"An ounce of prevention is worth a pound of cure."
Benjamin Franklin
I have consulted on wildlife issues in northern California since 1990 and have the ability to identify and address biological issues with potential for influencing environmental permitting. Primarily for Timber Harvest Plans (THPs), utility and development, I specialize in Initial Study (IS) level biological investigations according to the California Environmental Quality Act (CEQA). Chaperoning clients through an increasingly unpredictable permitting process, I am often able parley my knowledge of State and federal environmental regulations to pair-down costly and unnecessary mitigation measures. Self employed since 1997, my independence also allows me to speak truth to power in ways that is otherwise difficult for natural resources professionals. In "Six NSO Questions" I describe the troubling "Three Ring Circus" that is Northern Spotted Owl (NSO) conservation in California.
When analyzing potential CEQA impacts, is it important to understand that "Mitigations" are only required for environmental impacts deemed “Significant”. The operative term under which the State essentially evokes eminent domain in the name of environmental protection, the California Supreme Court has ruled that the significance of such impacts be evaluated against existing baseline conditions.
The Federal Endangered Species Act (ESA) also requires that impacts be evaluated against current baseline conditions. However, whereas ESA issues are categorically significant, the California's Endangered Species Act (CESA) differs in ways not acknowledged by many State agencies. First off, the CESA’s definition of "take" far more limited than the ESA. Second, providing it is incidental to an otherwise lawful activity, take is minimal and fully mitigated, CDFW has explicit authority to grant incidental take under Section 2081 of the California Fish and Game Code.
Unfortunately, embracing the FPRs description of significance, “a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project”, CDFW has led the CAL FIRE to believe that even the most remote possibility of harm to a “listed species” could potentially be significant. However, given that CEQA’s definition of significance refers to impacts detrimental to “floral and faunal communities”, it is reasonable to assume that a Project submitted under the FPRs should qualify as a Mitigated Negative Declarations (MND).
As such, CDFW's refusal to consider the THP review process as functionally equivalent to a MND is emblematic of an environmental review process at the mercy of inexperienced and poorly trained agency "Environmental Specialists". Taking advantage of CAL FIRE's ignorance regarding the FPRs status as Certified Regulatory Program under CEQA, and dismissive of programmatic protection in the FPRs intended to alleviate significant environmental impacts, CDFW has a long history of promulgating Underground Regulation. Incidentally, this agency's myopic attitude towards wildlife conservation is summed up by comments regarding Breeding Bird Survey I conducted for the Jay Bell Conversion (1-14-EX-281 HUM & 1-14-EX-282 HUM).
My petition to the Office of Administrative Law (OAL) requested a review of CAL FIRE's decision to make extra legal mitigation for Great Blue Heron Rookeries conditional for the approval of two client THPs. Several magnitudes greater than required by the FPRs, alas, the OAL's refusal to consider my petition shows how difficult it is for small landowners hold government bureaucracies’ accountable to their own regulations.
Asked for an explanation, their Assistant Chief Council unconvincingly referenced the narrow scope of my complaint, and the OAL’s limited staff; nevertheless, she informed me with a genuine note of encouragement that I could still pursue litigation. A non-starter for most small timberland owners; however, determined to stand up for small landowners and common sense conservation, if there is an Environmental Lawyer willing to take this case I would be honored to share my biological expertise in return.