APPEAL from a judgment of the Superior Court of El Dorado County, Suzanne N. Kingsbury, Judge. Reversed with directions. (Super. Ct. No. PC20080336)
The opinion of the court was delivered by: Hoch , J.
CERTIFIED FOR PUBLICATION
This appeal arises from the County of El Dorado's (County) adoption of an oak woodland management plan and mitigation fee program without an environmental impact report (EIR). The County issued a negative declaration for the plan and fee program, thereby dispensing with the requirement of an EIR under the California Environmental Quality Act (Pub. Resources Code, §§ 21000 et seq., 21050 (CEQA)).*fn1 The negative declaration was premised on a program EIR that the County completed in 2004 at the same time as it formulated its general plan. The 2004 General Plan allowed developers of more than 10 acres to conserve oak woodlands on site at a one-to-one ratio as Option A. The 2004 General Plan and program EIR also anticipated the development of an Option B, which would allow developers to pay a mitigation fee under an oak woodland management plan instead of engaging in mitigation on the development site itself. However, neither the general plan nor the program EIR specified the fee rate for Option B, nor how the collected fees should be used to mitigate the impact on the County's oak woodlands.
The County's adoption of the oak woodland management plan on a negative declaration was challenged by the Center for Sierra Nevada Conservation, El Dorado County Taxpayers for Quality Growth, and California Oak Foundation (collectively, the Center). The trial court concluded that the County was not required to prepare an EIR prior to adoption of the oak woodland management plan.
On appeal, the Center contends (1) the County violated CEQA by failing to prepare an EIR before adopting the oak woodland management plan and the Option B fee program, (2) the County erred in issuing a negative declaration for the oak woodland management plan and Option B fee program, and (3) the oak woodland management plan and Option B fee program conflict with the 2004 General Plan. With respect to the first two contentions, the County responds that the oak woodland management plan and Option B are within the scope of the 2004 program EIR and the environmental impacts were already adequately addressed in the program EIR. As to the third contention, the County asserts the oak woodland management plan and Option B fee program are consistent with the 2004 General Plan.
We disagree with the trial court and hold that the County was required to prepare a tiered EIR before its adoption of the oak woodland management plan and implementation of an Option B mitigation fee. Although the 2004 program EIR did anticipate the development of an oak woodland management plan and fee program, it did not provide the County with guidance in making the discretionary choices that served as the basis for the plan or fee program. Specifically, the program EIR did not set the fee rate, how the acreage subject to the Option B fee rate should be measured, or how the off-site oak woodland losses would be mitigated by the fees. Thus, the County could not rely on the 2004 program EIR for its conclusion that the adoption of the oak woodland management plan and fee program will have no greater adverse environmental effect than that already anticipated in the 2004 program EIR and its adoption of a negative declaration. We conclude that CEQA requires a tiered EIR to be conducted prior to the County's adoption of the plan and fee program. Accordingly, we reverse the judgment.
FACTUAL AND PROCEDURAL HISTORY
In setting forth the factual and procedural background of the case, we draw extensively on Judge Kingsbury's carefully prepared statement of decision.
In 1996, the County's Board of Supervisors (Board) adopted a general plan that was challenged in Sacramento County Superior Court on grounds that included the claim that its "canopy cover retention standards did not adequately address impacts to the oak woodland canopy." (El Dorado County Taxpayers for Quality Growth et al. v. El Dorado County Board of Supervisors et al. (Super. Ct. Sacramento County, 1996, No. 96 CS01290.) In 1999, the superior court ruled the 1996 General Plan's EIR deficient and placed a moratorium on development in the County until another general plan was adopted.
In 2002, a study on impacts on wildlife in western El Dorado County under the 1996 General Plan was conducted by Saving and Greenwood. A separate study by Harris and Kocher, also in 2002, analyzed protections afforded oak woodlands under the 1996 General Plan. That study noted that "while there is a great deal of concern about the protection of oaks and other hardwoods in California" there is a lack of statewide regulation on the issue, which is left to local government in the absence of additional factors, such as the presence of streams, wetlands or endangered species in the habitat.
The County's 2004 Program EIR
In 2004, the County adopted a new general plan and program EIR. The program EIR acknowledged that development in the County under the new general plan would have "significant and unavoidable" impacts on the County's oak woodland habitat and its dependent wildlife. To mitigate the adverse effects of development, the County planned to formulate an Integrated Natural Resources Management Plan (integrated plan) within five years of the 2004 General Plan's adoption.
Program EIRs are used for a series of related actions that can be characterized as one large project. (Guidelines, § 15168.) The 2004 General Plan's 20-year planning horizon anticipates county growth by 30,000 households and "represents a workable compromise on land use issues with which the County has grappled for over 15 years." In its effort to balance competing goals, the Board recognized that "several significant environmental impacts have not been fully mitigated because of the need to meet competing concerns, and/or the need to recognize economic, legal, social, technological and other issues as factors in decision-making. Accordingly, the Board has chosen to accept certain adverse environmental impacts because to eliminate them would unduly compromise important economic, social, technological, and other goals" and "because the benefits of the project outweigh any significant and unavoidable or irreversible adverse environmental impacts of the project."
