The habitat conservation plan for the rapidly growing Natomas Basin in Sacramento and southern Sutter counties has been upheld by a state appellate court.

The Third District Court of Appeal found that environmentalists had failed “to discredit the overwhelming evidence in support” of the habitat conservation plan (HCP) for the 53,000-acre basin. In its decision, the Third District repeatedly noted that a federal district court judge who had rejected an earlier version of the HCP has since upheld federal permits issued as part of the revised plan.

The environmentalists who challenged the revised plan “have failed to demonstrate how the federal court’s analysis is faulty in the same way they fail to demonstrate the deficiencies in the volumes of evidence in support of the Department [of Fish and Game’s] findings,” Justice Vance Raye wrote for the Third District.

Located north of downtown Sacramento, the Natomas Basin provides the City of Sacramento’s major growth area (see CP&DR, October 2005, September 1994, December 1992, June 1991). The basin also includes the Sacramento airport and portions of Sutter County where major growth has been proposed numerous times (see CP&DR, December 2004, December 2002, November 1997, June 1995, July 1993, January 1993).

However, the basin’s rice farms and open space are home to two endangered species, the Swainson’s hawk and the giant garter snake. In 1997, Sacramento adopted an HCP that permitted development to proceed in exchange for the developer-funded purchase of habitat elsewhere in the basin. In 2000, U.S. District Court Judge David Levi threw out the plan, primarily because not all parties required to implement the document had agreed to participate (see CP&DR Environment Watch, June 2001).

In 2003, a revised plan that included Sutter County was adopted. The policies in the revised plan, though, were essentially the same as in the 1997 original. The Natomas Basin Conservancy would use development fees to acquire 8,750 acres, equal to one-half acre for every acre of planned development. The conservancy would then manage the property specifically for the benefit of the endangered hawk and snake, and about 20 other species.

Led by the Environmental Council of Sacramento (ECOS), environmentalists sued in state and federal court over the revised plan but lost at the trial court level in both venues. In its appeal of Sacramento County Superior Court Judge Gail Ohanesian’s decision, ECOS argued that the HCP was inadequate under both the California Environmental Quality Act and the California Endangered Species Act (CESA). In its opinion, the Third District boiled down environmentalists’ arguments to three assertions: The agencies failed to consider the impacts of a “joint vision memorandum of understanding” between the City of Sacramento and Sacramento County, as well as other potential development projects; mitigation measures are impermissibly unfunded, voluntary, unenforceable and infeasible; and the 0.5-to-1 ratio for land mitigation is inadequate. The court rejected all three assertions.

In the months prior to revised HCP approval, the city and county adopted the memorandum of understanding (MOU) as a “roadmap” for future land use decisions. The MOU envisions development in Natomas Basin beyond the 17,500-acres contemplated by the HCP, but the agreement does not involve specific development proposals. Environmentalists argued that the MOU and general plan revisions that reflect the MOU had to be evaluated in the HCP’s environmental impact report. But the Third District said it was too early.

“We agree with the trial court and the federal district court that an environmental analysis now of the unspecified and uncertain development that might be approved in the future under the joint vision MOU would be speculative, wasteful and of little value to the consumers of the EIR,” Justice Raye wrote. “Far too little is known about the scope, the location or the types of projects that might be proposed in the future to assist decision makers in evaluating any potential environmental tradeoffs.”

Likewise, the court ruled, CESA does not require “wasteful speculation on potential projects yet to be conceived and described.”

The court then turned to the mitigation measures. Environmentalists charged that the HCP assumes that large amounts of farmland will remain in agriculture, and that the maze of irrigation and drainage channels on which the snakes rely will remain in place even though the agencies that operate the channels are not parties to the HCP. But the Third District agreed with the federal court findings that the channels must remain open to drain farmland, that closure or filling of canals would require further federal review, that the HCP ensures water channels will remain connected, and that the Natomas Basin Conservancy will be able to influence decisions because the conservancy is a local water company shareholder.

In addition, the HCP specifically states that it does not rely on the continuation of agriculture as a mitigation measure, the court noted.

Regarding, the mitigation ratio, the court accepted the city and Sutter County’s conclusion that a one-for-one ratio was neither feasible nor necessary. The court also pointed out that the plan mitigates “in a variety of ways beyond the purchase of a half acre for every acre developed.” The plan requires the conservancy to manage habitat, and mandates pre-construction surveys to locate individual animals, avoidance of development within a mile of a hawk zone, the preservation and planting of nesting trees, and other measures.

“Cognizant of their heavy burden to mitigate under both statutes, the city and Sutter [County] fashioned an enormously comprehensive and integrated mitigation plan. Plaintiffs parse but one component from the integrated mitigation program, ignoring the broader context, the broader findings, and the broader evidence relied on by the agencies,” the court ruled.

The court also rejected arguments regarding the adequacy of evidence to support the Department of Fish and Game’s CESA findings. “We will not arbitrate between scientists,” Raye wrote.

The Case:
Environmental Council of Sacramento v. City of Sacramento, No. C049527, 2006 DJDAR 12175. Filed August 9, 2006. Ordered published September 11, 2006.
The Lawyers:
For ECOS: James Pachl, (916) 446-3978.
For Sacramento: Clark Morrison, Morrison & Foerster, (916) 448-3200.