Al Herson on California Environmental Quality Act (CEQA) Agricultural Land Mitigation

Al Herson on California Environmental Quality Act (CEQA) Agricultural Land Mitigation

In this Analysis, Al Herson discusses whether preservation of existing agricultural land constitutes feasible mitigation under the California Environmental Quality Act (CEQA). The Analysis concludes that preservation of such land can be both a valid CEQA mitigation measure when it is used to mitigate cumulative losses of agricultural land, and a feasible mitigation measure when it implements strong general plan agricultural land preservation policies. The author writes:

     The California Environmental Quality Act (CEQA) [Pub. Res. Code § 21000 et seq.] is the state's other main policy tool for agricultural land preservation. A project's effects may be significant if it will convert prime agricultural lands to non-agricultural use [14 Cal. Code Reg., Div 6, App. G(II)]. If these effects are significant, lead agencies must adopt feasible mitigation measures to avoid or substantially lessen them. Mitigation measures that are for agricultural land conversion may include on-site agricultural land preservation, creating new agricultural land offsite, or preservation of offsite agricultural lands through purchase of offsite conservation easements.

     Because the first two options typically are not feasible, much of the attention in CEQA has focused on the use of conservation easements. With this approach, for every acre of agricultural land developed, a project applicant is required to purchase a conservation easement for an acre or more of comparable agricultural land.

     The case law on whether preservation of existing agricultural land constitutes feasible mitigation under CEQA is unsettled [see David C. Levy and Jessica Owley Lippman (2005) "Preservation as Mitigation under CEQA: Ho Hum or Uh-Oh?," Environmental Law News, Volume 14, No. 1, pp. 18-23]. This article first discusses pre-2010 case law on offsite agricultural land mitigation (one unpublished case and one published case), then discusses two recent (2010) cases, and finally discusses how the case law can be reconciled. ...

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Two 2010 Cases

Cherry Valley Pass Acres and Neighbors v. City of Beaumont

     In Cherry Valley Acres Pass and Neighbors v. City of Beaumont (2010) 190 Cal. App. 4th 316, 118 Cal. Rptr. 3d 182 [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], the city's EIR determined that a development project's conversion of 200 acres of agricultural land was a significant impact; this impact was also cumulatively considerable because it contributed to a cumulative loss of 9,500 acres of land in the project vicinity (much of it agricultural) to development. The EIR determined that these impacts could not feasibly be mitigated by offsite mitigation measures, and the court agreed.

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