AARON, J., Concurring and Dissenting. I.
Introduction
It is undisputed that larvae of the arroyo southwestern toad—an endangered species—were observed 328 feet from the project site, and adult toads were seen in the same general area, after the original environmental impact report (EIR) circulated. The original EIR had concluded that the project would not result in a direct or indirect impact to any species listed as threatened or endangered, and specifically, that the probability that the arroyo toad was present at the project site was “very low” because the habitat was not suitable. Despite the subsequent discovery of this endangered species so close to the project site, and despite having conceded in the supplemental EIR (SEIR) that the post-EIR sightings of arroyo toad tadpoles in the immediate vicinity of the project site constitute “new information,” the County of Orange (County) contends that it was not required to recirculate the SEIR to address the potential impact of the project on this endangered species, and disingenuously maintains that, “it is unclear from the record whether arroyo toads exist near the project.”
Under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) Guidelines,1 recirculation is required if new information shows that the project will have a “potential [impact on] endangered, rare or threatened species” such as the arroyo toad. (Guidelines, § 15065, subd. (a)(1), italics added.) There is simply no evidence in the record to support a finding that the project will not have at least a potential impact on the arroyo toad, and there is abundant evidence that the project will have such an impact.
The majority’s analysis rests entirely on the fallacy that because the toad has not been observed on the project site itself, the project will not have a potential significant impact on the toad or its habitat. However, it is undisputed that arroyo toad larvae and adult toads were discovered as near as [316]within 328 feet from the project site.2 It is also undisputed that the dispersal zone of the arroyo toad is 1,000 feet. The project site is thus unquestionably within that zone. Even if the toad has not been observed on the project site itself, it does not follow that the project will not have a potential significant impact on the toad or its habitat, as discussed, post.
Because there is no evidence in the record that supports the County’s finding that the project will have no potential significant impact on the arroyo toad or its habitat, I dissent from part IB of the majority opinion in which file majority concludes that the County was not required to address the potential impact in a revised SEIR.3
II.
There is no evidence in the record to support the County’s finding that “the Arroyo Toad is not present on the project site, and therefore, implementation of the project. . . will not affect, either directly or indirectly, the toad or toad habitat.”
A subsequent or supplemental EIR must be prepared by the lead agency or by any responsible agency if “[n]ew information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.” (§ 21166, subd. (c).) “The [CEQA] Guidelines . . . generally define ‘new information’ as information which shows that the project will have new or more severe ‘significant effects’ on the environment not disclosed in the prior EIR.” (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1125 [26 Cal.Rptr.2d 231, 864 P.2d 502] (Laurel Heights II), citing Guidelines, § 15162, subd. (a).) “A ‘significant effect’ is further defined in the Guidelines as a ‘substantial, or potentially substantial, adverse change.’ ” (Laurel Heights II, supra, at pp. 1125-1126, citing Guidelines, § 15382.) Under the Guidelines, a “potential . . . impact on endangered, rare or threatened species” (italics added) such as the arroyo toad, is deemed “per se significant.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 449 [53 Cal.Rptr.3d 821, 150 P.3d 709] (Vineyard), citing Guidelines, § 15065, subd. (a)(1).) When the test for “new information” is satisfied, section 21166 requires preparation of a subsequent EIR. (Environmental Council v. Board of Supervisors (1982) 135 Cal.App.3d 428, 437 [185 Cal.Rptr. 363].)
[317]An independent review of the record reveals that there is no substantial evidence to support the County’s determination that “the [ajrroyo [t]oad is not present on the project site, and therefore, implementation of the project, including the proposed water quality mitigation measures [,] will not affect, either directly or indirectly, the toad or toad habitat.”
