Discovery of new endangered Manzanita species on DR land
On November 14, 2024, a member of California Native Plant Society, a party to the 1st lawsuit filed, Dr. William Waycott, PhD, submitted written and oral testimony to LAFCO describing the discovery of a new species of Manzanita (Arctostaphylos) in Nipomo. Individual specimens discovered near the Dana Reserve site were determined to be members of this newly identified species. Dr. Waycott argued forcefully that this species is in imminent threat of extinction because of the very limited and fragmented nature of its existing habitat and the few known specimens. Accordingly, the construction of the proposed Dana Reserve project could jeopardize the continued survival of this species because approximately half of the 700 known specimens are located on the Dana Reserve site.
CEQA requires a responsible agency such as LAFCO to conduct supplemental environmental review if important new information comes to light demonstrating that the project could have new or more severe significant effects on the environment. (Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 304 (“Silverado Modjeska”).) Public Resource Code section 21166 provides that no subsequent or supplemental environmental impact report (“EIR”) will be required unless one of the following events occurs: (a) substantial changes are proposed in the project which will require major revisions of the EIR, (b) substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the EIR, or (c) new information, which was not known and could not have been known at the time the EIR was certified as complete, becomes available. (Moss v. County of Humboldt (2008) 162 Cal.App.4th 1041) (emphasis added.)
The discovery of a new rare or potentially endangered species qualifies as “new information” under Section 21166, subdivision (c), necessitating a supplemental EIR, because this new information indicates that the project will have a new or more severe significant effect on the environment (Silverado Modjeska, supra, 197 Cal.App.4th at 305. “[T]he Guidelines clarify that the new information justifying a subsequent EIR must be ‘of substantial importance’ and must show that the project will have ‘significant effects not discussed in the previous EIR or negative declaration,’ that ‘[s]ignificant effects previously examined will be substantially more severe’
than stated in the prior review …” (Id. at 302.) Moreover, it has been held that recirculation of an uncertified EIR “is ‘not required where the new information added to the EIR “merely clarifies or amplifies [citations] or makes insignificant modifications in [citation] an adequate EIR.’ ” (Ibid.)
The information provided by Dr. Waycott documenting the discovery of an extremely rare new
species that is facing imminent extinction constitutes significant new information that has not and could not have been previously analyzed in the FEIR. LAFCO was therefore required to consider this new information by conducting supplemental environmental review because the recent discovery of a new species does not merely clarify or amplify information already discussed in the EIR. This new information must be considered in the context of reevaluating the Project’s impact on biological resources and consideration of potentially feasible alternatives and mitigation measures.