CGF Welcomes New Legislative Advocate

The Committee for Green Foothills is pleased to add Alice Kaufman to our staff. Alice is a graduate of UC Hastings Law School and the University of Chicago. Her experience as an environmental lawyer includes several years at the Environmental Law Foundation in Oakland, where she worked to enforce laws regarding toxics disclosure, lead paint hazards, and other environmental issues. More recently, Alice has been working as a community activist in Redwood City fighting the massive Cargill/DMB Saltworks development. She is also active with Redwood City public schools and local education issues. Alice’s relationship with CGF began in 2009, when she contributed CEQA comments on behalf of CGF in opposition to a development on the San Mateo County coast. She then joined CGF’s Board of Directors and is now on staff as a Legislative Advocate.

America's first environmental president long preceded Teddy Roosevelt

Found this interesting historical piece, a speech by our fourth president, James Madion:

But although no determinate limit presents itself. to the increase of food, and to a population commensurate with it, other than the limited productiveness of the earth itself, we can scarcely be warranted in supposing that all the productive powers of its surface can be made subservient to the use of man, in exclusion of all the plants and animals not entering into his stock of subsistence; that all the elements and combinations of elements in the earth, the atmosphere, and the water, which now support such various and such numerous descriptions of created beings, animate and inanimate, could be withdrawn from that general destination, and appropriated to the exclusive support and increase of the human part of the creation; so that the whole habitable earth should be as full of people as the spots most crowded now are or might be made, and as destitute as those spots of the plants and animals not used by man. 

The supposition cannot well be reconciled with that symmetry in the face of nature, which derives new beauty from every insight that can be gained into it. 

A nice description of ecosystem services, as well as a statement of value.

According to the link, the speech caught on at the time but was gradually forgotten.  Maybe some version of the idea went on to influence Thoreau and the incubating environmental movement.

-Brian

Unmanned drones - a tool for environmental groups?

There has been some possibly-deserved concern about unmanned drone use inside the US, due to civil liberties concerns:

Excitement over America’s use of drones in multiple Muslim countries is, predictably, causing those weapons to be imported onto U.S. soil. Federal law enforcement agencies and local police forces are buying more and more of them and putting them to increasingly diverse domestic uses, as well as patrolling the border, and even private corporations are now considering how to use them. One U.S. drone manufacturer advertises its product as ideal for “urban monitoring.” Orlando’s police departmentoriginally requested two drones to use for security at next year’s GOP convention, only to change their minds for budgetary reasons.

....the use of drones for domestic surveillance raises all sorts of extremely serious privacy concerns and other issues of potential abuse. 

We have to acknowledge these concerns, but at the same time, there could be beneficial uses by environmentalists.  Many environmental violations are hidden on private property or on inaccessible portions of public property.  Remote-controlled aircraft with cameras could help resolve those problems.  For example, a radio-controlled helicopter with a video camera, with 8 minutes of flying time, costing less $100.  This is an approach that environmentalists might want to consider, especially as their capabilities get better.

-Brian

Our new partner in the fight for San Francisco Bay

CGF has a new partner in the fight against the "Saltworks" project -- the proposed city-size development on Cargill's Redwood City salt ponds. A new grassroots community group, called Redwood City Neighbors United (RCNU), has been founded by a group of Redwood City residents, including Alice Kaufman, CGF's new Legislative Advocate, and Nancy Arbuckle, one of CGF's Board members. The group is dedicated to fighting the proposed Saltworks project and promoting responsible growth in Redwood City.

Why this is important

Cargill and its partner, Arizona luxury housing developer DMB Associates, want to build a massive development of 12,000 housing units and 1 million square feet of commercial/retail on the salt ponds between Woodside Road and Marsh Road in Redwood City. This would mean 30,000 more residents -- the size of the population of Foster City -- living behind a massive flood levee and adding to the already-heavy traffic on 101. No bayfill project this huge has been proposed since the 1960's. These salt ponds are former wetlands that were intended to be included in the Don Edwards National Wildlife Refuge, and they can still be restored to wetlands if Cargill is not allowed to fill and pave them for this development. An estimated 90% of the Bay's wetlands have already been diked or filled in for development, and scientists tell us that we need at least 100,000 acres of wetlands for the Bay to thrive.

What's happening

Cargill and DMB have submitted a project application for their proposed "Saltworks" project to the Redwood City City Council, and a Notice of Preparation under CEQA has been prepared. Over 900 pages of comments in response to the NOP were received, expessing the concerns of Redwood City residents, environmental groups, labor unions, the governments of nearby cities, local businesses, and other concerned parties. Most recently, in early November, DMB announced that due to the high volume of comments received, they would not be issuing a revised project description by the end of 2011 as previously promised, but instead will be delaying the process for an indefinite period of time.

What you can do

We need to keep our opposition to the Saltworks project as strong as ever, in spite of DMB's delays. Please keep in touch with both CGF and RCNU (you can visit RCNU's website at www.rcnu.org) to learn the latest developments on this misguided and irresponsible project.

Thank you!

