California is the nation’s largest agricultural producer and exporter, despite the 20th century population boom which resulted in the conversion of significant acreage of the state’s prime agricultural land. In 2017, California’s 25.3 million agricultural acres supported 77,100 farms, which collectively brought in $50.13 billion dollars – a full 2 percent of the state’s overall GDP. The Legislature has repeatedly stated that preserving agricultural land is an important public policy and offers tax incentives to keep land in agricultural use with minimum ten-year conservation agreements. (See Gov. Code, §§ 51220(a), 51244(a); Pub. Resources Code, § 10201; Civ. Code, § 815.) Predating CEQA, the California Land Conservation Act of 1965 (the Williamson Act) was enacted to facilitate orderly growth to promote agricultural land conservation. (Gov. Code, § 51200 et seq.) CEQA acknowledges the obvious economic value of maintaining and protecting agricultural land by requiring proposed projects to identify potential impacts to agricultural land, particularly when considering actions converting agricultural land to nonagricultural uses. (CEQA Appendix G, § II; Stats. 1993, ch. 812, § 1, pp. 4428-4429.) Today, agencies must consider a project’s potential conflicts with existing zoning for agricultural uses, land under a Williamson Act contract, or Department of Conservation-identified “prime” or “unique” farmland and “farmland of statewide importance”. (CEQA Appendix G, § II.)
1. Impact Analyses
Given the importance of agricultural resources, special care must be taken to ensure that a project’s impacts analysis is legally sufficient. The California Department of Conservation, Division of Land Resource Protection developed the Land Evaluation and Site Assessment (LESA) approach. LESA, which was codified in Senate Bill 850 (Chapter 812, 1993) and has been incorporated into Appendix G of the CEQA Guidelines, rates the relative qualities of agricultural land resources and provides lead agencies with an optional procedure to ensure that significant effects on agricultural land conversions are quantitatively considered. (Cal. Pub. Resources Code § 21061.2; Division of Land Resource Protection, California Environmental Quality Act (Land Protection), CAL. DEPT. OF CONSERVATION, https://www.conservation.ca.gov/dlrp/Pages/CA-Environmental-Quality-Act-(CEQA)-.aspx (accessed September 15, 2020) (CEQA Land Protection); Ctr. For Biological Diversity v. Cal. DOT (2013) 2013 U.S. Dist. LEXIS 178499, 36-37.)
Among accepted methodologies, the Department of Conservation recommends lead agencies consider impacts on any current and future agricultural operations in the vicinity. (CEQA Land Protection, supra; Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1120-1121) These impacts include, but are not limited to, land-use conflicts, increases in land values and taxes, loss of agricultural support infrastructure such as processing facilities, the type and amount of farmland conversion resulting directly and indirectly from implementation of a proposed project, incremental impacts leading to cumulative impacts on agricultural land, and potential conflicts with land in an agricultural preserve or enrolled in a Williamson Act contract. (CEQA Land Protection, supra.)
2. Mitigation Measures
Mitigation for agricultural resource impacts may take the form of avoidance, minimization, restoration, preservation, or compensatory offsite substitutions. (CEQA Guidelines, § 15370; Masonite Corp. v. County of Mendocino (2013) 218 Cal.App.4th 230, 235-236 (Masonite Corp.).) The following provides an overview of commonly used mitigation measures:
• Restoration or Reclamation: Restoration and reclamation measures aim to return agricultural land to its pre-project conditions. These measures may include dismantling project-related structures after their useful life, revegetating the project site, and returning agricultural soils to their original condition following disturbance. (Save Panoche Valley v. San Benito County (2013) 217 Cal.App.4th 503, 529; King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 871.) Project planners often encounter difficulties in achieving full mitigation through restoration, as formerly developed land requires extensive labor and treatment to match the quality of preexisting farmland.
• Agricultural Conservation Easements (ACEs): The most common form of compensatory mitigation is the ACE. An ACE is an interest in land which represents the right to prevent the development or improvement of the land for any purpose besides agricultural production. (See King & Gardiner Farms, supra, 45 Cal.App.5th at p. 872-873; Pub. Resources Code, § 10211.) ACEs preserve agricultural land and support their continued use in perpetuity. (Pub. Resources Code, § 10211; Civ. Code, §§ 815.1, 815.2.)