Zoologist Robert Haase—who, unlike Peter Bloom and David Levine, is not affiliated with any party to this case—prepared field observation reports in April and May of 2005 in which he documented sightings of both arroyo toad larvae and adult arroyo toads very near the project site. He provided copies of those reports to the United States Fish and Wildlife Service (USFWS) and to California’s Department of Fish and Game (CDFG). In June 2005, biologist T’Shaka A. Toure reported sighting 25 to 35 arroyo toads between the stages of late tadpole to early metamorphosis “in the same general area as the Haase sightings of 4/23/05.”
In a letter dated June 6, 2007, from USFWS to CCRC Farms, LLC, and the County regarding Haase and Toure’s arroyo toad sightings, USFWS stated that it was “concerned about this population of arroyo toads because it appears to be a relatively small population that breeds intermittently and therefore may be vulnerable to threats such as loss and degradation of habitat.” After noting that the Bloom surveys, which were conducted later in 2005 and 2006, did not document arroyo toads, USFWS stated: “[W]e still believe there is a high likelihood that arroyo toads are present in the Silverado Canyon Ranch property.” USFWS set forth a number of reasons to support that conclusion, including (1) the fact that arroyo toads are known to move into upland habitat over one kilometer (or 0.62 miles) from the nearest stream, and the project site was well within that dispersal range; (2) there were no substantial barriers to arroyo toad dispersal from where the toads were sighted to the project site; and (3) the project site contained suitable upland habitat for arroyo toads.
Respondents do not dispute that Haase and Toure observed arroyo toads near the project site in 2005. The original EIR, which was certified in 2003, stated that the probability of occurrence of the arroyo toad on the project site was “very low; no suitable habitat; nearest population is 1.5 [kilometers] away in Silverado Creek.” In fact, in discounting the need for a protocol-level search of the area to ascertain whether the arroyo toad might be present, the EIR stated, “Based on the existing conditions at the Silverado Ranch site and the fact that this species has not been located in similar habitats in this [318]region, there is little justification for a detailed study to conclusively determine the absence of the species from the site.” (Italics added.) The original EIR thus essentially concluded that there were no arroyo toads present on the site, or for that matter, “in the region,” and therefore, that “[t]he proposed project would not result in direct or indirect impacts to any sensitive species listed as threatened or endangered by the USFWS or CDFG.”4 The Haase sightings, which occurred after the County issued the original EIR, demonstrate the inaccuracy of the EIR with respect to the presence of the arroyo toad, and clearly constitute “new information” under section 21166.5
In upholding the County’s decision not to revise the SEIR to address the new information concerning the arroyo toad and circulate it for public comment, the trial court indicated that it viewed Haase’s reports of arroyo toad sightings, and Bloom’s report of no arroyo toad sightings, as a “battle of the experts.”6 The trial court cited case law supporting the proposition that when an agency is faced with conflicting evidence on a CEQA issue, it “is ‘permitted to .. . favor the opinions and estimates of some of the experts over the others.’ [Citation.]” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1397 [133 Cal.Rptr.2d 718].) The trial court stated, “Haase opined that [his sighting of arroyo toads] ‘serves to confirm that breeding-age adult [toads] occupy this portion of the drainage and its adjacent habitat’ ” (italics added), and went on to note that the Bloom surveys found no evidence of arroyo toads in July 2005 and 2006. The trial court appears to have cited the Bloom surveys as constituting substantial evidence, in the form of expert opinion, supporting the County’s determination that it need not revise the SEIR to address the project’s impact on arroyo toad habitat and circulate a revised SEIR for public comment, because “the Arroyo Toad is not present on the project site, and therefore, implementation of the project. . . will not affect, either directly or indirectly, the toad or toad habitat.” The majority adopts similar reasoning.
[319]Contrary to this view, the Haase and Toure reports of arroyo toad sightings, and Bloom’s report of no arroyo toad sightings, do not present conflicting expert opinion. Rather, they report different observations made at different times. The Haase and Toure reports constitute undisputed evidence of the presence of arroyo toads very near the project site. In fact, the SEIR acknowledges the discovery of arroyo toad tadpoles in Silverado Creek and concedes that this discovery constitutes “new information.” The relevant portion of the SEIR reads: “The fact that arroyo toad tadpoles were observed in Silverado Creek is new information.”