CGF corrects discussion of its No on E position

(Palo Alto Weekly published this letter from CGF correcting the discussion of the No on E position taken by CGF's Board of Directors.  Where the last line says "Committee for Green Foothills Board of Directors", the Weekly failed to include the words from the letter that started with "On behalf of Committee for Green Foothills Board of Directors".  -Brian)

Editor,

It's unfortunate that the Palo Alto Weekly failed to consult with Committee for Green Foothills before incorrectly characterizing the CGF Board's position, among others, as stating that "parkland should never be repurposed." The CGF Board's statement and supporting material specifically recognizes the need to balance competing environmental interests and makes clear that it examines the issues on a case-by-case basis. In this case, the majority of greenhouse-gas emission reductions that would be done at a loss of parklands can instead be done by a smaller operation at the Water Quality Control Plant with no loss of parkland that has been promised to voters for forty years. Committee for Green Foothills' Board did not make a knee-jerk decision but rather a thoughtful one to support both action to fight climate change and to protect our local parkland and natural open space, by encouraging a no vote on Measure E.

Brian Schmidt

Committee for Green Foothills Board of Directors  (CGF note:  Weekly failed to include the words "on behalf of" here)

East Bayshore Road

Palo Alto

Major step forward in San Jose (and a minor step back)

Yesterday, San Jose approved the General Plan that the City and we (together with other environmental groups) had been working on for years.

Good coverage in the Mercury News:

About two dozen speakers addressed the council on the Envision 2040 goals that include: adding as many as 470,000 new jobs and 120,000 new housing units; encouraging growth in North San Jose, North Coyote Valley, Evergreen and Edenvale, among other areas; building a high-density mix of housing, office and retail near transit corridors and commercial centers; creating "urban villages" designed as central places where people live, work and shop; and increasing the number of trails and bike paths, and protecting urban reserves in mid-Coyote Valley and South Almaden Valley.

We can't really emphasize enough how important and groundbreaking it is to have put Mid-Coyote and South Almaden off limits to development for the next 30 years.  For the last 40 years the San Jose General Plans have done their best to destroy those rural landscapes and wildlife corridors, so this represents a significant contraction in the overreach of the past, and a first step in acknowledging a Silicon Archipelago of vibrant cities and protected land.

So that's the very good news, along with other issues like transit oriented development that will reduce incentives for sprawl, and increased stream protection.  On the bad side, they did little to help protect North Coyote Valley, and with the exception of Councilmember Ash Kalra, refused to protect hillsides from inappropriate golf courses and cemeteries.  And the environmental review was completely inadequate, missing the additional opportunities given by environmental review to protect against environmental impacts.  CGF stated our position at the meeting:

And finally, an excellent column by Scott Herhold outlined a major next step that we're still working on:

End the system that allows developers to pick their own environmental consultants. San Jose is virtually alone among major Bay Area cities in allowing developers to pick their own environmental consultants. The conflict is inescapable. A consultant who craves more business from the same developer might view traffic numbers, say, in a way that favors the project.
Other cities do it better. In some cases, the city staff members pick the consultant and then bill the developer. In other cities, like San Francisco, the developer picks from a group of consultants: The city then pays and bills the developer.
The bottom line? A Thousand Wishes helps. A little steel would help more. Envision that.

-Brian

CGF Joint letter on protecting San Jose hillsides from sprawl

(CGF sent the letter below with other organizations on using the Draft General Plan to protect San Jose hillsides from sprawl.  We also sent a clarification that the support from city staff referred to staff's original March 21, 2011 position, and that staff's later positions have varied.  -Brian)

October 25, 2011  

San Jose City Hall

200 E Santa Clara Street

San Jose, CA 95112

To:  Honorable Mayor Reed and San Jose City Council,

We strongly support Open Hillside (Plan Option #1) as recommended by the Planning Staff and members of the Envision San José 2040 General Plan Task Force to modify Policy Goal LU-19 and add further restrictions on the allowable development intensity for lands with Open Hillside designation, keeping the proposed limitation of 10% of developable land.

We respect and support the hard work of the Staff and Envision San José 2040 General Plan Task Force over the past four years for transit oriented development which ties into AB32, SB375 and San José’s Green Vision Plan (GVP). The plan has strong goals for economic growth, environmental stewardship, and enhanced quality of life for San José residents by putting emphasis on infill development. The prioritization of jobs and housing within the Urban Group Boundary (UGB) and on transit corridors begins to correct past errors in land use policy. The General Plan update integrates San José’s GVP which includes metrics for water conservation and adopting a general plan with Measurable Standards for Sustainable Development. Staff’s comprehensive evaluation for Plan Option #1 reinforces the GVP and most importantly development of urban villages with transit oriented blend.

The Envision 2040 Task Force unanimously voted and approved the draft General Plan on Monday, September 12, 2011. Staff and the Envision 2040 Task Force requested that the Planning Commission and City Council consider five other options to the 2040 Plan Update as Task Force members were split on the Open Hillside land use policy. The Planning Commission met on Wednesday, September 29, 2011 and did not support Plan Option #1,


with one dissenting vote from the Chair, Hope Cahan.

Chair Cahan expressed concerns regarding environmental impacts on water issues. The discussion was limited and did not connect the Envision 2040 policies/goals or linkages to performance metrics in GVP for water conservation (Goal #6), open space or quality of life amenities.  Development outside of the UGB conflicts with water goals from the GVP and with water conservation goals in the Draft Plan under MS-3 which includes a metric for reducing city wide per capita water consumption by 25% by 2050 utilizing a baseline from the 2010 Urban Water Management Plans of water retailers. Water sustainability is a major concern not only for San José residents and businesses but also for the State of California. Staff’s analysis and recommendation to prohibit new development in the UGB should be supported.

