American Canyon City Council
March 21, 2023

significant indirect or cumulative impacts associated with habitat for Swainson’s hawk in this area and the proposed project would not add to any such impact.” However, the proposed Project would remove 154.7 acres of Swainson’s hawk foraging habitat, resulting in a net loss of habitat that is equivalent to approximately 7% of the preserved foraging habitat the FEIR states is available in the vicinity of the Project, which is a significant proportion. While the proposed Project does include the establishment of a 45-acre Wetland Preserve (Mitigation Measure BIO-2), this is included as mitigation for impacts to wetlands, not as mitigation for impacts to Swainson’s hawk. Swainson’s hawk is not typically associated with wetlands, though they may be found foraging in wetlands if they are adjacent to grasslands (Shannon Skalos, CDFW Avian Specialist, personal communication, November 22, 2022). As the Project would remove the majority of grasslands on the property, the suitability of the wetland preserve area as Swainson’s hawk foraging habitat would likely be greatly reduced.

In summary, the loss of foraging habitat is the primary threat to Swainson’s hawk and the FEIR does not propose mitigation for potentially significant impacts to Swainson’s hawk foraging habitat. Additionally, several other large development projects near the proposed Project have not been required to mitigation for Swainson’s hawk foraging habitat, despite CDFW’s strong recommendations to mitigate in order to reduce impacts to Swainson’s hawk to less-than-significant. Therefore, the net loss of 154.7 acres of foraging habitat from the proposed Project, in conjunction with nearby projects that have not mitigated for loss of Swainson’s hawk foraging habitat, would contribute to a significant cumulative impact to a state threatened species. As stated previously, CDFW strongly recommends the City, as Lead Agency, require the Project to mitigate for the loss of Swainson’s hawk foraging habitat at a minimum 1:1 ratio to reduce impacts to Swainson’s hawk to less-than-significant.

Questions regarding this letter or further coordination should be directed to Alicia Bird, Environmental Scientist, at (707) 980-5154 or [email protected]; or Melanie Day, Senior Environmental Scientist (Supervisory), at (707) 210-4415 or [email protected].

Sincerely,
Erin Chappell
Regional Manager
Bay Delta Region
ec: Office of Planning and Research, State Clearinghouse (SCH No. 2021010104) DocuSign Envelope ID: 4EC2BA7F-50B7-4CF9-89E2-961CFBF49BE0 3028
Brent Cooper, Community Development Director
City of American Canyon
December 2, 2022

REFERENCES
California Department of Fish and Wildlife (CDFW), 2016. 5-year Status Review:

Swainson’s hawk (Buteo swainsoni). Prepared for the California Fish and Game Commission. Nongame Bird and Mammal Program 1416 Ninth Street, Sacramento, CA.

Furnas, B.J., Wright, D.H., Tennant, E.N., O’Leary, R.M., Kuehn, M.J., Bloom, P.H. and Battistone, C.L., 2022. Rapid growth of the Swainson’s Hawk population in California since 2005. Ornithological Applications, 124(2), p.duac006.

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City of American Canyon—Giovannoni Logistics Center Project Final EIR–Volume 2 Responses to Written Comments
FirstCarbon Solutions 3-7 https://adecinnovations.sharepoint.com/sites/PublicationsSite/Shared Documents/Publications/Client (PN-JN)/5460/54600001/EIR/4 - Final EIR - Vol II/54600001 Sec03-00 Responses to Written Comments.docx State Agencies
California Department of Fish and Wildlife (CDFW)
Response to CDFW-1
The agency reiterated comments from its first comment letter submitted to the City of American Canyon on July 18, 2022, and disputed the conclusions found in Final EIR Volume 1 about the significance of the loss of foraging habitat for Swainson’s hawk.

Loss of foraging habitat for Swainson’s hawk is addressed in Master Response A. 3031

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KEVIN T. CARMICHAEL
CHRISTINA M. CARO
THOMAS A. ENSLOW
KELILAH D. FEDERMAN
RICHARD M. FRANCO
ANDREW J. GRAF
TANYA A. GULESSERIAN
RACHAEL E. KOSS
AIDAN P. MARSHALL
TARA C. RENGIFO
MICHAEL R. SEVILLE
Of Counsel
MARC D. JOSEPH
DANIEL L. CARDOZO

SACRAMENTO OFFICE
520 CAPITOL MALL, SUITE 350
SACRAMENTO, CA 95814-4721
TEL: (916) 444-6201
FAX: (916) 444-6209

ADAMS BROADWELL JOSEPH & CARDOZO A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
601 GATEWAY BOULEVARD, SUITE 1000
SOU TH SAN FRANCISCO, CA 94080-7037
___________
TEL: (650) 589-1660
FAX: (650) 589-5062
[email protected]
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November 17, 2022
Via Email and Overnight Mail
Chair Crystal Mallare
Honorable Planning Commission Members
City of American Canyon
4381 Broadway Street, Suite 201
American Canyon, CA 94503
Email: [email protected];
[email protected];
[email protected];
[email protected];
[email protected]
Brent Cooper, AICP,
Community Development Director
Nicole Jones, Administrative Technician
Community Development Department
City of American Canyon
4381 Broadway Street, Suite 201
American Canyon, CA 94503
[email protected];
[email protected];
[email protected]
Re: Agenda Item 3 – Comments on Giovannoni Logistics Center Project Proposed by Buzz Oates Construction, Inc. (PL20-0042,
PL20-0043 and SCH #2021010104)
Dear Chair Mallare, Honorable Planning Commission Members, Mr. Cooper and Ms. Jones:

We are writing on behalf of Napa/Solano Residents for Responsible Development (“Napa/Solano Residents”) to provide comments on the Giovannoni Logistics Center Project, PL20-0042, PL20-0043 and SCH #2021010104, (“Project”) 3033
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The Project appears as Item 3 on the agenda for the November 17, 2022 City of American Canyon (“City”) Planning Commission (“Commission”) hearing. The Commission will consider adopting resolutions recommending that the City Council (1) certify the Final Environmental Impact Report (“FEIR), adopt CEQA findings of fact, adopt a Statement of Overriding Considerations and adopt a Mitigation Monitoring and Reporting Program; (2) approve a design permit for Phase 1 of the Project; and (3) approve a Tentative Parcel Map for Phase 1 of the Project.

The City, as lead agency under the California Environmental Quality Act1 (“CEQA”), prepared the Draft Environmental Impact Report (“DEIR”)2 and FEIR for the Project. Napa/Solano Residents’ comments on the DEIR explained how the DEIR failed to comply with CEQA’s basic requirement to act as an “informational document,” in that it lacked meaningful details in critical areas, such as air quality, health risk, biological resources, greenhouse gas (“GHG”) and transportation impacts, without which the public and decisionmakers cannot adequately assess the Project’s significant impacts. Because of the DEIR’s shortcomings, it was deficient as a matter of law because it failed to properly disclose and mitigate the Project’s potentially significant impacts. The DEIR also lacked substantial evidence to support the City’s conclusions regarding the Project’s impacts and proposed mitigation. These deficiencies rendered the document inadequate for purposes of compliance with CEQA.

The City’s FEIR contains responses to Napa/Solano Residents’ DEIR comments and attempts to address some of the issues raised. As discussed below, however, the FEIR fails to resolve or mitigate many of the Project’s potentially significant impacts. Moreover, the FEIR fails to disclose and/or discuss significant new information regarding the Project’s environmental setting, which requires that the EIR be revised and recirculated for public review and comment.

We reviewed the FEIR, and available supporting documents with the assistance of our expert consultants, including wetlands biologist Sarah Corbin, wildlife biologist Scott Cashen, whose comments on the FEIR are included as Exhibit A, Exhibit B, respectively.3 The City must address and respond to their 1 Pub. Resources Code (“PRC”) §§ 21000 et seq. 2 City of American Canyon, Draft Environmental Impact Report-Giovannoni Logistics Center Project (May 20, 2022) (hereinafter, “DEIR”).
3 Exhibit A, November 16, 2022 letter to Richard M. Franco from Sarah Corbin (Shannon & Wilson) (hereinafter, “Corbin FEIR Comments”); Exhibit B, November 15, 2022 letter to Richard M. Franco from Scott Cashen (hereinafter, “Cashen FEIR Comments”). 3034
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comments separately and fully.4 We reserve the right to supplement these comments at later hearings and proceedings related to the Project.5

I. STATEMENT OF INTEREST
Napa/Solano Residents is an unincorporated association of individuals and labor organizations that may be adversely affected by the potential environmental impacts associated with Project development. Napa/Solano Residents includes American Canyon residents James Aken, Samantha Spangler, Evelyn Hernandez, and Alex Somodio, and members of the International Brotherhood of Electrical Workers Local 180, Plumbers & Steamfitters Local 343, Sheet Metal Workers Local 104, Sprinkler Fitters Local 483, District Council of Ironworkers and their members and their families, and other individuals that live and/or work in the City of American Canyon and Napa/Solano Counties.