The County’s finding that, “the Arroyo Toad is not present on the project site, and therefore, implementation of the project . . . will not affect, either directly or indirectly, the toad or toad habitat,” is based solely on Bloom’s report that he did not find evidence of arroyo toads during his surveys. The relevant portion of the SEIR states, “[Biased on the results of [the Bloom surveys], the Arroyo Toad is not present on the project site, and therefore, implementation of the project. . . will not affect, either directly or indirectly, the toad or toad habitat.” (Italics added.) As discussed above, however, the Bloom survey does not support these conclusions. Rather than constituting substantial evidence to support this finding, the Bloom surveys establish only that Bloom found no evidence of arroyo toads on the footprint of the project itself. Bloom’s surveys do not support the conclusion that the project will not have a potential significant impact on the toad or its habitat. Bloom did not dispute the Haase or Toure sightings, and he expressed no view as to whether, given the Haase sightings, the project could have a potential significant impact on the toad or its habitat. Yet, respondents cite no evidence in the record, other than Bloom’s report, as support for the County’s finding that the arroyo toad is not present on the project site, and therefore, that the project will not affect the toad or its habitat.
The majority cites the testimony of biologist Levine, who, the majority observes, “did not believe Haase’s larvae sightings substantially increased the probability that arroyo toads are present on the project site.” (Maj. opn., ante, at p. 306.)7 As the majority notes, Levine testified that the only information that was not in the original EIR “ ‘is that there are larvae found in 2005 .... That is the only fact that we have to deal with. Where those larvae came from, what the adults were, whether or not those turned into—metamorphed into adults, nobody knows, ffl ... H] ... If we’ve only got a handful of [320]larvae,[8] no adult sightings, the probability of [the toads reaching the project site] gets to be very far removed. You know, many orders of magnitude for that actually to occur that there be an adult toad estivating on the Holtz Ranch. That would be a very unlikely event in my opinion . . . .’ ” (Maj. opn., ante, at p. 294, italics added.)
Levine’s testimony should be disregarded in its entirety because his basic premise, i.e., that only “a handful” of larvae and no adult toads were seen near the project site, is inaccurate. As noted, ante, Haase reported seeing larvae in “significant numbers,” and also reported sighting adult toads in the same general area, and Toure reported observing 25 to 35 arroyo toads in the stages of late tadpole to early metamorphosis in the same general area as the Haase sightings. Levine clearly either misunderstood or intentionally misrepresented Haase’s report. In any event, Levine’s conclusion that arroyo toads are probably not present on the project site is based on the erroneous assumption that only a small number of larvae were observed near the project site. Further, Levine focused only on the question whether “arroyo toads were present on the project site” (maj. opn., ante, at p. 294, italics added), or more specifically, whether they were “ ‘estivating on the Holtz Ranch,’ ” which is not the relevant inquiry.
The relevant inquiry under CEQA is whether there is new information, i.e., information that was not known and could not have been known at the time the EIR was prepared, showing that the project will have new or more severe “significant effects” on the environment not disclosed in the prior EIR. As noted above, under the CEQA Guidelines, a “potential . . . impact on endangered, rare or threatened species” such as the arroyo toad, is deemed “per se significant.” (Vineyard, supra, 40 Cal.4th at p. 449, italics added, citing Guidelines, § 15065, subd. (a)(1).) The toad need not be present on the project site in order for the project to impact the toad or its environment. The [321]evidence in the record clearly establishes that the project may have a significant impact on the arroyo toad and its habitat.
