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

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



August 29, 2011

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

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

Re: Santa Clara Valley Habitat Conservation Plan

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

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

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

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

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

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

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

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

Sincerely,
Jeff Miller
Conservation Advocate

Two minutes, three points, three successes

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

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

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

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

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

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

-Brian

Guest post: A Riparian Exploration of San Jose

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

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

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

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

-Kelsey Grousbeck

Joint Organization letter on the San Jose General Plan

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

August 15, 2011

Mr. Andrew Crabtree, Envision Team Leader              

Planning, Building and Code Enforcement

San Jose City Hall

200 East Santa Clara Street

San Jose, CA 95113

Dear Mr. Crabtree,

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

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

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

Jobs-Housing Ratio

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

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

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

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

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

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

Housing

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

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

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

Transportation

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

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

Public Health

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

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

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

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

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

Open Space

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

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

Conclusion

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

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

Sincerely,

Michele Beasley                      

Senior Field Representative                  

Greenbelt Alliance                   

Charles Schafer

Chair, Executive Committee

Sierra Club Loma Prieta Chapter

Frederick J Ferrer, M.S.

Chief Executive Officer

The Health Trust

Shiloh Ballard                                                                          

Vice President, Housing & Community Development    

Silicon Valley Leadership Group                      

Brian Darrow

Associate Director of Land Use and Urban Policy

Working Partnerships, USA

Brian Schmidt                                                  

Legislative Advocate                                        

Committee for Green Foothills

Erica Stanojevic

San Jose Cool Cities

CGF Comment letter on San Jose General Plan Programmatic EIR

(We wrote the letter below on the draft environmental review for the San Jose General Plan.  CGF Intern Kelsey Grousbeck did great work co-authoring this letter.  -Brian)

August 15, 2011

Andrew Crabtree, City of San Jose

RE:  Committee for Green Foothills comment letter on the Draft Program Environmental Impact Report for Envision San Jose 2040 General Plan

Dear Andrew:

            The Committee for Green Foothills submits the following comments on the Draft Program Environmental Impact Report for Envision San Jose 2040 General Plan (PEIR).  We again thank the City for extending the deadline for comments.

I. Feasible mitigations were omitted and must be included for Housing Imbalance, Transportation, Air Quality, Biological, and Land Use Impacts.

Impact PH -1, Impact TRANS -1, and other impacts listed below are described as significant. The mitigation we describe below will reduce that impact, although not necessarily to a level of insignificance, by delaying when it will occur and preventing unnecessary additional impacts. Feasible mitigations not discussed in the PDEIR reduce the multiple significant impacts associated with Jobs:Employed Resident ratios exceeding 1:1

The City worsens many of its environmental impacts, including the above impacts, through the proposed Jobs:Employed Residents ratio (J:ER) greater than 1:1, which, given the lack of housing in the Bay Area have the effect of causing large numbers of people to reside away from the Bay Area and commute by car.  The City also acknowledges that it the J:ER ratios exceed 1:1 not so much because the City actually intends those high ratios but because it wants to maximize job opportunities that will increase the current ratio significantly below 1:1.  See Committee for Green Foothills attached letter of February 22, 2010 for context.  Mitigations that allow the flexibility of planning for jobs in multiple areas while preventing or delaying J:ER ratios far in excess of 1:1 should therefore be feasible and desireable.

1.  Mitigation requiring that the J:ER jobs capacity of 1.3:1 can be planned but the actual J:ER ratio should not exceed 1:1.  The PEIR should include a mitigation for Impact PH-1, Impact TRANS -1, Impact AQ- 1, Impact LU -6, and for Impacts BIO -1, BIO -4, and LU -7, all three of which should be considered significant for reasons discussed later in this letter, a requirement that the actual jobs to employed residents ratio to remain no higher than a 1:1 ratio.  Development of jobs capacity in the City should happen in stages for different areas, and once the 1:1 ratio is reached, additional areas for additional capacity should not be readied for new jobs until the residential development level is also matched and planned to occur at approximately the same time.  The City should include this mitigation and recalculate impacts on its basis.

