Court of Appeal holds county should have prepared tiered EIR instead of a negative declaration with regard to an oak woodland management plan and mitigation fee program

Center for Sierra Nevada Conservation v. County of El Dorado
Jan. 20, 2012
Cal. Court of Appeal (3rd App. Dist.)  2012 DJDAR

The Court of Appeal reversed the trial court’s approval of the County’s Negative Declaration in conjunction with an oak woodland plan. The County tried to rely upon a prior program EIR prepared four years earlier when it approved a new general plan. At the time of the general plan approval, the EIR contemplated the need for a future oak woodland management plan and fee program for mitigation purposes. There was no actual guidance provided in that EIR. The EIR also acknowledged that significant impacts would result to the oak woodland habitat by development. The EIR discussed an intended one-to-one on-site mitigation ratio until a plan could be developed and a fee plan adopted that allowed for off-site mitigation.

When the County later tried to rely upon the prior EIR, the Court of Appeal held that to be improper. The County prepared an initial study which should have determined whether the prior EIR had already addressed the environmental issue of concern; here, the consultant and County Counsel advised to prepare a tiered EIR which the County ignored.

The Court found that because the particulars of the fee program and scope of the mitigation were never defined, their effectiveness could not be measured. Similarly, no attempt was made to address or reconcile the general plan requirement to protect various oak and hardwood habitat and ensure connectivity among protected areas. Thus, the County’s attempt to bootstrap the current negative declaration onto the prior EIR failed. A fair argument could be made that the plan and fee program would have a significant impact on the environment, and thus an EIR should have been prepared.

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