Napa/Solano Residents supports the development of sustainable commercial and industrial centers where properly analyzed and carefully planned to minimize impacts on public health and the environment. Logistics centers like the Project should avoid adverse impacts to air quality, biological resources, transportation, and public health, and should take all feasible steps to ensure unavoidable impacts are mitigated to the maximum extent feasible. Only by maintaining the highest standards can commercial and industrial development truly be sustainable.

The individual members of Napa/Solano Residents and the members of the affiliated labor organizations live, work, recreate and raise their families in and around American Canyon and Napa County. They would be directly affected by the Project’s environmental and health and safety impacts. Individual members may also work constructing the Project itself. They would be the first in line to be exposed to any health and safety hazards which may be present on the Project site.

They each have a personal interest in protecting the Project area from unnecessary, adverse environmental and public health impacts.

Napa/Solano Residents and its members also have an interest in enforcing environmental laws that encourage sustainable development and ensure a safe working environment for the members they represent. Environmentally detrimental 4 14 Cal. Code Regs. (“CCR”) §§ 15088(a), (c).
5 Gov. Code § 65009(b); PRC § 21177(a); Bakersfield Citizens for Local Control v. Bakersfield (2004) 124 Cal. App. 4th 1184, 1199-1203; see Galante Vineyards v. Monterey Water Dist. (1997) 60 Cal.

App. 4th 1109, 1121.
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projects can jeopardize future jobs by making it more difficult and more expensive for industry to expand in American Canyon and Napa County, and by making it less desirable for businesses to locate and people to live and recreate in the County, including the Project vicinity. Continued environmental degradation can, and has, caused construction moratoriums and other restrictions on growth that, in turn, reduces future employment opportunities.

Finally, Napa/Solano Residents is concerned with projects that can result in serious environmental harm without providing countervailing economic benefits.

CEQA provides a balancing process whereby economic benefits are weighed against significant impacts to the environment.6 It is in this spirit we offer these comments.

II. THE CITY MUST REVISE AND RECIRCULATE THE DEIR TO
ADDRESS SIGNIFICANT NEW INFORMATION.

Lead agencies are required to recirculate an EIR for further public review and comment if significant new information is added to the EIR after notice of public review but before certification.7 Recirculation is required when the addition of new information deprives the public of a meaningful opportunity to comment on a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect.8 New information can include “changes in the project or environmental setting as well as additional data or other information.”9 The purpose of recirculation is to give the public and other agencies an opportunity to evaluate the new data and the validity of conclusions drawn from it.10 Recirculation is also required where significant new information surfaces prior to certification of an EIR but the lead agency failed to add that information to the EIR.11 Such information must be added to the EIR—and the EIR must be recirculated—if the information would trigger the recirculation requirement under CEQA Guidelines section 15088.5. Failure to include such information thwarts the goals of the EIR process by not disclosing to the public and government agencies critical information necessary to evaluate the significance of the Project’s impacts.12 6 Pub. Resources Code § 21081(a)(3); Citizens for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 171.
7 Pub. Resources Code § 21092.1; 14 CCR § 15088.5.
8 14 CCR § 15088.5(a).
9 Id.
10 Spring Valley Lake Ass’n v. City of Victorville (2016) 248 Cal.App.4th 91, 108. 11 Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 95. 12 Id. 3036
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A. There Is A Significant Change To The Project’s Environmental Setting.

On November 9, 2022, wildlife biologist Scott Cashen performed a site visit to the Project site.13 During this visit, he observed and documented a new road and dirt berm that has been installed on the western portion of the Project site.14 This new road extends north-south through the entire Project site, and cuts directly through the proposed wetlands preserve on the northern portion of the site. The approximate extent of the new road and associated earth disturbance is depicted in the following image provided by Ms. Corbin:15
Nowhere in the DEIR or FEIR is this new road disclosed. It is not identified in the Project description and is not addressed in the DEIR’s impacts analysis or mitigation discussion, nor does it appear in any of the aerial photos or diagrams in 13 Cashen FEIR Comments, pg. 1.
14 Id.
15 Corbin FEIR Comments, pg. 11.
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the DEIR. It is conspicuously absent from all of the descriptions and diagrams of the 45 acre “wetland preserve,” 16 despite the fact that it cuts directly across the preserve and encroaches on areas slated for wetlands mitigation. Nor has the City disclosed this information or attempted to assess its impacts in the FEIR.

As Mr. Cashen points out, roads can have several effects that cause negative impacts to wildlife: mortality from road construction, mortality from collision with vehicles, modification of animal behavior, alteration of the physical environment, alteration of the chemical environment, spread of exotics, and increased use of areas by humans.17 Mr. Cashen states that the new road has already likely had impacts but the City’s failure to even disclose the existence of this new road, let alone analyze its potential impacts, precludes an assessment of the full extent of such impacts.18 The public and other governmental agencies have been denied the opportunity to evaluate the new information and its significance in violation of CEQA.

Wetlands biologist Sarah Corbin explains how the new road and associated land disturbances raise additional uncertainty about whether the proposed “wetland preserve” can adequately mitigate the Project’s impacts to wetlands and habitat. Ms. Corbin confirms that the new road clearly cuts through the proposed wetlands preserve area, comes very close to directly impacting the existing wetlands within the wetlands preserve area and may have indirectly impacted these wetlands by cutting off wetland hydrology.19 The earth disturbance associated with the road appears to extend into areas proposed for wetlands creation in this area.

Moreover, Ms. Corbin estimates that the wetland preserve area has been reduced by approximately 1.5 acres due to construction of the road.20 Likely indirect impacts to No-Name Creek and the wetlands preserve area include “untreated stormwater runoff (the road appears to be graveled and will contribute fine particulate laden runoff with or without regular use), impact of the wetland buffer within the wetland preserve in the area near the road, and disturbance associated with use such as noise, air pollution, and trash.”21 Finally, heavy equipment used to construct the road compacted soils within the earth disturbance footprint, 16 See e.g., DEIR Preliminary Site Plan Phase 1 (Exh. 2-4) and diagrams/aerial photos of wetlands impacts and proposed mitigation area (Exhs. 3.3-2, 3.3-3, 3.3-4 and 3.3-5). 17 Cashen FEIR Comments, pg. 1.
18 Id.
19 Corbin FEIR Comments, pg. 11.
20 Id. 21 Id.
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limiting root establishment and plan growth in the area.22 These disturbances will make it significantly more difficult to create wetlands on site and to replace the lost functions of the impacted wetlands.23 None of these impacts are discussed in the DEIR’s impact analysis or discussion of the proposed wetlands mitigation area, nor are they addressed in the FEIR.

EIRs are required to include a description of the physical environmental conditions in the vicinity of a project, in order to provide baseline physical conditions by which the lead agency determines the significance of the project’s impacts.24 Because the new road is a significant change to the Project’s environmental setting, and may represent an undisclosed change to the Project itself which may substantially increase the severity of the Project’s biological and wetland impacts, the City must at a minimum disclose in a revised and recirculated EIR when, how and why the road was constructed, what it is used for and how often, whether it is a permanent improvement to the Project site, and whether the land disturbances caused by construction and use of the road impacted any of the existing wetlands areas. Moreover, the recirculated EIR must reevaluate all potentially significant impacts to the Project site’s biological and wetlands resources in light of the new road feature, as well as its impacts on the proposed wetlands preserve’s ability to adequately mitigate the Project’s impacts.

