The owl had probably flown over much of West, migrating over deserts and mountains, pastures and green valleys. It eventually settled in Fremont, in an urban neighborhood where it presumably had wintered before.
Burrowing owls often nest in the same rodent burrows year after year. But for this particular owl, its familiar home was now gone — paved over months before to accommodate the vehicles of shoppers at Walmart.
“It was standing in the parking lot,” recalled Marcia Grefsrud, an environmental scientist with the California Department of Fish and Wildlife.
For at least a year after that incident, burrowing owls maintained a presence in a tiny patch of unpaved scrub adjacent to the big box store, said Grefsrud, who works on plans to preserve or restore animal habitats in exchange for habitat loss related to Alameda County development projects. Finally, though, the tiny raptors seemed to disappear for good.
Burrowing owl habitat is vanishing around the Bay Area, even though a key environmental law is supposed to prevent this incremental loss. The California Environmental Quality Act, (or CEQA, which is pronounced “see-kwah”), requires agencies overseeing development projects to watch for potential environmental impacts and mitigate them with carefully tailored actions. Such measures might include providing shelter for wild animals, supporting impacted hillsides to prevent erosion, replanting trees when others are cut down, or preserving wildlife trails through new housing tracts. Often, developers preserve one parcel of land in trade for permission to develop another.
Enacted in 1970, this acclaimed environmental law theoretically ensures that economic development doesn’t compromise the environment. Mitigation measures are the lynchpin of the law.
But many scientists, environmental activists, and attorneys specializing in CEQA say the act’s techniques for protecting natural resources often fail. Its many flaws and shortcomings are veiled from public sight by complex bureaucracy, arduous documents, and dense thickets of legal and technical jargon.
The East Bay’s imperiled burrowing owl population presents one clear example of CEQA’s broken promise. Much of the animals’ underground habitat has been lost to development — largely new homes in the hills and valleys surrounding Dublin, Pleasanton, and Livermore — and the state considers the species one “of special concern.” Many housing tracts in this area have been built on the condition that developers buy an undeveloped parcel elsewhere through a habitat banking system.
But the notion that this new land is similar to the habitat that was destroyed is an illusion. Owls evicted by a development project are not given a new place to live.
“They aren’t creating habitat — just preserving it somewhere else,” Grefsrud said. “That’s a net loss, and that makes me uncomfortable.”
It’s not just burrowing owls. Spotted owls, Alameda whipsnakes, tiger salamanders, and salmon and steelhead trout, among other species, are all feeling the pinch of habitat loss — due in part to weak CEQA reviews.
The law falls short in other ways, too. Potential impacts of a project are often overlooked. Other times, mitigation measures are simply too flimsy, ignored by developers, or not enforced by the government agencies that typically oversee such projects.
“There’s a lot of cutting corners on mitigation measures,” said Oakland resident and environmentalist Ralph Kanz.
He has closely watched public agencies for years, becoming one of few citizens with the time, skills, and wherewithal to understand the CEQA process and follow the legal intricacies of complex development projects. Kanz contends that agencies consistently fail to carry out mitigation measures on development projects unless hounded by CEQA-savvy citizen watchdogs like himself.
“Biological resources tend to get the short end of the stick,” Kanz said.
Numerous sources interviewed for this story described city- and county-level officials failing to enforce the implementation and long-term maintenance of various mitigation measures. Erosion-control systems fail and are eventually abandoned. Fencing meant to protect animals from traffic or industrial activity is neglected. Replanted trees simply die.
“It’s pretty difficult to get that part of CEQA enforced,” said Alan Levine, of the Coast Action Network, an affiliate of the Redwood Coast Watersheds Alliance. Completing a project’s mitigation measures often becomes a low priority for property owners, Levine said, especially as time goes by following a project’s completion.
“The community usually needs to be on their ass to make them do it,” he said.
Another serious flaw in CEQA’s design undermines its efficacy: The reports that establish potential environmental impacts are written by private consultants hired by the developer. In this process, potential impacts of a project may be slyly downplayed, to make mitigation easier or cheaper.
“It’s a huge conflict of interest to have the developer paying the consultant who’s writing the report,” Kanz said.
