Thursday, September 9, 2010

CGF Comments on the draft Stanford HCP and EIS

(We submitted the comments below on the draft Stanford HCP.  -Brian) 

August 30, 2010

Sheila Larsen
Gary Stern
Fish and Wildlife Service and
National Marine Fisheries Service

            Re:  Comments on the Draft EIS and HCP/ITP for Stanford University

Dear Sheila and Gary:

Committee for Green Foothills (CGF) submits the following comments on the Draft EIS (DEIS) and HCP/ITP (HCP) for Stanford University:

I. Relationship to Searsville Dam and operations

The EIS, on pages 3-24 and 3-25, discusses an alternative that covers modifications to Searsville Dam and Reservoir for Flood Control, and concludes that this alternative was rejected from further consideration because no specific modifications have been evaluated for feasibility, and there is a large array of flood control measures that the Army Corps and the JPA will be analyzing and considering in the future.  The EIS does not discuss an alternative that covers modifications to Searsville Dam and Reservoir for the purpose of benefitting steelhead.  The HCP (Section 1.3, page 11) states that future structural changes to the dam could be covered by an addendum to the HCP.

Potential removal or modifications of Searsville dam to allow fish passage, while potentially beneficial for fish, could also have potentially adverse impacts to steelhead downstream of the dam due to increased sedimentation of the main stem of San Francisquito Creek. The large sediment load that originates in the Corte Madera Creek sub-watershed currently accumulates in large part behind the dam.  Searsville Lake and associated marshes and riparian areas provide habitat for species that would be greatly altered if the dam were removed.  These unknown impacts, particularly to aquatic avian species and bats, could outweigh the benefits of increased spawning and rearing habitat for steelhead upstream of the dam.   Downstream sedimentation associated with removal or modification of Searsville and potential increases in flood hazards in East Palo Alto, Palo Alto, and Menlo Park is another complex issue that must be carefully studied and thoroughly evaluated.

CGF supports a comprehensive study of options for Searsville Dam and Lake in collaboration with Stanford and other stakeholders.  Such a study should include analysis of beneficial and adverse impacts to species as well as downstream flood hazards.  CGF does not oppose inclusion of a sufficiently-comprehensive study in this HCP, even recognizing that such a study would necessarily delay the HCP.  CGF further believes, however, that a comprehensive study could also be done as an amendment to the HCP/ITP.

II. The HCP and DEIS fail to address the Stanford Sustainable Development Study

The wholesale failure to include discussion or analysis of the Stanford Sustainable Development Study (Sustainability Study) constitutes a significant oversight in the HCP and environmental review.  Stanford authored both the Sustainability Study and the Draft HCP, making the oversight particularly jarring.  Correcting this oversight will require significant rewriting of the HCP and EIS to reflect the Sustainable Development Study's conclusions about the amount of campus development that will be needed to occur beyond the Academic Growth Boundary (AGB).

The land outside the AGB and subject to the Sustainability Study analysis is likely to contain the majority of habitat potentially affected by the HCP, so conclusions in the Sustainability Study about level of anticipated development should weigh heavily on the assessment of anticipated impacts from the HCP.  Historically, the level of development of Stanford land in San Mateo County has been quite small – most development occurred in Santa Clara County.  The vast majority of habitat in Santa Clara County is outside the AGB.  Important exceptions occur in the vicinity of San Francisquito Creek and Lake Lagunita, but both of those areas will be subject to special restrictions in the HCP. 

The Sustainability Study analysis covers approximately half the time period of the proposed HCP, also making it highly determinative of projections for the second half of the HCP time period.  There is no reason for assuming a sudden explosion of development after the current General Use Permit and Sustainability Study analysis end, so the best practice would be to rely on these existing analyses to project outward for an additional 25 years.

III. The HCP and DEIS overestimate the amount of habitat that Stanford may want to impact

HCP and DEIS should examine actual habitat development rates under the GUP for purposes of projecting future needs.  The DEIS states that under the existing GUP, Stanford "could" develop up to 30 acres of potential habitat.  DEIS at 3-2.  No citation is given for this statement, and the GUP in any event is not the final word on new development at Stanford.  To assess future habitat development rates based on the GUP, the HCP should instead examine what acreage of habitat has been developed in the nearly 10 years that the GUP has been in place.