B. The FEIR Fails to Disclose or Discuss the Proposed
Development Agreement for the Project.

The DEIR’s Project Description lists the Discretionary/Ministerial approvals required for the Project, including a use permit, tentative parcel map, design permit, lot line adjustment, and grading and building permits.25 Neither the DEIR nor the FEIR contain any mention of a development agreement. However, on the City’s Active Community Development Project list dated September 2022, there is a reference to a proposed development agreement for this Project; the list notes that an application for the proposed development agreement was submitted on August 1, 2022 and is on hold as of September 1, 2022 pending entitlement approvals.26 22 Id.
23 Id. 24 14 CCR § 15125.
25 DEIR, pgs. 2-10 – 2-11.
26 https://www.cityofamericancanyon.org/home/showpublisheddocument/18493/637989446453530000 3039
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A development agreement is a contract between an agency and a developer establishing certain development rights with any person having a legal or equitable interest in the property at issue. The purpose of a development agreement is generally to extend the life of the entitlements in exchange for the provision of public benefits and to reduce the economic risk of development.27 While a development agreement must advance an agency’s local planning policies, it may also contain provisions that vary from otherwise applicable zoning standards and land use requirements as long as the project is consistent with the general plan and any applicable specific plan.28 For this reason, it is critical that the terms of a proposed development agreement be disclosed to the public and analyzed during the Project’s CEQA review in order to determine whether the development agreement may have potentially significant impacts that are not otherwise inherent in the project.

When a development agreement is required to implement a project, it is considered part of the project under CEQA.29 Development agreements must be enacted in accordance with the Government Code and applicable local planning codes, and must undergo environmental review at the time of adoption. Therefore, any development agreement for the Project must be described in the EIR and considered by the City’s decision makers at the same time as the rest of the Project approvals.

Both the DEIR and the FEIR fail to disclose the terms being considered for inclusion in the Project’s proposed agreement, despite the fact that the FEIR was released after the Project’s proposed development agreement application was filed with the City. The EIR must be revised to correct this omission. In particular, the public must be allowed to consider whether the proposed development agreement will have significant impacts in addition to the impacts disclosed in the FEIR before the City enters into a long-term contract with the Applicant which could guarantee the long-term existence of those impacts during the life of the contract. A proposed development agreement for the Project, undisclosed or discussed in the DEIR or FEIR, is significant new information requiring revision and recirculation of the EIR under CEQA.30
27 Gov. Code §§ 65864-65869.5.
28 Id. 29 See Gov. Code § 65864; 14 CCR §§15352(a), (b), 15378; Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116.
30 14 CCR § 15088.5.
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III. THE FEIR FAILS TO ADEQUATELY DISCLOSE OR MITIGATE THE PROJECT’S POTENTIALLY SIGNIFICANT IMPACTS.

A. The VMT Analysis Remains Unsupported by Substantial Evidence.

In our comments on the DEIR, we explained in detail how the VMT analysis completely failed to provide any evidence, analysis or explanation for the 23-miles per employee figure selected as the VMT significance threshold, or the 16.24 miles per employee figure selected as the projected VMT for the Project. The FEIR fails to respond to these comments or to provide any basis on which these figures could be evaluated.

First, the FEIR’s VMT significance threshold remains unsupported by substantial evidence. The DEIR stated that it relied on “established policies currently used by the OPR, Sacramento County, and the city of San Jose” in selecting its significance threshold: “a VMT impact would be identified at an industrial project if the project VMT per employee is higher than the regional average VMT per employee.”31 The DEIR defined “regional average VMT” as the nine county Bay Area average and asserted that this average is 23 miles per employee as reportedly stated by the City of Vallejo in its CEQA Transportation Impact Analysis Guidelines.32 However, this is the entire extent of the “analysis” performed by the City in adopting 23 miles per employee as the VMT significance threshold in the DEIR. The DEIR didn’t make even the slightest effort to explain how Vallejo derived that number and whether it is an appropriate significance threshold for this Project.

The FEIR provide no additional information on this issue, other than pointing out that Vallejo’s Guidelines were deemed an appropriate source because of Vallejo’s proximity to the proposed project and because Vallejo “faces the same constraints as American Canyon and Napa County in establishing VMT metrics and averages using the Napa-Solano model.”33 There remains no explanation of how Vallejo concluded 23 miles per employee was an appropriate VMT threshold, and the City’s adoption of that figure cannot be evaluated. The City therefore still lacks substantial evidence to support its reliance on the selected VMT threshold. 31 DEIR, pg. 3.2-17.
32 Ibid.
33 FEIR, pg. 2-10.
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Similarly, our DEIR comments detailed at length the DEIR’s failure to include any analysis of the Project’s estimated VMT. As discussed therein, the DEIR purported to pull a number from the California Statewide Travel Demand Model (“CSTDM”) with no explanation of what the model was, how the number was computed or whether it was appropriately adopted as the estimated VMT for the Project. The entirety of the DEIR’s VMT “analysis” for this 2.4 million square foot warehouse Project was as follows:

According to Statewide Travel Demand Model estimates, this project is located within a Traffic Analysis Zone (TAZ) with a projected VMT per employee of 16.24 miles. Because this per capita VMT rate is lower than the significance threshold of 23.0 miles, the project would be considered to have a less-thansignificant impact.

The DEIR simply adopted the 16.24 number as the “Project VMT rate” with no further discussion.34 No other information about the CSTDM was included in the DEIR; it is not even cited in the references for the DEIR or the Traffic Impact Study supporting the Transportation analysis.35 The DEIR and supporting materials provided no information allowing the reader to verify the 16.24 number, and offered no explanation of what a TAZ is, what it purports to measure or why

16.24 miles per employee can simply be adopted as the estimated VMT for the Project. As transportation expert Norman Marshall stated in his DEIR comments, “it is impossible to know how the DEIR arrived at 16.24 as the Project VMT using the CSTDM, because neither the DEIR nor the technical appendices contain any detail, analysis or calculations supporting that figure.”36 In order to derive the 16.24 miles figure from the model, the City’s consultants would have had to run the model by inputting certain assumptions.

However, the DEIR provided no explanation of how the model was used or what assumptions were made; its analysis was a black box—a practice prohibited by CEQA.37 The DEIR therefore provided no basis on which the public could evaluate 34 Id., Appendix H, pg. 20, Table 10.
35 See DEIR, Appendix H.
36 Marshall Comments, pg. 8.
37 Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 831 (CEQA document may not rely on missing information because it “must contain facts and analysis, not just the bare conclusions of a public agency. An agency's opinion concerning matters within its expertise is of obvious value, but the public and decision-makers, for whom the EIR is prepared, should also have 3042
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the City’s conclusions, or assess whether it was appropriate for the City to compare the results to a regional average VMT derived from a different source based on similarly undocumented calculations.

The FEIR fails to address any of these points. It simply states that the CSTDM “produces performance metrics that are directly comparable to those suggested for use in the OPR Technical Advisory, and accounts for local and regional demographic characteristics including the locations of jobs and housing.”38 This conclusory statement is not further explained or supported, and sheds no light on how the model was used to produce a figure of 16.24 miles or whether it is appropriate to compare that figure to the 23.00 miles significance threshold. The FEIR therefore continues to impermissibly rely on hidden analysis, in violation of CEQA.39
Finally, we previously pointed out that the California Department of Transportation (“Caltrans”), which developed the CSTDM, includes the following language on the model’s home webpage: “[t]he CSTDM provides an advanced tour/activity models to help Caltrans develop and evaluate transportation related policies and programs of projects that best meet our mobility goals. This model is not an appropriate tool for individual project level analysis.”40 Neither the DEIR nor the FEIR even attempt to explain why, despite this admonition, the CSTDM was used as the sole source for estimating this Project’s VMT impacts.

The CEQA Guidelines are explicit that, while a lead agency has discretion to choose the most appropriate methodology to evaluate a project’s VMT impacts, any assumptions used to estimate VMT “should be documented and explained in the environmental document prepared for the project.”41 The Guidelines expressly apply section 15151’s standard of adequacy to the VMT analysis: “the EIR should be prepared with a sufficient degree of analysis to provide decision makers with before them the basis for that opinion so as to enable them to make an independent, reasoned judgment.”)
38 FEIR, pg. 3-320.
39 Santiago, 118 Cal.App.3d at 831; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 442 (“to the extent the County, in certifying the FEIR as complete, relied on information not actually incorporated or described and referenced in the FEIR, it failed to proceed in the manner provided in CEQA.”)
40 https://dot.ca.gov/programs/transportation-planning/division-of-transportation-planning/dataanalytics-services/statewide-modeling/california-statewide-travel-demand-model 41 14 CCR § 15064.3(b)(4). 3043
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information which enables them to make a decision which intelligently takes account of environmental consequences.”42
The DEIR’s VMT analysis complied with none of these CEQA requirements, as there was essentially no analysis and its conclusions relied on wholly unsupported and unexplained assumptions. The FEIR does nothing to rectify these errors. A conclusory discussion of a significant environmental impact can support a court’s determination that an EIR is inadequate as an informational document without reference to substantial evidence review.43
B. Impacts to Wetlands Remain Significant and Unmitigated.

