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March 2005
California Oak Report
California Oak Woodlands Law
Effective January 1, 2005, Senate Bill 1334 (Kuehl) established Public Resources Code (PRC) Section 21083.4, the state's first oak woodlands conservation standards for California Environmental Quality Act (CEQA) processes. Below are questions, answers and selected comments about the new state oak woodlands law.
Q. Does CEQA oak woodlands law apply to all public agencies?
A. No, only CEQA processes within a county's jurisdiction. Other public agencies are still subject to the general guidelines of CEQA, including the oak woodlands scientific information that acknowledged the need to conserve oak woodland resources. DFG's Wildlife and Habitat Data Analysis Branch.
Q. Does state law apply to vineyards?
A. Only if a county has adopted regulations that apply to CEQA review to vineyard development.
Q. Do CEQA mitigation standards apply to all oaks?
A. No, only oak trees 5 inches or more in diameter at breast height (dbh or 4.5 ft.). Oaks under 5 inches dbh will still be subject to conservation measures contained in county ordinances or general plans. Ordinance, general plan and oak woodland policies by county.
Q. CEQA oak woodlands law doesn't define the term "oak woodlands." Instead it provides a definition for "oak." What constitutes oak woodlands?
A. Oak woodlands are any acre growing a 5 inch dbh or greater native oak that is not subject to Board of Forestry stocking regulations or Public Resources Code (PRC) 21083.4 exemptions.
Q. What are the key features of CEQA oak woodlands mitigation?
A. CEQA stipulates the four mitigation alternatives available to proportionally mitigate significant impacts to oak woodlands habitat. County's shall require one or more of the options for a project and the planting of oaks shall not fulfill more than 50 percent of the required mitigation. Therefore, the planting of oaks must always be accompanied by another mitigation alternative.
CEQA Oak Woodlands Mitigation Alternatives
(1) Conserve oak woodlands, through the use of conservation easements.
(2) (A) Plant an appropriate number of trees, including maintaining plantings and replacing dead or diseased trees.
(3) Contribute funds to the Oak Woodlands Conservation Fund, as established under subdivision (a) of Section 1363 of the Fish and Game Code, for the purpose of purchasing oak woodlands conservation easements.
(4) Other mitigation measures developed by the county.
Q. Doesn't oak mitigation alternative four, "Other mitigation measures developed by the county," create a loophole for county's to circumvent the CEQA intent of proportional habitat mitigation?
A. No, although some counties will no doubt test the limits of the law and be challenged in court. Legally habitat mitigation measures fostered by the county will have to be functionally equivalent to oak woodland conservation easements or monetary contributions to Oak Conservation Fund.
Q. Do the mitigation alternatives apply to CEQA mitigated negative declarations?
A. Yes.
Q. What does the CEQA mitigation term "Plant an appropriate number of trees" mean?
A. A number consistent with the planting guidelines and recommendations of the University of California and corresponding to site-specific circumstances.
Q. How long must oaks planted for mitigation be maintained?
A. Trees must be maintained for seven years. Planted trees that die or become diseased must be replaced and maintained.
Q. Can the CEQA mitigation alternatives be applied onsite, offsite or in combination?
A. Yes, but it is unlikely the Conservation Fund would be used onsite. Monetary contributions to the Conservation Fund are usually used to obtain oak woodland conservation easements in the originating county, preferably in close proximity to the project site.
Q. Can counties implement oak conservation standards in addition to those required by state law?
A. Yes, PRC 21083.4 specifically grants counties the right to vigorously protect their oaks.
Q. How can individuals effectively contribute to local oak woodland conservation?
A. Organize your community to defend oaks against sprawl and type conversions. Check Planning Department project permit applications for adverse oak impact projects. Address your public officials with your concerns early and often.
When presenting written or oral public comments, focus on the biological aspects of converting oak woodlands to another use. Demand to know how many oaks will be removed, what is the diameter of the individual oaks trees removed (or their collective average canopy cover per acre) and how many acres of oak woodlands will be impacted. Describe any wildlife you have observed or know to use the oak woodlands. Share your concerns with local and regional Department of Fish and Game officials and other responsible agencies. Department of Fish and Game. Species dependent on oak woodlands list.
Connotations of California Oak Woodlands Law
Since the Governor signed oak woodlands conservation standards into state law, the California Oak Foundation (COF) has been monitoring the perspectives of county elected officials, professional planners, developers, consultants and others regarding the ramifications of the new CEQA requirements.
Most folks understand the nuts and bolts of PRC Section 21083.4, but their perceptions lack an appreciation of certain CEQA oak woodland nuances. A legislative analysis by the Association of Environmental Professionals (AEP) in their fall 2004 newsletter illustrates realities and misconceptions associated with CEQA oak woodlands implementation:
"In the final analysis of SB 1334, AEP's Legislative Committee reached three conclusions. The bill raises the visibility of oak woodland conversion as an environmental protection issue for CEQA practitioners and land-use decision-makers, establishes a "foothold" for parties interested in more aggressive policies for the protection of oak woodlands and has little if any practical effect on the CEQA review process."
COF agrees with the AEP that oak woodlands environmental profile will be enhanced and that a firm platform has been established for the diligent legal defense of oaks statewide; we strongly disagree with the misguided notion that the new oak woodlands law will have negligible consequences for CEQA reviews. For example:
1. CEQA stipulates that the planting of oaks is limited to no more than half the habitat mitigation requirement. Therefore, the planting of oaks must always be accompanied by at least one of the other three designated mitigation alternatives. The net effect of state standards will be to substantially raise the mitigation cost of oak woodland conversions.
2. CEQA oak woodlands cumulative impact issues will gain prominence because SB 1334 requires counties to specifically consider the significance of oak woodland conversions. As the environmental consulting firm Jones & Stokes noted, "Since impacts include a project's cumulative contribution to oak woodland losses, as well as its individual impact, this bill may have a greater effect on CEQA practice than a casual reading might suggest."
3. Department of Fish and Game oak woodlands conservation recommendations for local CEQA reviews will carry significantly more weight with a framework of state mitigation standards in place.
4. CEQA law greatly strengthens the legal defense of oak woodlands statewide. Prior to PRC 21083.4, when lawsuits were filed against counties for approving CEQA environmental documents containing inadequate oak woodlands habitat mitigation, local Superior Court judges invariably ruled in favor of the county. This turn of events was due to the absence of state oak woodlands law, which meant Superior Court decisions were based on whether the oak woodlands habitat mitigation was consistent with meaningless voluntary county ordinances and weak general plan measures.
The new CEQA oak woodlands mitigation law greatly changes the legal landscape. Now when legal disputes arise, local judges will be deciding oak woodlands mitigation sufficiency based on compliance with state law, not county standards. Furthermore, the State Court of Appeal will be much more attentive to reviewing county oak woodlands planning with the advent of state law.
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