            2. Alternative mitigation to the strict limit of an actual J:ER ratio of 1:1, requiring the J:ER ratio remain no higher than 1:1 as long as housing is available.  The City recognizes that a higher ratio of J:ER than 1:1 means there will be more people living outside San Jose and commuting to and from the City, increasing greenhouse gas emissions and creating significantly more traffic congestion. To partially mitigate the detrimental imbalance from jobs growth without housing for Impacts (ADD FROM LIST ABOVE), the growth of jobs should be bound to the growth of housing, such that the J/ER ratio does not exceeds 1:1 until the City completes their housing development goals, and then the jobs continue to be developed, possibly up to the ratio limit of 1.3:1. If the 1:1 ratio is exceeded before all the housing is completed, job capacity expansion should cease until an adequate number of housing units are developed to bring the ratio back down to 1:1.

            The 1:1 ratio for the near future of J:ER can prevent a sudden influx of workers before housing is available in the city, which will mitigate the environmental impact of more employees living in surrounding regions and commuting than necessary. We understand that there needs to be a certain level of housing and job developments created for the region within San Jose, yet the ratio of jobs created does not need to be over 1:1 in order to have a fiscally successful city, especially not until housing goals are reached. The backloading mitigation policy is therefore both feasible and effective in preventing further environmental damage than the proposed developments are already causing.

II. Impacts from Prime Agricultural Land Loss

            There are several flaws in the PEIR related to analysis of impacts on Prime Agricultural Land.

Failure to quantify the analysis for amount of acreage of prime farmland lost.  CEQA is very clear that EIRs must be accurate, that they must not minimize project impacts, and that programmatic EIRs must not delay to project level review any impact analysis that can be conducted on the programmatic level.  The PEIR here discusses the areas where prime farmland exists and would be developed, but fails to describe exactly how many acres would be lost.  That figure is knowable;it is necessary to create an accurate EIR; the failure to include it minimizes the impact on agricultural land by omitting the large amount of lost farmland; and the figure can be derived now and need not wait for subsequent approvals.  The City cannot adequately make a Finding of Overriding Circumstances if it fails to look adequately at the significant impacts that the General Plan would authorize.

Failure to use existing conditions as the baseline.  Contrary to the statement at the beginning of PEIR Section 3 that existing conditions are used as the baseline for measuring impacts, the section on farmland references entitlements on existing farmland during the analysis of farmland impacts.  It is unclear what this reference means because no quantification of farmland impacts is given, but appears to suggest that farmland with "entitled" development would not be considered part of the lost farmland.  This fails to identify existing farmland condition as the baseline.

Describing "most" of North Coyote as entitled is insufficiently accurate.  Much of North Coyote does not even have the pretense of entitlement, and any development in those areas would indisputably result from the PEIR.

Entitlement in North Coyote Valley is questionable for failure to meet Development Agreement benchmarks. Even if the PEIR could ignore the existing farmland condition on "entitled" land, the Development Agreement for the Coyote Valley Research Park has not been satisfied due to failure to meet benchmarks on job creation in Coyote Valley in the years since the DA had been signed.  Furthermore, both the DA and subsequent permits are due to expire between now and the end of 2012.  The PEIR should not plan for the next 30 years based on agreements that are either invalid or that have not been exercised and are nearly at the point of expiration.

Impact LU-6 listed on pages 176-179 has listed the loss of Prime Agricultural Land as significant and Section 3.1.4.1 on pages 193-194 has listed the loss of Prime Agricultural Land as significant and unavoidable. The feasible mitigation described below and not included in the PEIR will reduce that impact by offsetting the effects of development on agricultural lands and delaying when the impacts will occur.

            There are approximately 957 acres of Prime Farmland in North Coyote Valley within the city limits and the Urban Service Area, with even more in the Coyote Valley Urban Reserve and in South Coyote Valley. Development of North Coyote Valley should be listed as a significant impact both for the impact on agricultural land and as a vital wildlife corridor. The City should not plan for any development in North Coyote Valley until the urban regions of the City have been built out. There is no reason to begin impacting this Prime Agriculture land when there is still viable space to develop and redevelop within the City. By backloading development in the city instead of undeveloped open space like Coyote Valley, this will mitigate the effects of increased transit to Coyote Valley as well as delay environmental impacts of development in the area.

