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

Ocean acidification off the Northern California Coast

Ocean acidification is a terrible and under-appreciated aspect of climate change, a result of carbon dioxide emissions changing ocean chemistry. The Acid Test documentary linked above discusses how this problem has affected coastal life in our areas, as seashells start to dissolve in the acidifying ocean. It aired yesterday and will re-air later in the month.

-Brian

"the citizen-based Committee for Green Foothills and the Sierra Club fought development of open space, project by project, to preserve the land."

Great to have quotes like that one above even in articles that aren't about us, but rather about long-time journalist Marion Softky:

The scale of open space from the valley to the coast is unmatched in a large metropolitan area, she says.

The "Freeway Revolt" stopped the extension of Willow Road to the coast; the proposed outer Bayshore Freeway was never built; and a plan was scuttled to "level" the top of San Bruno Mountain to provide fill for proposed development in and around San Francisco Bay.

Incorporation of Woodside in 1955, followed by Portola Valley in 1964, further contributed to preserving the rural atmosphere, undeveloped hillsides and forests. Voters wanted to take control of their future rather than let the county continue to make their land-use decisions.

While these incorporations tended to slow growth in the two towns, the citizen-based Committee for Green Foothills and the Sierra Club fought development of open space, project by project, to preserve the land.

Ms. Softky says environmentalists such as Olive Mayer, Claire Dedrick and Lennie Roberts followed the motto: "Victories are temporary; defeats are permanent. To save open space, you have to buy land fee simple."

Great news for Northern California and San Mateo Coasts

The Coastal Commission decided yesterday on a 3-2 vote to set up no fishing, no diving/underwater take zones in certain areas of the California coast, including off of Half Moon Bay.

Our oceans have been so devastated with overfishing and other impacts over the last few decades that "safe zones" free from human predation make overwhelming sense. This, incidentally, was one of the idea behind establishing national parks a century ago: that refuges for game animals would be a source of animals that left the protected area where they could then be hunted without risk of wiping out the population.

A fishermen's group rightly notes that water pollution is not addressed or solved by this action, but that's no reason not to move forward. We at CGF are very interested in solving water pollution issues just as much as seeing marine habitats protected from overfishing.

One final note - it's unfortunate that this wasn't a unanimous vote. CGF has paid a lot of attention to getting good people appointed to the Coastal Commission, and it paid off this time.