How the California Environmental Quality Act Fails the Environment 

Critics correctly blame the law for making it too easy to block housing construction. But it also fails far too frequently to protect wildlife habitat.

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Even for experts, successfully establishing new oak trees isn't easy. Joe McBride, a U.C. Berkeley professor emeritus of landscape architecture and environmental planning, has conducted field studies of oak survival rates after planting. In one experiment, acorns were planted directly in the ground at one, three, six and nine per hole. Only holes with at least six acorns produced a seedling tree, he said in an interview, and most acorns planted in the trial were eaten by gophers. A separate trial in a region with fewer gophers produced an almost 100-percent success rate but involved "a considerable investment in fencing" to protect trees from deer, he says.

Conservation easements are another popular mitigation strategy, and they too look like good deals on paper. Consider last summer's expansion of the Oakland Zoo. The project yielded a 16,000-square-foot visitor center, an aerial gondola, new roads, a campground, and a playground, largely in the adjacent lands of Knowland Park, where the expansion took place. Overall, the size of the Oakland Zoo more than doubled.

But these upgrades required cutting down trees and permanently sacrificing 16 acres of Alameda whipsnake habitat. To soften this ecological punch, the City of Oakland agreed to numerous mitigation measures, including replanting native trees cut down in the project and controlling invasive weeds.

The city also vowed to preserve forever 53 acres of land from development — but there was a catch: That land was already protected in a public park. It was, critics argued, in no danger of being developed, making the whole deal a swindle.

That process mirrors the ineffective way in which burrowing owls have been cheated out of places to dwell by East Bay suburban sprawl. A 2012 "Staff Report on Burrowing Owl Mitigation" from the Department of Fish and Game recognized this serious deficiency. The report's authors suggested "that mitigation for permanent habitat loss necessitates replacement with an equivalent or greater habitat area."

In wine country, too, such land swaps are talked up as win-wins, but they similarly fail to consider the nuances of the transactions. When owners of the Hall Wines brand proposed to cut down a staggering 14,000 oak trees just northeast of Napa, the county granted its approval in 2017 on the condition that the winery preserve a whopping 524 acres of undeveloped land, and tens of thousands of trees, forever. However, opponents of the project, known as the Walt Ranch, have argued that the proposed mitigation acreage was unlikely to ever be developed, partly because much of it was too steep to support homes or vines. A lawsuit has the project tangled up in court.

In cases like these, the end effect is a net loss of trees, masked by a desktop illusion that the overall landscape has emerged not just unscathed but even improved. Hackett calls this system "a sham."

Middlemiss of the Center for Biological Diversity said his organization recently encouraged Napa County planners to adopt new land use rules with specific language requiring that conservation easements used for CEQA mitigations be on the same property as the proposed project and consist of developable land.

"The key issue there is on developable land," he said. "Our argument was that you're cutting down trees in one place and saying you're preserving, ostensibly forever, land somewhere else — but there is no guarantee that land would have been developed in the absence of the conservation easement, because there are restrictions on which land can be developed."

Middlemiss noted that Napa County land of greater than 30 percent slope is difficult to impossible to develop, due to logistical obstacles and permitting restrictions.

"This form of mitigation ultimately allows more land to be developed," he wrote.


Is There Anybody Out There?

If a mitigation measure fails in the forest and no one is around to see it, does it make a difference?

Probably not, especially if the failure — be it a fallen tree, broken fence, clogged owl box, or failed erosion-control system — occurs on private property.

Activist Kellie Anderson, who has long hounded Napa County staffers to crack the whip on scofflaw vineyard owners, used to work for a local vineyard development company. Her job often brought her to remote mountaintops and hillsides, where she often noticed various pieces of infrastructure — some installed as CEQA mitigation hardware — showing wear and tear.

"These things were not being maintained, things were failing, there's constant dust and erosion, but it was so remote," she recalled. "It was only my job that enabled me to go to these really remote vineyards and see these things. There's no way the county goes back and looks at the erosion control infrastructure, or the deer fencing, or the tree planting mitigations, or the tree retention—they simply don't do it."

Middlemiss said the insufficient government monitoring of such measures is behind much of CEQA's failure. However, Napa County Supervising Planner Brian Bordona says that while county employees do rely partly on self-reporting from landowners they also inspect sites in person to see that projects — and their mitigation measures — are being carried out as permitted.

But Anderson listed specific cases, one after another, of mitigation measures failing or being outrightly ignored, and of project applicants violating their development permits — often, she says, with county planners aware of the violations. She described specific examples of wildlife fences enclosing larger areas than permits specifically allowed; deer fence gauging too small to allow the passage of small, ground-level animals; protected stream setbacks, meant as ecological buffers to waterways, ignored, developed or otherwise denuded; and heavy application of weed killer where only isolated spot spraying was permitted.

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