In its letter dated June 6, 2007, USFWS stated that the Bloom surveys that reported no arroyo toad sightings, “were inadequate to determine that arroyo toads are absent from the property or the surrounding environment. The surveys by Mr. Bloom in 2005 were not protocol surveys, as they were conducted primarily in late July after most toads in this portion of their range have metamorphosed and become harder to detect because they are buried underground or are foraging in the upland environment. In 2006, it was much drier than in 2005, and it appears that there was no breeding along Silverado Creek that year, [f] Although arroyo toads were not observed at Silverado Creek in 2006, they can remain buried in the soil for extended periods of time, emerging to breed or forage only when conditions are appropriate, so based on the observation of breeding arroyo toads at this location in 2005, it is likely that toads are still present in suitable habitat along Silverado Creek. This population of arroyo toads appears to breed intermittently and may be particularly difficult to observe on a year to year basis, as evidenced by the fact that, prior to 2005, the last documented observation of arroyo toads in the immediate area was in 1985 . . . .”
In a similar vein, Haase told the county planning commission that 2006 was a bad year for detecting arroyo toads. He stated, “I work with . . . Arroyo Toads all the time every day, and I didn’t detect any Arroyo Toads [in 2006] in known habitat on Camp Pendleton where they are well-known to occur.” He added that the arroyo toad “can be cryptic for long periods of time and remain in upland habitats. They only go to extreme channels to breed. At the time that the 2006 survey was done ... the conditions did not exist to detect [arroyo] toads, period.”
There is no evidence in the record that refutes USFWS’s and Haase’s assertions that the arroyo toad can remain underground and undetectable for long periods of time, including during dry periods. The Bloom report establishes only that Bloom did not observe the arroyo toad; it does not disprove that arroyo toads were observed near the project site in 2005, nor does the Bloom report negate USFWS’s conclusion that it is likely that arroyo toads are still present in that area. Bloom apparently was never asked, and did not address, whether the toad might still be present near the project site.
Throughout its opinion, the majority adopts Levine’s mischaracterization of the nature of the Haase sightings, repeatedly stating that Haase reported sighting arroyo toad larvae in Silverado Creek, and concluding that the sighting of larvae does not have “significant environmental ramifications.” [322]The majority appears to disregard the fact that Haase also reported sighting several adult toads, and that Toure reported sighting 25 to 35 arroyo toads between the stages of late tadpole to early metamorphosis in the same general area, after the original EIR—which concluded that it was unlikely that the arroyo toad was present in the area—had circulated.9
III.
The project will have a potential significant impact on the arroyo toad and its habitat regardless of whether the toad is present on the project site
The majority’s conclusion that the project will not impact the toad or its habitat because the toad has not been observed on the project site itself, is fallacious. If the County’s statement in the SEIR that the arroyo toad “is not present on the project site” refers to the fact that the toad has not been seen within the “footprint” of the project, that fact clearly does not support the inference that the project will have no effect on the toad or its habitat. Again, it is undisputed that arroyo toad larvae were observed as near as within 328 feet of the project site in 2005, including in Silverado Creek, immediately adjacent to the site, and that adult toads were seen in the same general area a month after the larvae sightings. It is also undisputed that the dispersal zone of the arroyo toad is 1,000 feet. The project site is thus undisputedly within the dispersal zone. If the toad remains in the immediate area, as the USFWS and Haase believe, there is no evidence in the record that would support the conclusion that the project—the development of 12 custom homes on 68.7 acres—would not have a potential adverse impact on the toad or its habitat. In fact, the only evidence in the record on this point is to the contrary. The administrative record contains abundant evidence and information showing that the project will have at least a potential significant impact on the arroyo toad or its habitat in the area near the project site where Haase observed the arroyo toads.
