Death of a Single Individual of an ESA Listed Species is a Significant CEQA Impact
Copyright 2004-2012 David J. Dilworth
Ordinarily California agency planners and staff are allowed to use their personal judgment about whether a project has a “significant environmental impact” under California’s Environmental Quality Act (CEQA).
Due to a lack of standards and training and pervasive political pressure this results in a wide range of what is or isn’t a significant impact during preparation of CEQA documents. However, legislators in their wisdom kept a few judgments beyond the reach of politics, planners and agency whims.
One of those is decisions about endangered species which has an integer numeric threshold – that is rare in environmental law.
The loss or death of a single individual of a protected species must have a Finding of Significant Impact according to CEQA Section 15065 (a).
“15065. Mandatory Findings of Significance”
“A lead agency shall find that a project may have a significant effect on the environment and thereby require an EIR to be prepared for the project where any of the following conditions occur:”
“(a) The project has the potential to … reduce the number (or restrict the range) of an endangered, rare or threatened species . . . “
There is no other possible meaning for “reduce the number” than the loss of a single individual, as in a population drop from from 500 to 499.
Recognition of ESA Habitat Too
In addition, CEQA requires recognition of any loss of habitat (not just “critical habitat”) used by an officially endangered or threatened species. One Court has already ruled that the loss of as little as a quarter of an acre of habitat of a listed species “restricts their range” and also requires a Finding of Significant Impact under CEQA Section 15065.
“Since a finding of significance under the Environmental Quality Act is required if [the] range of a single rare or endangered plant is restricted by a proposed development, information regarding existence of additional, previously unidentified, rare plant species merely affected magnitude of the impact of the proposed development, and a subsequent or supplemental environmental impact report would have to examine affected plant populations as part of its evaluation of the environmental impact.”
West’s Ann.Cal.Pub.Res.Code § 21152, §21166 – citing “Mira Monte Homeowners v. San Buenaventura Cty.” Etc. 165 Cal. App.3d 357; 212 Cal. Rptr. 127 (Cal. App. 2 Dist. 1985)
Developers, extractors and polluters and agency staff typically argue that these thresholds are too low. Well, not according to California’s Legislature & Governor who agreed and declared that protecting species faced with extinction is of the utmost importance with CEQA Section 21001 (c) —
“Prevent the elimination of fish or wildlife species due to man’s activities, insure that fish and wildlife populations do not drop below self-perpetuating levels, and preserve for future generations representations of all plant and animal communities and examples of the major periods of California history.”
CEQA does not say “Mitigate and Allow” the elimination of fish or wildlife species due to man’s activities. Nor does it say fish and wildlife populations “should not” drop below self-perpetuating levels,”
Instead, CEQA boldly directs all agencies to “Prevent the elimination of fish or wildlife species due to man’s activities” and “insure that fish and wildlife populations do not drop below self-perpetuating levels.”
When an animal or plant has reached the precarious, fragile circumstance of facing a threat of extinction, it is easy and reasonable to show compassion for how any harm to them at all must be considered a significant impact.