In her DEIR comments, Ms. Corbin detailed at length the deficiencies in the in the DEIR’s wetlands impact analysis and the glaring lack of evidence demonstrating that the proposed wetlands mitigation would be effective. The FEIR fails to adequately address those concerns, as explained at length in Ms. Corbin’s FEIR comments.

1. The Wetlands Impact Analysis is Based on an Inaccurate Wetlands Delineation.

As explained in her DEIR comments, Ms. Corbin identified numerous errors in the DEIR’s wetlands delineation. These errors mean that there were more wetland areas on the Project site than are reflected in the DEIR and therefore, the wetlands impact analysis was based on inaccurate information.

In response, the City acknowledges the wetland delineation errors pointed out by Ms. Corbin, but asserts that the errors “do not undermine the analysis or conclusions in the DEIR” because the DEIR did not rely on the City’s consultant’s delineation report.44 Rather, the FEIR claims, wetland impacts were calculated using the United States Army Corps of Engineers (“Corps”) Approved Jurisdictional Determination (“AJD”) dated October 25, 2016. However, the FEIR fails to mention that the Corps’ 2016 AJD used the information provided by City as the basis for their review; the Corps did not catch the errors and incorporated them into the AJD.45 The fact that the Corps carried the City’s errors into its AJD doesn’t change 42 14 CCR § 15064.3(b)(4), 14 CCR § 15151.
43 Sierra Club v. County of Fresno (2018) 6 Cal. 5th 502, 514. 44 FEIR, pg. 3-297. 45 Corbin FEIR comments, pg. 2.
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the fact that the DEIR’s CEQA analysis is based on an admittedly inaccurate wetlands delineation, and that there are more wetlands on the Project site than assumed in the DEIR. This is especially relevant because two of the locations that clearly meet wetlands criteria but were not delineated as wetland appear to be in areas in which the Project proposes to “create” wetland for Project mitigation.46 And, as Ms. Corbin points out, “[i]ncorrect identification of the existing site wetlands will carry the inaccuracies through to the functional assessment (wetlands won’t be evaluated), buffer impact analysis (buffers won’t be assigned if wetlands aren’t mapped), and the mitigation strategy (wetlands cannot be considered in mitigation sequencing if not identified).”47

2. The Wetlands Analysis is Incomplete as the DEIR failed to Include a Proper Functional Assessment.

In her DEIR comments, Ms. Corbin explained that the DEIR failed to include a functional assessment of the Project site’s existing wetlands and therefore no functional impact analysis was performed (nor is such an analysis possible absent the assessment.) In the FEIR, the City claims that functional assessments were in fact conducted for the Project site because the City completed a rare plant survey and evaluated the site for presence of wildlife species.

The FEIR response fails to resolve the underlying problem. While these surveys can be used as part of a comprehensive functional assessment of the Project site’s wetlands, they do not by themselves constitute a complete and proper functional assessment. Vegetation and wildlife habitat are two characteristics of a wetland but do not comprise all components of a wetland’s ecological condition, function or value. An organized assessment framework is needed to allow a consistent evaluation of a wetland’s attributes and to provide a basis on which to evaluate impacts and necessary mitigation.

According to Ms. Corbin, some of the elements of a formal functional assessment that are missing from the DEIR (and FEIR) include “organized analyses (not simply observational statements) related to the wetlands’ hydrology (e.g., water sources, hydroperiods, hydrologic connectivity), buffer and landscape (e.g., buffer width and condition), physical structures (e.g., topographic complexity) typical of vernal pool and seasonal depressional wetlands, plant community interspersion, 46 Id.
47 Id.
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and assessment of anthropogenic stressors.”48 Without a formal functional assessment of the Project’s wetlands, the Project’s impacts simply cannot be accurately analyzed, nor can appropriate mitigation be devised or evaluated. This is a fatal flaw in the FEIR’s wetlands analysis and mitigation which must resolved in a revised and recirculated EIR.

3. There is No Substantial Evidence Supporting the Efficacy of the Proposed Wetlands Mitigation.

As discussed above, the FEIR’s lack of a proper functional assessment precludes both an analysis of wetland impacts and identification of appropriate mitigation—if existing wetlands functions are not accurately characterized, those functions cannot be replaced through mitigation. The wetlands mitigation measures proposed in the DEIR included a number of performance standards (e.g., MM-BIO-3d). However, as Ms. Corbin previously commented, without a complete understanding of the impacted wetlands’ functions, there is no basis for establishing mitigation goals and performance standards. Beyond this threshold issue, Ms.

Corbin identified a number of additional deficiencies that prevents the City from concluding that the Project’s wetlands impacts can be adequately mitigated.49 The FEIR fails to resolve these issues. Ms. Corbin’s comments on the FEIR explain that a quantitative analysis of the sources of water for the Project site’s wetlands is essential to design proper on-site wetland mitigation. Without a preand post-Project water budget analysis, there is no basis to assume that there is sufficient hydrology to create the additional wetlands necessary to mitigate the Project’s impacts. Nor can it be shown that creation of new wetlands in the proposed wetland preserve will not impact the remaining existing wetlands. The FEIR concedes that a water budget analysis is necessary to ensure that the position of created/established wetlands in the mitigation area do not indirectly impact the hydrology of existing preserved wetlands.50 However, such an analysis will not be performed until later, as part of the Wetlands Mitigation and Monitoring Plan to be submitted to the Regional Water Quality Control Board (“RWQCB”). Such deferred analysis of these potentially significant impacts violates CEQA.51 48 Id, pg. 3.
49 Corbin FEIR comments, pgs. 4-10.
50 FEIR, pg. 3-300.
51 Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 307. 3046
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Ms. Corbin describes the importance of functional, vegetated wetland buffers, which are intended to reduce wetland impacts from adjacent uses. Buffers protect wetland functions by providing a visual and noise screen from adjacent land uses, protect wetlands from direct physical impacts, remove sediments and contaminants from upland sources and provide upland habitat support to terrestrial, semi-aquatic and wetland-dependent species.52 The FEIR fails to even identify minimum buffer widths for the proposed wetland preserve, and suggests that the presence of bioretention basins adjacent to the preserve would provide adequate buffer protection. However, these stormwater ponds would not provide a visual or noise screen, would not provide upland habitat and would introduce disturbance (e.g., maintenance) directly adjacent to the preserve. Without identified buffer widths, there is no basis on which to assume that the wetland preserve will not suffer degradation by the adjacent development and wetland functions will be diminished.

The City maintains that wetland buffer widths will be determined later by the RWQCB. However, without that information wetland impacts cannot be properly analyzed, nor can the adequacy of the proposed mitigation be assessed.

C. Impacts to Biological Resources Remain Significant and Unmitigated.

Biological resources expert Scott Cashen identified numerous ways in which the DEIR lacked substantial evidence supporting its biological resources impacts analyses and related conclusions regarding the efficacy of mitigation measures. As detailed in his attached FEIR comments, Mr. Cashen explains how the FEIR largely fails to resolve these issues, and that numerous impacts remain significant and unmitigated. For example, Mr. Cashen describes the ongoing deficiencies in the City’s analysis of wildlife habitat on the Project site, especially with respect to wetlands, and the lack of evidence supporting the City’s analysis of impacts to special status species Swainson’s hawk and golden eagle and the resulting failure to adopt mitigation for these species.

1. The FEIR Does Not Include a Functional Assessment of the Project Site’s Existing Wetlands or Assess the Ability of the Proposed Wetland Preserve to Provide Habitat.

Mr. Cashen’s DEIR comments echoed Ms. Corbin’s criticism that the DEIR failed to include a functional assessment of the Project site’s wetlands, without 52 Corbin FEIR Comments, pgs. 4-5.
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which the City cannot perform an adequate impact analysis or craft appropriate mitigation. The FEIR’s response states: “[f]unctional assessments were conducted to determine plant and animal communities supported on the project site, and these functional assessments were then used in the impact analysis and subsequent mitigation requirements.”53
As explained in detail above and in Ms. Corbin’s FEIR comments, the City has not yet performed an adequate functional assessment of the on-site wetlands.

