What is a “rare” species? In the context of the California Environmental Quality Act (CEQA) Guidelines, this became a central question in the recent court decision, Nassiri v. City of Lafayette, et al., First District Court of Appeals, June 27, 2024. The Section 15380 definition of “Endangered, Rare or Threatened Species” has long been a part of the Guidelines. This section also mandates lead agencies to consider a species endangered, rare, or threatened if it can be shown to meet the qualifying criteria described therein, even when the species is not listed under either the California Endangered Species Act (CESA) or federal Endangered Species Act (ESA). Public agencies serving as a CEQA lead or responsible agency carry the responsibility to consider a species’ qualification as endangered, rare, or threatened under CEQA based on the facts of the project. This responsibility raises important issues for the environmental practitioner.
Rare Species Habitat Question in Nassiri v. City of Lafayette
The Nassiri v. City of Lafayette case involved a neighboring property owner opposed to the demolition of a vacant building and construction of a new 12-unit condominium project on a mostly developed, infill parcel. The City used the Class 32 infill categorical exemption for CEQA compliance (CEQA Guidelines Section 15332). Nassiri objected in part because of a contention that two bird species, oak titmouse and Nuttall’s woodpecker, were “rare” under CEQA and the site contained value as habitat for them in a creek corridor outside of the construction area. If the project site had value for endangered, rare, or threatened species, it would preclude use of the categorical exemption. The city determined the two birds were not rare, using a consulting biologist’s report as substantial evidence. Nassiri filed the lawsuit with a cause of action claiming that substantial evidence did not support the City’s determination that “[t]he project site has no value, as habitat for endangered, rare or threatened species.”
Importance of the Precise Wording in Section 15380
From an environmental practitioner’s perspective, this court decision is a cautionary tale about the importance of the precise wording of CEQA Guidelines definitions. When seeking to conclude if a species qualifies as “rare” under Section 15380 or not, careful analysis of the explicit provisions in Section 15380 is the key. Let’s review Section 15380’s somewhat convoluted definitions. First, the easy part: “A species of animal or plant shall be presumed to be endangered, rare or threatened,” if it is listed under either the California Endangered Species Act or federal Endangered Species Act. This is straightforward. But what if a species may be limited in numbers or range but is not listed. Here is where the definition of a “rare” species may come into play. The definition is below:
(b) A species of animal or plant is:
(2) “Rare” when either:
(A) Although not presently threatened with extinction, the species is existing in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens; or
(B) The species is likely to become endangered within the foreseeable future throughout all or a significant portion of its range and may be considered “threatened” as that term is used in the Federal Endangered Species Act.
The definition presents no discreet characteristics for being a “rare” species but instead relies on conditions that could lead to it becoming an “endangered” species. Because of this, let’s first examine the definition of “endangered.”
(b) A species of animal or plant is:
(1) “Endangered” when its survival and reproduction in the wild are in immediate jeopardy from one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, disease, or other factors;
The qualifying criterion for a species to be “endangered” under the Guidelines is specifically described: “when its survival and reproduction in the wild are in immediate jeopardy” from one or more causes. When a project may involve impacts to a species not listed in CESA or ESA that could qualify as endangered under Section 15380, the analysis needs to explicitly discuss whether the species’ survival and reproduction in the wild are in immediate jeopardy with the reasoning and evidence supporting why or why not. The presence of threats to species survival and reproduction in the wild is a factual characteristic that can be evaluated based on what is known about the species and the character of the project site and project. The guideline defines the endangerment to the species as “immediate jeopardy,” so an evaluation is needed about whether the degree of threats would lead to jeopardy of survival and reproduction in the wild and whether the jeopardy is immediate (i.e., in plain meaning – imminent or close-at-hand).
Returning to the “rare” species definition, replacing the term “endangered” with its explicit descriptive phrase would clarify the definition: “Although not presently threatened with extinction, the species is existing in such small numbers throughout all or a significant portion of its range that ‘its survival and reproduction in the wild are in immediate jeopardy,’ if its environment worsens.” A practice pointer would be to make this edit in relevant CEQA analyses, because expressing the definition with this replacement phrase would bring more precision to the issues needing evaluation.
