Lennie wins the Cox Conserves Hero’s Award!

(Below is a wonderful email we got to send out last week to folks signed up on our Action Alert list. -Brian)

Dear Friends!

We are so very delighted to announce CGF Advocate Lennie Roberts was awarded the Cox Conserves Hero’s Award today!!!

CGF is honored to have Lennie’s support, dedication, perseverance and generosity working on behalf of the open space, farmlands and natural resources of San Mateo County. All of us and the Bay Area itself would be a poorer place without her.

Without your support Lennie would not have been given this award. Thank you for your vote and for passing on the voting request to your friends and families.

Lennie, has generously donated the $5,000 winner’s check to CGF. Thank you, Lennie!

We have been told that clips of the award luncheon can be seen tonight on the Channel 2 10 o’clock news. Tune in!

Again, we thank you for all the ways you support CGF!

- The folks at Green Foothills

"Extinct" native plant rediscovered in San Francisco

While extinction is forever, rediscovery can be the one reprieve:

A San Francisco native plant thought extinct by botanists has been discovered near the Golden Gate Bridge.

The last, wild Franciscan Manzanita was believed to have perished in the 1940s when the city cemeteries where it grew were moved south to allow for neighborhood expansion.

But when construction crews recently cleared eucalyptus trees in the city's Presidio area, it exposed the only specimen known to exist in the wild.

While it appears that cultured varieties of the plant have been kept alive in nurseries, it's even better to have non-domesticated, wild individuals to re-establish the plant in its habitat.

Good news for the beginning of the week.

-Brian

Watch out for "farmwashing"

There's an interesting article in the Washington Post about restaurants that claim to be serving environmentally-protective, locally-grown food but aren't:

....with business models built on sustainable food, the hype can get ahead of the execution. Even when intentions are good, there are questions about whether it is possible for a high-volume restaurant to practice everything it preaches -- if it also wants to turn a profit and serve customers what they want. Small family farms don't have the quantity or consistency of huge national suppliers. They usually can't compete on price, even at the height of the growing season. And although diners say they want to "eat green," many would not be happy if they couldn't get tomatoes on their burgers in December.

The phrase "farm fresh was ruined in the American grocery store years ago. The American restaurant business is perfectly capable of ruining 'farm-to-table,' " said New York restaurant consultant Clark Wolf. "It's called 'farm wash.' And the other term is 'B.S.' "

We'll have to do our best to avoid farm-washing here. The role of the market in protecting the environment and promoting local agriculture is potentially huge, but this means avoiding pitfalls like the one discussed in the article.

-Brian

Action Alert: Midcoast LCP Update

Dear Friends,

The update of the Local Coastal Program (LCP) for the San Mateo Midcoast, which guides local implementation of the Coastal Act, is nearly completed at long last! After two delays requested by San Mateo County, the California Coastal Commission will consider whether to certify the LCP as consistent with the Coastal Act on Thursday, December 10, at their meeting in San Francisco.

This is an important time to speak up for protections for open space, protecting coastal resources, and maintaining the community character of the Midcoast communities of Montara, Moss Beach, El Granada, Miramar, and Princeton.

Why this is important
The LCP encourages sound land management and resource protection in the face of growing population pressures on the San Mateo County Coast. Strong LCP policies will help guide land use decisions that will ensure the livability and sustainability of our coastal communities.

What's happening
After two years of review and analysis, the staff of the Coastal Commission is recommending approval of the LCP Amendments for the Midcoast area with 72 suggested modifications to ensure that the LCP policies are consistent with the Coastal Act. The proposed modifications will ensure that the cumulative impacts of new development will not adversely impact coastal resources and/or public access to and along the shore.

Committee for Green Foothills strongly supports the Commission's staff recommendations including suggested modifications that would reduce the growth rate to 40 residential units per year, prohibit new private drinking water wells in areas served by public water agencies, require traffic mitigation plans for major new developments and retirement of lots for new land divisions, better protect the "Burnham Strip" open space in El Granada, and more effectively implement the transfer of the surplus Caltrans Devil's Slide Bypass lands to the county for a Linear Park and Trail.

CGF's letter, which includes more specific recommendations is below.

You can read the Coastal Commission's Staff Report, at: documents.coastal.ca.gov/reports/2009/12/Th18a-12-2009.pdf

What you can do
Please write a brief letter to the Coastal Commission and urge them to support the Staff Recommendation for Approval with Modifications. In the upper right hand corner, put Agenda Item TH18.a, and your name.

Letters need to be received by the end of Friday, December 4, in order to be included in the Commissioner's packet.

The Commission does not accept letters by email. Please fax your letter to:

Chair Bonnie Neely and Members
California Coastal Commission
45 Fremont Street, Suite 2000
San Francisco, CA 94105-2219

Fax: 415-904-5400

Now is an important time to speak up for protection of the Midcoast. Please let the Commissioners hear from you - your voice does make a difference!

- The Folks at Green Foothills

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November 28, 2009

Agenda Item TH18.a - Lennie Roberts
Bonnie Neely, Chair, and Members
California Coastal Commission
45 Fremont Street, Suite 2000
San Francisco, CA 94105-2219

Re: San Mateo County LCP Amendment No. SMC-MAJ-1-07
(Midcoast LCP Update)

Dear Chair Neely and Members of the Commission,

On behalf of Committee for Green Foothills (CGF), I write in support of the Staff Recommendation for Approval of the San Mateo County Midcoast LCP Update with suggested modifications.

The San Mateo County LCP was the first County LCP certified by the Coastal Commission (in 1981). The San Mateo County coastal zone is 55 miles long and up to five miles wide; most of the coastal zone is rural. The Midcoast area comprises a relatively small portion of the county’s coastal zone that shares critical infrastructure (roads, sewer, water, schools) with the City of Half Moon Bay.

There was a tremendous amount and intensity of work involved in drafting and certifying the LCP, which included both the Land Use Plan (LUP) policies and the Implementation Program (IP). Although the LCP, as certified, was a far-reaching and comprehensive document, CGF has long been concerned that significant gaps in LCP policies and data needed to be addressed through a comprehensive LCP Update.

In the urban Midcoast area, the cumulative impacts of new development in the City of Half Moon Bay as well as the unincorporated communities of El Granada, Princeton, Miramar, Moss Beach, and Montara have raised significant issues of adequacy of the infrastructure to serve buildout without adversely impacting coastal resources and/or public access to and along the shore.

CGF commends the collaborative effort by Commission and County staff in working to resolve most of the significant issues that have been at issue regarding the Update’s conformity with the Coastal Act.

Of the few remaining issues under discussion as of the 11/20/09 Staff Report, CGF has the following specific comments:

a. Annual Growth Rate: CGF supports the Coastal staff’s recommended growth rate limit of 40 (approximately 1%) residential units per year. The County Planning Commission also recommended this limit, and it is consistent with Half Moon Bay’s annual limit on residential units. Over the past five years an average of 38 residential units have been approved annually, and County Planning staff concedes that the limit of 40 residential units should not have a significant impact on the current rate of development. CGF does not support or understand the rationale for exceptions to the growth limit for Princeton caretaker units or for second units, as they also contribute to the infrastructure demand.
b. Private Drinking Water Wells and Septic Systems: CGF strongly supports the prohibition of new drinking water wells and septic systems in the urban midcoast area. Allowing private wells within the boundaries of public water agencies threatens the economic viability of the public agencies, and places an undue economic burden on their customers. Moreover, locating individual wells in an urban area in close proximity to sewer lines and old septic tanks increases the potential for contamination of these wells. The groundwater basins are very limited in this area of the coast. Already some wells have failed, and in drought cycles we can expect many more to fail. Similarly, it makes no sense to allow private septic systems within the boundaries of public wastewater treatment agencies, unless there are no public hookups available.
c. Public Works Capacities: The County’s certified LCP already requires new public works facilities to be phased with each other and to be sized so as to serve, but not exceed, the buildout allowed by the LCP. Coastal staff is recommending that for public works expansion projects aimed at solving existing deficiencies for existing development (i.e. to serve existing development on private wells or new infrastructure to solve the wet weather flow problem), other public works deficiencies do not need to be solved first. If the public works project were sized to accommodate estimated buildout, the permit for the project could be conditioned to allow the phasing of new sewer or water connections, for example. CGF supports this approach as being consistent with Sections 30250 and 30254 of the Coastal Act.
d. Prioritizing Service Capacities for Affordable Housing: Although affordable housing is not a Coastal Act priority land use, San Mateo County has made affordable housing a County LCP priority land use. To ensure the continued reservation of public works capacity for Coastal Act priority land uses, Coastal staff is proposing that a second tier of LCP priority uses, such as affordable housing, be reserved. CGF supports this approach.
e. Traffic/Transportation Mitigation: CGF supports the Coastal staff’s recommendation that new land divisions require merger or retirement of the same number of existing lots as new lots created by the land division. CGF could support an exception to the traffic mitigation for conditional COC’s that are necessary to legalize lots (per the Witt and Abernathy decisions) that are also conditioned to ensure consistency with current zoning and other applicable LCP requirements, inasmuch as these lots have already been accounted for in the certified LCP’s buildout numbers. The County has not yet adopted a traffic mitigation fee structure for new development in the urban midcaost, similar to Half Moon Bay’s. Such a traffic mitigation fee would help fund necessary traffic and safety improvements.
f. Rezoning of Bypass Lands: CGF supports the rezoning of the former Caltrans Right of Way for the Devil’s Slide Bypass as Linear Park and Trail as an important step to ensure that these lands will become a trail and park system that will provide public access and a scenic non-motorized transportation route. The issues of access to private property and/or areas needed by Caltrans for staging and maintenance purposes could be addressed by the zoning standards. Given all of the infrastructure and buildout issues discussed previously, particularly as those issues apply to the former Right of Way area, CGF does not understand or support the zoning of any portion of the Right of Way for housing purposes.

Thank you for consideration of our comments. We urge your approval of the LCP Amendment with the suggested modifications per staff.

Sincerely,


Lennie Roberts, Legislative Advocate
Committee for Green Foothills

Action Alert: Vote for Lennie!

Dear Friends,

As you know, Lennie Roberts has been nominated as a Cox Conserves Hero by Cox Enterprises, (the parent company of Channel 2), and The Trust for Public Land!

What's Happening
Five finalists have been nominated for the 2009 Cox Conserves Hero Award. With her work as a Conservation Hero beginning at age 12, Lennie Roberts is a model for grassroots action and a leader extraordinaire for the protection of our open spaces. They ask that the public vote online once for their favorite Everyday Hero. We hope that you will vote to honor her legacy of environmental protection. Click here to see Lennie's segment.Why it is Important
The Everyday Hero that receives the most votes will donate $5,000 to their favorite charity. Lennie has chosen Committee for Green Foothills! Please do take a moment to vote for Lennie Roberts. Please do forward this email to anyone that would be interested in supporting the work of CGF!

What you can do
Vote for Lennie Roberts! Ask your friends, neighborhood groups and professional associations to VOTE FOR LENNIE!

Support CGF with the click of a few keyboard keys!

Thank you for your ongoing and generous support of CGF!

- The folks at Green Foothills

Meeting the Distric 1 Supervisor Candidates

CGF has helped sponsor the South Valley Environmental Collaborative, a group that helps coordinate environmental activities in South Santa Clara County. Last Thursday we held an introduction to four of the five announced candidates for supervisor for District 1 of Santa Clara County, a district that covers over two-thirds of the county. (The fifth candidate couldn't make it.) A few pictures are below.

Early next year, we hope to hold a large public forum on environmental issues.

-Brian

Why County Parkland Shouldn't Be Considered Mitigation for County Road Impacts

Below is a video running through CGF's PowerPoint on the mistake that Santa Clara County is making by balancing the impacts of the County roads and airports with parkland acquired by through the Parks Charter Fund. A letter we wrote is here, and I'm happy to send the PowerPoint file to anyone who wants it.

-Brian

(Well, that didn't work. Will try again later.)

News Alert: Success in Gilroy and great progress in San Jose!

