Center for Sierra Nevada Conservation, et al., v. County of El Dorado (Jan. 20, 2012) __Cal.App.4th___ (Case No. C064875)
On January 20, 2012, the Third District Court of Appeal ruled that the County of El Dorado violated CEQA by adopting a negative declaration for an oak woodland management plan and impact fee program. The court decided the county could not “tier” its review of the fee program from an earlier program EIR prepared for the county’s 2004 general plan.
Factual and Procedural Background
In 2004, El Dorado County adopted a general plan and program EIR. The EIR acknowledged that development under the new general plan would have significant and unavoidable impacts on oak woodland habitat.
The general plan identified numerous objectives, including the protection and conservation of woodland resources. The plan listed policies meant to further this objective. To mitigate the adverse effects of development, the county planned to create an integrated natural resources management plan within five years of adopting the 2004 general plan. Two mitigation approaches for woodland conservation were identified. Under the “Option A” mitigation approach, project applicants would follow canopy retention standards and replace woodland habitat at a 1:1 ratio. Under “Option B,” they would instead pay 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. Oak woodland corridors providing connectivity for wildlife were considered in the development of the oak management plan, but the county directed that issues of connectivity be addressed in connection with the development of the integrated plan.
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. Petitioners challenged this approach, claiming the County should have prepared an EIR for the management plan. Petitioners also challenged the county’s 2004 general plan. The trial court denied the petition for writ of mandate, and petitioners appealed.
The Court of Appeal’s Decision
On appeal, the county argued the oak woodland management plan and Option B fee program were encompassed in the 2004 program EIR. The Court of Appeal disagreed, however, and determined a new EIR would be required for the management plan.
The court first examined the scope of the 2004 program EIR and determined the oak woodland management plan and Option B fee program did not fall within the scope of the county’s 2004 program EIR. The court noted that while the 2004 EIR called for the implementation of an Option B mitigation plan, the report also indicated that only Option A mitigation would be permitted until an integrated plan was developed. In addition, the court noted the county had to make numerous discretionary decisions regarding the details of the Option B mitigation measure, and these details were not included in the general plan or 2004 program environmental impact report. As a result, the prior program EIR could not provide the necessary environmental analysis to determine the management plan and Option B fee program would cause no greater impacts than previously disclosed. The court criticized the management plan for lacking necessary details in four areas.
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 species like interior live oaks or blue oaks. The appellate court determined the management plan prioritized valley oak habitat without the benefit of an EIR, even though the 2004 program report had identified all three species as providing important wildlife habitat.
Second, the 2004 program EIR did not determine the measurement metric for conservation of oak woodlands to be used under Option B. The court noted that the area might include only canopy cover, or canopy cover and the habitat between trees. The initial study did not identify a measurement technique to be used, and indicated only that the choice would affect the outcome of mitigation. The choice of one measurement over another would alter the fees required under the Option B fee program.
Third, the court of appeal noted that the 2004 program EIR did not set the fee rate to be paid if a project applicant elected to mitigate under Option B. The court noted that, while preservation programs funded by impact fees can be appropriate mitigation, the program must still, at some point, be reviewed under the California Environmental Quality Act. The appellate court acknowledged that review may occur under a tiered approach or on a project-level basis. The county attempted a tiered approach; however, after citing California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026, the court determined that the Option B fee program required preparation of an EIR prior to its adoption.
Finally, the court indicated that the county’s 2004 program EIR did not specify how fees collected under Option B should actually 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 developed. As a result, the Option B mitigation approach differed from the 2004 program report’s emphasis on the protection of connectivity between woodland habitats.
As a result of these discretionary determinations, the court of appeal determined that an EIR was required to inform the County of the environmental consequences of the oak management plan and Option B fee mitigation program before it adopted the oak woodland management plan.
Lastly, the court found the administrative record supported a fair argument that the oak woodland management plan and Option B fee program might have a potentially significant effect on the environment. The court noted a discrepancy between the 2004 program EIR and the negative declaration when reaching this finding. While the 2004 program determined impacts would not be reduced to less-than-significant with mitigation, the negative declaration for the management plan concluded cumulative impacts would be less than significant. The county did not argue that the management plan would have no environmental impacts. Instead, the county argued there would be no greater adverse environmental effect than already anticipated in the 2004 general plan and program EIR. The court disagreed. The court noted 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, which would not be the case under Option B. Based on this evidence, the court determined an EIR would need to be prepared.