Public objections based on the California Environmental Quality Act (CEQA) to proposed projects in California’s Central Valley often focus on how these projects could affect habitats of several species. Some prominent examples of these creatures are the Swainson’s Hawk (a California threatened species), the San Joaquin kit fox (a federally endangered species and a California threatened species), the Western burrowing owl (a California species of special concern), the giant garter snake (a federally threatened species and California threatened species), the vernal pool fairy shrimp (a federally threatened species), the Delta smelt (a federally threatened species and California threatened species), the California red-legged frog (a federally threatened species), and the Valley elderberry longhorn beetle (a federally threatened species).
Now, the U.S. Fish and Wildlife Service is preparing to remove the Valley elderberry longhorn beetle from the federal Endangered Species Program list, according to articles in the October 1, 2012 Sacramento Business Journal (Feds Urge Beetle’s Removal from Endangered Species List) and the October 2, 2012 Sacramento Bee (Valley Elderberry Longhorn Beetle May Fall from ‘Threatened’ List). This move is a result of legal actions by the Pacific Legal Foundation, backed by farm bureaus, developers, and special district public agencies that build and manage flood control systems such as levees.
As early as 2006, the U.S. Fish and Wildlife Service proposed to end the beetle’s threatened species status: “The slowdown in habitat loss, the protection and restoration of riverine habitat, and the increase in valley elderberry longhorn beetle occurrences, together have been the major reasons for the Fish and Wildlife Service (FWS) having considered delisting this species.”
Protecting and relocating existing elderberry shrubs and planting new elderberry seedlings is apparently expensive and inconvenient. The Rio del Oro development in the City of Rancho Cordova actually has its own “Valley Elderberry Longhorn Beetle Mitigation Plan” in its final Environmental Impact Report.
I checked to see if environmental law firms specializing in “greenmail” on behalf of construction unions had used threats to the Valley elderberry longhorn beetle as an environmental objection to proposed projects under the California Environmental Quality Act (CEQA). I did find one.
In a January 3, 2011 comment letter concerning the Initial Study/Mitigated Negative Declaration for the Fink Road Solar Farm in Stanislaus County (proposed by Turlock-based JKB Energy), the law firm of Adams Broadwell Joseph & Cardozo had this to say on behalf of California Unions for Reliable Energy (CURE) about the Valley Elderberry Longhorn Beetle:
3. The Project may result in significant impacts to the Valley Elderberry Longhorn Beetle
The Valley elderberry longhorn beetle is a federally threatened species. The MND states that the beetle may be present on the Project site but does not propose adequate mitigation measures to avoid or reduce the Project’s impacts. In Mr. Cashen’s opinion, impacts to the Valley elderberry longhorn beetle are not less than significant.
The preconstruction surveys described in the MND may not be sufficient to detect elderberry shrubs within the Project site. Specifically, the MND does not provide basic information as to who will conduct the survey and when it will be conducted. The Project may, therefore, cause undisclosed and unmitigated impacts to a federally threatened species.
If elderberry shrubs are found during preconstruction surveys, the MND proposes to prohibit ground-disturbing activities within 20 feet of the shrub to avoid impacts.117 This measure, however, would not avoid the Project’s impacts. The USFWS only assumes complete avoidance when a 100-foot buffer is established. Shading and wind deflection caused by the Project’s structures will impact soil temperature and evaporation. In addition, maintenance water to clean the solar panels will increase soil moisture. According to Mr. Cashen, these factors may have an adverse impact on elderberry plants if an adequate buffer is not established.
If avoidance is not feasible, the Applicant will have to obtain a federal Incidental Take Permit and comply with USFWS guidelines regarding transplanting affected elderberry shrubs to a conservation area and potential replacement planting.122 The MND, however, does not require the Applicant to comply with these federal rules if impacts to elderberry shrubs cannot be avoided. Without specific, enforceable mitigation measures to reduce the Project’s impacts, the County may not conclude that impacts to Valley elderberry longhorn beetles will be less than significant.
The elderberry longhorn beetle objections, along with the other objections, apparently did the job for California Unions for Reliable Energy. As reported in a March 1, 2012 staff report to the Stanislaus County Planning Commission:
The County received a comment letter from Adams Broadwell Joseph & Cardozo representing the California Unions for Reliable Energy (CURE). In response to this comment letter, the project applicant and CURE have signed an Agreement outlining how the applicant will address the issues and concerns raised by CURE in their comment letter. As a result, the project applicant has made minor revisions and modifications to the proposed project, including commitment to various environmental commitments that will be incorporated into the proposed project and made conditions of approval by the County.
I’m going to guess that this was one of the three Project Labor Agreement negotiations “resolved” for projects in Stanislaus County, as cited by Tony LaDoux of the Sheet Metal Workers Union Local No. 162 (now part of the consolidated Sheet Metal Workers Union Local No. 104) at the June 28, 2011 meeting of the Stanislaus County Board of Supervisors (who voted 5-0 for a Fair and Open Competition ordinance to ban Project Labor Agreements on county projects).
The county’s final approval of the Fink Road Solar Farm included the following plan regarding the Valley elderberry longhorn beetle:
To avoid and minimize impact to valley elderberry longhorn beetle, prior to construction, a survey shall be conducted for elderberry shrubs. The survey area shall include all areas subject to disturbance, and a 250 buffer area extending beyond areas subject to disturbance. In the event that any elderberry shrubs are found, the project applicant shall determine if the shrubs can be completely avoided. Complete avoidance would require no ground disturbance with 20 feet of the shrub. If complete avoidance is not feasible, the project applicant shall comply with USFWS compensation guidelines for valley elderberry longhorn beetle (USFWS 1999).
With California Unions for Reliable Energy out of the way and the Valley elderberry longhorn beetle safely preserved wherever it might be found, the Stanislaus County Planning Commission approved a CEQA Mitigated Negative Declaration for the Fink Road Solar Farm on a 5-0 vote on April 19, 2012, with no public objections.