(CGF sent out the News Alert below about victories in Gilroy and San Jose. -Brian)

We've had great news in Gilroy and San Jose that we want to share with supporters.

All four sprawl proposals in Gilroy that we've been fighting have now been defeated or withdrawn! Since 2008, Committee for Green Foothills fought the proposals for over 1,000 acres of sprawl and inappropriate development that would move the City of Gilroy’s current boundaries outward.

We testified at hearings and sent several highly critical letters about the deficient environmental analysis. We were joined in this by other environmental organizations, local community organizations, and several government agencies that also wrote letters critical of the environmental documentation and the proposals themselves.

Two of the four proposals had already been withdrawn by the applicants when the issue finally reached the Gilroy City Council last week. On a 4-3 vote, Mayor Al Pinheiro and Council Members Peter Arrellano, Kat Tucker, and Perry Woodward voted against certifying the environmental documentation (EIRs) for the projects, which had the effect of killing the proposals. While we regret that it had not been a unanimous vote, Committee for Green Foothills salutes the City Council for making this sensible decision.

Turning to San Jose, the Envision 2040 Task Force has supported a strong policy for protecting streamside riparian corridors from inappropriate development and for closing loopholes in the current policy. For the first time after years of CGF efforts, the City of San Jose agreed to examine whether to continue the current practice of letting developers write the initial version of environmental documents that the City uses for examining streams.

Thank you for your support of CGF! Your support makes it possible for us to continue to be ever vigilant about land protection.

We will lobby Gilroy to develop a Climate Action Plan that will discourage sprawl proposals. We will track San Jose as it considers whether to remove developers' role in preparing the City's environmental documents, and encourage them to expand that change from stream issues to all environmental reviews.

We will continue to monitor the many issues throughout Santa Clara and San Mateo Counties.

We'll keep active and keep you informed.

- The folks at Committee for Green Foothills

Wrap-up: CGF comment letters on Gilroy sprawl applications

(Going through files I remembered two comment letters we wrote on the now-defeated Gilroy sprawl applications that hadn't been posted here. I'm adding them below. -Brian)

Committee for Green Foothills' continued opposition to all Gilroy Urban Service Area expansions

10/1/2009

Dear Planning Commission members,

I regret that a scheduling conflict prevents me from attending tonight's Planning Commission meeting, but I wish to reiterate in this letter the Committee for Green Foothills' continued opposition to the three USA proposals from Wren, Lucky Day, and Shapell. We believe these are unwise proposals that should not be considered until the City actually needs them - approvals now will just tie the hands of future Planning Commissions years down the road that will have a much better idea of what best fits the needs of the broader community.

Equally important, any approval of one or all of these projects right now would be a violation of CEQA for the reasons spelled out in the numerous, highly detailed and critical comment letters. The Shapell project in particular is in CEQA violation for similar reasons as the others, particularly climate impacts, and failed to prepare even as much as the inadequate DSEIR found with the other two projects.

We urge you to reject the projects, give a negative recommendation to the City Council, and preserve the opportunity for outward development, if the City needs it in the future, to be used only when necessary and according to a design that can be better determined at that time.

Please contact me with any questions.

Sincerely,

Brian Schmidt

-----------

October 19, 2009

Gilroy City Council

Dear Mayor Pinheiro and Councilmembers:

The Committee for Green Foothills opposes the Wren and Lucky Day USA Projects (Projects) that are to be considered at tonight's City Council meeting. The City of Gilroy cannot legally approve these projects due to violations of the California Environmental Quality Act, and we urge the Council to reject both projects due to the legal flaws and due to the projects' simply being bad for the City. (We understand the Shapell/Thomas proposal has been withdrawn, and we oppose it for identical reasons). Please note that the Committee retains all legal options to stop the projects if the City does approve them in violation of CEQA.

Climate change impacts dealt with inadequately.

As stated in previous letters and throughout the record for these Projects, the City's failure to establish a threshold of significance for climate change impacts and failure to determine whether impacts from the Projects are significant are violations of CEQA. Those violations remain unchanged in the FSEIR. In particular, the failure to acknowledge the impacts' significance means the City decision, if it approves the Projects, lacks the legally-required statement of overriding considerations and findings of infeasibility for alternatives or mitigations.

The FSEIR does contain a number of changes from the DSEIR that fail to mitigate climate change impacts or, even if they could change those impacts, constitute substantial new information that require recirculation of a revised DSEIR.

The changed Climate Change Program "mitigation" does not mitigate the Projects' impacts because neither the Projects nor subsequent development at the Projects are required to comply with the Climate Change Program. The Program as written also contains flaws that allow significant climate impacts:

• Timing. The requirement to "prepare" a Climate Action Plan within 36 months does not mean "adopt" the Plan with 36 months.

• Targets versus requirements. The Plan is to reference AB 32 levels for greenhouse gas emissions for its "targets," without saying those targets are mandatory requirements.

• Consistent versus not-to-exceed. The Plan will establish targets that are "consistent" with AB 32 but does not specify whether exceeding the targets by some percent could be consistent. The City may end up with a Plan that it might deem consistent with AB 32 while allowing excess emissions that could constitute significant impacts under CEQA.

The Greenhouse Gas Reduction Plan applicable to these Projects does not include mandatory requirements for compliance with AB 32 or any other proposed significance threshold under CEQA. Furthermore, and unlike the discussion of the Climate Change Program which said the Program "will include" the listed components, the Greenhouse Gas Reduction Plan "could include" the listed components, leaving open the possibility that any of the listed components could be excluded despite being feasible mitigations that might reduce the Projects' impacts. Eliminating all net increases in greenhouse gas emissions from the Projects is a mitigation that could have been applied here, but the failure to do so without findings of the mitigation's infeasibility violates CEQA.

Finally, the Greenhouse Gas Reduction Plan does not include any standard to eliminate climate change impacts from the Projects entirely, or even to reduce emissions by any measureable amount. While both the Climate Change Program and the Greenhouse Gas Reduction Plan are improvements over the status quo, as implemented here they do not eliminate the significant climate change impacts from the Projects.

The Committee stands by our other criticism of these Projects, and urges the City to reject them.

Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt

Legislative Advocate, Santa Clara County

Great news from Gilroy - last two remaining sprawl proposals defeated

(I just wanted to put a link to this Gilroy Dispatch article, and we'll add more later. -Brian)

Article:

Citing uncertainties over environmental reports, the council voted 4-3 - with Council members Dion Bracco, Bob Dillon and Craig Gartman dissenting - against two annexation requests that would eventually lead to residential development. Gillmor's Lucky Day Ranch application proposed the incorporation of 285 hilly acres straddling Burchell Road north of Hecker Pass Highway for up to 193 homes and 244 acres of open space and parks - just a sliver of the applicant's original proposal to annex 2,014 pristine acres stretching up to the Corde Valle Golf Course in San Martin. The council also rejected a separate application from Wren Investors to annex 48 acres near Christopher High School for up to 430 dwellings.

Environmentalists, rural residents and county representatives encouraged the rejections by arguing that at least 2,100 additional residents, about 4 percent of Gilroy, will tax the city's stressed school and emergency services. That many new residents could cost the county and Gilroy hundreds of thousands of dollars over a 10-year period, according to staff projections that considered property and sales tax revenues against city and county expenses on the hypothetical residents.

"We've just gone through a huge budget crisis and are looking to hire more police (officers) and (firefighters) just to catch up," Council member Peter Arellano said. "I'm not looking forward to trying to find another amount of money to catch up with these developments."

Opponents also stressed that Gilroy - which has exceeded its self-imposed growth limit - already has enough vacant land to develop 3,500 homes over the next 11 years, according to conservative city estimates. They also decried the projects' preliminary environmental reports as lacking carbon footprint analyses and avoiding scenarios based on an exact number of homes. Other residents had simpler concerns about the region's tranquility.

A short CGF interview

(Experimenting with our new video camera. I interviewed CGF Board Member, Tom Jordan -Brian.)

CGF at Morgan Hill City Council

Morgan Hill puts its City Council meetings online, so I wanted to point to two items where we were involved.

We announced our Nov. 7th event on the South Valley in Gilroy:

City of Morgan Hll City Council Meeting 10-7-2009 Part 1 from Larry Talbot on Vimeo.

(You need to let it buffer for a few minutes and then move to the 11:15 minute mark.)


Also, I summarized our concern about the proposed outward expansion of Morgan Hill into farmland:

City of Morgan Hll City Council Meeting 10-7-2009 Part 2 from Larry Talbot on Vimeo.

The item starts at minute 22, citizen comment at minute 33:30 with me first, then followed by Julie Hutcheson and Beth Wyman. The City Council made sympathetic noises about the concerns we raised, but unfortunately they then just did what staff recommended. We'll just have to follow the EIR process to make comments.

-Brian

Lunar impact, light pollution, and the sky above South San Francisco Bay

At 4 a.m. last night (this morning?), my friend Ted and I were on Skyline Drive in San Mateo County, finishing setting up a 12-inch telescope that we share. We were attempting to watch the explosion from the NASA LCROSS satellite hitting the moon, and like most observers, we didn't see an explosion. Still, we had some great views of the moon and the Orion Nebula, so it was still worth it.

We went up to Skyline to escape the fog blanketing lower areas, and we ended up having some of the best night skies I've seen in the area, because the fog blanked out most of the light pollution from down below.

It was a great reminder that one of our natural resources that Committee for Green Foothills seeks to protect is our dark skies and the ability to see the stars. When we fight the ridiculously light-polluting lamps spilling out from the Lehigh-Hanson quarry, that's just one example, and we're watching for other problems as well.

-Brian

CGF Comments on Palo Alto Foothills and maximum house size

(CGF sent the following letter to the Palo Alto Planning and Transportation Commission regarding maximum house size in the foothills. -Brian)


September 22, 2009

Palo Alto Planning and Transportation Commission

Dear Members of the Planning Commission;

Yesterday, the City Council directed the Planning Commission to provide the City with options on house size limits for the foothills open space areas. The motion as expressed by Mayor Drekmeier was clear – they are not asking whether size limits would be a good idea, but rather stated they want size limits and they want the Commission to provide them with options. The Committee for Green Foothills submits this letter to provide some initial ideas that we hope might be useful for the Commission.

Intent and reasons for house size limits.
The Council discussion indicated that they view house size limits as a workable proxy for limiting a myriad of environmental impacts. Visibility is only one of those impacts. Climate impacts are another. In previous testimony, we pointed out that total area of wildfire defensible space perimeters increase with the size of monster mansion sizes, thereby increasing the amount of habitat modification that becomes necessary. Other impacts – traffic, safety, construction and maintenance, and use of toxics also tend to be inversely correlated with house size.

In addition, monster mansions do not fit the generally-accepted understanding of what a single family residence is. No one could reasonably claim that Buckingham Palace is a single family residence for an older couple, despite the fact that an older couple does reside there. Buckingham is a staffed structure, and so are the large structures that are modern monster mansions. While an occasional residential nanny can be found in normal-sized homes, their use and presence is incidental to the residence. Massive monster mansions are taken care of by staff, and much more often by live-in staff as compared to normal-sized residences. In other words, these structures are of a size that they commonly involve a different use than single family residences, and therefore are appropriately excluded.

Components of house size limits.
Several factors should be included in house size limits.

The size limit should be for all structures on the property. Applying the limit to one residence while allowing unlimited construction of other buildings will create a loophole that frustrates the intent of size limits. The house size limit - or if one prefers, a "structural size limit" – should simply be an upper ceiling on development in addition to the existing Floor-Area Ratio.

Size limits should be generous and should allow an additional bonus for exceeding environmental requirements. Choosing a number always involves drawing a bright line within a grey area, but that is inevitable. We suggest a bonus of an additional 2,000 square feet for structures that substantially exceed environmental requirements (understanding that this does not remove other requirement like meeting floor-area ratios). We suggest the following maximum size limits without a bonus and with a bonus (assuming all other requirements are also met):

• Lots less than 10 acres: 4,600 square feet total house/structural size limit. The 2,000 foot bonus would then equal 6,600 feet, a very large structure that is 10% larger than the R1 size limit.