LU19.6 recommends not providing urban services to new development outside of UGB. We agree that adding any type of development with the exception of agriculture outside of the UGB will overload already stressed police and fire departments, add financial burdens for capital investment from taxpayers and compete for existing public infrastructure funding for roads and maintenance as well as increase the water demands. Furthermore, it will not meet San José’s goal of creating vibrant, walkable communities with reduced greenhouse gas emissions and reduced traffic.

We support the recommendations in LU19.8, which limits environmental impact in the UGB. Adding new development outside of the city’s boundaries conflicts with many policy and goals in the plan. Below is a partial list of policies and goals that conflict with development outside the UGB:

Goal LU-17- Hillside/Rural Preservation.
Preserve the valuable natural resources of the hillsides, and protect their aesthetic
and habitat amenities to enhance the rural character of these areas.

Policies – Responsible Management of Water Supply. 
MS-17.2 Ensure that development within San José is planned and built in a manner consistent with fiscally and environmentally sustainable use of current and future water supplies by encouraging sustainable development practices, including low-impact development, water-efficient development and green building techniques. Support the location of new development within the vicinity of the recycled water system and promote expansion of the SBWR system to areas planned for new development. Residential development outside of the Urban Service Area can be approved only at minimal levels and only allowed to use non-recycled water at urban intensities. For residential development outside of the Urban Service Area, restrict water usage to well water, rainwater collection, or other similar environmentally sustainable practice. Nonresidential development may use the same sources and potentially make use of recycled water, provided that its use will not result in conflicts with other General Plan policies, including geologic or habitat impacts. To maximize the efficient and environmentally beneficial use of water outside of the Urban Service Area, limit water consumption for new development so that it does not diminish the water supply available for projected development within San José’s urbanized areas.

Goal MS-18 – Water Conservation.  Continuously improve water conservation
efforts in order to achieve best in class performance. Double the City’s annual water conservation savings by 2040 and achieve half of the Water District’s goal for Santa Clara County on an annual basis.

Policies – Water Conservation. MS-18.2 Require new development outside of the City’s Urban Service Area to incorporate measures to minimize water consumption.

Goal ER-1 – Grassland, Oak Woodlands, Chaparral and Coastal Scrub.
Preserve, protect and restore the ecological integrity and scenic characteristics of grasslands, oak woodlands, chaparral and coastal scrub in hillside areas.

Goal ER-6 – Urban Natural Interface. Minimize adverse effects of urbanization
on natural lands surrounding the City’s developed areas.

Goal EC-4 – Geologic and Soil Hazards. Minimize the risk of injury, loss of life,
and property damage from soil and slope instability including landslides, differential settlement, and accelerated erosion.

Goal PR-1 – High Quality Facilities and Programs. Provide park lands, trails, open space, recreation amenities, and programs, nationally recognized for their excellence, which enhance the livability of the urban and suburban environments; preserve significant natural, historic, scenic and other open space resources; and meet the parks and recreation services needs of San José’s residents, workers, and visitors.

Goal PR-3 – Provide an Equitable Park System. Create a balanced park system that provides all residents access to parks, trails, open space, community centers, dog parks, skate parks, aquatics facilities, sports fields, community gardens, and other amenities.

Thank you for your continued efforts and leadership as indicated for your creative support for the Three Creek Trails project. We implore you to consider and restrict Open Hillside Development outside of UGB, and not develop them before 2040.  Please continue to focus development inside the urban growth boundary, positioning San José as a place for present and future generations to live, work and enjoy. 

Respectfully submitted,

Sierra Club Loma Prieta Chapter, San José Cool Cities, Committee for Green Foothills, Greenbelt Alliance, San José State Students and Alumni, David Marsland (District 1), Former Co-Chair San José Cool Cities, Susan Marsland (District 1) Helen Chapman (District 6), Megan  Fluke (District 7), and Jessica Gonzales (District 8)

Victory for Mountain View Open Space in Cuesta Annex

Nice article in the Mountain View Voice:  a proposal to move a historic building to Cuesta Annex, a rare, undeveloped open space area that is not along the Bay and the foothills, has ended.  We have no problem with the history museum or historic preservation, but don't want the Cuesta Annex damaged.  The article cites the letter we wrote:

Following a City Council decision made behind closed doors on Tuesday, the future hangs in the balance for a 130-year-old house and the city's proposed history museum. 

City Council members say they voted 4-2 against a proposal to add a restored 1880s home to plans for a Mountain View history museum in the Cuesta Annex. Mayor Jac Siegel recused himself because he owns property nearby. 

....

But council members say they received more comments opposing the museum than supporting it because its footprint intrudes on the unstructured open space at the Cuesta Annex -- and the Pearson House could potentially increase that footprint by 10,000 feet. Those comments include a letter sent to the council on Tuesday, Oct. 19, from the Audubon Society and the Committee for Green Foothills, which said the Annex is Mountain View's "one uniquely free area for children to roam in the dirt and the bugs and the birds," adding that "Cuesta Park is a far better location" as only developed parkland would be lost.

"I did not hear from the community that they wanted this house there," said council member Laura Macias, explaining her vote against the proposal in the closed session meeting. 
Macias said she hoped the house could be moved to Shoreline Park where it could sit near the Rengstorff House. "We have this developer willing to refurbish it. It is important to see where our momentum is and continue that."

For more info on our letter, click here.