As noted, in its June 6, 2007 letter to CCRC and the County regarding the arroyo toad sightings, USFWS expressed concern “about this population of arroyo toads because it appears to be a relatively small population that breeds intermittently and therefore may be vulnerable to threats such as loss and degradation of habitat.” (Italics added.) With its original briefing, Rural Canyons Conservation Fund submitted a USFWS proposed designation of [323]critical habitat for the arroyo toad from the Federal Register10 in which USFWS discusses the toad’s specialized requirements for breeding habitat.[11] USFWS noted that high waterflow will wash eggs out of breeding pools, “breaking up the egg strands and killing the developing embryos.” USFWS also reported that “[s]ilt eroding into the streams from road crossings [and] adjacent roads [and] overgrazing . . . can cover and suffocate the eggs,” and that “metamorphosing and newly metamorphosed toads are extremely susceptible to predation, habitat disturbance, and activities in the streams during this period, as they cannot escape.”
USFWS further reported:
“Human activities that affect water quality, influence the amount and timing of nonflood flows or frequency and intensity of floods, affect riparian plant communities, or alter sedimentation dynamics can reduce or eliminate the suitability of stream channels for arroyo toad breeding habitat. Degradation or loss of surrounding riparian and upland habitats reduces and eliminates foraging and overwintering habitat. The introduction of nonnative plant and animal species can reduce the quality of all habitats used by arroyo toads; lead to detrimental levels of competition and predation, or reduce the availability of toad food. Run-off from roads can decrease habitat quality for arroyo toads and roads provide access for humans, domestic animals, and invasive species that can lead to additional habitat degradation.
“The effects of such activities and factors may not become apparent until many years later when the habitat finally becomes sufficiently degraded that arroyo toads can no longer reproduce and survive. Combined with the normal climatic fluctuations in the arroyo toad’s range, which can include consecutive years of extremely high or low rainfall, human impacts can cause temporary or permanent extirpations of toads from some areas. Human [324]activities that may cause adverse impacts to arroyo toads include urbanization and agriculture within and adjacent to riparian habitats, the use of pesticides and herbicides within or adjacent to arroyo toad habitat, . . . water flow manipulations, . . . road placement across and within stream terraces, livestock grazing, off-highway vehicle use of roads and stream channels, placement of campgrounds and other recreational facilities in arroyo toad habitat (especially on stream terraces), and the use of stream channels and terraces for recreational activities.” (Italics added.)
The project unquestionably will involve, or result in, some of the types of human activity that, according to the USFWS, pose a potential threat to the arroyo toad. For example, the original EIR for the project notes that initial grading and infrastructure construction for the project, including road construction, will involve 239,500 cubic yards of cut and fill, and that “[w]ith remedial grading, a total of approximately 450,000 cubic yards of cut and fill will be balanced on-site.” In addition, the County’s draft SEIR reported that clearing, grading, excavation, and construction activities associated with the project “may impact water quality due to sheet erosion of exposed soils and subsequent deposition of particles and pollutants in drainage areas. Grading activities, in particular, lead to exposed areas of loose soil, as well as sediment stockpiles, that are susceptible to uncontrolled sheet flow. The use of materials such as fuels, solvents, and paints also present a risk to surface water quality due to an increased potential for non-visible pollutants entering the storm drain system. If uncontrolled, these materials could lead to water quality impacts, including the discharge of sediment-laden runoff, prohibited non-storm water discharges, and ultimately the degradation of downstream receiving water bodies, such as Silverado Creek and the Santa Ana River. This is considered a potentially significant impact.” (Italics added.)