In claiming that such an assessment was done, the FEIR refers to the DEIR’s discussion of a rare plant survey and evaluation of the site for presence of specific wildlife species. The FEIR states that “seasonal wetlands provide wildlife with a seasonal water source that supports various animal species during the winter and spring months and sometimes into the early summer. Amphibians will lay their eggs in seasonal wetland habitats and complete much of their life cycle in the wetlands. No Name Creek would be considered a wildlife corridor, but the property is nearly entirely surrounded by development so the extent of wildlife corridors on the property is limited.”54 While these generic statements describe activities and observations that may comprise part of a functional assessment, they are not sufficient.

As Mr. Cashen points out, there is still no discussion in the FEIR of the importance of the wetlands as habitat to the observed migratory waterfowl and shorebirds. At a minimum, the DEIR should have identified: “(a) the specific animal species that use the wetlands as a seasonal water source and the functions the wetlands fulfill for those animals (e.g., provision of food resources, sheltering, courtship and pair formation); (b) the specific amphibian species that use the on-site wetlands as habitat; and (c) the species that use No Name Creek as a wildlife corridor.”55 The FEIR’s continued reliance on a few plant and animal surveys does not address the lack of a full functional assessment.

Mr. Cashen also explained in his DEIR comments how the proposed wetlands preserve would function as a “habitat island” surrounded by industrial development, which significantly limits its value as wildlife mitigation habitat. The FEIR responds “[a]s shown in Draft EIR Exhibit 3.3-3, the Wetland Preserve would contain No Name Creek, which is hydrologically connected to the Napa Logistics Park Wetland Preserve to the north. It would also be contiguous to wetland areas 53 FEIR, pg. 3-310.
54 DEIR, pg. 3.3-3.
55 Cashen FEIR comments, pg. 8.
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within the Biaggi Bros. property to the west. Thus, the commenter’s claims that the Wetland Preserve would be an island are his opinion not supported by evidence.”56 These statements are directly contradicted by the City’s own DEIR, as quoted above, stating that “the property is nearly entirely surrounded by development so the extent of wildlife corridors on the property is limited.” Mr. Cashen further provides substantial evidence showing the lack of hydrologic connectivity to the nearby Napa Logistics Park and Biaggi Bros. wetlands.57 There remain significant questions regarding the proposed wetland preserve’s ability to provide wildlife habitat, as explained in detail and supported by substantial evidence cited by Mr.

Cashen. The FEIR fails to resolve these questions.

2. The FEIR Fails to Adequately Assess Impacts to Swainson’s Hawk and Golden Eagle.

As originally documented in the DEIR, special status species Swainson’s Hawk and golden eagle have been observed foraging on the Project site. However, the DEIR concluded without substantial evidence that that the Project would not result in significant impacts to foraging habitat, nor affect the nesting populations of Swainson’s hawk or golden eagle near the Project site either directly, indirectly or cumulatively and further concluded that no mitigation was warranted for loss of foraging habitat for these species. Mr. Cashen’s DEIR comments explained in detail how the City’s impact analysis was unsupported by substantial evidence. The FEIR fails to address these errors. Impacts to these special status species therefore remain potentially significant and unmitigated.

Mr. Cashen previously commented that, as an initial matter, the City’s efforts to identify the extent of Swainson’s hawk nests near the Project site were completely inadequate. The FEIR responded by pointing out that its consultants conducted two surveys to analyze impacts to Swainson’s hawk, and drove 10 miles of local roads surrounding the Project site to look for nests. This does not resolve the issue raised by Mr. Cashen, as none of these activities adhere to Swainson’s hawk survey protocol, which recommends three surveys in each of three discrete time periods between March 20 and July 30.58 Moreover, the City’s consultants failed to detect an active Swainson’s hawk nest located 0.8 miles north of the Project 56 FEIR, pg. 3-310.
57 Cashen FEIR comments, pgs. 8-9.
58 Cashen FEIR comments, pg. 13.
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site (within the area the City claimed to survey); this nest was detected just two days after one of the City’s two surveys.59
Mr. Cashen also provides substantial evidence rebutting the FEIR’s continued (unsubstantiated) assertion that there are but a limited number of Swainson’s hawk records within a 10-mile radius of the Project site, and provides evidence directly rebutting the FEIR’s unsupported assertion that “[t]he closest known nesting record for Swainson’s hawk as reported in the CNDDB is a nest site last active in 2008 (CNDDB Occurrence No. 1718) located approximately 2.1 miles north of the Project Site.” Mr. Cashen cites evidence of 18 records of active Swainson’s hawk nests between 2017 and 2022 within 10 miles of the Project site.60 The FEIR’s ongoing incorporation of demonstrably false information on Swainson’s hawk nest site is a crucial flaw, as that information formed the foundation of the DEIR’s original impact analysis and conclusion that compensatory mitigation is not warranted. The FEIR repeats the false assumption that there is ample foraging habitat for the “limited number” of known Swainson’s hawks to occur within 10 miles of the Project site. Mr. Cashen’s FEIR comments again explain, supported by evidence, why this assertion is untrue and why compensatory mitigation is warranted.61
The EIR’s golden eagle impact analysis is similarly based on demonstrably faulty assumptions. Mr. Cashen previously commented that because the DEIR failed to incorporate mitigation for the Project’s impacts on golden eagle habitat, potentially significant impacts on the species remain unmitigated. The FEIR responded in part that while the Project would remove some foraging area for this species, it would also provide and preserve in perpetuity approximately 45 acres of open space that would include habitat “currently suitable” for foraging by the golden eagle, as indicated by the observation of a golden eagle foraging on the site in spring 2021.”62 Mr. Cashen identifies several flaws with the FEIR’s responses.

First, the FEIR assumes that development of the Project (which would reduce more than 200 acres of open space to 45 acres) would not alter habitat quality for the golden eagle. Mr. Cashen explains that “[b]ecause golden eagles require large patches of habitat that are relatively isolated from human disturbance, there is virtually zero possibility that golden eagles will forage in a 45-acre patch of habitat 59 Id.
60 Id., pg. 14.
61 Cashen FEIR Comments, pgs. 12-17.
62 FEIR, pg. 3-312.
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that is bisected by a major road and surrounded by industrial development.”63 The fact that a golden eagle was foraging at the 208-acre Project site in spring 2021— before construction of this Project or adjacent projects—is not evidence that golden eagles will forage at the 45-acre preserve after the Project is developed.

Second, as explained by Mr. Cashen, breeding golden eagles occupy and aggressively defend discrete territories, often for many decades. When territory is eliminated by development, this results in a net loss in the reproductive potential of the local population, as under most circumstances the pair cannot simply establish a new territory. Accordingly, even assuming there is additional nearby golden eagle foraging habitat, a territorial pair associated with foraging habitat at the Project site cannot merely move to nearby habitat as it will be aggressively defended by eagles occupying that space.64
Finally, Mr. Cashen points out that the FEIR makes the same unsupported assumption that there are a limited number of golden eagle records within a 10- mile radius of the project site, and therefore concludes that there is sufficient foraging habitat in and within the vicinity of the Project site. This determination is unsupported because the DEIR failed to establish the number of golden eagle records within 10 miles, nor did it establish the amount of foraging habitat needed to maintain golden eagle territories in the vicinity of the Project site. In order to support these claims, the City would have had to perform protocol-level surveys or obtain data from the USFWS’s Eagle Permit Coordinator,65 neither of which was done here. The FEIR does nothing to rectify these shortcomings, and the conclusion that the Project’s impacts to the golden eagle remain unsupported by substantial evidence.

IV. THE CITY MAY NOT MAKE THE NECESSARY FINDINGS TO

APPROVE THE TENTATIVE PARCEL MAP AND DESIGN
PERMIT.

Approval of the Design Permit for the Project requires that the City make certain findings, including that the Project complies with all applicable General Plan policies.66 Additionally, the City may not approve the Project’s Tentative Parcel Map if it finds that the design or improvement of the proposed subdivision is 63 Cashen FEIR Comments, pg. 18.
64 Id.
65 Id.
66 American Canyon Municipal Code § 19.41.050 C.
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not consistent with the City’s General Plan,67 that the design or proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat,68 or that the design or improvements are likely to cause serious public health problems.69 As discussed above and in the accompanying expert comments, the DEIR failed to disclose, analyze or effectively mitigate the Project’s potentially significant impacts on air quality, public health, biological resources and transportation, and the FEIR fails to resolve these deficiencies. These impacts create inconsistencies with General Plan polices which the FEIR fails to resolve. As a result of these inconsistencies, the City is unable to make the necessary findings to approve the Project’s local land use permits.