The 180-acre estimate double-counts the 30 acres for the GUP.  As discussed below, the projection of 50-150 acres of anticipated development overstates the existing trends and contradicts Stanford's own analysis.  Even if the trend of 1-3 acres annually were correct, however, that would cover the time period and geographic area of the GUP.  There is no analysis supporting the conclusion that Stanford would damage habitat at its pre-GUP rate, and then in addition to that impact, would destroy another 30 acres through the GUP.  The already-inflated and incorrect 150 acre estimate of habitat impact forms a ceiling.

The Sustainability Analysis estimates significant constraints on future development that need to be included the HCP analysis.  To our knowledge, the Sustainability Study is left unmentioned in the HCP and DEIS, especially its conclusion that essentially no development need occur beyond the AGB in Santa Clara County.  While it is not binding, the Sustainability Study is Stanford's own analysis of future impacts that it should not ignore simply because it is not currently discussing the sustainability of development patterns.

The Sustainability Study indicates the level of impact on acreage beyond the AGB should be near zero for the 25 years covered by the Study, and the HCP impact levels should be adjusted to the reflect that fact.  The Sustainability Study further indicates a likely constrained level of development in other habitat areas and constrained development in the area beyond the AGB after 2035.  No evidence has been provided for a different trend in the future than the trend anticipated by Stanford itself in its own study.  That trend should be extended forward to cover the period of the HCP.

Simply put, the HCP and DEIS provided an incorrect trend line for anticipating future habitat development that would require a permit.  It has not provided a habitat development rate for recent years under the GUP, nor has it included the constraints on development that Stanford itself acknowledged in the Sustainability Study.  Reduced impact figures should therefore be included as constraints on the terms of the HCP.

IV. Stanford's authority over the land trust significantly reduces the trust's ability to do its job and avoid conflicts of interest.

The land trust that is to be the recipient of conservation easements from Stanford needs to be completely independent of Stanford and ready (if needed) to even bring legal action against Stanford to enforce the easements, yet Stanford is given authority to set up the trust with no details on how that will happen.   Establishment of a trust directed in whole or even in part by persons receiving paychecks from Stanford would create irreconcilable conflicts of interest, as Stanford's ability to exercise control over its employees could influence whether the trust could exercise its legal obligation to protect the conservation easements.  Disclaimers that "Stanford would never do such a thing, even 50 years from now" are wholly irrelevant, whether such disclaimers are accurate or not.  The conflict of interest exists regardless of good intentions.

The trust also needs sufficient resources to monitor and defend the easements that it owns.  This could include litigation both litigation and ability to call on independent scientific expertise.  The land trust needs to be adequately funded by Stanford[1], and run by worthy people nominated by Stanford in advance of approval, who are not Stanford employees, and who appoint their own replacements so that Stanford has no subsequent appointment power.

V. Additional issues

            CGF provides the following short-but-important comments:

The HCP needs to integrate and work with downstream impacts of San Fracisquito Creek on endangered species.  The San Francisquito Creek flood control project in particular should be discussed in the HCP as an opportunity for potential cooperation.

The HCP needs further specificity in describing areas that are to be preserved away from the riparian zones.

            Undevelopable areas placed under conservation easements should not be credited to Stanford as mitigation for development elsewhere.  In particular, streambeds are essentially undevelopable.  Stanford will never have an opportunity to develop those areas and creation of conservation easements therefore does nothing to mitigate impacts elsewhere.  The conservation easements should have to extend an additional distance away beyond streambeds to include areas that have some potential for development in order to act as real mitigation.

            As the red-sided garter snake habitat is unprotected and increasingly likely to be destroyed south of Stanford, it is also likely that intergrade garter snakes at Stanford will increasingly belong to the San Francisco garter snake gene pool and should be treated as a listed species.


            We urge the HCP and DEIS be revised to reflect the comments in this letter.

            Please contact us with any questions.


Brian A. Schmidt                                                                                    Lennie Roberts
Legislative Advocate, Santa Clara County                                                 Legislative Advocate, San Mateo County

[1] One possibility is a funding agreement with Stanford that allows the trust to obtain funding from Stanford for consultants and even to oppose the university, such as in an enforcement action.  This agreement would have to be clear in that there could be no possibility for Stanford to evade its responsibilities, and also requires a truly independent trust to function.

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