• Lots of 10 acres or more, up to 15 acres: 5,600 square feet limit, with a 2,000 foot bonus allowing 7,600 feet.

• Lots of 15 acres or more: 6,600 square feet limit, with a 2,000 foot bonus allowing 8,600 feet.

Consider exemption of agricultural structures from size limits: agricultural structures support the open space uses of the foothills. The problem is that barns often turn into car garages or second residences. We welcome discussion of this issue to see if it can be exempted without a significant level of abuse.

Grandfather existing uses/structures: obviously, no teardowns should be required as the result of size limits. Limited modifications for existing structures that exceed size limits should be allowed, so long as no net increase in size occurs. Complete tear-down/rebuilds should conform to the size limits, however.

Request for notification.
The Committee for Green Foothills requests notification of any meetings or working groups that discuss this issue. We would be very interested in contributing to the discussion

Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt
Legislative Advocate, Santa Clara County

Comments to Water District about environmental recommendations

(CGF sent the following memo to the Water District Board of Directors to encourage environmental improvements related to erosion and habitat issues. -Brian)


Memorandum

Date: September 21, 2009

To: Water District Board of Directors

From: Brian Schmidt, Committee for Green Foothills

Re: Suggestions for Agenda Item #9: EAC recommendations and staff response


The Committee for Green Foothills has the following suggestions for the Board concerning staff responses to the EAC recommendations. The staff responses are at Attachment 3 of Item 9, on page 1 of 5.

1. Joint EAC/Staff recommendation on ends policies: staff now recommends this be incorporated into broader revisions of ends policies in the fall or winter.

CGF response: no objection. In addition, however, we request that the Board direct or authorize staff to release portions of the staff-proposed revisions for the workshop as soon as practicable prior to the workshop, so EAC members can review how the joint recommendations have been revised by staff.

2. EAC suggestion that the Board increase the priority and funding for environmental enhancement related to erosive forces: staff recommends consideration during the forthcoming budget process.

CGF response: we request a decision to take some kind of action on this recommendation. We are concerned that the staff recommendation may lead to no action ever being taken on this recommendation, to either support or reject it. The issues raised by funding are also broader than the budget of any single year. Please see the addendum for more information.

3. EAC recommendation that staff prepare a Stream Restoration Strategy following completion of the Habitat Plans: staff recommends the Board request a proposal for strategy preparations following completion of the two Habitat Plans.

CGF response: we support the staff proposal. In addition, however, we request the Board direct staff to consider the ideas and recommendations of the EAC Erosive Forces Subcommittee report, "Technical Support Document for Recommendations Re: Erosive Forces in Streams and Stream Restoration", dated March 20, 2009.


Addendum: reasons for increased budgeting for environmental enhancement and erosive forces.

There are three reasons for increased budgeting for environmental enhancement in the context of erosive forces. First, the environmental enhancement pillar of the Water District's work has been underfunded compared to the older, better-financed pillars of flood control and water supply. Second, a future reauthorization of the Clean Safe Creeks bond or similar action would need to draw upon a broader base of public support that environmental enhancements can appeal to.

Third, the staff response to earlier and more detailed versions of erosive forces programmatic recommendations is that budgetary limits constrain their adoption, and decisions on those issues fall to the District Board:

• Staff response to recommendation for more data gathering: "The level of data gathering and analysis and other future programmatic activities will be dependent on budgetary capacities."

• Response to recommendation for creating detailed habitat goals: "Future investments [in habitat goals] will be tempered by fiscal capacities and willingness of other partners to help fund…."

• Response to recommendation for new approaches to easement/land acquisition: "to fully implement [easement recommendations] would likely require a large up-front investment….possible when funding is available."

• Response to recommendation for more hydrological monitoring: "….activities will be dependent on budgetary capacities."


The District Board's budgetary constraints on these programmatic suggestions requires Board action. We encourage the Board to support increased funding, even if it is not feasible in the next year or two.

CGF News Alert: Success and progress in Palo Alto, San Jose, and the Water District

(The following News Alert went out today to our Action Alert subscribers. -Brian)

Dear

We want to let CGF supporters know about recent advances in local environmental protection: protecting Palo Alto foothills from sprawl, the takeout bag ban in San Jose, and increasing Water District support for environmental protection. We thank all of you for your generous help with your time and your donations, and we'll be sure to keep you informed about next steps where we can use your help.

In Palo Alto, the City Council reviewed extensive revisions to zoning which controls development in the foothills that extend from Page Mill Rd. all the way up to Skyline Drive. CGF Advocate Brian Schmidt was the only environmental group representative on the advisory committee and while city staff made certain improvements over an outdated ordinance, Brian encouraged them to go further. By decisive votes, the City Council rejected the proposal for inappropriate second residences on these parcels, directed planners to develop maximum house size limits, and even started considering the issues of giant basement developments that are the latest aspects of monster mansions. CGF will continue to work on these improvements that have been suggested.

In San Jose, the City Council took the first definitive step for the strongest take-out bag ban for any major city in the US, banning plastic and requiring paper bags be made from 40% recycled content. Contrary to media reports, a fee on paper bags isn't required but will be considered in the future. They will consider other options in an EIR, which actually gives us a chance to push for a few improvements. Councilmember Liccardo, one of the two leaders on the issue along with Kansen Chu, thanked CGF and other groups from the dais for our work on the issue.

Finally Santa Clara Valley Water District considered recommendations for environmental enhancements and erosion control from the District's Environmental Advisory Committee, where CGF Advocate Brian Schmidt is the chair of the committee. While they didn't take final action on the recommendations, the Board of Directors were very receptive and appreciative of the recommendations and will return to consider them further at a later date.

Thanks again for all your help and support of our work. Each of these advances requires that CGF be present for follow-up work, so we'll keep active and keep you informed.

Thanks for speaking up for environmental protections! Your voice does make a difference!

- The folks at Committee for Green Foothills

Old mercury contamination still a problem in our area

A nationwide news service report discusses the ongoing problem of mercury contamination in our area. We at CGF have been promoting the idea of extended producer responsibility legislation for mercury, that would require new producers or importers of mercury in California to either retrieve their own mercury or clean up sites the report discusses. This really should happen.

A few highlights from the article are below:

Abandoned mercury mines throughout central California's rugged coastal mountains are polluting the state's major waterways, rendering fish unsafe to eat and risking the health of at least 100,000 impoverished people.

But an Associated Press investigation found that the federal government has tried to clean up fewer than a dozen of the hundreds of mines — and most cleanups have failed to stem the contamination.

Although the mining ceased decades ago, records and interviews show the vast majority of sites have not even been studied to assess the pollution, let alone been touched.

....

"Tens of thousands of subsistence anglers and their (families) are consuming greater than 10 times the U.S. EPA recommended dose of mercury, which puts them at immediate risk of neurological and other harm," Shilling said.

....

Mercury from mine waste travels up the food chain through bacteria, which converts it to methylmercury — a potent toxin that can permanently damage the brain and nervous system, especially in fetuses and children.

The federal government calls methylmercury one of the nation's most serious hazardous waste problems, and the Centers for Disease Control and Prevention says it is a possible carcinogen.

....

"Mercury tops the list as the most harmful invisible pollutant in the (state's) watershed," said Sejal Choksi of San Francisco Baykeeper, an environmental watchdog group for the bay. "It has such widespread impacts, and the regulatory agencies are just throwing up their hands."

In the 19th and 20th centuries, California produced up to 90 percent of the mercury in the U.S. and more than 220 million pounds of quicksilver were shipped around the world for gold mining, military munitions and thermometers. Much of the liquid mercury was sent to Sierra Nevada gold mines, where miners spilled tons of it into streams and soil to extract the precious ore.

"There's probably a water body near everybody in the state that has significant mercury contamination," said Dr. Rick Kreutzer, chief of the state Department of Public Health's Division of Environmental and Occupational Disease Control.

....

The CDC says high levels of mercury can cause brain damage and mental retardation in children when passed from mother to fetus. Brown's son, Tiyal, has been diagnosed with autism. The CDC has found no link between mercury and autism, but agency spokesperson Dagny Olivares said in an e-mail, "Additional information is needed to fully evaluate the potential health threats."

At most abandoned mercury mines, especially ones in remote places, nothing gets done at all.

....

A separate cluster of derelict mercury mines near San Jose has been called the largest source of the toxin in the San Francisco Bay's south end, where warning signs warn fishermen of the "poisonous mercury" polluting the water.

A solution to California's mercury pollution is nowhere near at hand, state and federal regulators say.

"It took a hundred years to occur," said the EPA's Meer. "And it may take a hundred years or more to solve."

Source: AP News

Action Alert - Support San Jose's plastic bag ban

(The Action Alert below went out to our San Jose members. -Brian)

Dear Friend,

This Tuesday, September 22, San Jose's City Council will decide whether to have the best control of plastic bag litter and paper bag pollution of any major city. Seven of eleven voting City Council members have already supported a ban on plastic take-out bags and a requirement that paper bags be at least partially-recycled content. Please contact the City Council to help get us to the finish line on this groundbreaking proposal, and make it even better!

What's Happening

A County Commission proposed a fee on both plastic and paper take-out bags to reduce pollution and fund cleanup of bag pollution. While fees have the advantage of giving customers a choice, they are controversial in some circles, so many local cities are considering bans on plastic bags with some limited exceptions. Because paper bags also have environmental liabilities, San Jose has proposed requiring they have at least 40%-50% recycled content. Other Santa Clara County cities will soon be making their own decisions on these issues.

Why this is Important

Litter from plastic bags defaces our streets, lines our streams, and smothers both the San Francisco Bay and a significant part of the Pacific Ocean. Many local streams, including Guadalupe River and Coyote Creek, have so much trash that they have been listed or are considered for listing under the Clean Water Act as "impaired" waters due to trash. Paper bags are little better with even greater energy costs and the economic support they support for destructive logging projects like the recent San Jose Water Company proposal to log the redwoods of the Santa Cruz Mountains. The proposal will increase education about reusable bags, the real solution to the bag problem.

While over a dozen local cities will make their own decisions about bags, San Jose has half of the County population and can solve half of the problem at one stroke. Its proposal is even better than San Francisco's because of the recycled paper requirement and could be a model for the country.

What you can do

Tell the City Council you support the plastic bag ban and recycled content for paper bags. Please also tell them you want them to consider either a fee on paper bags or higher recycled content now, or by reviewing the issue two years in the future.

Please email your support to the Mayor and City Council (just copy and paste the emails below):

mayoremail@sanjoseca.gov; district1@sanjoseca.gov; district2@sanjoseca.gov;

district3@sanjoseca.gov; district4@sanjoseca.gov; district5@sanjoseca.gov;

District6@sanjoseca.gov; district7@sanjoseca.gov; district8@sanjoseca.gov;

district9@sanjoseca.gov; district10@sanjoseca.gov

by this Tuesday, September 22 at 9:00 a.m. Attending the meeting to voice your support is even better, if you can go.

Please let us know that you have written or fax us a copy (650) 968-843

For more information, see the Committee for Green Foothills letter, Coyote Creek as the #2 Litter Hot Spot according to Save the Bay, and San Jose City Council Agenda Item 7.2.

Thanks!

- The Folks at Green Foothills

________________________________________________

Committee for Green Foothills

Our mission is to protect the open space, farmlands, and natural resources of Santa Clara and San Mateo counties through advocacy, education, and grassroots action.

Shopping online? Visit the portal www.Maatiam.com, click on the link to CGF, and then to one of over 80 online retailers. At no additional cost to you, these retailers make a 2 – 5% donation to CGF, an easy way to support our work!

You have received this action alert because you are subscribed to Committee for Green Foothills' email alert list. To be removed from this list, please reply to this message with REMOVE in the subject line. To be added to this list and receive alerts about local open space issues, just send your name, address, and email address to info@GreenFoothills.org.