CEQA is currently under fire from development interests who argue that the law makes it too easy for NIMBY-type citizens to sue and block development projects, including housing projects. This camp of CEQA critics correctly observes that use of the law to fight urban infill development is aggravating suburban sprawl and its environmental impacts, such as traffic. They are calling for CEQA reform.
This push has environmentalists, even those concerned about CEQA’s weaknesses, generally standing by the law. David Keller, a former Petaluma city councilman, said California’s landscape as we know it wouldn’t be the same in the absence of CEQA.
“It’s produced very substantial accomplishments,” he said. “There’s no doubt whatsoever that this law has set a framework that is extremely important.”
CEQA guides just about every large development project in the state. In the East Bay, a housing complex proposed for Point Molate in Richmond is now going through the process. So is a planned FedEx distribution center in Livermore. Dublin’s Zeiss Innovation Center jumped through the hoops and is now being built. The wind turbines at Altamont Pass were built after CEQA review. So was the fourth bore of the Caldecott Tunnel.
But black-and-white discussions regarding the need for something like CEQA have masked the law’s environmental deficiencies. Even Keller notes that some cities and counties simply fail to enforce CEQA’s mandates. Others agree with this caveat —the law only works if officials, or vigilant citizens, force it to work.
“My underlying philosophy is it’s the duty of the developer to cut every corner they can to make as much profit as they can, and it’s the duty of the lead agency to make sure that they don’t,” Kanz said.
“The problem we have is the developers are upholding their end of the bargain and the lead agencies aren’t.”
This is How We Lose Endangered Species
When a development firm transformed the old Leona Quarry into a green park and housing complex in 2003, the City of Oakland required specific measures — notably placement of a snake-proof fence — to protect the endangered Alameda whipsnake from the earth-moving activities within the perimeter. But inspections in 2004 and 2005 found that the site managers were operating with sizable gaps left in the fence. A report from the inspector also described heavy machinery being used in the absence of a required biological monitor, whose job was to see that no snakes were harmed.
That was just one of many CEQA oversights by the Oakland officials. According to Kanz, who has spent countless hours investigating local development projects that might be impacting endangered species, the City of Oakland has a long history of doing this. Kanz said the Oakland Hills Tennis Club and the Sunrise Assisted Living Facility have not implemented required mitigation measures to protected the rare and endangered Presidio clarkia, a rare flowering evening-primrose, for a combined 50 years. The Chabot Space and Science Center, he said, has ignored required mitigations to protect the pallid manzanita for more than 20 years.
In fact, according to a blog post Kanz wrote in 2016, “The City has never enforced the mitigation measures for any project that has impacted Presidio clarkia. Never. Ever.”
City of Oakland employees presented with this allegation declined to comment and recommended making a public records request for any information.
The lack of oversight on CEQA projects from governmental agencies is widespread. In 2009, the Santa Clara Audubon Society released a report analyzing more than three dozen building and roadway projects in the South and East Bay in which mitigations failed or were abandoned. When notified, officials rarely forced compliance.
“Even when problems were brought forth to local cities or the county, action on those problems was often slow or simply did not occur at all,” the authors wrote.
Out of the multiple pallid manzanita plants that were initially growing on the Chabot Space and Science Center site, just one is still alive, Kanz said. The rest have been lost to the unmitigated impacts of the project.
Such issues might seem trivial, but one project at a time, cumulative impacts to habitat add up.
“This is how we lose endangered species,” Kanz said.
It Looked Like a Good Deal on Paper
In the North Bay wine country, vineyards are slowly creeping into the wooded hills adjacent to valley floors already carpeted with grapes. Most new vineyard projects involve taking out dozens, hundreds, or even thousands of trees.
This deforestation process is slowly chiseling away at the North Bay’s remaining forests, whether oak or conifer. Since 1970, the county’s grape acreage has nearly quadrupled from roughly 12,000 acres to more than 46,000 today, and tens of thousands more acres are considered suitable for grape cultivation. Google satellite views show this checkerboarding process vividly.
Under the theory behind CEQA, tree removals can be mitigated easily. Often, two or three seedlings are planted for each adult tree felled. By simple math, this theoretically makes up for tree removal. However, successfully planting trees in arid California isn’t easy — especially when the trees are planted on land where they naturally were not previously growing.
