CEQA and Locally Rare Plants

This article is adapted from one I wrote for the California Native Grassland Association newsletter (spring 2013).

The California Environmental Quality Act (CEQA) was enacted in 1970 on the heels of such ground-breaking federal legislation as the Clean Water Act (CWA, 1965), Clean Air Act (CAA, 1967) and the National Environmental Policy Act (NEPA, 1969). Also in 1970, the State Legislature enacted the California Endangered Species Act (CESA); the U.S. Congress followed suit in 1973, passing the federal Endangered Species Act (FESA). This flurry of what seems today like several impossibly grand accomplishments, arose as part of a backlash against the pollution and environmental degradation that resulted from unrestrained industrial and commercial activities following World War II. While the CWA, almost by accident, applied strict regulations on activities affecting aquatic habitats, most conservation-oriented legislation focused primarily on species formally listed as endangered, threatened, or rare by the state or federal government.

From the beginning, FESA and CESA encountered tremendous obstacles to effective implementation, not the least of which was the listing process itself. The limited data on species’ range and ecological restrictions, the lag time in conducting a valid scientific review of species proposed for listing, the lengthy public review period, and even the very concept of what constitutes a species conspired to create a huge backlog. While these issues were being resolved, species were going extinct. And because protection is only afforded to listed species, many, many taxa were falling through the proverbial cracks. In some cases, it was quite literally a race to get a species listed before it went extinct. And as you may not be aware, federally listed plant species receive no formal protection under FESA if they occur on private land and there is no federal permitting nexus.

But CEQA provided (and continues to provide) a legal footing for provision of some level of protection to species that haven’t been formally listed, as well as species that might not meet the criteria for federal or state listing but are recognized as being at risk of endangerment. The legislative intent of CEQA is to

“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” (§21000).

While it is perhaps common knowledge that Environmental Impact Reports (EIRs) must address impacts on federally and state-listed species and those species that meet the criteria for listing (§15380), it is important to remember that CEQA doesn’t mandate the protection and/or preservation of rare species. Rather, it requires that significant or potentially significant impacts on rare species be analyzed in the environmental document and that mitigation measures be incorporated into the project to reduce the severity of those impacts.

And under CEQA §15065, a project must be determined to have a “significant impact” if it would

  • substantially degrade the quality of the environment;
  • substantially reduce the habitat of a fish or wildlife species;
  • cause a fish or wildlife population to drop below self-sustaining levels;
  • threaten to eliminate a plant or animal community, or;
  • substantially reduce the number or restrict the range of an endangered, rare or threatened species.

But this still doesn’t quite provide the legal leverage to universally or consistently protect non-listed rare or unusual plant species because they may not meet the criteria for listing. There is, however, one clause in CEQA that can fill this gap. It is found under the list of requirements for describing the environmental setting which states:

“Knowledge of the regional setting is critical to the assessment of environmental impacts. Special emphasis should be placed on environmental resources that are rare or unique to that region and would be affected by the project. The EIR must demonstrate that the significant environmental impacts of the proposed project were adequately investigated and discussed and it must permit the significant effects of the project to be considered in the full environmental context” (§15125[c] emphasis added).

To this end, I routinely use the California Department of Fish and Wildlife’s own definition of special-status species (CDFW, 1990), which includes those that meet one or more of the following criteria:

  • Listed or proposed for listing as threatened or endangered under FESA or candidates for possible future listing as threatened or endangered under FESA.
  • Listed or candidates for listing by the State of California as threatened or endangered under CESA (Fish and Game Code §2050 et seq.). A species, subspecies, or variety of plant is endangered when the prospects of its survival and reproduction in the wild are in immediate jeopardy from one or more causes, including loss of habitat, change in habitat, over-exploitation, predation, competition, disease, or other factors (Fish and Game Code §2062). A plant is threatened when it is likely to become endangered in the foreseeable future in the absence of special protection and management measures (Fish and Game Code §2067).
  • Listed as rare under the California Native Plant Protection Act (Fish and Game Code §1900 et seq.). A plant is rare when, although not presently threatened with extinction, the species, subspecies, or variety is found in such small numbers throughout its range that it may be endangered if its environment worsens (Fish and Game Code §1901).
  • Meet the definition of rare or endangered under CEQA §15380(b) and (d). Species that may meet the definition of rare or endangered include the following:
    • Species considered by the California Native Plant Society (CNPS) to be “rare, threatened or endangered in California” (Lists 1A, 1B and 2);
    • Species that may warrant consideration on the basis of local significance or recent biological information;
    • Some species included on the California Natural Diversity Database’s (CNDDB) Special Plants, Bryophytes, and Lichens List.
  • Considered a locally significant species, that is, a species that is not rare from a statewide perspective but is rare or uncommon in a local context such as within a county or region (CEQA §15125(c)) or is so designated in local or regional plans, policies, or ordinances (CEQA Guidelines, Appendix G). Examples include a species at the outer limits of its known range or a species occurring on an uncommon soil type.

Where a species is not otherwise addressed in planning documents, familiarity with the local region becomes essential, and the term “locally significant” becomes especially important. As discussed above, the setting section should include a description of biological resources that are rare or unique to the region. This can be, of course, highly subjective and, as the sponsor of an EIR, the lead agency may choose either to omit any discussion of such resources, or dismiss the impacts, instead making a “statement of overriding considerations”.

But with the ever-increasing availability of published research on species’ ranges and ecological restrictions, lists of locally significant species compiled by organizations such as the California Native Plant Society (CNPS), or other publications citing the uniqueness of certain local resources (e.g., Bartosh, et al. 2010, Lake 2010, Ventura County 2012), both the lead agencies and commenting public have valuable documents to refer to when evaluating the adequacy of an environmental review document.

One of the most remarkable aspects of CEQA, one that is often under-appreciated, is the fact that with its enactment, the decision-making process of county boards of supervisors, planning commissions, city and town councils, or other public agency directors became fully transparent. In addition, the public is provided with a means by which it could have input into the process through which elected or appointed officials make decisions affecting their community. Increased awareness of the biological value of locally significant species, and an increased level of support for such resources coming from a given constituency, tend to increase the sensitivity of the decision-makers to these issues. I have found that all but the most recalcitrant or skeptical of folks serving on decision-making bodies are often very happy to learn about what makes their communities special. So, keep documenting those discoveries and observations; they’re pieces of the puzzle. And the clearer the picture, the easier it is to share the vision.

Literature Cited:

Bartosh, H., L. Naumovich, L. Baker. 2010. Guidebook to Botanical Priority Protection Areas of the East Bay.Special Publications #4 of the California Native Plant Society, East Bay Chapter.

California Department of Fish and Game (CDFG). 2009. Protocols for Surveying and Evaluating Impacts to Special Status Native Plant Populations and Natural Communities. November 24. Link: https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=18959&inline

Lake, D. 2010. Rare, Unusual and Significant Plants of Alameda and Contra Costa Counties. Eighth Edition. California Native Plant Society, East Bay Chapter. March 15. Link: https://ebcnps.org/native-plants/database-of-rare-unusual-and-significant-plants-of-alameda-and-contra-costa-counties/

Ventura County. 2012. Locally Important Plant List. Planning Division. Link: www.ventura.org/rma/planning/pdf/ceqa/Final-2012-Locally-Important-Plants.pdf.