• In-lieu Fees: Rather than purchase ACEs directly, some projects may pay in-lieu fees to a local, regional, or statewide organization or agency that acquires and oversee ACEs. (See Masonite Corp, supra, 218 Cal.App.4th at pp. 241-242.)
• Local Mitigation Programs: Local mitigation programs are a type of in-lieu fee mitigation which upkeep ACEs specifically within the project region. Local mitigation programs may be designed to meet the needs of the specific jurisdiction; or they may be state programs administered by local agencies, such as the agricultural conservation programs in California’s ninety-eight Resource Conservation Districts. (See Pub. Resources Code, Division 9, §§ 9001 et seq.)
• Conservation Credits: Conservation credits operate in largely the same way as in-lieu fees and local mitigation programs, though the imposed fees go toward the purchase of credits under a mitigation plan administered by an established agricultural farmland mitigation bank or preservation program. (King & Gardiner Farms, supra, 45 Cal.App.5th at p. 877.)
Developers are cautioned against relying entirely on measures which preserve existing offsite farmland, such as ACEs, in-lieu fees, conservation credits, and local mitigation programs, as they often fail to mitigate agricultural impacts in a way that truly offset the loss. (See King & Gardiner Farms, supra, 45 Cal.App.5th at pp. 872-878.) Courts may be unwilling to find an impact has been mitigated to less than significant where the mitigation measure does not create new agricultural land to replace project-impacted agricultural land, but merely prevents the future conversion of the agricultural land subject to the easement. (See id. at pp. 875-878 [finding ACEs do not reduce impacts to agricultural land because they do not offset losses and also finding that the record lacked substantial evidence to show other compensatory measures would offset the conversion of agricultural land].) Additionally, measures requiring contributions to a mitigation program may be invalidated if the program as a whole is underfunded and cannot adequately preserve or support the intended agricultural operations. (See generally Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 785; Napa Citizens for Honest Gov’t v Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 364.)
The value of and reliance on ACEs in particular have been subject to legal challenge. (See King & Gardiner Farms, supra, 45 Cal.App.5th at pp. 872-876; Citizens-Lodi, supra, 205 Cal.App.4th at pp. 322-324; Masonite Corp., supra, 218 Cal.App.4th at pp. 235-241.) As noted above, other mitigation measures similarly seek to compensate for the loss of agricultural land by preserving existing offsite agricultural lands. Thus, case law addressing ACES may be instructive to the application of those measures as well.
On one hand, the court in Masonite Corp. focused on the importance of ACEs in addressing the indirect and cumulative effects of farmland conversion; it noted that as farmland is converted, surrounding farmland becomes more susceptible to loss due to land use incompatibilities or because land values increase. (Masonite Corp., supra, 218 Cal.App.4th at p. 236.) The Masonite Corp. court rejected the county’s finding that ACEs were legally infeasible mitigation where the county did not adopt any mitigation for the loss of farmland. (Id. at pp. 238-241 [stating “ACEs compensate for the loss of farmland within the Guideline’s definition of mitigation” and finding “categorically exclud[ing] ACEs as a means to mitigate the conversion of farmland would be contrary” to the public policy of preserving farmland].) In contrast, the Citizens-Lodi court found substantial evidence supported the city’s finding that ACEs do not constitute “feasible mitigation”. (Citizens-Lodi, supra, 205 Cal.App.4th at pp. 323-324.) However, though the city in Citizens-Lodi determined ACEs could not “avoid the significant loss of agricultural land,” it did impose a 1:1 mitigation ratio for acquisition of ACEs to partially mitigate the loss while still finding the impact significant and unavoidable. (Id. at pp. 322-324 [upholding city’s rejection of heightened mitigation ratio].) More recently, King & Gardiner Farms relied on Citizens-Lodi in concluding ACEs do “not provide effective mitigation for the conversion of agricultural land”. (King & Gardiner Farms, supra, 45 Cal.App.5th at pp. 875-876.) Taking these three cases into consideration, lead agencies and developers are cautioned against relying on ACEs as a means of reducing agricultural impacts to less than significant, but ACEs may nonetheless play a role in partially mitigating impacts in the absence of other feasible mitigation measures. Rather than simply setting aside funds, developers are advised to ensure there are concrete and identifiable measures or programs in place to truly offset agricultural land conversions. (See King & Gardiner Farms, supra, 45 Cal.App.5th at pp. 877-878.)
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