            The City should mitigate any agricultural development in other areas by establishing conservation easements or other permanent protection measures for agricultural lands in a 1:1 ratio of acres developed to acres preserved. Specifically, agriculture should be protected in the Coyote Valley Urban Reserve, as well as South and North Coyote Valley once the Urban Reserve is completely protected.  CEQA is clear that temporary impacts are significant, so mitigations that delay impacts and are otherwise feasible have the effect of reducing those impacts and must be implemented. 

III. Other comments on Agricultural Land and mitigation

Preservation is mitigation.  In light of the California Supreme Court’s depublication of Friends of the Kangaroo Rat v. California Dept. of Corrections (2003) 111 Cal.App.4th 1400, the City should consider agricultural preservation as a feasible mitigation for the loss of agricultural land. Preservation should be at least at a one-acre-for-one-acre ratio. Preservation in Coyote Valley is preferable, but preserving farmlands in other areas of Santa Clara County should also be considered for purposes of determining feasible mitigation.  Preservation of agricultural land in other parts of the state does not adequately mitigate for the loss of local farmland and contradicts other local policies for farmland mitigation. 

The claim in the PEIR that the "protection of other existing farmland, such as through the use of agricultural easements or outright purchase, would not be considered mitigation under CEQA because the net result of such actions would still be a net loss of farmland acreage" (PEIR at 193) contradicts more recent CEQA caselaw cited above and other local farmland preservation policies such as by Santa Clara County LAFCO and City of Gilroy.  See also Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4^th 477 and Sierra Club v. County of Napa, (2004) Cal.App.LEXIS 1467.

It is inappropriate to defer to project level mitigation (PEIR at 193-194) the decision of whether agricultural mitigation should be required.  The PEIR projects the loss of farmland now, so deferring mitigation decisions to a later point contravenes CEQA.

Rooftop gardens and natural landscaping should be required.  Once all agricultural land in Coyote Valley incorporated into the greenbelt is protected, the City should require rooftop gardens and extensive natural landscaping on developments on agricultural lands to help mitigate the loss of agricultural land. This will offset the effects of heat islands, maintain air quality in the area, and potentially provide habitat for raptors and other native, winged fauna. 

IV. Impact on Serpentine Lands

Impact BIO-2 listed on pages 470-471 has been listed as significant. The mitigation described below will ensure the impact is lessened as opposed to the previous mitigation that does not commit to any measures.

            The City is relying on the completion and implementation of the Santa Clara County Habitat Conservation Plan to create preserves and enforce measures to decrease nitrogen impact on serpentine lands. Before the HCP is implemented, and in case the HCP is not implemented, the City currently says it will develop its own measures if it has the appropriate resources, then continues to say that they do not have the appropriate resources. There needs to be a tangible interim mitigation to damage done to serpentine lands created and implemented by the City and based on the proposals in the HCP. If the HCP is implemented, then the City can cease their mitigation only if the HCP is serving to at least fully mitigate the impact.

            Some suggested mitigation measures include creating serpentine preserves to prevent nearby development, charging a nitrogen deposition tax on new developments in the sensitive areas, charging a fee on sewer hook-ups near the sensitive areas, and charging a gas or Vehicle Miles Traveled fee. These measures would help protect an extremely unique and fragile ecosystem from irreversible damage, and to reach that goal the City should devote as many resources as necessary.  These mitigations should mandatory in the absence of an approved Habitat Plan.

V. Impact on Wetlands, Baylands, and Riparian Corridors, and on Wildlife Movement

Impact BIO -1 and BIO -4 have been listed as less than significant, but should be listed as significant.

            Incorrect description of impacts on North Coyote Valley as less than significant.  Page 458 of the PEIR states:

Due to the relatively high levels of disturbance associated with already existing agricultural habitats that could be developed under the proposed General Plan, the relative abundance of suitable habitat for species such as raptors, other birds, and small mammals that use agricultural habitats both within the region and the state (e.g., when grassland availability in the vicinity in the Diablo Range and Santa Cruz Mountains is considered), impacts of development allowed by the General Plan to agricultural habitats within San José would be less than significant.

