Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156
The Third District Court of Appeal struck down negative declaration prepared for El Dorado County’s oak woodland fee program, rejecting the county’s attempt to tier off the program EIR prepared for its General Plan.
In 2004, El Dorado County certified a program EIR and adopted a general plan. The program EIR acknowledged that development under the new general plan would have significant impacts on oak woodland habitat. The plan included a policy to develop an integrated natural resources management plan. The plan had two options to protect woodlands: “Option A” required adherence to canopy retention standards and replacing woodland habitat at a 1:1 ratio; and “Option B” required payment of an in lieu fee into the county’s integrated plan’s conservation fund. Pending completing of the integrated plan, the county required project developers to mitigate the loss of oak woodland habitat through only Option A. In 2008, the county adopted an oak woodland management plan. The purpose of the management plan included developing the Option B fee program and creating a foundation for the oak woodland conservation portion of the integrated plan. Development of the management plan required mapping existing oak woodlands and identifying conservation priorities. Certain criteria were used to prioritize areas with the highest biological value. Valley oak woodland was designated as sensitive habitat. The plan also included oak woodland corridors for wildlife. To analyze the environmental effects of the management plan, the county prepared an initial study and negative declaration that tiered from the 2004 program EIR. The petitioners challenged this approach, arguing an EIR was required. The trial court denied the petition. The petitioners appealed.
The county argued the oak woodland management plan and Option B fee program were encompassed in the 2004 program EIR. The Court disagreed, holding that the 2004 program EIR did not encompass the oak woodland management plan and Option B fee program. The county had to make a number of judgment calls regarding the details of the fee program, and the general plan and program EIR had not considered or analyzed these details. First, the 2004 program EIR and general plan did not differentiate between oak species. The management plan, however, focused on valley oaks to the exclusion of other oak species. Second, the 2004 program EIR did not determine the measurement metric for conservation of oak woodlands to be used under Option B; yet, the choice of one metric versus another would alter the fees required under the Option B fee program. Third, the 2004 program EIR did not set the fee rate to be paid if a project applicant elected to mitigate under Option B. Although preservation programs funded by impact fees can be appropriate mitigation, the program must still, at some point, undergo CEQA review. Fourth, the county’s 2004 program EIR had not specified how fees collected under Option B should be used to preserve oak woodlands. The program EIR emphasized the importance of maintaining connectivity among preserved oak woodlands, yet the county deferred the issue of connectivity until after other elements of the integrated plan could be established. As a result, the Option B mitigation approach differed from the 2004 program report’s emphasis on the protection of connectivity between woodland habitats.
The Court concluded the record supported a fair argument that the oak woodland management plan and Option B fee program could have a potentially significant effect on the environment. While the 2004 program EIR determined impacts would remain significant even with mitigation, the negative declaration for the management plan concluded cumulative impacts would be less than significant. The county argued there would be no greater adverse environmental effect than already anticipated in the 2004 general plan and program EIR. The Court rejected this argument, noting that, prior to adoption of the management plan, oak woodlands were required to be preserved at a 1:1 ratio on-site under Option A; that was no longer true under Option B. For this reason, the county had to prepare an EIR.