“The developers choose where they’re going to plant their grapes for a reason — it’s the best spot,” said Mike Hackett, a Napa County resident who has fought against the conversion of native woodland into vineyards, and coauthored an unsuccessful county ballot measure that would have afforded extra protections to oak trees and upland stream channels.
Planting seedlings to make up for cutting down adult trees looks good on paper, Hackett said, but doesn’t really make up for ecological losses of deforestation.
“It takes 35 years to get an 8-inch-diameter oak tree,” he said. “How can you possibly mitigate for the removal of native adult oaks? It can’t be done. The whole thing’s a joke, but it’s what CEQA allows.”
Even if the trees do take root and grow, a great deal of time passes “before the ecological contributions of replanted trees are realized,” noted Concord-based attorney Ross Middlemiss, who works for the Center for Biological Diversity. “The removal of mature trees results in numerous short-term impacts, which are often inadequately addressed in the long term, given the difficulties in establishing replanted trees.”
Even for experts, successfully establishing new oak trees isn’t easy. Joe McBride, a U.C. Berkeley professor emeritus of landscape architecture and environmental planning, has conducted field studies of oak survival rates after planting. In one experiment, acorns were planted directly in the ground at one, three, six and nine per hole. Only holes with at least six acorns produced a seedling tree, he said in an interview, and most acorns planted in the trial were eaten by gophers. A separate trial in a region with fewer gophers produced an almost 100-percent success rate but involved “a considerable investment in fencing” to protect trees from deer, he says.
Conservation easements are another popular mitigation strategy, and they too look like good deals on paper. Consider last summer’s expansion of the Oakland Zoo. The project yielded a 16,000-square-foot visitor center, an aerial gondola, new roads, a campground, and a playground, largely in the adjacent lands of Knowland Park, where the expansion took place. Overall, the size of the Oakland Zoo more than doubled.
But these upgrades required cutting down trees and permanently sacrificing 16 acres of Alameda whipsnake habitat. To soften this ecological punch, the City of Oakland agreed to numerous mitigation measures, including replanting native trees cut down in the project and controlling invasive weeds.
The city also vowed to preserve forever 53 acres of land from development — but there was a catch: That land was already protected in a public park. It was, critics argued, in no danger of being developed, making the whole deal a swindle.
That process mirrors the ineffective way in which burrowing owls have been cheated out of places to dwell by East Bay suburban sprawl. A 2012 “Staff Report on Burrowing Owl Mitigation” from the Department of Fish and Game recognized this serious deficiency. The report’s authors suggested “that mitigation for permanent habitat loss necessitates replacement with an equivalent or greater habitat area.”
In wine country, too, such land swaps are talked up as win-wins, but they similarly fail to consider the nuances of the transactions. When owners of the Hall Wines brand proposed to cut down a staggering 14,000 oak trees just northeast of Napa, the county granted its approval in 2017 on the condition that the winery preserve a whopping 524 acres of undeveloped land, and tens of thousands of trees, forever. However, opponents of the project, known as the Walt Ranch, have argued that the proposed mitigation acreage was unlikely to ever be developed, partly because much of it was too steep to support homes or vines. A lawsuit has the project tangled up in court.
In cases like these, the end effect is a net loss of trees, masked by a desktop illusion that the overall landscape has emerged not just unscathed but even improved. Hackett calls this system “a sham.”
Middlemiss of the Center for Biological Diversity said his organization recently encouraged Napa County planners to adopt new land use rules with specific language requiring that conservation easements used for CEQA mitigations be on the same property as the proposed project and consist of developable land.
“The key issue there is on developable land,” he said. “Our argument was that you’re cutting down trees in one place and saying you’re preserving, ostensibly forever, land somewhere else — but there is no guarantee that land would have been developed in the absence of the conservation easement, because there are restrictions on which land can be developed.”
Middlemiss noted that Napa County land of greater than 30 percent slope is difficult to impossible to develop, due to logistical obstacles and permitting restrictions.
“This form of mitigation ultimately allows more land to be developed,” he wrote.
Is There Anybody Out There?
If a mitigation measure fails in the forest and no one is around to see it, does it make a difference?
Probably not, especially if the failure — be it a fallen tree, broken fence, clogged owl box, or failed erosion-control system — occurs on private property.