San Jose supports finalizing County Habitat Plan

San Jose voted unanimously to expend $100,000 for their share of finalizing the County Habitat Plan.  Mayor Reed mentioned significant improvements and benefits in the Plan.  I also spoke at the meeting:



I was in the meeting for quite a long time, so unlike other times I wrote out my speaking notes in detail beforehand.  I still had time, so I ran through them and realized they were too long.  Below, for what it's worth, is the notes for what I said and also the notes for what I wanted to say at somewhat greater length:

Short version:

We support the staff recs bc hab plan buys both environmental mitigation and environmental enhancement in bulk wholesale amounts.

A significant improvement in the draft Habitat Plan is that it has been changed to reflect the policies in San Jose’s draft General Plan proposed by its Task Force.  The changes assume that both South Almaden Valley and mid-Coyote Valley will remain mostly undeveloped, significantly reducing the habitat mitigation costs in the Habitat Plan.

But there’s another part of the Draft General Plan that needs further incorporation in the Habitat Plan.

ER-7.5 Support the on-going identification and protection of critical linkages for wildlife movement in the Mid-Coyote Valley. 

Nothing in the Habitat Plan has been changed to reflect this important new component of the City’s Draft General Plan

I believe that staff think it is as of yet unclear what this new Draft General Plan policy will mean for San Jose.  One thing I believe you can do that can be helpful is to communicate to staff that you believe this General Plan policy recommended to you by your Task Force is one that you support, and that the Habitat Plan should identify opportunities to protect wildlife movement in mid-Coyote Valley, especially because there are opportunities for outside funding that will not cost San Jose a dime while still helping to promote a San Jose policy.

These type of technical issues and improvements can still occur with little financial effects over the next few months, and we look forward to working staff and the City Council

Long version:

We support the staff recs bc hab plan buys both environmental mitigation and environmental enhancement in bulk wholesale amounts.  Not doing the plan doesn’t mean these costs go away, it simply means that you buy the mitigation and enhancement on a piecemeal basis for retail costs.  This appears to explain the difference between on the one hand, businesses like the two largest developers in Gilroy who strongly support the Habitat Plan, and on the other hand, other business groups with little economic interests one way or another who instead are motivated based on their ideology.

While we have some concerns about the changes in the Habitat Plan in recent months, we want to acknowledge some significant improvements.  For example, the draft Habitat Plan has been changed to reflect the policies in San Jose’s draft General Plan proposed by its Envision 2040 Task Force, with everyone acknowledging this is pending the final decisionmaking by the City Council.  The changes assume that both South Almaden Valley and mid-Coyote Valley will remain mostly undeveloped, significantly reducing the habitat mitigation costs in the Habitat Plan.

There’s another part of the Draft General Plan that needs further incorporation in the Habitat Plan.

ER-7.5 Support the on-going identification and protection of critical linkages for wildlife movement in the Mid-Coyote Valley. 

Nothing in the Habitat Plan has been changed to reflect this important new component of the City’s Draft General Plan

I believe that staff think it is as of yet unclear what this new Draft General Plan policy will mean for San Jose.  One thing I believe you can do that can be helpful is to communicate to staff that you believe this General Plan policy recommended to you by your Task Force is one that you support, and that the Habitat Plan should identify opportunities to protect wildlife movement in mid-Coyote Valley, especially because there are opportunities for outside funding that will not cost San Jose a dime while still helping to promote a San Jose policy.

These type of technical issues and improvements can still occur with little financial effects over the next few months, and we look forward to working staff and the City Council

Letter to Mountain View City Council on History Museum at Cuesta Annex

(CGF sent the letter below to Mountain View City Council.  -Brian)

October 18, 2011

Mountain View City Council

            Re:  Please preserve the living history of Cuesta Annex by locating the History Museum at a different site

Dear Mayor Siegel and City Councilmembers;

The Committee for Green Foothills and Santa Clara Valley Audubon Society do not oppose the proposed Mountain View History Museum, but its location should not be on and should not obliterate a significant portion of Cuesta Annex, for both historical and open space reasons.  As organizations dedicated to protecting undeveloped open space – natural habitats and agriculture -  we are acutely aware of the loss of both kinds of habitats here in the Valley of Heart's Delight, replaced nearly entirely with developed buildings and to some extent with developed turf parklands

As both remnants of a historical orchard that could be restored and natural open space that often interspersed with Mountain View farmlands of just two generations ago, Cuesta annex’s undeveloped, turf-free, natural flat land open space that is inland and not along the Bay is truly execptional.  The City currently has the option of bringing back some of the historical orchards that were present at the site, and it can augment and support the natural habitat that is present.  It can even choose to continue allowing in this one place in Mountain View the most ancient of historical practices – tens of thousands of years of children being allowed to wander around at will and dig in the dirt.

Please put the History Museum somewhere else.  Even right next to Cuesta Annex in Cuesta Park is a far better location, with far more acres of turf than natural open space, or elsewhere here in Mountain View than has many turf parks and only one uniquely free area for children to roam in the dirt and the bugs and the birds.  And while the museum should not be located at Cuesta Annex, if it is located there then it should occupy a minimized footprint and public monies should not be used to subsidize or accelerate this proposal to take away part the public’s annex.

Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt, Committee for Green Foothills

Legislative Advocate, Santa Clara County

Shani Kleinhaus, Santa Clara Valley Audubon Society

Environmental Advocate


UPDATE:  Our letter was published in Mountain View Patch.