CGF Comments on an appeal to allow a Coastal Development Permit

(CGF Legislative Advocate Lennie Roberts submitted the letter below opposing an appeal of a decision denying a Coastal Development Permit in San Mateo County. -Brian)


August 24, 2009

President Mark Church and Members
Board of Supervisors
400 County Center
Redwood City, CA 94063

Re: Item #6 on the August 25, 20009 Meeting Agenda: PLN 2003-00226 (Irizarry/Caron) Appeal of the Planning Commission’s Denial of a Coastal Development Permit and Certificate of Compliance (Type B) to legalize a 17,900 square foot parcel, and Use Permit, Coastal Development Permit, and Design Review Permit to construct a single family residence on a parcel within the COSC Zoning District (Burnham Strip), El Granada

Dear President Church and Members of the Board,

Committee for Green Foothills urges you to uphold the Planning Commission’s decision to deny the Coastal Development Permit (CDP) and Certificate of Compliance (CoC), Type B, and to deny the requested variances and Coastal Development Permit (CDP) for the proposed single-family residence. If you choose to approve the CoC, which we do not support, we urge you to include a Finding that the applicable date of recordation of the CoC, for purposes of compliance with the COSC regulations is after August 25, 2009. We further request that any approval of the CDP for the CoC be conditioned to require any development of the parcel to fully comply with the COSC zoning regulations including prohibition of residential uses, as well as with the Visual Resource Policies of the LCP.

Regarding the Certificate of Compliance, Type B: The key issue for this permit is what is the date of recordation of the subject parcel. Clearly, it is 2009, after your Board’s approval of the CoC, Type B, and not back in 1949, when the then-owner, Louise Souza, recorded a Grant Deed to the State of California for the center portion of her larger parcel for the construction of Highway One, leaving two unrecorded parcels – one to the west, and this one to the east. The Staff Report (page 7) correctly points out that the July 8, 1949 Grant Deed from Louise Souza to the State of California for the State Highway physically bisected her property, but did not in fact create a separate legal parcel. “No evidence has been presented that a new property description for these remaining portions was recorded.”

The Staff Report (page 10) further supports the conclusion that the date of recordation of this parcel has not yet occurred. “The very fact that a CoC, Type B, is needed is a recognition that subdivision requirements were not followed in 1949, when a de facto subdivision occurred. As discussed above, however, the fact that the parcel must now be legalized does itself establish that the parcel has not been “recorded” for purposes of Section 6227.b.6.”

The date of recordation is crucial to this issue, since the COSC Zoning District prohibits residential uses on any parcel recorded after 1981. There is no ambiguity with respect to the word “recorded” in Section 6227.b.6, which permits certain uses in the COSC Zoning District subject to a Use Permit including: “6. Division of land, except that no residential uses shall be permitted on a parcel recorded after 12/1/81.”

If the subject parcel had been recorded in 1949 as a separate, legal parcel, the Applicant would not be requesting a CoC, Type B today.

Approval of the single family residence would require multiple variances and exceptions to the zoning regulations, and would result in significant visual impacts. Approval of these variances and exceptions is unacceptable.

COSC Section 6228 (a) Development Standards requires a minimum of 2 acres for a building site; the Caron parcel is less than one-half acre.

COSC Section 6228 (d) Minimum Yards Requires a 50-foot setback from the front property line; the variance requested is for a 24-foot setback (Location B).

COSC Section 6228 (d) Minimum Yards requires a 50-foot setback from the rear property line; the variance requested is for a 39-foot setback (Location B).

The Planning Commission found that the property does not vary substantially from other parcels on the Burnham Strip, as there are two other undeveloped parcels that are as shallow or shallower than this parcel, and where application of the setbacks would also minimize or eliminate their development potential. Therefore, the variance findings cannot be made in this case.

The Planning Commission also found that there were significant adverse impacts on coastal resources, specifically visual resources. The proposed single family residence would result in significant visual intrusion into an area having natural scenic qualities, and would obstruct views from existing public roads, public water bodies, and public lands. These impacts cannot be mitigated, due to the parcels topography and location.

In conclusion, Committee for Green Foothills respectfully requests that you uphold the decision of the Planning Commission, and deny the CoC Type B, and also deny the CDP, Use Permit and Variances for the single family residence.

Thank you very much for consideration of our comments.




Lennie Roberts, Legislative Advocate
Committee for Green Foothills

cc: Lisa Grote, Director of Community Development

CGF Comments on Admin Draft County Habitat Plan

(Below are CGF's comments on the Santa Clara County Habitat Plan's Second Administrative Draft. They're imported from an Excel file so may be hard to understand the context, bu the first number refers to the Draft Chapter number (e.g., Chapter 9), and further numbers if any refer to chapter sections (9.2.1) and/or page numbers in a particular chapter (page 9-27). Then the comment follows. -Brian)

9 There is a systematic problem with Chapter 9 failing to distinguish between funding for enhancement and funding for impact mitigation. For example,.page 9-7 discusses the possibility of donated lands to reduce costs. Any sophisticated donor will require the donation be used for enhancement only. Funding partners such as the Open Space Authority and non-profits will similarly limit their contribution to enhancement components only. Whether the budget is sufficient to pay for mitigation is unclear, and needs a separate accounting for mitigation and funding for enhancement.

9 3.2 45 Open Space Authority section should contain language similar to County Parks language, that the value of the OSA contribution can be used only to offset OSA impacts and to provide environmental enhancement.

9 3.2 9-44 Committee for Green Foothills and other environmental organizations do not support using Parks Charter fund acquisitions to offset mitigations that would otherwise be required of County Roads and Airports. We note that this is an unstable source of funding as it expires in 2021 and environmental organizations that have supported the Parks Charter fund will oppose use of parkland to mitigate road and airport impacts at the time of reauthorization. Furthermore, County Supervisors approved use of Parks funding for road mitigation in 2008 by a 3-2 vote which indicate the close margin could be reversed by a future Board of Supervisors. At a minimum, therefore, the Habitat Plan should discuss what funding sources would be used in case Parks Charter fund acquisitions cannot be used for Roads and Airports mitigation.

9 3.2 9-44 Amount of land and monies from Park Charter fund for land acquisition are based on historical acquisition rates and the 2003 Strategic Plan, but the 2006 reauthorization reduced the percentage required to be spent on acquisition. I don't know if the 2003 Strategic Plan anticipated this reduction, but if not, the "conservative" estimates need to be reworked.

9 Costs of mitigation of impacts should be identified separately from the costs of environmental enhancements

9 Costs to mitigate impacts caused by each permittee should be identified for each permittee

9 Costs to mitigate impacts caused by private development operating under the authority of each permittee should be identified as separate total amounts for each permittee (separate from the costs to mitigate that permittee's impacts). If costs exceed development impact fees, that excess cost should be identified.

9 9.1 9-1 "Adaptive management" should be reinserted as a bullet point, either independently or together with "remedial measures"

9 9.2.2 9-7 fn 5 The best use of sites with haz mat present may be as wildlife habitat. Suggest changing to "will not be added to the Habitat Plan Reserve System IF CLEANUP WOULD BE LEGALLY REQUIRED."

9 9.2.11 9-56 Creation of an endowment fund from cost savings over estimated Plan costs should be mandatory until and unless a funding plan for costs in perpetuity has been approved by DFG, USFWS, and NMFS.

9 9.2.11 9-56 One of the conditions of approval of the Plan should be acceptance of the post-Permit funding plan by the wildlife agencies.

9 general All cost savings over estimated Plan costs should be used for adaptive management or for an endowment fund for permanent reserve management. No fees should be reduced until a permanent funding plan for reserve management has been approved by wildlife agencies.

8 8.6 8-24 Draft says Stay-Ahead "will only apply two years after the last local ordinance takes effect." A time-certain deadline is needed or delays in local ordinances could postpone Stay-Ahead indefinitely. We suggest three years from Habitat Plan approval and permit issuance.

8 8.6.1 to 8.6.2 8-28 The "Jump Start" provision conflicts with the Stay-Ahead concept unless the baseline for measuring Stay-Ahead starts at the same time as Jump-Start, in October 2005. Failing to do so means the negative impacts of since 2005 are ignored while positive enhancements are counted, and a false impression of net benefit created. If this is rejected, planners should indicate what degree of uncompensated impact degradation is expected between October 2005 and plan issuance.

4 4.2 4-2 There is a conceptual gap between the definition of "permanent" and "temporary" impacts, because temporary impacts are defined as lasting less than three years. "Permanent" impacts should be defined as "impacts that permanently, OR FOR MORE THAN THREE YEARS, remove or alter a land cover...."

5 Table 5-14 and elsewhere I may have missed where the Plan discusses mitigating for temporary impacts, but fn1 to Table 5-14 states impact estimates are based on permanent impacts only. Temporary impacts also require mitigation. We suggest mitigation should at a minimum be dependent on the amount of time of impact in relation to the permit term, so that a one-year impact requires zt leasts 1/50th the mitigation of a permanent impact.

4 4.4.1 4-44 parcels "anticipated to be permitted by the time of Plan implementation" and excluded from impact analysis provides no context for analysis and could be extremely large. Only previously-identified interim projects that are still under consideration (thereby excluding the now-withdrawn Coyote Valley Specific Plan) should fit this category. Absent such a change, there should be identifying information about what parcels and projects form part of this category.

4 4.4.1 4-44 Regarding permitted parcels and anticipated permitted parcels, there should be clarification that because these parcels are excluded from impact analysis, these parcels and any future permits issued are not covered by the Habitat Plan and take permits. This discusssion should specifically reference the Coyote Valley Research Park (note this is not the Coyote Valley Specific Plan) and any potential reauthorization permits for the Research Park.

CGF's San Mateo County Update

This month, the Committee for Green Foothills has been busy in San Mateo County - protecting our coasts and creeks from development and speaking out against new permits for offshore oil drilling permits. A quick update:

Coastal Commission Workshop with Local Governments: A couple of years ago, the League of Cities formed a “Coastal Cities Issues Group” that has been pushing to re-set decision-making to favor local government. Currently each jurisdiction with land in the coastal zone must prepare a Local Coastal Program (LCP) that is consistent with the Coastal Act. The LCP must then go to the Coastal Commission for certification that the Land Use Plan policies and implementing ordinances are consistent with the Coastal Act. A similar process is followed for LCP Amendments, many of which are driven by development projects that may well not be consistent with the Coastal Act. Many local elected officials up and down the state are not supportive of the Coastal Act, and are continuously trying to find ways to either ignore or berate the Coastal Commission. There was a Workshop on August 12 in San Francisco between the 12 Commission members and 12 elected officials – 6 from coastal cities, and 6 from coastal counties. A very small amount of time was allowed for interested public members to be heard. Limiting the public in such a forum is contrary to the Coastal Act, which requires “maximum public participation” in any decisions affecting the coast. Many environmental groups wrote letters objecting to the workshop format, and the fact that the Coastal Cities Issues Group meets privately. CGF advocate Lennie Roberts wrote a letter and spoke at the Workshop, pointing out that San Mateo County has a strong Local Coastal Program that can’t be weakened without voter approval, and it takes constant education of elected officials that the public supports coastal protection.

San Francisquito Creek Protection: CGF opposed the subdivision of a parcel in the Stanford Weekend Acres area. The property already has two old houses on it, and part of the property is within the creek. The houses would be vastly enlarged, and the one in the back actually hangs seven feet over the creek – clearly not consistent with creek protection. The applicant was asking for an exception to the requirement for a 20 foot wide driveway to access the “flag” lot. Due to CGF and other opposition, the Zoning Hearing Officer denied the subdivision.

PXP Offshore Oil Lease: CGF signed on to a letter with 33 other environmental groups opposing the Governor’s inclusion in the state budget a provision that would override the State Lands Commission’s denial of a new offshore oil lease off Santa Barbara. The Governor’s intervention in favor of PXP would have allowed the first offshore oil drilling in state waters in 40 years, and would have made it impossible for the state to oppose federal leases in federal waters (beyond three miles). CGF has had a long-standing position of opposition to offshore oil drilling. We led the effort in 1986 to pass Measure A, the citizen initiative that prohibits onshore oil facilities for offshore drilling. CGF also opposed Lease Sale 30 back in the early 80’s, which would have allowed drilling off the San Mateo coast.