"Conservation of Oaks and other Hardwoods" was considered in section 5.12, "Biological resources," of the program EIR, which recognized the loss and fragmentation of wildlife habitat as a result of urbanization: "Development under the General Plan would result in substantial increase in urban development and population in the western foothill region of the county. . . . Much of the native habitat that exists would be substantially reduced by impacts associated with adoption of the General Plan. . . . Impacts are expected to be highest in areas designated as high-intensity land uses, because buildout of land under these designations would likely result in fragmentation and loss of the majority of the existing habitat. Medium-density land uses would also result in removal and fragmentation of existing habitat, but to a lesser extent than high-density land uses. As a result, some habitats would expect to continue to be viable, but the quality would be diminished compared with keeping the habitat in an undisturbed condition. Low-intensity land uses would have little or no effect on existing biological resources because in most areas the habitats would not be substantially altered. . . . Most of the development pressure in El Dorado County is likely to occur in the foothills near the U. S. [Highway] 50 corridor."
The 2004 General Plan designates as Objective 7.4.4 the "protect[ion] and conser[vation of] forest and woodland resources for their wildlife habitat, recreation, water production, domestic livestock grazing, production of a sustainable flow of wood products, and aesthetic values." The plan lists five policies toward that objective. Two policies are relevant here: Policy 22.214.171.124 and Policy 126.96.36.199.
Policy 188.8.131.52 provides that the new development projects as defined require one of two mitigation options. Under Option A, the project applicant adheres to the canopy retention standards described in the policy and "shall also replace woodland habitat removed at a 1:1 ratio . . . based on a formula, developed by the County, that accounts for the number of trees and acreage affected." Option A also provides, "Impacts on woodland habitat and mitigation requirements shall be addressed in a Biological Resource Study and Important Habitat Mitigation Plan as described in Policy 184.108.40.206." Under Option B, the project applicant pays into the County's integrated plan's conservation fund (described in Policy 220.127.116.11) to "fully compensate" for the impact to oak woodland habitat. This fee is intended to mitigate the impact of both habitat loss and habitat fragmentation: the mitigation ratio is 2:1 and is "'based on the total woodland acreage onsite directly impacted by habitat loss and indirectly impacted by habitat fragmentation.' If an applicant attempts Option A but falls short, Option B fees would be charged only on the difference between what should have been preserved under the [oak woodland management plan] and what the applicant was able to preserve utilizing Option A."
Policy 18.104.22.168 requires the development and implementation (within five years) of an integrated plan "that identifies important habitat in the County and establishes a program for effective habitat preservation and management." This policy implements Objective 7.4.2, the identification and protection of critical fish and wildlife habitat "to the extent feasible in light of other General Plan policies." The integrated plan includes a number of components: the inventory and mapping of a variety of important biological habitats, with review and updating every three years; development of a habitat protection strategy for the identified important habitats with a goal of "conserv[ing] and restor[ing] contiguous blocks of important habitat to offset the effects of increased habitat loss and fragmentation elsewhere in the county"; establishment of "a program to facilitate mitigation of impacts to biological resources resulting from projects approved by the County that are unable to avoid impacts on important habitats"; establishment of "a program for identifying habitat acquisition opportunities involving willing sellers"; evaluation of acquired properties for suitability for habitat management or restoration actions; and the establishment of a habitat monitoring program "that covers all areas under the Ecological Preserve overlay together with all lands acquired as part of the [integrated plan]."
Pending completion of the integrated plan, the County required residential and commercial real estate developers to mitigate the loss of oak woodland habitat by conforming to Option A. Option A requires developers of more than 10 acres to set aside oak woodlands on a one-to-one ratio. The 2004 General Plan anticipated that an alternative, Option B, would allow developers to pay a conservation fee under an oak woodland management plan instead of engaging in on site mitigation. The 2004 program EIR did not set the Option B fee rate or determine how the collected funds would be used to mitigate the impact of development on the County's oak woodlands.
2006 Settlement Agreement
Following the adoption of the 2004 General Plan and program EIR, the County filed a return to the writ that had been issued in 1999. The adequacy of the County's return was challenged by a varied group of petitioners.*fn2 The superior court ruled in the County's favor and discharged the writ. Petitioners filed a notice of appeal, and while the appeal was pending the County and the petitioners entered into a settlement agreement in April 2006 (Agreement). In exchange for petitioners abandoning their appeal, the County agreed not to seek costs from petitioners. The Agreement contained additional terms including the following:
"Recital D. One of the issues raised in the Return to the Writ phase of the litigation concerned the effort of General Plan Policy 22.214.171.124, which relates to the protection of oak woodlands. It is the County's position, consistent with the position the County maintained in the litigation and with which the trial court agreed, that under existing Policy 126.96.36.199, the County may require development projects to undertake mitigation Option B (contribution to conservation fund) in lieu of Option A (canopy retention standards) only after the County has adopted the oak woodland portion of the [integrated plan] described in General Policy 188.8.131.52. [¶] . . . [¶]
"Agreement 3. The County agrees to maintain its interpretation of General Plan Policy 184.108.40.206 as described in the above recitals unless and until that policy is amended or repealed."