We have proof that lions can cross Highway 101

There's strong reason to believe that Coyote Valley forms a crucial wildlife link between the Santa Cruz Mountains of the Peninsula, and the Mount Hamilton Range in east Santa Clara County that provides a wildlife connection to the rest of the state.  However huge the area of the Santa Cruz Mountains might be, they're too small for rare or wide-ranging animals like mountain lions and badgers to survive if isolated.

Some people disagree that Coyote Valley is still a functional wildlife corridor.  Strangely, that doesn't imply to them the necessity of improving Coyote Valley's usefulness for wildlife but rather that we should ignore its wildlife linkage value.

They use Highway 101 as insurmountable barrier - lions can't get across it, they say, so there's no point in preserving the rest of Coyote Valley so that lions and badgers can make it the rest of the way.

Except we have proof that one lion made it across, and this lion is actually exceptionally slow and clumsy compared to the average mountain lion:

Sea lion rescued after crossing Highway 101 in Burlingame

Sluglike, the beast lumbered across Highway 101, vaulting the median barrier, coming to rest on the shoulder of the Broadway exit, dazed and confused and now eight wide traffic lanes away from the bay it apparently emerged from early Saturday. 

Not a good place for a sea lion. 

Burlingame police got the call shortly before 7 a.m.

Fast Lane Freddy or Bayshore Betty -- take your choice, since the marine mammal's sex remains undetermined -- had somehow scooted up and across the freeway, a beautiful 150-pound blob of Zalophus californianus, now sitting in eucalyptus leaves, wondering to him/herself: "What the heck did I just do?'' 

"We got between a half-dozen and a dozen calls from motorists saying 'A sea lion just crossed 101!' " said Burlingame police Cpl. Laura Terada. "By the time we got there, he was heading down the ramp actually exiting into Burlingame. Then he sat on a tree stump, just chillin'."

If a sea lion can slowly bounce its way across Highway 101, then it seems like a mountain lion can do the same thing much more easily.

-Brian

Committee for Green Foothills Urges Palo Alto to Vote No on Measure E, has a better plan for climate change and open space

Statement of the CGF's Board of Directors:

Committee for Green Foothills Board of Directors urges a no vote on Palo Alto’s Measure E.

The Board of Directors of the Committee for Green Foothills (CGF) recognizes that its mission of protecting the open space and natural resources in San Mateo and Santa Clara Counties may on occasion require balancing competing valid environmental interests. In the case of Measure E in Palo Alto, we find that the un-dedication of parkland for potential gains on greenhouse gas emissions, based in part on unproven composting techniques, and with no guaranty provided that the loss of the open space would be mitigated by other open space, or that a dedicated funding source for restoration of Byxbee Park would be created, is not a trade-off that the Board believes is consistent with its mission. We support replacing the sewage treatment plant incinerator with a composting operation at the RWQCP because this would reduce the vast majority of greenhouse gas emissions promised by Measure E proponents, without unnecessarily compromising open space. Therefore, CGF goes on record opposing Measure E. 





UPDATE:  CGF also emailed this explanatory statement to Measure E advocates and opponents:

CGF's Board of Directors thanks the supporters and opponents of Measure E for the information and assistance in developing its opinion, and acknowledges the reasonable arguments, good intentions, and strong environmental interests on both sides.  After over an hour of discussion, and while agreeing with Measure E supporters that climate change is an open space issue with open space impacts, the Board unanimously voted that it opposes Measure E as unnecessarily impacting open space.  Instead of passing Measure E, CGF suggests a compromise with people primarily concerned with climate change, that we all work together to replace the sewage plant incinerator with a composting operation at the plant instead of at Byxbee, and that we also work together to get the funding to renovate Byxbee.  If Measure E fails, this is a way that both sides can work together.  The Board also noted its appreciation of Measure E supporters stating that they want a "no net loss" of parkland, so if Measure E passes, this is also something we could work together on in the future.

Center for Biological Diversity warns San Jose and Santa Clara County not to walk away from Habitat Plan

(Below is a letter from the Center for Biological Diversity warning San Jose and Santa Clara that withdrawing/suspending their participation in the Habitat Plan could result in immediate legal vulnerabilities.  It's the same issue I warn about in the video above.  -Brian)



August 29, 2011

Santa Clara County Board of Supervisors
County Government Center
Tenth Floor - East Wing
70 West Hedding Street
San Jose, CA 95110

San Jose City Council
200 E. Santa Clara Street
San Jose, CA 95113

Re: Santa Clara Valley Habitat Conservation Plan

The Center for Biological Diversity has learned that Santa Clara County and the City of San Jose
considering withdrawing from participation in the proposed Santa Clara Valley Habitat
Conservation Plan (“HCP”). While the HCP is a voluntary process, the end result is issuance of
incidental take permits pursuant to the Endangered Species Act that allow for lawful
development, growth and maintenance activities that comply with the Endangered Species Act
by adhering to the plan and providing guaranteed conservation measures for endangered and
threatened species.

Santa Clara County and the City of San Jose have indicated that their agencies can still continue
development, growth and maintenance activities on a legal basis without participation in the
HCP. This is incorrect – the County and City cannot lawfully continue projects or policies that
adversely impacted wildlife species or their habitat protected under the Endangered Species Act,
without a lawful incidental take permit. The County and City are currently permitting, funding,
conducting and authorizing activities and projects that adversely affect listed species in violation
of the Endangered Species Act.