As an initial matter, the City may not make the required finding, pursuant to Municipal Code section section18.20.055 F., that the Project will not be materially detrimental to the general health, safety or general welfare of the public and residents in the vicinity of the Project. As discussed above, the Health Risk Assessment performed for the Project has serious flaws which prevent it from adequately analyzing health risks to sensitive receptors from the Project’s air emissions.

The City is precluded from making required findings pursuant to Municipal Code sections 19.41.050 C (for approval of a Design Permit) and 18.20.055 B (for approval of the Tentative Parcel Map) because it cannot find that the Project complies with and is consistent with applicable General Plan policies. Our analysis of the FEIR reflected in these comments show that the Project fails to comply with several key policies in the General Plan, including the following. (a) Circulation Element. Guiding Policy 1.11 calls for the reduction of total vehicle miles traveled by City residents, and Policy 1.24 states that new development will be responsible for mitigation of transportation impacts. As explained in detail above, the FEIR’s VMT analysis remains completely unsupported and does not demonstrate that the Project will reduce VMT as compared to existing averages. Because the City has failed to demonstrate that the 67 American Canyon Municipal Code § 18.20.055 B.
68 American Canyon Municipal Code § 18.20.055 E.
69 American Canyon Municipal Code § 18.20.055 F.
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Project’s VMT impacts will be less than significant, the City cannot make the required finding of consistency with the General Plan’s Circulation Element. (b) Natural and Historic/Cultural Resources Element. The General Plan includes several applicable policies with respect to the Project’s impacts to biological resources.
 Policy 8.21 provides that land use applications for developments located within sensitive habitats, including riparian habitats or habitats within areas occupied by vernal pools, shall be accompanied by sufficient technical background data to enable an adequate assessment of the potential for impacts on these resources and possible measures to reduce any identifiable impacts. As discussed herein, the FEIR lacks sufficient technical background data to assess impacts to wetlands or to mitigate such impacts because it lacks any lacks any functional assessment of the existing wetlands on the Project site.

Moreover, the FEIR completely fails to examine the Project’s impacts on foraging habit for several special status bird species.  Policy 8.31 requires that for developments in wetlands and riparian habitats, retained riparian corridors “shall be protected by an adequate buffer with a minimum 100 foot protection zone…” The Project’s proposed buffer zones associated with No-Name Creek and the associated wetlands are not discussed in the FEIR, the DEIR or supporting technical documents, nor are they labeled in figures. Using the figure scales strongly suggests that buffer widths adjacent to Project development will be less than 100 feet in many places.70  Policy 8.41 requires that development plans incorporate all reasonable mitigation measures to avoid significantly impacting vernal pools. As discussed herein, the FEIR’s lack of a functional assessment of the Project site’s wetlands, including vernal pools, makes it impossible to evaluate the efficacy of the proposed mitigation measures.  Policy 8.42 requires preservation, where possible, of the habitat of rare, threatened or endangered species, specifically including the northern harrier and golden eagle. Both of those species have been observed foraging at the Project site, and as discussed in detail above, the FEIR fails to evaluate the loss of foraging habitat, let alone make any efforts to preserve such habitat.
70 Corbin DEIR Comments, pg. 8.
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 Policy 8.43 encourages activities that improve the biological value and integrity of the City’s natural resources through, inter alia, control of alien plants. The Project has the potential to introduce invasive plant species and to facilitate their spread.71 Construction vehicles and equipment are common vectors for transporting invasive plant seeds or spores from one place to another, and soil and vegetation disturbance associated with construction creates suitable conditions for establishment of invasive plants.72 The FEIR fails to include any mitigation to minimize the Project’s potential to introduce invasive plant species or facilitate their spread.

The FEIR fails to address or remedy these inconsistencies with General Plan policies, and the City accordingly may not make the necessary findings to support the required discretionary approvals for the Project.

V. THE CITY MAY NOT ADOPT THE STATEMENT OF OVERIDING

CONSIDERATIONS BECAUSE IT HAS NOT ADOPTED ALL
FEASIBLE AIR QUALITY MITIGATION MEASURES.

The City proposes to adopt a statement of overriding considerations for the Project’s significant and unavoidable air quality impacts as the Project’s emissions would exceed the Bay Area Air Quality Management District’s (“BAAQMD’s”) significance thresholds, and because the Project would result in a cumulatively considerable net increase of criteria pollutants. Before an impact can be declared significant and unavoidable, the lead agency must first adopt all feasible mitigation measures to reduce the impact to the greatest extent feasible, and must provide a detailed, evidence-based response to feasible mitigation recommended by commenters when such measures would substantially lessen an environmental impact.73
In his DEIR comments, air emissions expert James Clark recommended a number of mitigation measures to reduce the Project’s operational air emissions, including:
71 Cashen FEIR Comments, pgs. 23-25.
72 Ibid.
73 Pub. Res. Code § 21081; 14 CCR §15093; Covington v. Great Basin Unified Air Pollution Control District (2019) 43 Cal.App.5th 867, 879-883.
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 Include contractual language in tenant lease agreements that requires all TRUs entering the project site be plug-in capable.
 Include contractual language in tenant lease agreements that requires future tenants to exclusively use zero-emission light and medium-duty delivery trucks and vans.
 Include contractual language in tenant lease agreements requiring all TRUs, trucks, and cars entering the Project site be zero-emission.  Include contractual language in tenant lease agreements that requires all heavy-duty trucks entering or on the project site to be model year 2019 or later, expedite a transition to zero emission, and be fully zeroemission beginning in 2030.

The FEIR declines to adopt any of these measures, claiming that they are infeasible because the Project’s users (tenants) are unknown at this time and that it would be speculative to include such restrictions. The FEIR also claims that imposing “onerous requirements” on future unknown users could put the project at a competitive disadvantage by limiting the universe of potential future end users.

The FEIR fails to explain why the fact that the Project’s future tenants are unknown makes the proposed restrictions infeasible. Nor is the FEIR’s assertion a reasonable one because the Project includes other mitigation measures that regulate the use of equipment of future users of the Project site. For example, MM AIR-2d requires that the applicant certify that the truck fleet utilizing the Project’s warehouses meet or exceeds model year 2014 for all heavy duty trucks during the operation of the Project. The owners of these future truck fleets are currently unknown, yet the City found this to be a feasible mitigation measure.

The FEIR also fails to explain why the proposed mitigation measures are “onerous” or to provide any support for the contention that such requirements “could” put the Project at a competitive disadvantage. The FEIR’s “conclusory statements unsupported by factual information” do not suffice as adequate responses to the proposed mitigation.74 CEQA requires good faith, reasoned analysis in response,75 which the FEIR fails to provide. Because the City failed to adopt all feasible air quality mitigation, it cannot adopt the proposed statement of overriding considerations.
74 14 CCR §15088(c).
75 Covington, 43 Cal.App.5th at 879.
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VI. CONCLUSION
For the foregoing reasons, the Commission should not recommend certification of the FEIR, nor approval of the Design Permit and Tentative Parcel Map. The Commission should direct that the City revise and recirculate the EIR with a full analysis of the Project’s potentially significant impacts and propose appropriate mitigation. Thank you for your attention to these comments. Please include them in the record of proceedings for the Project.

