---

More than a decade’s worth of habitat conservation planning in the Natomas Basin (Sacramento) was recently put under the judicial microscope in both state and federal courts in California. At issue in the two cases (Environmental Council of Sacramento v. City of Sacramento and National Wildlife Federation v. Norton) was whether the Natomas Basin Habitat Conservation Plan (“NBHCP”)—a multi-species, long-term, regional conservation program developed by the City of Sacramento and Sutter County, in consultation with the California Department of Fish & Game and the United States Fish & Wildlife Service (“FWS”)—complied with the Federal Endangered Species Act (“ESA”), the California ESA (“CESA”), and the California Environmental Quality Act (“CEQA”).

But much more than just the NBHCP was at stake. The petitioners’ challenges exploited practical limitations faced by all public agencies and project proponents striving to balance development with regional conservation planning. The courts’ rulings thus promised to affect, for better or worse, regional conservation planning throughout the state. Fortunately, in significant victories that affirmed core strategies underlying regional habitat conservation planning, both the state and federal courts concluded that the NBHCP fully complied with state and federal environmental laws. The courts’ opinions provide important guidance and clarification for public agencies and project proponents throughout California.

Cumulative Impacts: Clarification on "Reasonably Certain" and "Probable Future"Projects

Regional conservation planning often is a lengthy process involving multiple jurisdictions. One of the challenges caused by the time and breadth of such an undertaking is that the surrounding landscape can be in a state of flux with different land use proposals surfacing and actions being considered by various local agencies, some of which may not be parties to the regional conservation planning process. The problem is that the environmental analysis for the regional plan cannot be amended to include a new cumulative impact analysis each time a local agency is asked to consider some future project, no matter how speculative. If this were required, the plan might never be finalized.

The petitioners challenged the NBHCP on those grounds, focusing on a memorandum of understanding (“MOU”) between the City of Sacramento and the County of Sacramento. The MOU concerned certain revenue-sharing and division-of-responsibility aspects of possible future development in the Natomas Basin, beyond that development contemplated by the NBHCP. The petitioners theorized that development under the MOU was “reasonably certain to occur” and that the MOU was a “probable future project” that required the lead agencies to conduct a comprehensive cumulative impact analysis. Both the state and the federal courts rejected this argument. The federal court noted that the MOU was “by no means a concrete plan for development” and that its “tentative, general nature” and the “considerable number of . . . approvals” that remained before any development could occur supported FWS’s determination that the MOU need not be included in the cumulative impact analysis. In similar fashion, the state court concluded that the MOU was not a “project” within the meaning of CEQA and CESA and that given the “amorphous nature of possible development” under the MOU, it was not “amenable to meaningful environmental review.” These opinions provide helpful clarification of what courts will consider “reasonably certain” or “probable future” projects, which is particularly valuable to proponents of regional habitat conservation plans.

The "Mitigation Ratio": How Much Is Enough?

The courts’ opinions also provide insight into habitat mitigation ratios. Every habitat conservation plan has a mitigation ratio—the number of acres that must be set aside and protected from development for every acre of development. Neither statutory nor case law prescribes a specific ratio, which leaves public agencies and project proponents with the task of identifying the proper ratio—one that adequately compensates for the impacts of “take” of protected species but that does not require so much land as to effectuate a taking requiring just compensation. As just one component of its comprehensive plan, the NBHCP established a 0.5– to–1 ratio (0.5 acre set aside for each acre of development). The petitioners challenged this ratio as inadequate, arguing that the NBHCP should have employed at least a 1:1 mitigation ratio. The courts disagreed with the petitioners and upheld the NBHCP’s mitigation ratio. In so doing, they established at least two noteworthy principles of general application.

First, the courts agreed that mitigation ratios are not properly evaluated in a vacuum. The petitioners’ attack on the NBHCP’s 0.5–to–1 mitigation ratio improperly attempted to focus on the mitigation ratio in isolation from the numerous other components of the NBHCP’s conservation plan (e.g., preconstruction surveys, monitoring, and specific management of the reserves in perpetuity, among others). Both courts found that the entire conservation plan, of which the mitigation ratio was just a part, supported the NBHCP’s use of a 0.5–to–1 mitigation ratio. These decisions strengthen public agencies’ and project proponents’ ability to “fully mitigate” impacts (CESA) and/or mitigate impacts to the “maximum extent practicable” (federal ESA) by combining an array of conservation features that, considered together, may support the use of a particular mitigation ratio.

Second, for the first time, the state court’s opinion extended CEQA’s “substantial evidence” standard to mitigation ratios. It thus confirmed to lead agencies and project proponents that, like other determinations under CEQA, their determination of the mitigation ratio will be evaluated under well-developed “substantial evidence” principles.

Habitat Loss Does Not Result in "Take" Under CESA

Finally, the state court opinion provided important guidance concerning CESA, which prior to the state court’s decision, had received little judicial construction. The lack of judicial gloss on CESA created ambiguities for public agencies and project proponents attempting to fashion conservation measures that would meet CESA’s requirement that the impacts of “take” be “minimized and fully mitigated.”

In dicta analyzing whether the NBHCP’s mitigation ratio complied with CESA, the state court held that the definition of “take,” as codified at Fish and Game Code section 2081(b)(2), does not include “the taking of habitat alone or the impacts of the taking.” Rather, the court stated, “proscribed taking involves mortality.” This provides important guidance for public agencies and project proponents in evaluating the potential impacts where the project is expected to adversely impact species’ habitat, but is not anticipated to take any protected species.

Conclusion

Both the state and the federal court opinions represent an important affirmation of the regional habitat conservation planning concept, and provide much-needed guidance and clarification that should help lead agencies and project proponents fashion their habitat conservation plans to withstand attacks under state and federal environmental laws.

Note:

Morrison & Foerster LLP represented the City of Sacramento and Sutter County in both court cases.

Citations:

Envtl. Council of Sacramento v. City of Sacramento, 142 Cal. App. 4th 1018 (2006)

Nat’l Wildlife Fed’n v. Norton, 2005 WL 2175874 (E.D. Cal. Sept. 7, 2005)

Cal. Fish & Game Code § 2081(b)(2)