Activist Kellie Anderson, who has long hounded Napa County staffers to crack the whip on scofflaw vineyard owners, used to work for a local vineyard development company. Her job often brought her to remote mountaintops and hillsides, where she often noticed various pieces of infrastructure — some installed as CEQA mitigation hardware — showing wear and tear.
“These things were not being maintained, things were failing, there’s constant dust and erosion, but it was so remote,” she recalled. “It was only my job that enabled me to go to these really remote vineyards and see these things. There’s no way the county goes back and looks at the erosion control infrastructure, or the deer fencing, or the tree planting mitigations, or the tree retention—they simply don’t do it.”
Middlemiss said the insufficient government monitoring of such measures is behind much of CEQA’s failure. However, Napa County Supervising Planner Brian Bordona says that while county employees do rely partly on self-reporting from landowners they also inspect sites in person to see that projects — and their mitigation measures — are being carried out as permitted.
But Anderson listed specific cases, one after another, of mitigation measures failing or being outrightly ignored, and of project applicants violating their development permits — often, she says, with county planners aware of the violations. She described specific examples of wildlife fences enclosing larger areas than permits specifically allowed; deer fence gauging too small to allow the passage of small, ground-level animals; protected stream setbacks, meant as ecological buffers to waterways, ignored, developed or otherwise denuded; and heavy application of weed killer where only isolated spot spraying was permitted.
Other specific violations involve devices called level spreaders, which catch water running off of a cleared parcel of land, often converted to rows of grapevines, and disperse it — a process that prevents water from channelizing and causing destructive erosion. “Level spreaders are engineered to reduce sediment and water flow from the site, and there are several of those that are not functioning or have failed, and the county is aware that they are not functioning, and yet does not ask that they be repaired or replaced,” Anderson said.
Violations like these cause cumulative impacts that only become visible with timer. In watersheds, failed erosion-control measures can add up to a slow silting of streams, which clogs and destroys the gravel beds in which trout and salmon lay and fertilize their eggs. On the North Coast, Coho and Chinook salmon and steelhead trout are facing the very real risk of extinction in many streams. Development, logging, and agriculture, including vineyard conversions, are at fault.
Levine, at the Coast Action Network, feels California’s celebrated environmental protection law should be preventing this degradation.
“How can CEQA be working if almost every river except for the Smith is considered impaired?” he asked.
Kanz noted that the very nature of mitigations designed to protect wild animals tend to involve remote, untrammeled areas where people don’t often go. Often, they’re inaccessible because they’re on private land. This makes the measures invisible to citizen watchdogs and less likely to be investigated by agency employees.
“If your mitigation is to purchase a conservation easement for your impacts to red-legged frogs or tiger salamanders, I can’t see that — so it’s totally a paperwork thing,” Kanz said.
The paperwork he refers to includes a CEQA-mandated mitigation monitoring program. While this may involve government staff visiting sites for inspection, he agrees with Anderson that it usually doesn’t. Kanz said that agency staffs rarely have time to inspect and follow projects completed years ago.
“They can’t even keep up with the new stuff, let alone, ‘Did I get the incidental take permit from the project we did 10 years ago?”’ he said. “It’s impossible.”
Grefsrud confirmed that the responsibilities accumulate, mainly because of completed projects that involve mitigation measures intended to last forever.
“Those projects never go away, and so the workload just gets bigger and bigger and bigger,” Grefsrud said.
Ensuring that land designated as mitigation habitat is being maintained is often left to those who own or manage mitigation properties. They inspect the land and submit annual reports to the Department of Fish and Wildlife, which files away the paperwork. It’s not a perfect system.
“We really need somebody who does compliance monitoring on these projects, but we don’t have the staff to do it,” Grefsrud said.
Anderson believes the law is sound.
“The agencies are the problem, not the law itself,” she said. “They rely on the applicant to implement the project as approved, but there’s no monitoring, and no assurance that these things are being done.”
In the Napa County town of Saint Helena, mayor Geoff Ellsworth described a very particular process by which cumulative impacts can build up. He said winery owners frequently violate their permits by serving more customers, or making more wine, than they are allowed to. This can stress water resources and aggravate traffic congestion.
But in the cases where these violations are brought to light, Ellsworth said, county officials may just increase the permit allowances to bring the violator into compliance — a quasi-legal process of retroactive permitting.
