A state project to convert 225 acres of Colusa County farmland into wetlands and waterfowl habitat is not exempt from environmental review, the Third District Court of Appeal has ruled.
The state Wildlife Conservation Board (WCB) argued that four possible exemptions to the California Environmental Quality Act (CEQA) applied to the project, but the court rejected all of them. The court noted that the project involves more than $100,000 worth of construction, including extensive grading and re-routing of irrigation canals.
“There may be environmental costs to an environmentally beneficial project, which must be considered and assessed,” the court ruled.
The project was the first one approved under the North Central Valley Conservation Reserve Enhancement Program. Five years ago, the conservation board and other state agencies negotiated the purchase of a conservation easement on farmland owned by Leroy Traynham III adjacent to a 2,700-acre corridor of wetlands and riparian habitat along Ridge Cut Slough. The property is zoned “exclusive agriculture” and it has been used to grow rice, row crops and Sudan grass. The property is covered by a Super Williamson Act contract, which provides tax breaks in exchange for the property not being developed for 20 years.
The conservation easement incorporated a waterfowl habitat management plan that called for extensive groundwork. The plan called for reconstructing existing levees in a meandering fashion, constructing interior levees, building or improving ditches to facilitate flooding of individual wetland units, installing water control structures, constructing other channels and swales, building higher mounds, and planting tules, willows and cottonwoods. The work was estimated to cost $111,000 and would result in 145 acres of seasonal and permanent wetlands, and 80 acres of uplands.
The Department of Fish and Game (DFG) declared the project exempt from CEQA. The conservation board approved the project in February 2002 and filed a notice of exemption a few days later.
The California Farm Bureau Federation sued the state agencies, the county and Traynham, alleging violations of CEQA and the Williamson Act. The county filed a cross-complaint alleging violations of the Williamson Act and county ordinances. Colusa County Superior Court Judge John Tiernan then issued a preliminary injunction blocking the project.
After the state and Traynham amended the conservation easement to permit commercial grazing, the county dropped its Williamson Act suit but raised new issues related to CEQA. Judge Tiernan consolidated the Farm Bureaus and countys lawsuits and ultimately ruled the project was not exempt from CEQA. The court also awarded the Farm Bureau and the county attorney fees. The state appealed, but lost again at the Third District.
During the administrative process, the state relied on a Class 13 exemption in CEQA Guidelines § 15313, which exempts from environmental review projects that consist of the acquisition of lands for fish and wildlife conservation purposes. The state argued that the exemption applied even if the land were not in its natural condition. The appellate panel disagreed.
“The language [in § 15313] simply does not stretch to cover acquisitions for the purpose of physically constructing or creating and actively managing new wildlife habitat,” Justice Tani Cantil-Sakauye wrote for the court. “[T]he property has been actively farmed, growing row crops, rice and most recently Sudan grass. It is not existing wetland habitat. The purpose of the acquisition is to convert the property into a habitat, not to preserve a natural condition or existing habitat.”
The state also argued the project was eligible for a Class 4 exemption for minor alterations to land, a Class 25 exemption for transfers of land ownership to preserve open space or habitat, and a “common sense” exemption because a change in land use from agriculture to wildlife habitat is not an adverse environmental impact. The court rejected all three arguments.
“[F]undamentally, the Class 4 exemption applies to only ‘minor’ alterations, which this project is not,” Cantil-Sakauye wrote, citing the management plan’s lengthy list of grading and drainage improvements. “The work will clearly alter existing drainage patterns and elevations of the land. It will change the nature of the land from level fields to wetlands. This is not a ‘minor’ physical alteration to the land.”
The Class 25 exemption does not apply because it does not cover the management plan component of the project. The common sense exemption does not apply because the project “is not a mere passive change in use.” The project involves use of heavy equipment, and legitimate questions have been raised about the amount and source of water for the wetlands, the court determined.
In an unpublished portion of the opinion, the Third District upheld the lower court’s award of attorney fees under the theory that the lawsuit affected public policy and benefited the general public. “[A]ll parties, including the state agencies, viewed this first project as a general test of the agencies’ position that projects changing agricultural land to wildlife habitat are exempt from the environmental review requirements of CEQA,” Cantil-Sakauye wrote. “This litigation has resulted in a ruling that, at least as to projects in material respects similar to this one, the DFG and WCB must undertake at a minimum an initial study under CEQA.”
California Farm Bureau Federation v. California Wildlife Conservation Board, No. C049919, 06 C.D.O.S. 9057, 2006 DJDAR 12962. Filed September 21, 2006.
For the Farm Bureau: Alan Bick, Gibson, Dunn & Crutcher, (949) 451-3800.
For the conservation board: Deborah Wordham, attorney general’s office, (916) 445-9555.
For Colusa County: Timothy Taylor, Somach, Simmons & Dunn, (916) 446-7979.