The draft HCP prepared by the County and City acknowledges ongoing impacts of such
activities on listed species, and applies for incidental take coverage for these activities for a wide
range of protected species. Given this admission regarding the take of listed species, the County
and City cannot legally continue to permit, fund, conduct or authorize activities that cause these
impacts while walking away from the HCP and refusing to address ongoing Endangered Species
Act violations through a legally adequate, approved HCP and Incidental Take Permit.

We are particularly concerned about ongoing adverse impacts from City and County activities to
listed species that depend on serpentine soil habitat, such as Bay checkerspot butterfly, Tiburon
Indian paintbrush, coyote ceanothus, Santa Clara Valley dudleya, and Metcalf Canyon
jewelflower. The draft HCP acknowledges that nitrogen deposition in Santa Clara County
threatens serpentine grasslands that support numerous listed species, including the threatened
Bay checkerspot butterfly. Emissions from vehicles and other industrial and nonindustrial
sources increase airborne nitrogen, of which a certain amount is converted into forms that can
fall to earth as depositional nitrogen. It has been shown that increased nitrogen in serpentine soils
can favor the growth of nonnative annual grasses over native serpentine species. These nonnative
species, if left unmanaged, can overtake the native serpentine species.

The draft HCP also acknowledges impacts of nitrogen deposition on non-serpentine habitat by
resulting in the displacement of native forbs in over 300,000 acres, or 60% of the study area. The
vast majority of the area considered in the HCP, especially the highly-vulnerable serpentine soil
habitats, is subject to current impacts from activities permitted, funded or authorized by the
County and City that result in harmful nitrogen deposition. While some emissions come from
other areas, the draft HCP acknowledges that a substantial portion originates from within the
study area. While even minor impacts to listed species may constitute violations of the
Endangered Species Act, the City of San Jose's contribution alone is significant, and Santa Clara
County as a whole consumes power, generates traffic, and makes land use decisions that also
increase nitrogen deposition.

Section 9 of the ESA specifically prohibits the “take” of a listed species, 16 U.S.C. §
1538(a)(1)(B), a term broadly defined to include harassing, harming, pursuing, wounding or
killing such species, 16 U.S.C. § 1532(19). The term “harm” is further defined to include
“significant habitat modification or degradation where it . . . injures wildlife by significantly
impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 C.F.R.
§17.3 “Harass” includes any “act or omission which creates the likelihood of injury to wildlife
by annoying it to such and extent as to significantly disrupt normal behavior patterns which
include, but are not limited to, breeding, feeding, or sheltering.” Id. The ESA’s legislative
history supports “the broadest possible” reading of “take.” Babbitt v. Sweet Home Chapter of
Communities for a Great Oregon, 515 U.S. 687, 704-05 (1995). The take prohibition applies to
any “person,” 16 U.S.C. § 1538(a)(1), state agencies, cities, and counties, 16 U.S.C. § 1532(13).
The ESA further makes it unlawful for any person to “cause to be committed” the take of a
species. 16 U.S.C. § 1538(g). Violations of Section 9 are enforceable under the ESA’s citizensuit
provision. 16 U.S.C. § 1540(g).

Courts have repeatedly held that government regulations authorizing third parties to engage in
harmful actions can constitute an illegal taking under Section 9 of the ESA. See Strahan v. Coxe,
127 F.3d 155, 158, 163-64 (1st Cir.1997), cert. denied, 525 U.S. 830 (1998) (state agency caused
takings of the endangered right whale because it "licensed commercial fishing operations to use
gillnets and lobster pots in specifically the manner that is likely to result in violation of [the
ESA]"); Defenders of Wildlife v. Administrator, Envtl. Protection Agency, 882 F.2d 1294, 1300-
01 (8th Cir.1989) (federal agency caused takes of the endangered black-footed ferret through its
“decision to register pesticides” even though other persons actually distributed or used the
pesticides); Loggerhead Turtle v. City Council of Volusia County, 148 F.3d 1231, 1253 (11th
Cir. 1998) (county’s inadequate regulation of beachfront artificial light sources may constitute a
taking of turtles in violation of the ESA).

The Center submits this letter to encourage Santa Clara County and the City of San Jose to meet
their responsibilities. There are currently impacts on endangered species caused by activities
permitted, funded, conducted or authorized by the County and City – this is not just a matter of
future permits. Failing to obtain legal authorization for take of listed species opens the agencies
to liability from enforcement actions by federal agencies and environmental organizations, which
have standing to enforce the Endangered Species Act to protect listed species and their habitat.
Participation in the Santa Clara Valley HCP is a common-sense process to bring the agencies
into compliance with the Endangered Species Act while allowing well-planned development,
growth and maintenance activities to go forward and at the same time provide for the
conservation and recovery of the Santa Clara Valley’s unique endangered species.

Sincerely,
Jeff Miller
Conservation Advocate

Two minutes, three points, three successes

It's hard to figure out how many points you can get across in the very limited time for public comment at various agency meetings.  In the case of Monday's San Jose Task Force meeting to revise its General Plan, they gave us two minutes.  I decided to make two points and get in a third if there was time.

In my first point, I showed where changes to the Draft General Plan contradicted a policy that "grandfathered", now-unpermitted uses should be gradually phased out, and suggested alternative language to use.