The alternative to allowing drilling in state or federal waters is an oil severance tax. California is the only state in the top 10 producing states that does NOT have this tax. Assemblymember Pedro Nava will be authoring legislation which would require the oil industry to pay a severance of 10% of the gross value of each barrel of oil pumped in California. This would produce an estimated $1.5 billion annual revenue to the General Fund, and help close the gap in our state budget. The legislation would prevent oil companies from passing this fee on to motorists. CGF is supporting these provisions.

-Lennie (with assistance from CGF Intern Shari Pomerantz)

One victory and possibly more for the environment

1. San Jose City Council's Committee on Economic Development voted 4-0 to recommend the City Council pass a ban on plastic bags from retailers and groceries (with limited exceptions) and a ban on paper bags with less than 50% recycled content. The City Council will also consider a 10 to 25 cent fee on paper bags as well (media reports saying the Committee recommended the fee are wrong, the actual stance is neutral). Seven of the 11 council members have now publicly supported this position. CGF and Save the Bay were the only major environmental groups that spoke at the meeting. This is a good step for stream protection and would put San Jose at the forefront of this issue with a stronger position than even what San Francisco did. More info is at the Mercury News.

I'll just add that the plastic bag industry may be shooting itself in the foot - they've opposed fees on takeout bags, relying on voter resistance to anything that resembles a tax, but that has pushed the reform direction towards an outright ban instead. Maybe next time the bag people will be more reasonable.

2. Second piece of possibly good news is that one of the four applications to expand Gilroy outward has been dropped after they received extensive critiques from CGF and others on their environmental documents. This was Gavilan's application to expand development of its main campus in Gilroy, completely separate from the other controversy over a proposed new campus in Coyote Valley. I only call it "possibly" good news because Gavilan has asserted they are not legally required to get Gilroy's permission, so they might have a Plan B in mind, but we'll be ready to react if Plan B comes around.

-Brian

Cal Attorney General Comments on why climate impacts must be addressed under CEQA

I thought I'd reference a letter that the California Department of Justice wrote to the City of San Jose two years ago, explaining that the City couldn't duck its responsibility under the California Environmental Quality Act to determine whether climate change impacts were significant. The letter remains a useful tool so I wanted to make it more widely available.

An excerpt:

While the City is correct that there are currently no regulatory thresholds for significance relating to global warming impacts, this does not relieve a lead agency of its statutory obligation under CEQA to determine whether or not a project’s impacts are significant. As the CEQA Guidelines note, “[a]n ironclad definition of significant effect is not always possible ....” In the future, there may well be “an approved plan or mitigation program which provides specific requirements that will avoid or substantially lessen the cumulative problem” of GHG emissions and global warming impacts, but until that time, lead agencies must rely only on their own “careful judgment ... based to the extent possible on scientific and factual data” in determining whether a project’s global warming-related impacts are significant.

Click here for the whole thing.

-Brian

(And note that pretty soon we should have well-established regulatory thresholds....)

Comments on Gilroy expansion SEIRs for Lucky Day, Gavilan, and Wren Investor proposals

The Committee for Green Foothills submitted comment letters below (click "Read More" to see the full letters) on proposed outward expansions of the City of Gilroy. There's no reason to do this, and the environmental documentation is inadequate.

The letters reference appendices that I haven't attached due to length, but I can send them to anyone who's interested.

-Brian


(Letter re Lucky Day DSEIR)
August 20, 2009

Stan Ketchum, Senior Planner
City of Gilroy Planning Division

Re: Lucky Day Urban Service Area Amendment (07-01) SCH#2009022046

Dear Stan:

The Committee for Green Foothills ("Committee") submits the following comments regarding the Lucky Day USA amendment ("Lucky Day Project" or "Project"). As an initial matter, we thank the City for the two-week extension of time to comment. We continue to believe, however, that more time would have been appropriate, at a minimum the 30-day extension we understand was requested by Santa Clara County. There is no pressing urgency for this or any other of the proposed USA amendment projects.

The Committee supports the position of SOS Gilroy and their counsel that the Draft SEIR for the Project ("DSEIR") does not comply with CEQA law and Guidelines. We support this position for the reasons stated in their letters and as further explained below.


I. The DSEIR fails to analyze adequately climate-change related impacts and mitigation associated with the Project

A. The DSEIR fails to consider effects of climate change on the Project and its residents and visitors.

We note as an initial matter that the DSEIR entirely fails to discuss how the Project, residents, and visitors could be affected by climate change relative to how the area and people could be affected by climate change under the unchanged baseline use of little to no occupancy. As stated in Association of Environmental Professionals' 2007 report, Alternative Approaches to Analyzing Greenhouse Gas Emissions and Global Climate Change in CEQA Documents:

CEQA Projects Affected by Climate Change Impacts

The effects that GCC may have on a specific project also need to be considered in CEQA reviews.
Care is needed to determine if there is a connection between a project’s location or character and the
potential for impacts on the project to occur that are caused by GCC. Mandating mitigation to lessen
the environmental impacts of climate change on a project-level analysis without clear disclosure of
the relationship between the project and the environmental impact would not comply with CEQA.
Section 21002.1 of the California Public Resources Code states, “the purpose of an environmental
impact report is to identify the significant effects on the environment of a project…” Without
establishing what those effects are for residents in the State of California, and the relative degree of
certainty of those effects, an adequate disclosure of GCC impacts on a project would not be realized.

The precise timing, nature, and magnitude of climate change impacts at specific locations is not
certain, although projections with wide confidence limits have been developed for some parameters
such as sea level rise and meteorology. However, effects of climate change specifically mentioned in
AB 32, such as rising sea levels, modified meteorology and flood hydrographs, and changes in
snowpack could be addressed in CEQA documents. How GCC may affect species ranges may also
be considered. CEQA documents should address whether projected changes in sea level,
meteorology, flooding, snow pack, and other identifiable consequences of GCC may create hazards
for or otherwise adversely affect a project. The degree of uncertainty should also be addressed.

Potential health effects from GCC may arise from temperature increases, climate-sensitive diseases,
extreme events, and air quality. There may be direct temperature effects through increases in average
temperature leading to more extreme heat waves and less extreme cold spells. Those living in
warmer climates are likely to experience more stress and heat-related problems (e.g., heat rash and
heat stroke). In addition, climate sensitive diseases (such as malaria, dengue fever, yellow fever, and
encephalitis) may increase, such as those spread by mosquitoes and other disease-carrying insects.

GCC-related meteorological changes and sea level rises are expected to lead to other adverse impacts.
Extreme events, such as flooding and hurricanes, can displace people and damage property and
agriculture. Drought in some areas may increase and snowpack may decrease, which would decrease
water and food availability. Rising sea levels would increase stress on levees and exacerbate storm
wave run-up and coastal erosion. GCC may also contribute to air quality problems from increased
frequency of smog and particulate air pollution (EPA 2006c).

Some agencies have begun to assess potential risks from climate change in various regions of the
State. The California Climate Change Center uses three IPCC climate change scenarios to assess
risks from climate change to California (CCCC 2006). The report indicates GCC could result in the
following changes in California: poor air quality; more severe heat; increased wildfires; shifting
vegetation; declining forest productivity; decreased spring snowpack; water shortages; a potential
reduction in hydropower; a loss in winter recreation; agricultural damages from heat, pests,
pathogens, and weeds; and rising sea levels resulting in shrinking beaches and increased coastal
floods (CCCC 2006).

The California Department of Water Resources published a report that describes the progress on
incorporating climate change into existing water resources planning and management tools and
methodologies (DWR 2006). While it does not focus on CEQA, the report does describe potential
impacts of climate change on California’s water resources. The California Coastal Commission
published a Discussion Draft titled Global Warming and the California Coastal Commission (CCC
2006), which recommends that the Commission address GCC because the Coastal Act protects
resources that are threatened by global warming.

It is hoped that a greater number of California agencies will assess climate change risks. Once
information is made available by State government agencies, it could be used to determine more
precisely to what extent a project is affected. Until then, environmental documents could make a
good faith effort to assess the potential effects of GCC on projects. In some cases, such as coastal
developments, an evaluation could be feasible, with recognized limitations related to uncertainties. In
other locations, specific impact analysis may not be feasible.

AEP Report at 16-17 (attached as Appendix A).

The fact that the AEP Report says analysis in some locations may not be feasible does not excuse the City here, because the DSEIR made no attempt to determine if specific impact analysis is feasible. Increased air temperatures and associated pollution from increased temperatures, as well as decreased water availability are foreseeable impacts on the project site and proposed residents that should be addressed, as well as the other potential impacts described above.

In fact, the DSEIR at page 2-25 actually cites some consequences of climate change for California as a whole, including: increase in temperature, reduced water supply from Sierra Nevada snowpack, and potential negative impact rise in sea level will have on surface water quality. While the DSEIR fails to analyze these impacts on the Project, they can foreseeably harm access to water. Both the golf course and residents will require a lot of water.


B. Refusing to make a CEQA significance determination on cumulative climate change impacts is unlawful.

As stated in the August 5, 2009 letter from Shute Mihaly & Weinberger LLP to the City ("SMW Letter"), it is unlawful for the City to refuse to make a determination as to whether a project's non-speculative impacts are significant. CEQA Guideline s. 15064(b) requires the City to exercise "careful judgment…based to the extent possible on scientific and factual data" while Guideline s. 15144 notes that the lead agency "must use its best efforts to find out and disclose all that it reasonably can."

As the (attached as Appendix B) June 19, 2007 letter from California Department of Justice to the City of San Jose ("DOJ Letter") states, "it is inappropriate for the City to find, as it did in the [Coyote Valley] DEIR, that it is excused from making a significance determination under CEQA." The DOJ Letter expressly applied CEQA Guideline s 15064(b) to the identical failure by San Jose to determine whether climate change impacts are significant:

While the City is correct that there are currently no regulatory thresholds for significance relating to global warming impacts, this does not relieve a lead agency of its statutory obligation under CEQA to determine whether or not a project’s impacts are significant. As the CEQA Guidelines note, “[a]n ironclad definition of significant effect is not always possible ....” In the future, there may well be “an approved plan or mitigation program which provides specific requirements that will avoid or substantially lessen the cumulative problem” of GHG emissions and global warming impacts, but until that time, lead agencies must rely only on their own “careful judgment ... based to the extent possible on scientific and factual data” in determining whether a project’s global warming-related impacts are significant.

DOJ Letter at 5-6 (internal citations omitted).

The failure in the DSEIR to exercise "careful judgment ... based to the extent possible on scientific and factual data" under Guideline s. 15064(b) match the case where the DOJ Letter indicated to San Jose regarding its (ultimately-withdrawn) DEIR that it was inappropriate in determining whether a project’s global warming-related impacts are significant.


1. Significance thresholds exist, yet the SEIR fails to exercise judgment to apply them.

While significance thresholds may not have been finalized, they indisputably exist, as acknowledged in the DSEIR. DSEIR at 2-17. Two thresholds that could be used and have been suggested are zero increase in emissions and 900 ton CO2 Equivalent. SMW Letter at 9. The DSEIR offers no evidence in support of its refusal to adopt a threshold, despite the substantial evidence by experts in the field that either of these thresholds would be appropriate. Id. This fails to comply with CEQA.

As stated by the Attorney General's office, California law AB 32, "the Global Warming Solutions Act of 2006, which set State targets to reduce emissions to 1990 levels by 2020, and to 80% below 1990 levels by 2050, provide a relevant benchmark for determining significance." DOJ Letter at 7. Any impact of the project that reduces the likelihood of compliance with AB 32 justifies a determination of significance.

California currently is not trending towards compliance with AB 32, as seen on page 22 of the Inventory of California Greenhouse Gas Emissions ("California Inventory") cited in the DSEIR:


Any net increase in emissions resulting from the Project would move away from AB 32 compliance. We further note that Gilroy's increasing population indicates that Gilroy itself is also unlikely to be moving in the direction toward compliance with AB 32.


