V Lions Farming, LLC v. County of Kern
(2024) 100 Cal.App.5th 412
V Lions Farming, LLC v. County of Kern (2024) 100 Cal.App.5th 412, a case with a long CEQA litigation history, was recently decided by the Fifth District of the California Court of Appeal for the second time, but this time with a different – and broader – focus on agricultural conservation easements as mitigation under CEQA. The court’s latest decision serves as a reminder for lead agencies and project applicants to not discount such easements as valid compensatory mitigation for the conversion of agricultural land.
The project that is the subject of the environmental review in this case is an ordinance streamlining the permitting process for exploration, drilling, and production of new oil and gas wells. After correcting the defects of the environmental impact report (EIR) for the project challenged in the first appeal, the County of Kern prepared and certified a revised supplemental recirculated EIR (SREIR), adopted a slightly modified ordinance, and filed a return of the writ. After the trial court discharged the writ, various environmental groups appealed.
As background, in the first appeal, the court was faced with a question of whether an agricultural conservation easement (ACE) mitigates to less than significant the conversion of agricultural land caused by the project. The court in that appeal concluded the ACE did not do so. On the second time around, the published portion of the court’s opinion addressed whether, more broadly, ACEs partially mitigate a conversion of agricultural land and qualify as compensatory mitigation under CEQA Guidelines section 15370(e), which defines mitigation to include “[c]ompensating for the impact by … providing substitute resources.” This issue came to the court because the county had decided not to use an ACE as a mitigation measure for the conversion of agricultural land caused by the project, despite other mitigation proven unable to reduce the net loss of agricultural land to zero acres. The court’s conclusion: “ACEs qualify as compensatory mitigation, even though they do not replace or otherwise offset the acres of agricultural land converted by the project—that is, they do not ensure the project results in no net loss of agricultural land.” Thus, the court held the county violated CEQA when it eliminated ACEs as mitigation for the conversion of agricultural land.
CEQA Guidelines section 15370(e) states that mitigation includes “[c]ompensating for the impact by replacing or providing substitute resources or environments, including through permanent protection of such resources in the form of conservation easements.” In its analysis, the court determined that section 15370(e)’s “[c]ompensating for the impact by … providing substitute resources” verbiage is ambiguous, which ambiguity is to be resolved with interpretation that “effectuates CEQA’s purpose of the long term protection of the environment … best promoted by accepting, rather than rejecting, ACE’s as a type of compensatory mitigation.”
To arrive at such interpretation, the court first briefly discussed the principles underpinning ACEs. Under the Public Resources Code, an ACE is defined as “an interest in land, less than fee simple, that represents the right to prevent the development or improvement of the land, as specified in Section 815.1 of the Civil Code, for any primary purpose other than agricultural production. The easement shall be granted for the California Farmland Conservancy Program by the owner of a fee simple interest in land to any of the organizations or entities specified in Section 815.3 of the Civil Code. It shall be granted in perpetuity as the equivalent of covenants running with the land.”
Second, the court conducted textual analysis of section 15370, by considering whether federal agencies treat preservation as compensatory mitigation. It concluded that federal agencies treat preservation as a common type of mitigation.
Finally, the court analyzed section 15370(e)’s language and determined that because the clause “including through permanent protection of such resources in the form of conservation easements” does not unambiguously require ACEs to be accepted as compensatory mitigation in all situations where agricultural land is converted, the determination of whether an ACE is mitigation that “[c]ompensat[es]” for the conversion of agricultural land depends on whether the ACE “replac[es] or provid[es] substitute resources or environments.” The court concluded it does:
As a result, we conclude the phrase “providing substitute resources” (Guidelines, § 15370, subd. (e)) includes preserving (i.e., permanently protecting) existing agricultural land. Consequently, ACE’s are a type of compensatory mitigation for the conversion of agricultural [land] even though, operating by themselves, they do not replace the converted land or otherwise result in no net loss of agricultural land.
In the unpublished portion of the opinion, the court held (1) the county’s discussion in the SREIR of the cancer risk associated with the drilling of more than one well near a sensitive receptor was insufficient; (2) the county’s analysis of the significance of lowering groundwater levels in wells and appropriate mitigation for reducing the significance of the project’s contribution to that cumulative impact failed to consider social and economic effects on low income and disadvantaged communities; and (3) appellants did not establish prejudicial error in the county’s analysis of air quality mitigation and impacts to the Temblor legless lizard and the county’s decision not to provide Spanish language translations of certain notices and portions of the SREIR.
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