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How the California Environmental Quality Act Fails the Environment

Critics correctly blame the law for making it too easy to block housing construction. But it also fails far too frequently to protect wildlife habitat.

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Other specific violations involve devices called level spreaders, which catch water running off of a cleared parcel of land, often converted to rows of grapevines, and disperse it — a process that prevents water from channelizing and causing destructive erosion. "Level spreaders are engineered to reduce sediment and water flow from the site, and there are several of those that are not functioning or have failed, and the county is aware that they are not functioning, and yet does not ask that they be repaired or replaced," Anderson said.

Violations like these cause cumulative impacts that only become visible with timer. In watersheds, failed erosion-control measures can add up to a slow silting of streams, which clogs and destroys the gravel beds in which trout and salmon lay and fertilize their eggs. On the North Coast, Coho and Chinook salmon and steelhead trout are facing the very real risk of extinction in many streams. Development, logging, and agriculture, including vineyard conversions, are at fault.

Levine, at the Coast Action Network, feels California's celebrated environmental protection law should be preventing this degradation.

"How can CEQA be working if almost every river except for the Smith is considered impaired?" he asked.

Kanz noted that the very nature of mitigations designed to protect wild animals tend to involve remote, untrammeled areas where people don't often go. Often, they're inaccessible because they're on private land. This makes the measures invisible to citizen watchdogs and less likely to be investigated by agency employees.

"If your mitigation is to purchase a conservation easement for your impacts to red-legged frogs or tiger salamanders, I can't see that — so it's totally a paperwork thing," Kanz said.

The paperwork he refers to includes a CEQA-mandated mitigation monitoring program. While this may involve government staff visiting sites for inspection, he agrees with Anderson that it usually doesn't. Kanz said that agency staffs rarely have time to inspect and follow projects completed years ago.

"They can't even keep up with the new stuff, let alone, 'Did I get the incidental take permit from the project we did 10 years ago?''' he said. "It's impossible."

Grefsrud confirmed that the responsibilities accumulate, mainly because of completed projects that involve mitigation measures intended to last forever.

"Those projects never go away, and so the workload just gets bigger and bigger and bigger," Grefsrud said.

Ensuring that land designated as mitigation habitat is being maintained is often left to those who own or manage mitigation properties. They inspect the land and submit annual reports to the Department of Fish and Wildlife, which files away the paperwork. It's not a perfect system.

"We really need somebody who does compliance monitoring on these projects, but we don't have the staff to do it," Grefsrud said.

Anderson believes the law is sound.

"The agencies are the problem, not the law itself," she said. "They rely on the applicant to implement the project as approved, but there's no monitoring, and no assurance that these things are being done."

In the Napa County town of Saint Helena, mayor Geoff Ellsworth described a very particular process by which cumulative impacts can build up. He said winery owners frequently violate their permits by serving more customers, or making more wine, than they are allowed to. This can stress water resources and aggravate traffic congestion.

But in the cases where these violations are brought to light, Ellsworth said, county officials may just increase the permit allowances to bring the violator into compliance — a quasi-legal process of retroactive permitting.

Moreover, Ellsworth says, the original mitigation measures detailed in planning documents are rarely scaled up proportionately to match the enlarged impacts.

"So you get these cumulative impacts that you didn't plan for," he said.

If CEQA is failing in his neck of the woods, Ellsworth explains why:

"There is a culture of kind of looking the other way, and at some point the cumulative problems take on a life of their own that become almost impossible to manage," Ellsworth said.


The Conflict-of-Interest Problem

Richard Grassetti is an Oakland-based environmental consultant who has worked on CEQA projects for three decades. He assesses the impacts of a project and suggests mitigation measures. He is generally optimistic about the CEQA process, the people and agencies involved, and the design of the law.

But he has seen it go wrong. Conflicts of interest can arise when a hopeful project applicant pressures a hired consultant to produce a favorable report — a situation that he said can get "awkward."

Grassetti said he was once fired from a project when he determined that the impacts to surrounding farmland — which was serving as unique wildlife habitat in this case — would require expensive mitigation measures. The developer, he said, hired someone else to look at the same project plans and write a more desirable assessment with less expensive mitigations.

"It was a judgment call, and there were two ways to argue it, and they went and found someone who would argue it the other way," he said.

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