2. The DSEIR must make determinations of significance even in the absence of finalized thresholds created by other agencies.

As noted above, lead agencies must use their own determinations and judgment, backed by substantial evidence, to determine whether impacts are significant, and these commonly occur in situations where no significance thresholds have been created by other agencies. For example, a lead agency may need to determine whether removing a number of trees from a parcel in order to develop it is a significant impact, and whether the size, proximity, and visibility of a development make the visual impacts significant. In neither case can the lead agency rely on simple application of a regulatory threshold developed by expert agencies, yet significance determinations such as these are commonplace. Here, where draft thresholds and guidance from professionals and the State Attorney General are available, the City has even less excuse in its unlawful failure to apply a significance threshold.


3. Failure to make a significance determination is contrary to the purpose of CEQA and contrary to the purpose of exempting EIRs from speculative determinations.

The purpose of CEQA is to ensure the public and decision-makers are adequately informed when making decisions and that feasible mitigations are applied. Speculative determinations are not required under CEQA because from the nature of being speculative, they would not inform decisionmakers whether the project's benefits exceed its environmental costs. That is not the case here, where the DSEIR does not deny impacts but only refuses to draw conclusions about them. The DSEIR deprives the City and the public from the opportunity to determine whether the project should go forward, as well as unlawfully denying the protection under CEQA of requiring feasible mitigations that reduce significant impacts.


C. The DSEIR underestimates climate change impacts from the Project.

Not only does the DSEIR fail to properly apply a significance threshold to climate change impacts, it underestimates those impacts and fails to adequately measure and describe what in fact is a cumulatively significant impact. The DSEIR states its estimate of greenhouse gas ("GHG") emissions is "likely to be quite conservative". DSEIR at 2-30. This is both incorrect and contradicted by information on the same page of the DSEIR that acknowledges additional GHG sources that were not included in the calculations. Id.

While the DSEIR claims these other sources would be insubstantial, it provides no information to support it. To the contrary, it acknowledges that only 82% of California GHG emissions come from CO2 (id. at 2-26), and the DSEIR does not measure all CO2 emissions from the Project, but only those from transportation and electricity production. Emissions that were left out that could substantially increase the Project's impacts include:

• Construction, especially with cement, emits substantial amounts of CO2. California Inventory at 11. Construction emissions on site were not quantified.

• Nitrous oxide results from "soil management" in agricultural sectors. California Inventory at 10. Application of fertilizer can increase nitrous oxide. See http://www.epa.gov/nitrousoxide/sources.html. The Project's golf course and residential development will foreseeably result in significant in significant fertilizer use compared to present conditions. See, e.g., http://www.brodheadwatershed.org/drinkingwaterthreats.html ("Homeowners use four to eight times the amount of fertilizer and pesticides per acre than farms. Golf courses are another potential source of groundwater contamination from overuse of fertilizer and pesticides.")

• Landfill methane emissions from the project should be included, and the California Inventory notes this as an important issue with data expected available in 2008. California Inventory at iii.

• The Project will result in substantial increases in water usage. In addition to all other aspects of water impacts, the GHG emissions needed to provide the water from local and distant sources should be quantified.

• “The General Plan EIR identified that development consistent with the general plan would increase wastewater generation that would exceed the existing treatment and disposal capacity of the WWTP. DSEIR at 2-42. Feasibility and desirability wastewater system expansion, considering expected reduction in availability of water due to climate change, must be considered. Energy impacts from wastewater treatment and from expanding the wastewater infrastructure must also be included.


D. Feasible climate change mitigation measures were unlawfully excluded from the DSEIR.

Because this Project in fact has cumulatively significant climate change impacts, it should have required mitigation measures that are absent from the DSEIR. These include the following:

• Minimizing and/or adapting to climate change will require alterations to existing regional transportation system. Mobility will most likely include increased use of public transportation, carpooling, biking, and/or walking. The effect that expanding the developed land area within Gilroy will have on the feasibility of alternative transportation methods should be considered. The DSEIR does not adequately address the role of alternative transportation, nor does it analyze whether a feasible alternative exists by channeling development in existing City boundaries where alternative transportation is more likely to succeed.

• The statement that future development should be constructed to LEED or Build It Green standards "where feasible" (DSEIR at 2-31) has an exemption of "feasibility" that swallows the rule. If the mitigation is simply found "infeasible" then the project could have significant impacts without any finding of overriding circumstances required under CEQA.


II. The DSEIR underestimates or omits other significant impacts.

The DSEIR states that the General Plan EIR found that increased flooding, erosion, and siltation from the Project area and other development, absent mitigation, would be significant. DSEIR at 2-46. It said mitigation to contain runoff to predevelopment levels would reduce the impact to less than significant levels. Id. (referencing the General Plan EIR). The DSEIR says independently of the General Plan EIR that the "California Regional Water Quality Control Board will require future development to be designed to ensure that post-development runoff is contained to pre-development levels." Id. This is incorrect.

National Pollutant Discharge Elimination Systems (NPDES) permits under Water Quality Control Boards have not, in fact, required a match between pre- and post- development runoff, permit systems that have changed substantially since the General Plan EIR. See, e.g., Controlling Cumulative Impacts from Impervious Surfaces: Analysis and Recommendations for Santa Clara County (attached as Appendix C). Generally, they allow post-development hydrology to differ from pre-development for the effects of large storms, for situations where mitigation costs exceed a certain percentage of the cost of the project, and to completely differ from pre-development hydrology for any project smaller a certain maximum size. Id. The exact permit requirements for the Gilroy area should be examined, and they hydrological impacts including siltation, impacts on salmonids, etc., should also be examined in light of this new information that was missed by the DSEIR. The new information indicates the presence of unexamined impacts in violation of CEQA.


III. Conclusion.

The City of Gilroy cannot approve the Project based on this inadequate DSEIR, and we request that no further consideration of the Project be given to it.


Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt, CGF Legislative Advocate
Shari Pomerantz, CGF Volunteer

Appendix A: Alternative Approaches to Analyzing Greenhouse Gas Emissions and Global Climate Change in CEQA Documents
Appendix B: June 19, 2007 letter from California Department of Justice to the City of San Jose ("DOJ Letter")
Appendix C: Controlling Cumulative Impacts from Impervious Surfaces: Analysis and Recommendations for Santa Clara County

-------------------------
(Letter re Gavilan DSEIR)

August 20, 2009

Stan Ketchum, Senior Planner
City of Gilroy Planning Division

Re: Gavilan Joint Community College District Urban Service Area Amendment (08-02) SCH#2009022045

Dear Stan:

The Committee for Green Foothills ("Committee") submits the following comments regarding the Gavilan USA amendment ("Gavilan Project" or "Project"). As an initial matter, we thank the City for the two-week extension of time to comment. We continue to believe, however, that more time would have been appropriate, at a minimum the 30-day extension we understand was requested by Santa Clara County. There is no pressing urgency for this or any other of the proposed USA amendment projects.

The Committee supports the position of SOS Gilroy and their counsel that the Draft SEIR for the Project ("DSEIR") does not comply with CEQA law and Guidelines. We support this position for the reasons stated in their letters and as further explained below.


I. The DSEIR fails to analyze adequately climate-change related impacts and mitigation associated with the Project

A. The DSEIR fails to consider effects of climate change on the Project and its residents and visitors.

We note as an initial matter that the DSEIR entirely fails to discuss how the Project, residents, and visitors could be affected by climate change relative to how the area and people could be affected by climate change under the unchanged baseline level of less-intense use than proposed. As stated in Association of Environmental Professionals' 2007 report, Alternative Approaches to Analyzing Greenhouse Gas Emissions and Global Climate Change in CEQA Documents:

CEQA Projects Affected by Climate Change Impacts

The effects that GCC may have on a specific project also need to be considered in CEQA reviews.
Care is needed to determine if there is a connection between a project’s location or character and the
potential for impacts on the project to occur that are caused by GCC. Mandating mitigation to lessen
the environmental impacts of climate change on a project-level analysis without clear disclosure of
the relationship between the project and the environmental impact would not comply with CEQA.
Section 21002.1 of the California Public Resources Code states, “the purpose of an environmental
impact report is to identify the significant effects on the environment of a project…” Without
establishing what those effects are for residents in the State of California, and the relative degree of
certainty of those effects, an adequate disclosure of GCC impacts on a project would not be realized.

The precise timing, nature, and magnitude of climate change impacts at specific locations is not
certain, although projections with wide confidence limits have been developed for some parameters
such as sea level rise and meteorology. However, effects of climate change specifically mentioned in
AB 32, such as rising sea levels, modified meteorology and flood hydrographs, and changes in
snowpack could be addressed in CEQA documents. How GCC may affect species ranges may also
be considered. CEQA documents should address whether projected changes in sea level,
meteorology, flooding, snow pack, and other identifiable consequences of GCC may create hazards
for or otherwise adversely affect a project. The degree of uncertainty should also be addressed.

Potential health effects from GCC may arise from temperature increases, climate-sensitive diseases,
extreme events, and air quality. There may be direct temperature effects through increases in average
temperature leading to more extreme heat waves and less extreme cold spells. Those living in
warmer climates are likely to experience more stress and heat-related problems (e.g., heat rash and
heat stroke). In addition, climate sensitive diseases (such as malaria, dengue fever, yellow fever, and
encephalitis) may increase, such as those spread by mosquitoes and other disease-carrying insects.

GCC-related meteorological changes and sea level rises are expected to lead to other adverse impacts.
Extreme events, such as flooding and hurricanes, can displace people and damage property and
agriculture. Drought in some areas may increase and snowpack may decrease, which would decrease
water and food availability. Rising sea levels would increase stress on levees and exacerbate storm
wave run-up and coastal erosion. GCC may also contribute to air quality problems from increased
frequency of smog and particulate air pollution (EPA 2006c).

Some agencies have begun to assess potential risks from climate change in various regions of the
State. The California Climate Change Center uses three IPCC climate change scenarios to assess
risks from climate change to California (CCCC 2006). The report indicates GCC could result in the
following changes in California: poor air quality; more severe heat; increased wildfires; shifting
vegetation; declining forest productivity; decreased spring snowpack; water shortages; a potential
reduction in hydropower; a loss in winter recreation; agricultural damages from heat, pests,
pathogens, and weeds; and rising sea levels resulting in shrinking beaches and increased coastal
floods (CCCC 2006).

The California Department of Water Resources published a report that describes the progress on
incorporating climate change into existing water resources planning and management tools and
methodologies (DWR 2006). While it does not focus on CEQA, the report does describe potential
impacts of climate change on California’s water resources. The California Coastal Commission
published a Discussion Draft titled Global Warming and the California Coastal Commission (CCC
2006), which recommends that the Commission address GCC because the Coastal Act protects
resources that are threatened by global warming.

It is hoped that a greater number of California agencies will assess climate change risks. Once
information is made available by State government agencies, it could be used to determine more
precisely to what extent a project is affected. Until then, environmental documents could make a
good faith effort to assess the potential effects of GCC on projects. In some cases, such as coastal
developments, an evaluation could be feasible, with recognized limitations related to uncertainties. In
other locations, specific impact analysis may not be feasible.

AEP Report at 16-17 (attached as Appendix A).

The fact that the AEP Report says analysis in some locations may not be feasible does not excuse the City here, because the DSEIR made no attempt to determine if specific impact analysis is feasible. Increased air temperatures and associated pollution from increased temperatures, as well as decreased water availability are foreseeable impacts on the project site and proposed residents that should be addressed, as well as the other potential impacts described above.

In fact, the DSEIR at page 2-10 actually cites some consequences of climate change for California as a whole, including: increase in temperature, reduced water supply from Sierra Nevada snowpack, and potential negative impact rise in sea level will have on surface water quality. While the DSEIR fails to analyze these impacts on the Project, they can foreseeably harm access to water.