Sincerely,
Richard M. Franco
Attachments
RMF:acp
3056

EXHIBIT A
3057
400 North 34th Street, Suite 100 | PO Box 300303 | Seattle, Washington 98103-8636 | 206-632-8020 www.shannonwilson.com
November 16, 2022
Mr. Richard M. Franco
Adams Broadwell Joseph & Cardozo PC
601 Gateway Blvd., Suite 1000
South San Francisco, CA 94080
RE: WETLAND REVIEW OF FINAL ENVIRONMENTAL IMPACT REPORT, GIOVANNONI

LOGISTICS CENTER, CITY OF AMERICAN CANYON, CALIFORNIA
Dear Mr. Franco:

This letter outlines our responses to the City’s Responses to Written Comments in the Final Environmental Impact Report (FEIR) (State Clearinghouse Number 2021010104) for the Giovannoni Logistics Center Project (Project) in City of American Canyon (City), Napa County, California.1

COMMENT RESPONSE
This letter uses the same comment numbering system (e.g., S&W-5a) established in the FEIR by the City in responding to the written comments provided in our first review report, Water Resources Review of Draft Environmental Impact Report (DEIR), Giovannoni Logistics Center (enclosed).2 Comment Response to S&W-5b – Wetland Delineation Errors The City acknowledges that errors within the 2016 Monk & Associates (M&A) Wetland Jurisdictional Delineation Report3resulted in wetland areas that were erroneously identified as upland areas (specifically at DP-40, -98, -105, and -110). The City posits that although 1 First Carbon Solutions, 2022, Draft environmental impact report, Giovannoni Logistics Center project, City of American Canyon, Napa County, California, State Clearinghouse Number 2021010104: Report prepared by Firstcarbon Solutions, Irvine, Calif., for City of American Canyon, Calif., May. 2 Shannon & Wilson, 2022, Water resources review of draft environmental impact report, Giovannoni Logistics Center, City of American Canyon, California: Report prepared by Shannon & Wilson, Seattle, Wash., job no. 109957-001, for Adams Broadwell Joseph & Cardozo PC, South San Francisco, Calif., July, 18p. 3 Monk and Associates (M&A) 2016, Request for a confirmed/approved jurisdictional determination aquatic resources delineation report, Giovannoni property, City of American Canyon, Napa County, California: Report prepared by Monk and Associates, Walnut Creek, Calif., for Albert D. Giovannoni Trust, Napa, Calif., August, 308 p.
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they included the M&A report in the DEIR to document existing conditions, that the errors are inconsequential because the wetland impact quantifications were based on the U.S.

Army Corps of Engineers (USACE) Approved Jurisdictional Determination (AJD).

However, the AJD incorporated the erroneous delineation provided by M&A. The USACE used the information the M&A report provided as the basis for their JD review, but did not catch these errors. The City acknowledges that the delineation provided to the USACE was incorrect; therefore, the DEIR’s wetland analysis is based on an inaccurate delineation. This is particularly relevant because two of the locations that clearly meet wetland criteria but were not delineated as wetland (DP-40 and DP-110) appear to strongly coincide with the areas the Project proposes to “create” wetland for Project mitigation. Incorrect identification of the existing site wetlands will carry the inaccuracies through to the functional assessment (wetlands won’t be evaluated), buffer impact analysis (buffers won’t be assigned if wetlands aren’t mapped), and the mitigation strategy (wetlands cannot be considered in mitigation sequencing if not identified).

Comment Response to S&W-5c – Expired Approved Jurisdictional Determination (AJD)
The City provided new information regarding the USACE AJD, namely that the USACE changed the AJD date to October 25, 2021. Other than stating this information was relayed in a phone call, no documentation of the new AJD was provided. Wetland boundaries change over time based on changing site conditions, which is why the USACE considers wetland delineations valid for only 5 years after a delineation is confirmed. If the USACE had been made aware of the errors in the previous delineation, it seems unlikely that they would have extended the AJD for a second 5-year period without further review. The City should have been more forthright with the USACE on their knowledge that there were errors in the delineation prior to asking for an extension of the AJD.

Comment Response to S&W-6a – Construction Phasing
Assumption
In our DEIR review, we identified a statement in DEIR Section 2.3.13 that said, “For the purposes of providing a conservative, worst-case scenario, this Draft EIR assumes that Phase 1 and Phase 2 would be developed concurrently over a period of 18 months.” We commented that concurrent construction would not be the “worst-case scenario” because sequential or spaced-out construction would increase construction-related impacts to aquatic resources. In the City’s response to this comment, they assert that the DEIR’s assumption that concurrent construction of the Project Phase 1 and Phase 2 being a “worst-case scenario” is a function of the total wetland impacts and is not related to the 3059
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number of months construction would take place. However, this is in direct contradiction to DEIR Section 2.3.13 quoted above. In their response, the City further states that “a prolonged construction period that extends beyond 18 months would not increase construction related impacts.” However, the inherent impacts and risks associated with construction, such as construction noise disturbance and risk of spills (e.g., hydraulic line breaks) are directly correlated to the duration of construction. A shorter construction window will result in a shorter impact window and less chance of a spill occurring than that of a longer construction project.

Comment Response to S&W-6b – Absent Functional Assessments The City erroneously states that functional assessments were conducted for the site wetlands because the Project completed a rare plant survey and evaluated the site for presence of specific wildlife species. These surveys can be used in conjunction with a complete functional assessment, such as California Rapid Assessment Method for Wetlands to assess the Project areas wetlands’ condition, but do not constitute a functional assessment of the site wetlands. Vegetation composition and wildlife habitat are two characteristics of a wetland, but they do not make up all of the components of a wetland’s ecological condition, function, or value. Use of an organized assessment framework allows a consistent evaluation of a wetland’s attributes and a basis upon which to evaluate impacts and associated mitigation. Elements of a formal functional assessment that are missing from the DEIR and FEIR include organized analyses (not simply observational statements) related to the wetlands’ hydrology (e.g., water sources, hydroperiods, hydrologic connectivity), buffer and landscape (e.g., buffer width and condition), physical structures (e.g., topographic complexity) typical of vernal pool and seasonal depressional wetlands, plant community interspersion, and assessment of anthropogenic stressors.

The City cites and acknowledges that the Regional Water Quality Control Board (RWQCB) requires a formal functional assessment to provide appropriate and adequate mitigation4 but relies on the future RWQCB review and permit process to meet the current needs under the California Environmental Quality Act (CEQA). The missing functional assessments means that the Project’s environmental impacts cannot be fully identified and that therefore the proposed mitigation cannot assume to result in a no-net loss of wetland function. 4 FEIR 3-299 3060
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Comment Response to S&W-7 – Wetland Impact Inconsistencies The City states that the DEIR impact calculation of 189 square feet (sf) of Wetland W-89 is correct, that construction fill will avoid 6 square feet of Wetland W-89, and that they are therefore only mitigating for the 189 sf of Wetland W-89 impact. It is nonsensical to state that filling 97% of a small, 195-square-foot wetland would not have any impact on the remaining 3%, or 6 square feet. The remaining portion of Wetland W-89 will no longer perform functions as it did when part of the larger wetland unit and depending on topography along the wetland margin (where the 6 sf of “unimpacted wetland” is likely located), may lose the ability retain hydrology and therefore would likely not remain as wetland. The Project should include the entirety of Wetland W-89 in its impact analysis.

Comment Response to S&W-8 – Indirect Hydrologic Impacts Regarding the lack of documentation addressing indirect hydrologic impacts to unimpacted site wetlands, the City describes general site topography and suggests that lack of quantitative information regarding site wetland water budgets does not affect the quality of the DEIR analysis. The City then acknowledges that a water budget is needed to ensure that the proposed created wetlands do not indirectly impact the existing wetlands, but the budget has not been completed. We maintain that without a quantitative analysis of wetland hydrology sources, there is no basis to assume that constructing the development immediately adjacent to the site’s wetlands will not result in indirect hydrology impacts.

Furthermore, the DEIR has not shown that there is sufficient hydrology to create additional wetlands, which is key to mitigating wetland impacts and functional loss of the wetlands.

Comment Response to S&W-9 – Wetland Water Quality Imapcts The City clarifies that the wetland preserve will not serve as water quality treatment for the Project’s stormwater discharge. No further comment.

Comment Response to S&W-10a, 10b, and 10c – Inadequate
Buffer Widths
Functional, vegetated, wetland buffers are intended to reduce wetland impacts from adjacent land uses through physical, chemical, and/or biological processes. Buffers protect wetland functions by providing a visual and noise screen from adjacent land use; protect from direct physical impact; remove sediments and contaminants from upland sources; and 3061
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provide upland habitat support to terrestrial, semi-aquatic, and wetland-dependent species, facilitating wildlife movement through the landscape.5 The Phase 1 Project, does not identify even minimum buffer widths associated with the proposed wetland preserve and suggests that the presence of the periodically maintained bioretention basins adjacent to the preserve would provide adequate buffer protection to the wetland preserve. However, the stormwater ponds would not provide a visual or noise screen, would not provide upland habitat, and would introduce disturbance (maintenance) adjacent to the preserve. In addition, no buffers have been identified on the wetland preserve on the Phase 2 portion of the Project site.