A letter to the County from Canyon Lakes Conservation Fund concerning the post-EIR arroyo toad sightings noted that Haase observed arroyo toad larvae “at the confluence of where ‘silt eroding’ from the pre-project construction activities dumped into Silverado Creek.” As noted, USFWS reported that silt eroding into streams can cover and suffocate arroyo toad eggs. In addition, a Silverado resident testified before the County that soil and debris from a pad that CCRC or one of its subcontractors illegally graded prior to the certification of the original EIR fell into Silverado Creek and was washed directly onto the area where the arroyo toads were sighted. Further, a letter to the County submitted on behalf of two conservation groups, Center for Biological Diversity and Endangered Habitats League, informed the County that the arroyo toad population that was observed at the confluence of [325]Silverado Creek and Santiago Creek in the 1970’s and 1980’s “may represent one of the last remnants of a greater historic population that existed in the Santa Ana River basin that was mostly extirpated due to urbanization of the greater Los Angeles metropolitan area .... This [area] is essential because it contains primary constituent elements, such as low-gradient sandy streams and adjacent upland terraces for foraging, burrowing, and aestivation. (70 Fed.Reg. 19586.)”
In view of the above evidence and information, which was presented to the County before it certified the SEIR, it is disingenuous to maintain that because the arroyo toad has not been observed on the project site itself, the project will not have a potential significant impact on the toad or its habitat. The only reasonable conclusion is that the project will have at least a potential adverse impact on the arroyo toad or its habitat if, as USFWS believes, arroyo toads are still present in the area near the project site where Haase observed them. The County cites no evidence other than evidence to the effect that the toad is not on the project site, and fails entirely to address potential offsite impacts of the project.
IV.
Conclusion
The uncontroverted sightings of the endangered arroyo toad near the project site after the original EIR was certified and during the public comment period for the SEIR, unquestionably constitute new information that showed that the project would have a new or more severe “significant effect” on the environment than was disclosed in the original EIR, within the meaning of section 21166 and Guidelines section 15162, subdivision (a). The new or more severe effect of the project is “significant” under the Guidelines because, as discussed above, there is evidence that the project will result in a “potentially substantial... adverse change” to arroyo toad habitat (Guidelines, § 15382; see Laurel Heights II, supra, 6 Cal.4th at p. 1126), and therefore will have a “potential . . . impact on [an] endangered, rare or threatened species . . . .” (Vineyard, supra, 40 Cal.4th at p. 449; see Guidelines, § 15065, subd. (a)(1).) The USFWS’s designation of portions of Silverado Creek, including the site of the Haase sightings, as “critical habitat” for the arroyo toad, underscores this point.12
[326]Because the evidence of the presence of arroyo toads very near the project site, within the dispersal zone of the toad, is new information that was not known and could not have been known at the time the original EIR was certified, but became available before the SEIR was certified, and because there is no evidence in the record to support the conclusion that the project will not have a potential significant impact on the toad or its habitat, I would hold that the County was required, under section 21166, to include that information in the SEIR before circulating it for public comment.
A petition for a rehearing was denied August 4, 2011. Aaron, J., was of the opinion that the rehearing should be granted.
All further statutory references are to the Public Resources Code unless otherwise specified. References to “Guidelines” are to the administrative guidelines for the implementation of CEQA. (Cal. Code Regs., tit. 14, § 15000 et seq.) The California Supreme Court “has not decided the issue of whether the Guidelines are regulatory mandates or only aids to interpreting CEQA.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2 [253 Cal.Rptr. 426, 764 P.2d 278].) However, the Supreme Court has instructed that at minimum, “courts should afford great weight to the Guidelines except when a provision is clearly unauthorized or erroneous under CEQA.” (Ibid.)
The majority opinion suggests that the only new information, post-EIR, is “Haase’s 2005 observation of toad larvae in Silverado Creek.” (Maj. opn., ante, at p. 306.) In fact, approximately a month after Haase observed the larvae only 328 feet from the project site, he reported observing adult toads in the same area.
I concur in part IA and part II of the majority opinion.
The arroyo toad is listed as an endangered species under the federal Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq.).
As noted, under section 21166, “new information” is information showing that the project would have new or more severe “significant effects” on the environment, within the meaning of the Guidelines, that were not disclosed in the original EIR (Laurel Heights II, supra, 6 Cal.4th at p. 1125; Guidelines, § 15162, subd. (a)). A “significant effect” is defined as a substantial or potentially substantial adverse change. (Guidelines, § 15382.)
