impacts on biological resources. Modifying a published CEQA standard should be undertaken with the utmost caution.
Defend the Bay demonstrates that deferral of the specifics of mitigation is acceptable where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed and possibly incorporated in the mitigation plan. The bottom line is to have a plan and a project applicant should first consult with the appropriate agencies and determine if species are present. If they are, a mitigation plan should be in place to coordinate avoidance measures. An applicant should be prepared to provide replacement habitat and provide monitoring and management of the impacted area. When specific mitigation measures cannot be locked in at the time of the EIR certification, the lead agency needs to identify probable mitigation measures and make a commitment on the record to their implementation.
Association of Irritated Residents provides several insights to the CEQA process. It points out that CEQA does not require that every recommended or possible study be done. As long as there is substantial evidence to support the conclusion and the board’s findings bridge the analytical gap between the evidence and the decision, a court will not intervene. CEQA does not mandate compliance with the DFG survey guidelines. The case also makes it clear that CEQA does not require a lead agency to resolve federal ESA requirements. The federal government retains its jurisdiction under the ESA and its ability to enforce provisions of the ESA regardless of a finding that a project may not significantly impact biological resources. Underground study requirements informally promulgated by regulatory agencies are important, but not necessarily the final word on impact analysis. CEQA is not the forum for deciding whether or not a take permit is required under the state or federal ESA. Applicants are duty bound to comply with these statutory requirements even when the CEQA document is silent on the topic.
Common to the latter two cases is that the record contained site specific studies providing an evidentiary basis to support the lead agency’s decision in the EIR. In contrast, deference to post-approval studies provide no evidentiary support. Both projects were also based on EIRs, and unlike a negative declaration, there is room for disagreement amongst experts.
(This article was originally published in October 2004)
William W. Abbott is a partner and Janell M. Bogue is a law clerk with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.