Moreover, Ellsworth says, the original mitigation measures detailed in planning documents are rarely scaled up proportionately to match the enlarged impacts.
“So you get these cumulative impacts that you didn’t plan for,” he said.
If CEQA is failing in his neck of the woods, Ellsworth explains why:
“There is a culture of kind of looking the other way, and at some point the cumulative problems take on a life of their own that become almost impossible to manage,” Ellsworth said.
The Conflict-of-Interest Problem
Richard Grassetti is an Oakland-based environmental consultant who has worked on CEQA projects for three decades. He assesses the impacts of a project and suggests mitigation measures. He is generally optimistic about the CEQA process, the people and agencies involved, and the design of the law.
But he has seen it go wrong. Conflicts of interest can arise when a hopeful project applicant pressures a hired consultant to produce a favorable report — a situation that he said can get “awkward.”
Grassetti said he was once fired from a project when he determined that the impacts to surrounding farmland — which was serving as unique wildlife habitat in this case — would require expensive mitigation measures. The developer, he said, hired someone else to look at the same project plans and write a more desirable assessment with less expensive mitigations.
“It was a judgment call, and there were two ways to argue it, and they went and found someone who would argue it the other way,” he said.
That episode just about sums up the worst potential problems associated with the CEQA’s third-party consultant system. It allows a developer to hire and fire environmental advocates until one of them produces the assessment they want — with environmental considerations a bottom-level priority.
Anderson calls the whole process “bullshit,” at least as it plays out in the North Bay wine industry, where a collection of industry-friendly consultants are essentially paid to find the path of least resistance to project approval, with little regard for natural resources.
“Their forester comes out here, and on every project he looks at, he says there are no spotted owls here, and that’s how they become endangered,” Anderson said.
If, by chance, a consultant produces an unfavorable report, the developer may fire that consultant and keep the unwanted findings from ever seeing daylight.
“If the developer does not like the conclusions of the consultant, they can bury the results with the confidentiality,” Kanz said. “Then the developer goes shopping for a consultant that will provide the answer they want, and no one will ever see the first consultant’s work that contradicts what is found in the CEQA document.”
Kanz described an Oakland case in which “the developer prepared the documents himself with some assistance from a consultant. The CEQA document never disclosed this fact.”
In 2003, lawmakers proposed a bill that would have eliminated this system by requiring that the lead agency overseeing a development project, rather than the project applicant, hire the consultant but using the project applicant’s money. The proposed law would have limited personal contact between the applicant and the consultants. It also would have prohibited developers from hiding any damning details that might have come from the review process. But the bill disappeared quietly in the Senate in 2004, leaving project developers and their consultants largely directing the CEQA process.
Wearing Down the Watchdogs
CEQA is described on the state’s website as “a self-executing statute.” This means there is no single agency in charge of seeing it enforced. Instead, public agencies “are entrusted with compliance with CEQA and its provisions are enforced, as necessary, by the public through litigation and the threat thereof.”
That means that citizens must be on guard. Yet Anderson said she has grown exhausted by the foot dragging of those in charge. She recounted the time she led three county supervisors to a roadside vineyard with its erosion control systems completely clogged and failing, causing streambed damage in a creek just downhill. Those officials are the very people who ultimately approve or reject proposed development projects. But nothing came of that visit, Anderson said, and permit violations continue.
Anderson continues with her activism, sending emails and posting photos and YouTube videos and generally being, as she says, “the whiny neighbor.” But she feels she has all but exhausted her power as an environmental activist.
“I’ve stopped being an effective advocate because they turn me off whenever I bring something to them,” she said. “I’m a pain in the ass. They brush me off with a little shoulder shrugging, and I’m like, ‘Well, I’ve told you what’s going on up there — aren’t you at least curious?'”
Kanz also recognizes that he and his persistence have become a nuisance to public officials — part of the game of being an activist.
Anderson said that changing a government culture of ignoring scofflaw behavior will at this point be difficult, if not impossible, and arguably even unfair.
“The county’s been ignoring it for years,” she said. “The pattern of ignoring it exists and is established — there’s no way for them to start following the rules now.”
Grefsrud, with Fish and Wildlife, said she generally has faith in CEQA and its power to protect wild habitat and the species that live there.
“But it has its shortfalls,” she acknowledged, “and I don’t know how to fix it.”