B. Refusing to make a CEQA significance determination on cumulative climate change impacts is unlawful.

As stated in the August 5, 2009 letter from Shute Mihaly & Weinberger LLP to the City ("SMW Letter"), it is unlawful for the City to refuse to make a determination as to whether a project's non-speculative impacts are significant. CEQA Guideline s. 15064(b) requires the City to exercise "careful judgment…based to the extent possible on scientific and factual data" while Guideline s. 15144 notes that the lead agency "must use its best efforts to find out and disclose all that it reasonably can."

As the (attached as Appendix B) June 19, 2007 letter from California Department of Justice to the City of San Jose ("DOJ Letter") states, "it is inappropriate for the City to find, as it did in the [Coyote Valley] DEIR, that it is excused from making a significance determination under CEQA." The DOJ Letter expressly applied CEQA Guideline s 15064(b) to the identical failure by San Jose to determine whether climate change impacts are significant:

While the City is correct that there are currently no regulatory thresholds for significance relating to global warming impacts, this does not relieve a lead agency of its statutory obligation under CEQA to determine whether or not a project’s impacts are significant. As the CEQA Guidelines note, “[a]n ironclad definition of significant effect is not always possible ....” In the future, there may well be “an approved plan or mitigation program which provides specific requirements that will avoid or substantially lessen the cumulative problem” of GHG emissions and global warming impacts, but until that time, lead agencies must rely only on their own “careful judgment ... based to the extent possible on scientific and factual data” in determining whether a project’s global warming-related impacts are significant.

DOJ Letter at 5-6 (internal citations omitted).

The failure in the DSEIR to exercise "careful judgment ... based to the extent possible on scientific and factual data" under Guideline s. 15064(b) match the case where the DOJ Letter indicated to San Jose regarding its (ultimately-withdrawn) DEIR that it was inappropriate in determining whether a project’s global warming-related impacts are significant.


1. Significance thresholds exist, yet the SEIR fails to exercise judgment to apply them.

While significance thresholds may not have been finalized, they indisputably exist, as acknowledged in the DSEIR. DSEIR at 2-2. Two thresholds that could be used and have been suggested are zero increase in emissions and 900 ton CO2 Equivalent. SMW Letter at 9. The DSEIR offers no evidence in support of its refusal to adopt a threshold, despite the substantial evidence by experts in the field that either of these thresholds would be appropriate. Id. This fails to comply with CEQA.

As stated by the Attorney General's office, California law AB 32, "the Global Warming Solutions Act of 2006, which set State targets to reduce emissions to 1990 levels by 2020, and to 80% below 1990 levels by 2050, provide a relevant benchmark for determining significance." DOJ Letter at 7. Any impact of the project that reduces the likelihood of compliance with AB 32 justifies a determination of significance.

California currently is not trending towards compliance with AB 32, as seen on page 22 of the Inventory of California Greenhouse Gas Emissions ("California Inventory") cited in the DSEIR:


Any net increase in emissions resulting from the Project would move away from AB 32 compliance. We further note that Gilroy's increasing population indicates that Gilroy itself is also unlikely to be moving in the direction toward compliance with AB 32.


2. The DSEIR must make determinations of significance even in the absence of finalized thresholds created by other agencies.

As noted above, lead agencies must use their own determinations and judgment, backed by substantial evidence, to determine whether impacts are significant, and these commonly occur in situations where no significance thresholds have been created by other agencies. For example, a lead agency may need to determine whether removing a number of trees from a parcel in order to develop it is a significant impact, and whether the size, proximity, and visibility of a development make the visual impacts significant. In neither case can the lead agency rely on simple application of a regulatory threshold developed by expert agencies, yet significance determinations such as these are commonplace. Here, where draft thresholds and guidance from professionals and the State Attorney General are available, the City has even less excuse in its unlawful failure to apply a significance threshold.


3. Failure to make a significance determination is contrary to the purpose of CEQA and contrary to the purpose of exempting EIRs from speculative determinations.

The purpose of CEQA is to ensure the public and decision-makers are adequately informed when making decisions and that feasible mitigations are applied. Speculative determinations are not required under CEQA because from the nature of being speculative, they would not inform decisionmakers whether the project's benefits exceed its environmental costs. That is not the case here, where the DSEIR does not deny impacts but only refuses to draw conclusions about them. The DSEIR deprives the City and the public from the opportunity to determine whether the project should go forward, as well as unlawfully denying the protection under CEQA of requiring feasible mitigations that reduce significant impacts.


C. The DSEIR underestimates climate change impacts from the Project.

Not only does the DSEIR fail to properly apply a significance threshold to climate change impacts, it underestimates those impacts and fails to adequately measure and describe what in fact is a cumulatively significant impact. The DSEIR states its estimate of greenhouse gas ("GHG") emissions is "likely to be quite conservative". DSEIR at 2-16. This is both incorrect and contradicted by information on the same page of the DSEIR that acknowledges additional GHG sources that were not included in the calculations. Id.

While the DSEIR claims these other sources would be insubstantial, it provides no information to support it. To the contrary, it acknowledges that only 82% of California GHG emissions come from CO2 (id. at 2-12), and the DSEIR does not measure all CO2 emissions from the Project, but only those from transportation and electricity production. Emissions that were left out that could substantially increase the Project's impacts include:

• Construction, especially with cement, emits substantial amounts of CO2. California Inventory at 11. Construction emissions on site were not quantified.

• Nitrous oxide results from "soil management" in agricultural sectors. California Inventory at 10. Application of fertilizer can increase nitrous oxide. See http://www.epa.gov/nitrousoxide/sources.html. The Project's golf course and residential development will foreseeably result in significant in significant fertilizer use compared to present conditions. See, e.g., http://www.brodheadwatershed.org/drinkingwaterthreats.html ("Homeowners use four to eight times the amount of fertilizer and pesticides per acre than farms. Golf courses are another potential source of groundwater contamination from overuse of fertilizer and pesticides.")

• Landfill methane emissions from the project should be included, and the California Inventory notes this as an important issue with data expected available in 2008. California Inventory at iii.

• The Project will result in substantial increases in water usage. In addition to all other aspects of water impacts, the GHG emissions needed to provide the water from local and distant sources should be quantified.

• “The General Plan EIR identified that development consistent with the general plan would increase wastewater generation that would exceed the existing treatment and disposal capacity of the WWTP. DSEIR at 2-28. Feasibility and desirability wastewater system expansion, considering expected reduction in availability of water due to climate change, must be considered. Energy impacts from wastewater treatment and from expanding the wastewater infrastructure must also be included.


D. Feasible climate change mitigation measures were unlawfully excluded from the DSEIR.

Because this Project in fact has cumulatively significant climate change impacts, it should have required mitigation measures that are absent from the DSEIR. These include the following:

• Minimizing and/or adapting to climate change will require alterations to existing regional transportation system. Mobility will most likely include increased use of public transportation, carpooling, biking, and/or walking. The effect that expanding the developed land area within Gilroy will have on the feasibility of alternative transportation methods should be considered. The DSEIR does not adequately address the role of alternative transportation, nor does it analyze whether a feasible alternative exists by channeling development in existing City boundaries where alternative transportation is more likely to succeed.

• The statement that future development should be constructed to LEED or Build It Green standards "where feasible" (DSEIR at 2-18) has an exemption of "feasibility" that swallows the rule. If the mitigation is simply found "infeasible" then the project could have significant impacts without any finding of overriding circumstances required under CEQA.


II. The DSEIR underestimates or omits other significant impacts.

The DSEIR states that the General Plan EIR found that increased flooding, erosion, and siltation from the Project area and other development, absent mitigation, would be significant. DSEIR at 2-31 to 2-32. It said mitigation to contain runoff to predevelopment levels would reduce the impact to less than significant levels. Id. (referencing the General Plan EIR). The DSEIR says independently of the General Plan EIR that the "California Regional Water Quality Control Board will require future development to be designed to ensure that post-development runoff is contained to pre-development levels." Id. This is incorrect.

National Pollutant Discharge Elimination Systems (NPDES) permits under Water Quality Control Boards have not, in fact, required a match between pre- and post- development runoff, permit systems that have changed substantially since the General Plan EIR. See, e.g., Controlling Cumulative Impacts from Impervious Surfaces: Analysis and Recommendations for Santa Clara County (attached as Appendix C). Generally, they allow post-development hydrology to differ from pre-development for the effects of large storms, for situations where mitigation costs exceed a certain percentage of the cost of the project, and to completely differ from pre-development hydrology for any project smaller a certain maximum size. Id. The exact permit requirements for the Gilroy area should be examined, and they hydrological impacts including siltation, impacts on salmonids, etc., should also be examined in light of this new information that was missed by the DSEIR. The new information indicates the presence of unexamined impacts in violation of CEQA.


III. Conclusion.

The City of Gilroy cannot approve the Project based on this inadequate DSEIR, and we request that no further consideration of the Project be given to it.

Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt, CGF Legislative Advocate
Shari Pomerantz, CGF Volunteer

Appendix A: Alternative Approaches to Analyzing Greenhouse Gas Emissions and Global Climate Change in CEQA Documents
Appendix B: June 19, 2007 letter from California Department of Justice to the City of San Jose ("DOJ Letter")
Appendix C: Controlling Cumulative Impacts from Impervious Surfaces: Analysis and Recommendations for Santa Clara County

-----------------
(Letter re Wren Investors DSEIR)

August 20, 2009

Stan Ketchum, Senior Planner
City of Gilroy Planning Division

Re: Wren Investors Urban Service Area Amendment (00-02) SCH#99072074

Dear Stan:

The Committee for Green Foothills ("Committee") submits the following comments regarding the Wren USA amendment ("Wren Project" or "Project"). As an initial matter, we thank the City for the two-week extension of time to comment. We continue to believe, however, that more time would have been appropriate, at a minimum the 30-day extension we understand was requested by Santa Clara County. There is no pressing urgency for this or any other of the proposed USA amendment projects.

The Committee supports the position of SOS Gilroy and their counsel that the Draft SEIR for the Project ("DSEIR") does not comply with CEQA law and Guidelines. We support this position for the reasons stated in their letters and as further explained below.


I. The DSEIR fails to analyze adequately climate-change related impacts and mitigation associated with the Project

A. The DSEIR fails to consider effects of climate change on the Project and its residents and visitors.

We note as an initial matter that the DSEIR entirely fails to discuss how the Project, residents, and visitors could be affected by climate change relative to how the area and people could be affected by climate change under the unchanged baseline use of low levels of development. As stated in Association of Environmental Professionals' 2007 report, Alternative Approaches to Analyzing Greenhouse Gas Emissions and Global Climate Change in CEQA Documents:

CEQA Projects Affected by Climate Change Impacts

The effects that GCC may have on a specific project also need to be considered in CEQA reviews.
Care is needed to determine if there is a connection between a project’s location or character and the
potential for impacts on the project to occur that are caused by GCC. Mandating mitigation to lessen
the environmental impacts of climate change on a project-level analysis without clear disclosure of
the relationship between the project and the environmental impact would not comply with CEQA.
Section 21002.1 of the California Public Resources Code states, “the purpose of an environmental
impact report is to identify the significant effects on the environment of a project…” Without
establishing what those effects are for residents in the State of California, and the relative degree of
certainty of those effects, an adequate disclosure of GCC impacts on a project would not be realized.

The precise timing, nature, and magnitude of climate change impacts at specific locations is not
certain, although projections with wide confidence limits have been developed for some parameters
such as sea level rise and meteorology. However, effects of climate change specifically mentioned in
AB 32, such as rising sea levels, modified meteorology and flood hydrographs, and changes in
snowpack could be addressed in CEQA documents. How GCC may affect species ranges may also
be considered. CEQA documents should address whether projected changes in sea level,
meteorology, flooding, snow pack, and other identifiable consequences of GCC may create hazards
for or otherwise adversely affect a project. The degree of uncertainty should also be addressed.

