A recently published Court of Appeal decision offers helpful guidance on how to prepare some of the analyses that go into environmental impact reports (EIRs). Among other holdings, the court rejected a claim that an EIR was inadequate because it relied on a reconnaissance-level biological survey rather than a more detailed survey.

The case is Association of Irritated Residents v. County of Madera, and it is one of a number of recent California Environmental Quality Act (CEQA) lawsuits that have challenged approval of dairy farms in Central Valley counties. Madera County prepared an EIR evaluating a proposed 158-acre dairy, to be located on an existing 1,925-acre parcel of agricultural land. The biology chapter of the EIR was based on a biologist's report describing a "reconnaissance-level" field survey conducted by that biologist. Reconnaissance-level surveys involve fairly non-intensive survey techniques and are used either as screening level surveys to determine whether a more intensive site survey is required (not unlike a "Phase 1" environmental report) or in circumstances in which a wide area must be covered and more intensive surveys are not feasible. Reconnaissance-level surveys typically are not as exhaustive as "protocol-level" surveys often required by state or federal wildlife agencies to prove, as part of their permit processes, that threatened or endangered wildlife is absent from a particular site.

In this case, the biologist surveyed for threatened and endangered species by driving the roadways in the area and walking the perimeter of the existing agricultural fields. Based on this survey, the biologist concluded there were no observable special-status plant or animal species on the dairy site, that "the dairy site does not support habitat for any special status species," and that "no kit foxes or their signs were observed on the dairy site." The EIR accordingly concluded that, with certain mitigation measures, the proposed dairy project would have a less-than-significant impact on threatened or endangered species and their habitat.

The project opponents challenged these conclusions, claiming that CEQA requires the biologist to have employed the more intensive "protocol-level" surveys which are often recommended by the Department of Fish and Game. The court rejected this argument, noting that there is no rule or regulation requiring such protocol surveys. The court also noted that there was no showing that a reconnaissance-level survey was insufficient when that survey did not detect any habitat or the presence of species. Thus, the court held that the biological field surveys conducted in this case constituted substantial evidence supporting the County's findings.

This holding is important because it demonstrates that a reconnaissance-level field survey may constitute substantial record evidence supporting an agency's CEQA decision. This ruling should not be interpreted to mean that an agency can dispense with a protocol survey in all instances. For example, more exhaustive surveys may be required to avoid liability or secure permits under the State or Federal Endangered Species Acts or related laws, which have different evidentiary standards and burdens of proof. However, this case does suggest that, for the purposes of CEQA, a lesser survey may properly be considered substantial evidence to support a finding that a more detailed survey is not needed, if the lesser survey is sufficient to demonstrate no significant impact.

Morrison & Foerster LLP is one of California's leading law firms in CEQA, endangered species, and other natural resource matters. If you have any questions about Association of Irritated Residents and how it affects your project, please contact Robert Falk.