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October 2008
California Oak Report
MND: Full Mitigation Price for Every Stump
The California Environmental Quality Act (CEQA) oak woodland mitigation standards apply equally to mitigated negative declarations (MND) and environmental impacts reports (EIR). However, MNDs must meet a much more stringent legal standard for the reduction of oak woodland impacts than an EIR.
For an EIR, oak woodland impacts must be reduced to the extent feasible within the law, with the local Board of Supervisors or City Council ultimately deciding project oak mitigation sufficiency. Local officials prerogative lies in their EIR discretionary power to invoke an "overriding consideration" in the interest of the public good. Unless it can be proven in court that local officials failed to proceed as required by law, their project decision is final.
For a MND, mitigation measures must reduce all substantial oak woodland impacts to a less than significant level. Local officials have no mitigation discretion to exercise in a MND; the MND is required to scientifically and factually demonstrate that every potential oak woodlands impact has been reduced to less than significant. Significant oak woodland effects are the sum of wildlife habitat impacts and carbon dioxide emission impacts due to woodland conversion to a non-forest use.
Developers prefer MNDs to EIRs because of the cost savings. Therefore, it is important to be vigilant in assuring the project complies fully with CEQA oak woodlands mitigation law. The fact is that the cost of mitigating oak impacts in a MND are proportionally much greater than for an EIR. Less room to spread the development cost often leads to MNDs cutting oak mitigation corners. Lawsuits filed against inadequate oak woodland MNDs are very effective because they defeat the pecuniary motives of the developer and are easily proved in court.
Oak & Carbon Questions
COF has received a number of queries regarding integrating oak woodlands carbon dioxide (CO2) emissions analysis with CEQA review. Here are COF responses to the most frequently asked questions:
Question: How are "substantial" CO2 biological emissions determined for oak woodlands?
Answer: The threshold for determining substantial oak woodland emissions is currently being discussed by state agencies but the impending standard will certainly be near zero. This is a product of oak’s ability to both store atmospheric carbon and emit CO2 back into the atmosphere when killed. Thus, dual CO2 emission impacts must be considered for CEQA review.
CEQA CO2 questions to be answered are: (1) How much potential CO2 sequestration over the next 100 years will be lost due to impacts to live native trees three (3) inches or greater; (2) how much sequestered carbon will be released when the live trees, standing dead trees or wood lying on the ground are burned or otherwise disposed; (3) how will oak woodland CO2 biological emission impacts be proportionally mitigated?
Question: How and by whom are oak woodlands carbon dioxide emission impacts calculated?
Answer: The analytic tools and specific methodology for measuring oak woodland carbon sequestration or release are described in the California Air Resources Board’s Forest Protocol. The CEQA CO2 analysis should be conducted by a registered professional forester verified by the California Climate Action Registry to perform forest carbon assessments.
The criteria for measuring oak woodland CO2 biological emission effects are different than those used for analyzing wildlife habitat impacts. For example: (1) CEQA requires mitigation for oaks 5 inches diameter or greater for counties and the local standard for cities, while all oaks 3 inches diameter or more are counted for carbon analysis; (2) counties and cities may plant oaks for wildlife habitat mitigation but planting oaks for CEQA CO2 mitigation is neither feasible nor proportional.
Question: Why isn’t planting oak trees an appropriate CEQA mitigation measure for oak woodland CO2 emissions?
Answer: Planting oaks is of negligible CO2 mitigation value under the 2020 and 2050 reduction time frames established by Assembly Bill 32 (Nunez). Planted oaks don’t begin to register appreciable CO2 storage for at least 20 years, longer for very slow-growing blue oak. Therefore, the carbon sequestration capacity of existing oak woodlands exponentially exceeds the ability of planted mitigation oaks to make any CO2 difference for AB 32 purposes, particularly by the increasingly critical 2050 cutback date.
Question: How are oak woodland carbon dioxide emission impacts proportionally mitigated?
Answer: Carbon dioxide nuances add a new level of technical complexity to CEQA oak woodlands analysis and mitigation measures. An alternative to arduous CEQA biological analysis is concurrently mitigating significant direct/cumulative habitat and CO2 effects by preserving off-site a perpetual conservation easement at least equivalent in acreage and ecological function to the oak resources impacted. While both the on-site oak woodlands wildlife habitat and carbon storage values will be permanently lost, the enduring off-site woodlands "replacement" would be proportional under the law.
Question: Are cities or agriculture activities exempt from analyzing and mitigating oak woodland CO2 biological emissions?
Answer: Oak woodland conversions for agricultural production or urban growth are subject to CEQA CO2 analysis and mitigation.
Announcements
Golden Spotted Oak Borer (from Cleveland National Forest website, August 15, 2008)
For the past seven years, Oak decline has been evident in eastern San Diego County near the communities of Descanso and Pine Valley. Current oak tree mortality levels are reaching 10% and higher in woodlands on and near the Descanso Ranger District of the Cleveland National Forest.
Over the past few months, Forest Service entomologist Tom Coleman discovered that damage was due to the feeding activity of a new insect to California. The insect does not yet have an official name, but is tentatively being called the "Gold-spotted Oak borer," Agrilus coxalis. The report can be found at http://www.fs.fed.us/r5/cleveland/
California Game Wardens Foundation
The California Oak Foundation is dedicated to preserving California’s oak forest ecosystem and its rural landscapes. What shouldn’t be overlooked in this effort is the front-line role California’s game wardens play in ensuring our states’ laws are upheld and enforced. We are pleased to introduce the California Game Wardens Foundation, an organization founded to provide financial resources and assistance to game wardens and their families in times of need and hope you’ll take a few minutes to visit their website at www.theGWF.org.
Merchandise
Make holiday shopping easy this year. Pick out a tasteful gift from our website, give us the instructions of what you want written in a gift card, and we’ll gift wrap and send the gift for you. If you prefer to deliver them yourself, we can still wrap them and send them to you. Just specify "GIFT WRAP" with your instructions. We’ve just received a new shipment of candles, including our always popular bee’s wax/oak-leaf pillar. Other suggestions would include the Native Oaks Notes, Native Oaks of California Poster, and the books Oaks of California, The Life of an Oak, Field Guide to Plant Galls and The Laws Field Guide to the Sierra Nevada, all having beautiful photos and/or illustrations. And with acorn season soon upon us, allow us give you the gift of Acorns and Eat ‘Em, a free download on our Merchandise page.
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1212 Broadway, #842 Oakland, CA 94612 Tel. 510-763-0282
Fax: 510-208-4435 oakstaff@californiaoaks.org
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