            Documentation by the De Anza College Wildlife Corridor Stewardship Team that is briefly described by the PEIR but effectively ignored actually refutes this argument (see attached  letter also available at http://www.sanjoseca.gov/coyotevalley/docs/Ltr_DeAnza_Wildlife_Study_04.14.08.pdf):

“The ‘heavily disturbed agricultural and developed areas on the Coyote Valley Floor’ is currently providing a wildlife corridor for species of Coyote Valley that come from both mountain ranges and ones which are already in the valley” -7

“Animals are not only moving but also foraging on the floor of Coyote Valley” -10

“Agricultural lands are of high value to wildlife that forage” -10

“One should not be surprised that such high animal use happens on the ‘heavily disturbed agricultural and developed areas on the Coyote Valley floor’. These agricultural lands provide a home for a variety of rodents, which are the main prey for several predators found on the Coyote Valley floor. We have not gone a day in Coyote Valley with out seeing several California ground squirrels.” -10

"If [The Coyote Valley Specific Plan, making the same claim of less-than-significant impacts] were to be implemented it would have a highly significant impact to this existing wildlife corridor and the regional movement of species, thus completely halting the natural movement that wildlife species have implemented themselves. This movement has enabled them to be able to exist in the last remaining large open space in the area of Santa Clara County" -11

            These analyses show, as they did with the Coyote Valley Specific Plan, that significant wildlife impacts occur with development in Coyote Valley.  (See also attached De Anza Wildlife Corridor Project Annual Report available at http://www.deanza.edu/es/wildlifecorrproj/CV%202008%20Annual%20Report%20Final%20V2%201_14_10.pdf ("Coyote Valley is one of two connectivity points between the Diablo Range and the Santa Cruz Mountains, the other being through the Pajaro River Basin, and is the only linkage with a direct connection between the two. If Coyote Valley is developed, the linkage will be lost and species in the Santa Cruz Mountains with large home ranges such as the mountain lion and the North American badger will be genetically isolated and local extinction may occur."))

Below are suggestions on refining policies to ensure mitigation measures are met:

• Policy ER-3.2 should be written with stricter language. Instead of calling a 100-ft setback “a standard to be achieved” it should be a required standard, unless it can be proven there is no feasible alternative. In the case where there is no feasible alternative, the farthest distance possible should be proposed as the setback and the City must review and approve the proposal, which should include measures to mitigate the project’s impact on the riparian corridor. This minimizes impacts to the riparian corridors and waterways in a more tangible way than the recommendations from San Jose’s Riparian Corridor Policy Study.
• With Policy ER-4.4, instead of “avoiding new development”, changing the language to “prohibiting new development” will guarantee the mitigation is successful. In sensitive areas such as baylands and wetlands, all detrimental development should be prohibited, especially in specific regions where endangered species are known to breed or nest. Failure to adopt stricter policies on development in these areas will cause significant, irreversible damage to San Jose and the surrounding regions’ wildlife populations.

VI. Other considerations.

            Require recycled-water tolerant landscaping.  To reduce impacts on water supply, the PEIR should include a mitigation that the Community Forest, City-managed landscaping, and other new landscaping be recycled-water tolerant.

            Institute a policy on no-net increase in impervious surfaces:   Either as a feasible mitigation for hydrological impacts or as an independent choice by the City to avoid environmental effects, it should institute the following as a mitigation or a new policy:  "encourage an overall trend toward a net decrease in impervious surface areas through project renovations with a focus on parking lots, driveways, sidewalks, and patios, and investigate a project-specific, no-net-increase in imperviousness that would allow payment into compensation funds where projects require on-site increase in impervious surfaces."

            Impact LU -7 should be considered significant.  The Golf Course Overlay in particular creates the opportunity for tens to hundreds of acres of lost habitat that have not been analyzed in the PEIR.  The Golf Course Overlay should be eliminated (existing courses will therefore be grandfathered).  All other disturbances should be limited to no more than 10% of the property's surface area.  Only these changes can make this impact less than significant.

Conclusion.

Please contact us with any questions.  Again, we appreciate the opportunity to comment and deadline extension, and we expect our comments will help improve the environment for San Jose for decades to come.

Sincerely,

Brian A. Schmidt

Legislative Advocate, Santa Clara County

Kelsey A. Grousbeck

Advocate Intern, Committee for Green Foothills