The majority opinion implies that the “battle of the experts” (maj. opn., ante, at p. 306) to which the trial court referred was between the USFWS and CCRC biologist Levine. In fact, the court was referring to Haase’s reported sightings and surveys conducted by CCRC biologist Bloom in which Bloom reported that he did not observe the arroyo toad in the areas where Haase observed them. The Bloom surveys were the only evidence that the County cited as support for its determination of the issue.
The County did not mention Levine’s opinions in the SEIR, nor did it cite his testimony in its briefing on appeal as evidence supporting its determination in this case. The County’s failure to cite Levine’s testimony is likely attributable to the fact that, as discussed in the text, his opinions are based on the inaccurate assumption that the only new, post-EIR information is the sighting of “a handful” of larvae near the project site.
Contrary to Levine’s characterization, Haase states in his report, “Larvae of the arroyo toad (Bufo californicus) were observed in significant numbers in Silverado Creek.” Haase continued, “The presence of arroyo toad larvae in this reach of Silverado Creek serves to confirm that breeding-age adult individuals occupy this portion of the drainage and its adjacent upland habitat.” In an exhibit to a letter to the County Board of Supervisors expressing its concern about the post-EIR sightings of the arroyo toad “adjacent to” the project site, the Silverado Modjeska Recreation and Park District stated that Haase, “confirmed an arroyo toad colony about 330’ (125m) from Lot #1 of the Silverado Canyon Ranch Project.” (Italics added.)
The majority asserts that Haase’s 2005 sightings of adult toads “were in no sense new” (maj. opn., ante, at p. 306, fn. 16) because the 2003 EIR reported that arroyo toads had been seen 1.5 miles from the project site. The majority fails to acknowledge, however, that the fact that arroyo toad larvae were seen 328 feet from the project site—at the point where drainage from the project would flow into Silverado Creek—clearly establishes, as Haase stated, that breeding age adult toads occupy that area as well as the adjacent upland area.
In fact, the EIR stated, “Based on the existing conditions at the Silverado Ranch site and the fact that this species has not been located in similar habitats in this region, there is little justification for a detailed study to conclusively determine the absence of the species from the site.”.
This document is included in the portion of Rural Canyons’s request for judicial notice that we have granted. (Maj. opn., ante, at pp. 307-308, fn. 18.)
In its supplemental brief, Rural Canyons notes that after oral argument in this case, the USFWS issued its final rule designating revised critical habitat for the arroyo toad. The USFWS designated as critical habitat 737 acres of land—including the location of Haase’s 2005 sighting of larvae 328feet downstream of the project site, and other Silverado Creek sites a mile downstream of the project, where Haase and Toure observed toads, tadpoles and larvae. As part of its designation, the USFWS noted that “new information” including the 2005 Haase survey, “indicates that Silverado Creek includes occupied suitable habitat.” As Rural Canyons points out, this rule is published in the Federal Register, and is thus subject to the mandatory judicial notice provisions of the Evidence Code. Thus, the majority’s assertion that Haase’s observations merely amplified information that was contained in the 2003 EIR—which concluded that the project site “was not a suitable habitat for the arroyo toad” (maj. opn., ante, at p. 305), is inaccurate.
The analogy that the majority draws between the post-EIR discovery in this case of the presence of an endangered species within 328 feet of the project site and the post-EIR determination in River Valley Preservation Project v. Metropolitan Transit Development Bd. (1995) 37 Cal.App.4th 154 [43 Cal.Rptr.2d 501] that berms necessary to complete a transit project would have to be 20 to 30 feet high, rather than eight to 10 feet high as stated in the EIR, to support the conclusion that the discovery of the arroyo toad is not a matter with [326]“ ‘significant environmental ramifications’ ” (maj. opn., ante, at p. 305) warranting the preparation of a new environmental document is, to say the least, inapt.