Potential health effects from GCC may arise from temperature increases, climate-sensitive diseases,
extreme events, and air quality. There may be direct temperature effects through increases in average
temperature leading to more extreme heat waves and less extreme cold spells. Those living in
warmer climates are likely to experience more stress and heat-related problems (e.g., heat rash and
heat stroke). In addition, climate sensitive diseases (such as malaria, dengue fever, yellow fever, and
encephalitis) may increase, such as those spread by mosquitoes and other disease-carrying insects.

GCC-related meteorological changes and sea level rises are expected to lead to other adverse impacts.
Extreme events, such as flooding and hurricanes, can displace people and damage property and
agriculture. Drought in some areas may increase and snowpack may decrease, which would decrease
water and food availability. Rising sea levels would increase stress on levees and exacerbate storm
wave run-up and coastal erosion. GCC may also contribute to air quality problems from increased
frequency of smog and particulate air pollution (EPA 2006c).

Some agencies have begun to assess potential risks from climate change in various regions of the
State. The California Climate Change Center uses three IPCC climate change scenarios to assess
risks from climate change to California (CCCC 2006). The report indicates GCC could result in the
following changes in California: poor air quality; more severe heat; increased wildfires; shifting
vegetation; declining forest productivity; decreased spring snowpack; water shortages; a potential
reduction in hydropower; a loss in winter recreation; agricultural damages from heat, pests,
pathogens, and weeds; and rising sea levels resulting in shrinking beaches and increased coastal
floods (CCCC 2006).

The California Department of Water Resources published a report that describes the progress on
incorporating climate change into existing water resources planning and management tools and
methodologies (DWR 2006). While it does not focus on CEQA, the report does describe potential
impacts of climate change on California’s water resources. The California Coastal Commission
published a Discussion Draft titled Global Warming and the California Coastal Commission (CCC
2006), which recommends that the Commission address GCC because the Coastal Act protects
resources that are threatened by global warming.

It is hoped that a greater number of California agencies will assess climate change risks. Once
information is made available by State government agencies, it could be used to determine more
precisely to what extent a project is affected. Until then, environmental documents could make a
good faith effort to assess the potential effects of GCC on projects. In some cases, such as coastal
developments, an evaluation could be feasible, with recognized limitations related to uncertainties. In
other locations, specific impact analysis may not be feasible.

AEP Report at 16-17 (attached as Appendix A).

The fact that the AEP Report says analysis in some locations may not be feasible does not excuse the City here, because the DSEIR made no attempt to determine if specific impact analysis is feasible. Increased air temperatures and associated pollution from increased temperatures, as well as decreased water availability are foreseeable impacts on the project site and proposed residents that should be addressed, as well as the other potential impacts described above.

In fact, the DSEIR at page 2-20 actually cites some consequences of climate change for California as a whole, including: increase in temperature, reduced water supply from Sierra Nevada snowpack, and potential negative impact rise in sea level will have on surface water quality. While the DSEIR fails to analyze these impacts on the Project, they can foreseeably harm access to water.


B. Refusing to make a CEQA significance determination on cumulative climate change impacts is unlawful.

As stated in the August 5, 2009 letter from Shute Mihaly & Weinberger LLP to the City ("SMW Letter"), it is unlawful for the City to refuse to make a determination as to whether a project's non-speculative impacts are significant. CEQA Guideline s. 15064(b) requires the City to exercise "careful judgment…based to the extent possible on scientific and factual data" while Guideline s. 15144 notes that the lead agency "must use its best efforts to find out and disclose all that it reasonably can."

As the (attached as Appendix B) June 19, 2007 letter from California Department of Justice to the City of San Jose ("DOJ Letter") states, "it is inappropriate for the City to find, as it did in the [Coyote Valley] DEIR, that it is excused from making a significance determination under CEQA." The DOJ Letter expressly applied CEQA Guideline s 15064(b) to the identical failure by San Jose to determine whether climate change impacts are significant:

While the City is correct that there are currently no regulatory thresholds for significance relating to global warming impacts, this does not relieve a lead agency of its statutory obligation under CEQA to determine whether or not a project’s impacts are significant. As the CEQA Guidelines note, “[a]n ironclad definition of significant effect is not always possible ....” In the future, there may well be “an approved plan or mitigation program which provides specific requirements that will avoid or substantially lessen the cumulative problem” of GHG emissions and global warming impacts, but until that time, lead agencies must rely only on their own “careful judgment ... based to the extent possible on scientific and factual data” in determining whether a project’s global warming-related impacts are significant.

DOJ Letter at 5-6 (internal citations omitted).

The failure in the DSEIR to exercise "careful judgment ... based to the extent possible on scientific and factual data" under Guideline s. 15064(b) match the case where the DOJ Letter indicated to San Jose regarding its (ultimately-withdrawn) DEIR that it was inappropriate in determining whether a project’s global warming-related impacts are significant.


1. Significance thresholds exist, yet the SEIR fails to exercise judgment to apply them.

While significance thresholds may not have been finalized, they indisputably exist, as acknowledged in the DSEIR. DSEIR at 2-12. Two thresholds that could be used and have been suggested are zero increase in emissions and 900 ton CO2 Equivalent. SMW Letter at 8. The DSEIR offers no evidence in support of its refusal to adopt a threshold, despite the substantial evidence by experts in the field that either of these thresholds would be appropriate. Id. This fails to comply with CEQA.

As stated by the Attorney General's office, California law AB 32, "the Global Warming Solutions Act of 2006, which set State targets to reduce emissions to 1990 levels by 2020, and to 80% below 1990 levels by 2050, provide a relevant benchmark for determining significance." DOJ Letter at 7. Any impact of the project that reduces the likelihood of compliance with AB 32 justifies a determination of significance.

California currently is not trending towards compliance with AB 32, as seen on page 22 of the Inventory of California Greenhouse Gas Emissions ("California Inventory") cited in the DSEIR:


Any net increase in emissions resulting from the Project would move away from AB 32 compliance. We further note that Gilroy's increasing population indicates that Gilroy itself is also unlikely to be moving in the direction toward compliance with AB 32.


2. The DSEIR must make determinations of significance even in the absence of finalized thresholds created by other agencies.

As noted above, lead agencies must use their own determinations and judgment, backed by substantial evidence, to determine whether impacts are significant, and these commonly occur in situations where no significance thresholds have been created by other agencies. For example, a lead agency may need to determine whether removing a number of trees from a parcel in order to develop it is a significant impact, and whether the size, proximity, and visibility of a development make the visual impacts significant. In neither case can the lead agency rely on simple application of a regulatory threshold developed by expert agencies, yet significance determinations such as these are commonplace. Here, where draft thresholds and guidance from professionals and the State Attorney General are available, the City has even less excuse in its unlawful failure to apply a significance threshold.


3. Failure to make a significance determination is contrary to the purpose of CEQA and contrary to the purpose of exempting EIRs from speculative determinations.

The purpose of CEQA is to ensure the public and decision-makers are adequately informed when making decisions and that feasible mitigations are applied. Speculative determinations are not required under CEQA because from the nature of being speculative, they would not inform decisionmakers whether the project's benefits exceed its environmental costs. That is not the case here, where the DSEIR does not deny impacts but only refuses to draw conclusions about them. The DSEIR deprives the City and the public from the opportunity to determine whether the project should go forward, as well as unlawfully denying the protection under CEQA of requiring feasible mitigations that reduce significant impacts.


C. The DSEIR underestimates climate change impacts from the Project.

Not only does the DSEIR fail to properly apply a significance threshold to climate change impacts, it underestimates those impacts and fails to adequately measure and describe what in fact is a cumulatively significant impact. The DSEIR states its estimate of greenhouse gas ("GHG") emissions is "likely to be quite conservative". DSEIR at 2-25 to 2-26. This is both incorrect and contradicted by information on the same page of the DSEIR that acknowledges additional GHG sources that were not included in the calculations. Id.

While the DSEIR claims these other sources would be insubstantial, it provides no information to support it. To the contrary, it acknowledges that only 82% of California GHG emissions come from CO2 (id. at 2-22), and the DSEIR does not measure all CO2 emissions from the Project, but only those from transportation and electricity production. Emissions that were left out that could substantially increase the Project's impacts include:

• Construction, especially with cement, emits substantial amounts of CO2. California Inventory at 11. Construction emissions on site were not quantified.

• Nitrous oxide results from "soil management" in agricultural sectors. California Inventory at 10. Application of fertilizer can increase nitrous oxide. See http://www.epa.gov/nitrousoxide/sources.html. The Project's golf course and residential development will foreseeably result in significant in significant fertilizer use compared to present conditions. See, e.g., http://www.brodheadwatershed.org/drinkingwaterthreats.html ("Homeowners use four to eight times the amount of fertilizer and pesticides per acre than farms. Golf courses are another potential source of groundwater contamination from overuse of fertilizer and pesticides.")

• Landfill methane emissions from the project should be included, and the California Inventory notes this as an important issue with data expected available in 2008. California Inventory at iii.

• The Project will result in substantial increases in water usage. In addition to all other aspects of water impacts, the GHG emissions needed to provide the water from local and distant sources should be quantified.

• “The General Plan EIR identified that development consistent with the general plan would increase wastewater generation that would exceed the existing treatment and disposal capacity of the WWTP. DSEIR at 2-38. Feasibility and desirability wastewater system expansion, considering expected reduction in availability of water due to climate change, must be considered. Energy impacts from wastewater treatment and from expanding the wastewater infrastructure must also be included.


D. Feasible climate change mitigation measures were unlawfully excluded from the DSEIR.

Because this Project in fact has cumulatively significant climate change impacts, it should have required mitigation measures that are absent from the DSEIR. These include the following:

• Minimizing and/or adapting to climate change will require alterations to existing regional transportation system. Mobility will most likely include increased use of public transportation, carpooling, biking, and/or walking. The effect that expanding the developed land area within Gilroy will have on the feasibility of alternative transportation methods should be considered. The DSEIR does not adequately address the role of alternative transportation, nor does it analyze whether a feasible alternative exists by channeling development in existing City boundaries where alternative transportation is more likely to succeed.

• The statement that future development should be constructed to LEED or Build It Green standards "where feasible" (DSEIR at 2-27) has an exemption of "feasibility" that swallows the rule. If the mitigation is simply found "infeasible" then the project could have significant impacts without any finding of overriding circumstances required under CEQA.


II. The DSEIR underestimates or omits other significant impacts.

The DSEIR states that the General Plan EIR found that increased flooding, erosion, and siltation from the Project area and other development, absent mitigation, would be significant. DSEIR at 2-42. It said mitigation to contain runoff to predevelopment levels would reduce the impact to less than significant levels. Id. (referencing the General Plan EIR). The DSEIR says independently of the General Plan EIR that the "California Regional Water Quality Control Board will require future development to be designed to ensure that post-development runoff is contained to pre-development levels." Id. This is incorrect.

National Pollutant Discharge Elimination Systems (NPDES) permits under Water Quality Control Boards have not, in fact, required a match between pre- and post- development runoff, permit systems that have changed substantially since the General Plan EIR. See, e.g., Controlling Cumulative Impacts from Impervious Surfaces: Analysis and Recommendations for Santa Clara County (attached as Appendix C). Generally, they allow post-development hydrology to differ from pre-development for the effects of large storms, for situations where mitigation costs exceed a certain percentage of the cost of the project, and to completely differ from pre-development hydrology for any project smaller a certain maximum size. Id. The exact permit requirements for the Gilroy area should be examined, and they hydrological impacts including siltation, impacts on salmonids, etc., should also be examined in light of this new information that was missed by the DSEIR. The new information indicates the presence of unexamined impacts in violation of CEQA.


III. Conclusion.

The City of Gilroy cannot approve the Project based on this inadequate DSEIR, and we request that no further consideration of the Project be given to it.

Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt, CGF Legislative Advocate
Shari Pomerantz, CGF Volunteer

Appendix A: Alternative Approaches to Analyzing Greenhouse Gas Emissions and Global Climate Change in CEQA Documents
Appendix B: June 19, 2007 letter from California Department of Justice to the City of San Jose ("DOJ Letter")
Appendix C: Controlling Cumulative Impacts from Impervious Surfaces: Analysis and Recommendations for Santa Clara County