Download Policy Regarding Mitigation of Impacts to

SENT BY FAX AND U.S. MAIL
Total Pages: 4
August 22, 2000
Andrea E. Tuttle
Director
California Department of Forestry and Fire Protection
1416 9th Street
P.O. Box 944246
Sacramento 94244-2460
Fax: (916) 653 4171
Robert C. Hight
Director
California Department of Fish and Game
1416 Ninth St.
Sacramento, CA 95814-1205
Fax: (916) 653 7387
Dear Directors Tuttle and Hight:
It has come to our attention that the California Department of Forestry and Fire Protection (CDF) and the
California Department of Fish and Game (CDFG) are considering clarifications to the requirements for
analysis and protection in timber harvest plans (THPs) of plants that are rare but are not listed under the
State or Federal Endangered Species Acts. This clarification will be very welcome. These requirements
have been applied inconsistently in the past and there is considerable confusion among the public and
even some agency staff about this important aspect of law.
As you know, CNPS has worked closely with both CDFG and CDF for many years to conserve rare plants
and their habitats. The purpose of this letter is to provide information and analysis that we hope will be
helpful in your deliberations.
The THP program is a certified regulatory program that is required by law to provide the functional
equivalent of the analysis and protection afforded by the California Environmental Quality Act (CEQA).
There are strict requirements attached to certification of a regulatory program, including a requirement
that the program
“[r]equire that an activity will not be approved or adopted as
proposed if there are feasible alternatives or feasible mitigation
measures available which would substantially lessen any significant
adverse effect which the activity may have on the environment.” (Public
Resources Code 21080.5 (d)(2)(A)).
The CEQA Guidelines define “significant” effect as follows:
“A lead agency shall find that a project may have a significant effect on the
environment and thereby require an EIR to be prepared for the project where any
of the following conditions occur:
The project has the potential to substantially degrade the quality of the
environment, substantially reduce the habitat of a fish and wildlife species, cause
a fish or wildlife population to drop below self-sustaining levels, threaten to
eliminate a plant or animal community, reduce the number or restrict the range of
an endangered, rare or threatened species, or eliminate important examples of
the major periods of California history or prehistory.” (CEQA Guidelines § 15065,
emphasis added).
“Endangered” and “rare” species are defined in Section 15380 of the CEQA guidelines:
“(b) A species of animal or plant is:
(1) "Endangered" when its survival and reproduction in the wild are in immediate
jeopardy from one or more causes, including loss of habitat, change in habitat,
overexploitation, predation, competition, disease, or other factors; or
(2) "Rare" when either:
(A) Although not presently threatened with extinction, the species is existing in
such small numbers throughout all or a significant portion of its range that it may
become endangered if its environment worsens; or
(B) The species is likely to become endangered within the foreseeable future
throughout all or a significant portion of its range and may be considered
"threatened" as that term is used in the Federal Endangered Species Act.
...........
(d) A species not included in any listing identified in subsection (c) shall
nevertheless be considered to be endangered, rare or threatened, if the species
can be shown to meet the criteria in subsection (b).”
Thus there is no question that THPs, as equivalents of CEQA analyses, must address all potentially
significant impacts, including those to unlisted rare species that meet the criteria set forth in CEQA
Guidelines §15380.
The CDFG has a long record of recognizing rare unlisted species as “rare or endangered” for CEQA and
THP purposes if they meet these criteria. One tool that is often used by scholars and agencies to help
determine rarity or endangerment is the California Native Plant Society’s Inventory of Rare and
Endangered Vascular Plants of California. We are aware that some question the validity of the CNPS
Inventory, but it is important to note that the Inventory has consistently been used and accepted by State
or Federal agencies and the academic community. For more information on the Inventory, we enclose a
fact sheet outlining the scientific methods used to develop the Inventory and its uses.
For example, in a 1995 essay entitled “Conserving Plants with Laws and Programs under the Department
th
of Fish and Game” published in the 5 edition of the CNPS Inventory, CDFG Endangered Plant Program
Coordinators Sandra Morey and Ken Berg state,
“The DFG recognizes that Lists 1A, 1B, and 2 of the CNPS Inventory consist of
plants that, in a majority of cases, would qualify for listing, and the Department
recommend that they be addressed in EIR’s. However a plant need not be in the
Inventory to be considered under CEQA .... In addition, the DFG recommends,
and local governments may require, protection of plants which are regionally
significant, such as locally rare species...”
2 of 3
Although clearly required by law, implementation of survey and conservation requirements for rare plants
has been uneven within the THP program. It is of course routine in other types of CEQA analyses, as well
as in timber operations on public lands such as National Forests. We commend your efforts to bring the
THP program into conformance with other land management programs in the State.
One of the benefits of high quality CEQA analysis is to reduce the need for costly species listings under
the California Endangered Species Act (CESA) and the Federal Endangered Species Act (FESA) by
proactively reducing impacts to rare species and their habitats. Implementation of CEQA Guidelines
§15380 and §15065, and of their functional equivalents in THP processes, is essential to this goal. CESA
and FESA were designed as emergency safety nets for rare species, not as routine tools for species
management and conservation. Both the State and Federal listing processes can be time-consuming for
agencies and costly to taxpayers. As species decline to the point where listing is needed, their
conservation becomes more expensive and difficult for both taxpayers and landowners.
We have welcomed the increasing attention to review and mitigation of environmental impacts, including
those to rare plants, in THPs since Governor Davis’ election. We urge you to continue the progress that
has been made. Clarification of procedural and conservation requirements for rare unlisted species will be
another important step towards a consistent and environmentally sound THP program. We request that
you send us the policies and procedures that CDF and CDFG use in analysis of impacts to listed and
unlisted rare plants in THPs. Please also inform us if you plan to make changes to those policies.
We are of course available to meet to discuss this issue in person. Please also contact us if we can
provide additional information. We look forward to continuing to work with you to conserve California’s
biological diversity.
Sincerely
Jacob Sigg
President
cc. Mary Nichols, Secretary of Resources
Diana Jacobs, Scientific Advisor to the Director, Department of Fish and Game
3 of 3