In my second point, I argued an evenly-split vote at the Task Force over whether to allow environmentally-destructive golf courses on hillsides was not fairly reflected in the revisions to be sent to the City Council, and suggested exactly how to make sure the pro-environment side was represented.

I then checked my watch - thirty seconds left.  I hurriedly added that the Plan's call for massive tree planting in the city, the "Community Forest," should recommend that the tree types planted be compatible with recycled water.  Water-hungry trees that aren't native to San Jose, like redwoods, also can't stand the slightly elevated salt levels in recycled water that are no problem for our native oaks.  Recycled water diminishes our local environmental impacts, if we make sure our landscaping can use it.

Then I sat down, the public comment period ended.  The Task Force members started calling for their own changes, and they called out my suggestions and adopted all of them.

I'm always happy to get any of my suggestions adopted, but all three was fantastic.  That was a well-used two minutes.

-Brian

Guest post: A Riparian Exploration of San Jose

(Below is a guest post by CGF Intern Kelsey Grousbeck.  -Brian)

      We all know urban creeks don't get the best treatment. There are organizations and felons dedicated to cleaning the banks and there are messages above storm drains that caution people to think before they dump, but these measures cannot protect every stretch of creek habitat, especially in San Jose. My first week at the Committee for Green Foothills, I was sent on a task to photograph riparian setbacks at four different locations in San Jose. Technically, the setback for projects is supposed to be about 100 feet, but since there is no strict policy, the city offers exceptions for many projects. Julie and Brian wanted to see whether these projects were impacting the riparian areas around the creeks and whether they were adhering to their setback requirements.  Ideally, the photos I took could help make a case for a stricter setback policy.

So, one sunny morning, I arrived in San Jose, camera in hand, to explore some creeks. I have a notoriously terrible sense of direction, so besides my car GPS, I was armed with my iPhone, four different maps of the waterways of San Jose, and a list of properties that I needed to go to with detailed descriptions about their location. Of course, I still got lost. On top of it, I pictured these properties as located in more rural areas of San Jose and I figured I would need to trek to get to the creeks. It's amazing how many strange looks I got as I wandered through the streets of downtown San Jose in hiking boots, pants, and a wide brimmed hat with my Nalgene dangling off my bag, holding a large map of San Jose waterways in front of me.

Eventually, I did find the creeks they were looking for. One project had adhered very well to their setback requirement, and the creek looked beautiful. One of them did not have a development on it yet, but the condition of the creek (pictured above) was clearly poorer than desired. One would have required trespassing to get good photos, and one creek was right off the highway, but inaccessible from any angle other than pulling into the breakdown lane and running out of the car for a picture, causing some concerned motorists to also pull over and ask if I was okay. California is so nice.  Hopefully the photos I took will help our organization make a case to the City to include a stricter setback policy in San Jose's General Plan for 2040. Since a lot of our successful environmental protection comes in the form of policy revision, we have a chance to preserve significant tracts of land and waterways in San Jose for at least 30 years with the upcoming General Plan by preventing zoning for development in sensitive areas and including stricter building policies.

-Kelsey Grousbeck

Joint Organization letter on the San Jose General Plan

(CGF co-authored the letter below with a number of other environmental groups.  -Brian)

August 15, 2011

Mr. Andrew Crabtree, Envision Team Leader              

Planning, Building and Code Enforcement

San Jose City Hall

200 East Santa Clara Street

San Jose, CA 95113

Dear Mr. Crabtree,

On behalf of Greenbelt Alliance, the Loma-Prieta Chapter of the Sierra Club, San Jose Cool Cities, Silicon Valley Leadership Group, Committee for Green Foothills, Working Partnerships, USA, and The Health Trust, we are writing to thank the City of San Jose for this opportunity to comment on the Draft Program Environmental Impact Report (DEIR) for the Envision San Jose 2040 General Plan.

In many ways, this General Plan is a model that focuses on urban villages and corridors, infill development near transit, ambitious mode split targets and improved public health.

Our comments below reflect our desire to strengthen Envision 2040 even more and support San Jose on its path to becoming a more sustainable, equitable and healthier City.

Jobs-Housing Ratio

The environmental review acknowledges that significant environmental impacts result from the possibility of a Jobs to Employed Residents Ratio that exceeds 1:1 (see, e.g., Impact PH-1 and Impact TRANS-1, among others). The City has acknowledged that one reason for these impacts is not that it intends and prefers the highest possible J:ER ratio, but that it seeks to maximize the jobs capacity to increase the current J:ER ratio which is significantly below 1:1. 

Accordingly, our organizations jointly recommend an additional mitigation:  for purposes of avoiding environmental impacts or delaying environmental impacts, the City should require orderly development that prioritizes a J:ER ratio of 1:1 as long as housing is available to match job growth.  We recognize that ultimately job growth could exceed housing capacity, but this mitigation would at least postpone the impacts associated with the excess of jobs over housing, and postponing the impacts are feasible means of partially reducing their scale.

As a result of pursuing a J:ER ratio of 1.3:1, more people will be commuting into San Jose for work, exacerbating a regional housing problem. This combined with the fact that the DEIR shows a decrease in the percentage of jobs within walking distance of transit has a significant impact on Vehicle Miles Traveled (VMT).  

Additionally, San Jose proposes to expand vehicle capacity on a number of roadways which makes driving more convenient, inducing demand for more drivers on the road. This works directly against the City’s goals of reducing automobile emissions.