The Oak Woodland Management Plan
In 2008, the Board adopted an oak woodland management plan (including an Option B fee program) that allowed developers to pay 40 percent of fee title value of the land under the oak canopies to be removed. The Board's adoption of the oak woodland management plan and Option B was based on a negative declaration. Thus, the County did not prepare an EIR for the oak woodland management plan or the Option B fee program.
Development of the oak woodland management plan began with mapping existing oak woodlands and then identifying conservation priorities within those woodlands. The oak woodland management plan was conceived as the oak woodland portion of the integrated plan, which would look at many resources, including creeks, endangered species, sensitive habitat, and rare plants. Its purpose is to identify the highest priority habitat areas for protection and preservation. The County chose to begin the integrated plan with the oak woodland portion of the plan.*fn3
Mapping oak woodlands "picked up where the [program] EIR left off." The program EIR oak woodland mapping was based on mapping done by the California Fire and Resource Assessment Program; woodland habitat types had been identified using Department of Fish and Game definitions. The oak woodland management plan had three purposes: (1) to include the components required to be included by Measure CO-P*fn4 ; (2) to "develop the Policy 220.127.116.11 Option B Fee Method for mitigating impact to the Oak Woodlands"; and (3) to develop an oak woodland management plan that would represent the initial component of the integrated plan.
A series of "filters" were used to prioritize those areas with the highest biological habitat value. Valley oak woodlands were identified with a specific designation of sensitive habitat. Then, based on considerations of habitat continuity and fragmentation, the focus was on "oak woodlands that were within areas that represented blocks of 500 acres or larger areas." Some higher value oak woodland parcels that were 40 acres or larger were also considered for preservation, whether or not developed, because of their value in preventing fragmentation. Areas designated in the 2004 General Plan as community regions and rural centers or were designated industrial or commercial were excluded.
In developing the oak woodland management plan, the Important Biological Corridors overlay was used and considered. The purpose of this overlay was the concern for habitat connectivity, i.e., "being able to provide ways for wildlife to move either through riparian corridors, or through other Oak Woodland corridors between some of these higher habitat value areas." While "there is some overlap of the Important Oak Woodland Habitat with the Important Biological Corridors," the correlation is not strong because "the Important Biological Corridors are intended to encompass much more than just Oak Woodlands. They're intended to encompass endangered species, wetlands, and many other issues." The Board directed staff "that the importance of the Oak Woodland plan relative to other types of habitat will be determined in the [integrated plan] and that Oak Woodlands by themselves are not necessarily important."
At the September 25, 2007, Board meeting, Rick Lind, president of EN2 Resources, a planning and environmental consulting firm retained by the County to assist with technical aspects of the oak woodland management plan, stated that the mapping process focused on two particular classifications, priority conservation areas and oak woodland corridors. Priority conservation areas are "areas of large expanses of Oak Woodland habitat as defined by the [integrated plan]"; "large expanses of native vegetation" is language used in Policy 18.104.22.168A(5) and generally means 500-acre or larger blocks of contiguous habitat. Oak woodland corridors are "those areas that would provide the connectivity that is discussed in the [program] EIR and in the policies that are critical for maintaining the values and viability of Priority Conservation Areas."
The criteria used in selecting oak woodland corridors were (1) for each priority conservation area, there had to be at least two ways for wildlife to move in or out; (2) large expanses of oak woodland were selected that did not meet the priority conservation area criteria, typically because they were under 500 acres in size; and (3) integrated plan criteria, such as year-round water, wetlands, and riparian habitat. They concluded that perennial stream zones would be appropriate areas for focusing on connectivity. Two particular corridors for north-south connectivity were identified: Weber Creek and "a second area along Slate Creek in the vicinity of the Greenstone undercrossing" which represented "the highest value second corridor that would link the [priority conservation areas] in the north with the [priority conservation areas] in the south." All together there are 19 corridors, all of which are along existing streams. Public lands were specifically targeted, where feasible, as pathways between priority conservation areas.
While a significant percentage of oak woodlands is contained within important biological corridors, habitat connectivity was not a focus of the oak woodland management plan. In accordance with the Board's direction that habitat connectivity issues be considered in connection with development of the integrated plan and not the oak woodland management plan, the oak woodland management plan's focus was to identify and preserve oak woodlands. The oak woodland management plan "emphasize(s) time and time again that these are preliminary delineations of potential corridors that are going to be evaluated and probably revised significantly through the [integrated plan process]. But . . . with the objective of meeting the [integrated plan] portion of the Oak Woodland Plan, making that fulfill that requirement, we felt it was necessary to establish that connectivity between the [priority conservation areas]."
The County issued a final oak woodland management plan on February 11, 2008, and circulated the negative declaration for comments. The County planning commission found that there would be no significant environmental impacts that had not been previously examined and that the oak woodland management plan was consistent with the 2004 General Plan.
At the May 6, 2008, session, the Board considered the oak woodland management plan Negative Declaration and Implementation Ordinance and approved the findings of the planning commission at the March 18, 2008, meeting, certified the environmental document, and adopted the oak ...