Another part of the Section 15380 definition, part (b)(2)(B), states that a rare species would also be one that is “likely to become endangered within the foreseeable future throughout all or a significant portion of its range and may be considered ‘threatened’ as that term is used in the Federal Endangered Species Act.” The court did not drill down into this meaning, but a similar phrase-replacement practice may be helpful. The ESA definition of threatened species is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Under ESA, an endangered species is “any species which is in danger of extinction throughout all or a significant portion of its range.” (Italics added.) Replacing classification names with the key definitional phrases from the ESA definitions, a Section 15380 “rare species” would become: “The species whose survival and reproduction in the wild is in immediate jeopardy or it is likely to be in danger of extinction within the foreseeable future throughout all or a significant portion of its range.” The (b)(2)(B) part of Section 115380 introduces a somewhat longer timeframe than “immediate;” it also recognizes jeopardy of survival and reproduction in the wild or in danger of extinction in the “foreseeable future.”
Court Decision Provides Some Practice Guidance
In the decision, the court disagreed with Nassiri’s contention that the city lacked substantial evidence supporting the City’s determination that the project site had no value as habitat for endangered, rare, or threatened species and upheld the use of the Class 32 infill exemption. The City’s technical reporting concluded that the project site did not contain any habitat value for “rare” species, which the court acknowledged was sufficient substantial evidence. Whether a project qualifies for a categorical exemption is subject to the substantial evidence standard, so as long as the City based its conclusion on such evidence, the court should defer to the City’s judgment.
In the court’s analysis, it provided examples of how to assess whether a species is rare or not, which offered some practice guidance. Nassiri did not discuss whether oak titmouse or Nuttall’s woodpecker were under immediate jeopardy to their survival and reproduction in the wild applying the precise concepts in the Section 15380 definition, but rather used a surrogate classification of the two bird species. The lawsuit argued that the species were rare, because they were included in the U.S. Fish and Wildlife Service Bird Species of Conservation Concern (BSCC). BSCC are species of “migratory nongame birds that, without additional conservation actions, are likely to become candidates for listing under the [federal] Endangered Species Act.” The court concluded the definition of BSCC was not equivalent to the CEQA qualifications of a rare species, so it was inapplicable.
A practice pointer from the decision is that inclusion as a BSCC, alone, is not sufficient to define a rare species. It’s unclear whether or how this outcome may affect the use of other agency or non-governmental organization classifications as evidence that a species is rare under CEQA. As a practice pointer, careful analysis of a classification’s qualifying criteria is advised in comparison to the explicit descriptions in the Section 15380 definitions.
The court noted that Nassiri “never discussed the definition of ‘rare’ in the Guidelines and never asserted that oak titmouse and Nuttall’s woodpecker are ‘rare’ under Guidelines section 15380, subdivision (b)(2).” Nassiri’s expert contended rather that “the project site provided habitat value for ‘special-status species,’” including BSCC. The concept of a “special-status species” is noted in the decision as different from the definition of endangered, rare, and threatened species in Section 15380.
This is an example of the practice pointer to specifically and precisely analyze the explicit concepts described in the CEQA definition, rather than seek to equate to a different concept, such as “special-status species” or “sensitive species.” The concepts of “special-status species” or “sensitive species” are valid for other CEQA purposes, such as answering question (a) in the Biological Resources section of the Appendix G Environmental Checklist, but the court concluded they were not equivalent to the Section 15380 definitions of endangered, rare, or threatened species.
Application to Broader CEQA Compliance Beyond a Class 32 Exemption
The Nassiri v. City of Lafayette decision applies specifically to a Class 32 infill exemption, because of its condition that a project site must have “no value as habitat for endangered, rare or threatened species.” As environmental practitioners, we consider whether the principle of a court decision may also have broader applicability. From this decision, we are alerted to other places in the CEQA Guidelines that reference Section 15380 and/or “endangered, rare or threatened species.” Here are selected examples:
- Section 15065, Mandatory Findings of Significance, where “a lead agency shall find that a project may have a significant effect on the environment,” when the project has the potential to “substantially reduce the number or restrict the range of an endangered, rare or threatened species.”
- Class 4 Exemption for Minor Alterations of Land, including fuel management within 30 feet of structures, “provided that the activities will not result in the taking of endangered, rare, or threatened plant or animal species.”
- Class 28 Exemption for Small Hydroelectric Projects at Existing Facilities with its condition that “construction will not occur in the vicinity of any endangered, rare, or threatened species.”
- Class 33 Exemption for Small Habitat Restoration Projects with its condition that “there would be no significant adverse impact on endangered, rare or threatened species or their habitat pursuant to section 15065.”
Of these provisions, Section 15065 is applicable to CEQA compliance documents in general and is reflected in Appendix G Environmental Checklist Question XXI(a), Mandatory Findings of Significance. The final practice pointer is to apply the court’s guidance in Nassiri v. City of Lafayette not only to the Class 32 infill exemption, but also wherever endangered, rare, or threatened species are relevant in CEQA environmental review.