Our organizations jointly recommend mitigation that prioritizes transit friendly job development and thereby provides limits on development in areas that do not have transit. Such prioritization of development in transit friendly areas over areas that do not have transit yet have agricultural value, such as Coyote Valley, also functions as mitigation that reduces the impacts on open space and prime farmland by reducing the pressure for immediate development of those areas.

The Jobs to Employed Resident ratios in the environmental review, for the highest ratios at least, are not intended results so much as foreseeable impacts described in the document.  The environmental protections described in the document, by contrast, are expressly intended and planned.  We urge the City to reaffirm these environmental protections and we will work to assist and ensure that the City is able to fulfill its commitment to put these policies in place.

Housing

We applaud the plan for establishing social equity as a planning goal including promoting quality job opportunities and an equitable park system.  However, more can be done to support the plan’s guiding principle of social equity. 

The DEIR seems to treat lightly the potential for voluntary displacement as a result of new development at transit stations driving up prices. People will move further afield to places like Tracy in search of more affordable homes. This in turn forces people to commute back to the community in which they may work.  It is therefore critical that San Jose has strong affordable housing policies.  San Jose has an excellent record in building affordable homes and we recognize that the future is uncertain when it comes to building more homes affordable to a range of incomes.  That said, Envision 2040 is planning out to the year 2040 and the economy will go through many cycles. 

We jointly recommend that strong protections are in place to preserve the existing affordable housing stock in transit zones, which provides people with access to opportunity. We also recommend that as large planning projects move forward, such as Diridon Station, that the affordable housing requirements are met on site, including for rental affordable housing.

Transportation

Envision 2040 has very ambitious mode split goals, proposing that the percentage of trips made by bicycle will increase from 1.2% in 2008 to at least 15% in 2040 while the number of those driving alone will decrease from 78% to no more than 40%.  San Jose should be applauded for pursuing these goals. However, Table 3.2-14 on page 270 shows that with the proposed Envision 2040 General Plan policies, the percent mode share increase in bicycle trips is 1% for a total of 2% of all trips made by bike. This is evidence that stronger, more holistic balanced transportation policies are necessary. As such, we support policies that prioritize walking, cycling and riding transit.

Our organizations recommend pursuing more aggressive complete streets and parking policies as a way to achieve the commendable and ambitious mode split targets, including a 40% reduction in VMT. This includes expanding the Protected Intersections Policy to all Planned and Identified Growth Areas and reducing the number of streets slated for expansion. Also, we encourage the consideration of Parking Benefits Districts that establish performance pricing of street parking and then return the revenues to the neighborhood.

Public Health

We commend San Jose for its leadership in including community health as a major theme in the draft General Plan.  Recognizing the growing body of evidence showing the link between land use patterns and health outcomes, this plan lays out a strong commitment to promoting community health as San Jose grows over the next 30 years.  In particular, the Plan’s emphasis on improving access to healthy food in low-income neighborhoods and access to medical services is thoughtful and visionary and can serve as a model for other communities looking to address health challenges as they grow.

We appreciate Envision 2040’s support for the development of a Community Risk Reduction Plan that will reduce air pollution exposures in communities located near busy roadways and industrial sources and inclusion of specific health-protective mitigation measures for development in those areas.

The General Plan is an opportunity to build healthy, livable complete neighborhoods, communities that intentionally support the well-being of all ages, strengthen families and enable seniors to remain in their homes as they age with independence, dignity and the ability to remain engaged in their community. 

We support the village concept that is the cornerstone of the draft General Plan.  We strongly encourage the Task Force to include language in the General Plan that prioritizes development of village plans for low-income neighborhoods, oftentimes those with the greatest need for increased access to walkable communities, safe streets, physical activity opportunities, and healthy food. 

Additionally, we also support policies to review and revise diesel truck routes to minimize exposure of harmful diesel exhaust to sensitive receptors, including children and the elderly.

Open Space

For lands outside the Urban Growth Boundary (UGB), it is important that they remain as undeveloped open space. Lands outside the UGB play an important role as natural infrastructure, cleaning our air and water.

For non-agricultural uses, our organizations support minimal disturbance to lands located outside the UGB so as to preserve the rural nature of this greenbelt and to provide a viable wildlife corridor.

Conclusion

Overall, the Envision San Jose 2040 General Plan update has set exceptional economic, environmental, and social equity goals for the City of San Jose thanks to the hard work of dedicated task force members and city staff. We hope decision makers honor this hard work as they implement the General Plan over the next 10-20 years.

San Jose can be a better city tomorrow and the General Plan sets the framework to do so. Once the plan is passed, our organizations will support the City in its implementation. Thank you for the opportunity to make public comment.

Sincerely,

Michele Beasley                      

Senior Field Representative                  

Greenbelt Alliance                   

Charles Schafer

Chair, Executive Committee

Sierra Club Loma Prieta Chapter

Frederick J Ferrer, M.S.

Chief Executive Officer

The Health Trust

Shiloh Ballard                                                                          

Vice President, Housing & Community Development    

Silicon Valley Leadership Group                      

Brian Darrow

Associate Director of Land Use and Urban Policy

Working Partnerships, USA

Brian Schmidt                                                  

Legislative Advocate                                        

Committee for Green Foothills

Erica Stanojevic

San Jose Cool Cities