This case is a blast from the past – and on into the future. “Hey, Hey, My, My, Rock and Roll Will Never Die”.
For many years the public and some Review Team Agency have complained that the CDF THP Review policy was did not comply with CEQA mandates. This case supports that position and establishes law that will affect the THP Review process (THPs, NTMP, NOIs, etc.) and also the application of CEQA standards to Neg. Decs. and EIRs.
This ruling will effect: THPs, NTMPs, NOIs, EIRs (Sonama County GP EIR 2020), Conversion of forestland to vineyard use, and all CEQA functional equivalent processes (TMDLs and Action Plans, other Water Quality Control Plans), DFG 1600 permitting processes, and Water Rights adjudications. .
Read the case (attached) – Outlined Review of issues below:
This case involves a Timber Harvest Plan, written by Scott Butler, that was originally returned for 35 problems and inconsistancies, and then later re-filed. THPs have often presented problems for the public as a constantly moving target, where substantial changes are made and pages changed or added (27 pages in this case) – after the initial noticing.
Noticing – Public Notice
CDF argued that CEQA noticing rules do not apply to the Forest Practice Act – THP Review process.
The Court found that re-niticeing is mandated, under CEQA, if new information is added to the file or the file is substantially changed – including the replacement of pages or adding maps
In this case the Court found: 1) Significant new information was added to the file – requiring re-noticing, 2) Where CDF claimed Fog Drip to be not a significant factor, evidence in the file disagreed – not substantial evidence to support CDFs conclusion and discussion added to the file – after the fact, 3) No evidence in the file to show that the consideration of future development in the area of the project warranted discussion in project Alternatives.
Forest Practice Act: To maintain productive timberlands, review project environmental effects – complying with CEQA, giving considerations to other factors.
Alternatives – Project Alternatives discussion must be inclusive of the full array of feasible alternatives.
This case left out effects, cumulative effects, related to development.
The Court ruled that CEQA applies to every aspect of the Forest Practice Act that is not specifically exempted by legislation.
CDF claims that it can not comply with CEQA, as a THP is a “dynamic” (as apposed to static) document.
The Court said that now Review Action precludes compliance with CEQA. The dynamic state state of a THP ( any changing CEQA document) and amendment to the original project, creating a substantially different project, necessitates re-noticing. Re-noticing assures the publics ability to comment to the “actual” project. A Certified Regulatory Program must comply with CEQA 30 day noticing.
Fog Drip
The Court found that there was no evidence to support CDF’s conclusion that loss of fog drip inputs into ground water, and water supply, were insignificant. Other evidence in the file noted loss of water supplied by Fog Drip (Wickham letter) and potential effects on ground water supply in a known water poor area.
Fair Argument – The Court also discussed the “Fair Argument” standard – related to public input. That this was a important issue, under CEQA, where the public raised the issue of Cumulative Impacts related to the issue of subdivision and building, future projects. That this issue needed to be addressed.
Substantial Evidence – includes: Enough relevant information (substantial evidence) reasonable reference from information added to the file that ‘”Fair Argument” can be made to support concluclusion(s) – even though other conclusions might be reached. Substantial Evidence includes facts, reasonable assumptions based on fact, and expert opinion supported by fact.
CDF did support argument with facts and professional opinion, but did not address the fog drip problem under Cumulative Impacts – and – the public was not allowed to comment on these findings as they appeared after the THP was approved. There was no public access to the necessary information as argument was added to the file late – after the fact.
The Court said that the sufficiency of an Official Response can be grounds to attack THP Review on the grounds of abuse of discretion.
Future Development – Water use and supply
The Court said that the THP must consider all Significant Environmental Impacts – regardless of whether those impacts would be attributable to the project or not
Northern Spotted Owl
Data, Survey, mapping — this information needs to be loaded into a THP in a way that the public can review and comment on – as should all pertinent data and info.
Alan Levine
Coast Action Group
P.O. Box 215
Point Arena, CA 95468