Buffer effectiveness in protecting wetland functions is increased by larger and vegetated buffers that are permanently protected.6 The City not only fails to identify any minimum buffer width associated with the proposed wetland preservation, but limits future buffer protection by placing stormwater infrastructure adjacent to the proposed preserve boundary. The buffers associated with the unimpacted IW-7, -8, -9, and -10 will be designated landscape areas, vulnerable to future disturbance. Without stated buffer widths, there is no basis on which to assume that the wetland preserve will not be degraded by the adjacent development and land use and that significant indirect wetland impacts will not occur. Furthermore, without adequate wetland buffers, wetland functions will be lost in the preserved wetlands and will diminish the potential functions that may be achieved in the proposed created wetlands.

The City states that wetland buffer widths will be determined in the future by the RWQCB.

However, CEQA requires that the Project mitigate significant environmental impacts to a less than significant level; this determination is not supported because the processes to identify protections required to mitigate environmental impacts have yet to occur.

Comment Response to S&W-11 – Indirect and Cumulative Impacts The City states that the proposed wetland preserve is surrounded on all four sides by commercial development7and that therefore significant impacts to wetland function will 5 Kihslinger, Rebecca L.; McElfish, James M. Jr.; and Nichols, Sandra S., Planner's guide to wetland buffers for local governments (2008). KIP Data Sets and Technical Reports. 106. https://digitalcommons.usf.edu/kip_data/106
6 Cooke, S.S., 1992, Wetland Buffers: Use and Effectiveness. Appendix A: Wetland buffers – A field evaluation of buffer effectiveness in Puget Sound, Washington Department of Ecology, Publication No. 92-10. 7 FEIR 3-302
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not occur. While the proposed location of the wetland preserve is flanked on the west, north, and east by the land uses and developments described in the FEIR, the southern boundary is adjacent to a broad swath of undeveloped land ranging from approximately 800 feet to over 1,500 feet. The proposed Phase 1 development brings the noise, light, and traffic described in the FEIR adjacent to the proposed preserve, reducing the existing 800 to 1,500-foot buffer to an undisclosed distance, but based on Project drawings, appears to be less than 100 feet. We are left to assume that the Phase 2 development may also propose development adjacent to the proposed preserve on the west side of the site. Refer to response in S&W 10-a -b, and -c above describing environmental impacts associated with lack of appropriate buffers and the resulting unmitigated loss of wetland functions.

Regarding cumulative impacts, the City identifies the Project’s contribution to continued fragmentation and loss of grassland and wetland habitat for resident and migratory wildlife, including federal and state listed species and then refers broadly to all of the minimization measures in DEIR Section 3.3. Fragmentation and loss of habitat will have direct impacts on listed species that may be minimized through some measures, but because of the flawed analysis, the DEIR has not shown that they have identified or quantified the potential resulting indirect and cumulative impacts.

Comment Response to S&W-12 – Wetland Mitigation
We maintain that without an adequate functional assessment to fully assess Project wetland impacts (see Comment Response to S&W-6b above), the proposed conceptual mitigation cannot be appropriately tailored to provide those impacted functions or mitigate the loss of wetlands. Furthermore, the wetland preservation site has not been shown to be appropriate for wetland creation, a key tenet of their overall mitigation strategy.

Comment Response to S&W-13a and b– Mitigation Ratios
In our review of the DEIR, we note that wetland creation, and in particular vernal pool wetland creation, is an inherently high risk mitigation type that warrants a higher mitigation ratio than the proposed 2:1 and 1:1 mitigation to impact ratios proposed for Phase 1 and 2, respectively. The State guidance document, Staff Report Including the Substitute Environmental Documentation for the State Policy for Water Quality Control: State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (Procedures Staff Report) describes that this is largely due to the importance and difficulty 3063
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of establishing appropriate hydrology to support the created wetlands, particularly when creation requires supporting structures.8 In the FEIR’s response to S&W-13a, the City describes findings of soil explorations that indicate a restrictive clay layer is located approximately 12 to 30 inches below ground surface.9 However, presence of an adequate impervious layer is only one piece of assessing adequate hydrology potential; a complete understanding of existing hydrology and future hydrologic conditions is critical to confirming that the proposed 4.69 acres of created wetland will receive adequate hydrology to meet wetland criteria. The City makes observational statements regarding water sources to the existing Project site wetlands, but provides no quantitative information supporting their assertion that the site will continue to support the existing wetlands given the manipulation of Project site surface water, nor that there will be adequate water to support the creation of an additional 4.69 acres. Although not explicitly stated, if the reader assumes that the proposed detention basin system and outfall is a component of supporting the created wetland system (i.e., a supporting structure), the need for a higher mitigation ratio is called for as outlined in the State’s Procedures Staff Report.

Given the lack of quantitative hydrologic data to demonstrate that 4.69 acres of additional wetland can be created, the City’s statement that the vernal pools will be fully functioning wetlands within 1 year is not supported and consequently, neither are the proposed mitigation ratios.

Comment Response to S&W-14 – Mitigation Sequencing
Our review of the DEIR found that the City did not provide a description of the required mitigation sequencing process. In the FEIR, the City provides a description of considerations used in establishing the proposed Phase 1 development footprint. No justification is provided for the Phase 2 development, which results in 3.71 acres of wetland impact, including the entirety of Wetland 16, a 3.3-acre wetland. The City’s statement that both Phase 1 and Phase 2 designs avoid and minimize wetland impacts is not supported because no design alternatives are provided for Phase 2, nor is a description of the avoidance and minimization measures specific to the Phase 2 development. An alternatives 8 California State Water Resources Control Board (CSWRCB), 2019, Staff report including the substitute environmental documentation, state policy for water quality control: state wetland definition and procedures for discharges of dredged or fill material to waters of the state (rev.):

April 2, SCH#2011012009, 253 p., available:
https://www.waterboards.ca.gov/press_room/press_releases/2021/staffreport.pdf 9 FEIR 3-303 3064
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analysis is fundamental to avoiding and minimizing wetland impacts. Based on a schematic design analysis of the space available on the Phase 2 site, while focusing on avoidance of the largest 3.3-acre wetland (Wetland 16), it appears that the same available square footage used in the Phase 1 development could be accommodated without directly impacting Wetland 16.

The City has not demonstrated why the Phase 2 impacts are unavoidable or cannot at a minimum, be minimized.

Comment Response to S&W-15a – Monitoring Period
Our review of the DEIR found that the City’s proposed standard 5-year mitigation monitoring period is insufficient to document successful mitigation implementation. The City suggests that because the USACE’s Draft Mitigation and Monitoring Guidelines for Vernal Pools is in draft form10, the supplement’s requirement that vernal pools be monitored for 10 years is not applicable. Despite this document being in draft form, it represents best available science and should be utilized as a minimum standard for determining the monitoring period. Regardless, the USACE’s Regional Compensatory Mitigation and Monitoring Guidelines for the South Pacific Division11 is finalized and identifies vernal pools as an aquatic resource that warrants longer monitoring than the standard 5 years: “Monitoring periods of more than 5 years are warranted for aquatic resources with slow development rates. Examples of such aquatic resources within the South Pacific Division include vernal pools…” We maintain that the minimum 5-year monitoring period is not adequate to confirm mitigation success, especially given the absence of quantitative hydrologic information that supports the creation of an additional 4.69 acres of wetland.

Comment Response to S&W-15b – Performance Standards
We maintain that that without a complete understanding of the impacted wetland functions, there is no basis for establishing mitigation goals and performance standards to document replacement of the lost wetland functions. Further, the performance standards proposed in DEIR are not adequate to verify if the stated mitigation goals have been met. 10 U.S. Army Corps of Engineers (Corps), 2016, Draft mitigation and monitoring guidelines for vernal pools: U.S. Army Corps of Engineers South Pacific Division, November, 23 p., available:
https://www.spd.usace.army.mil//Portals/13/docs/regulatory/publicnotices/DVPGL.pdf. 11 U.S. Army Corps of Engineers (Corps), 2015, Final 2015 regional compensatory mitigation and monitoring guidelines for South Pacific division: January, 70 p., available:
https://www.spd.usace.army.mil/portals/13/docs/regulatory/mitigation/mitmon.pdf. 3065
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For example, page 3.3-34 of the DEIR states that the mitigation will establish 1.13 acres of vernal pool wetland. By definition, vernal pools must have surface water inundation during the wet season. The performance standard listed in the DEIR does not require documentation of the extent or duration of the wetland hydrology. As written, it requires only 1 data point be documented at each wetland; this would provide insufficient information to prove that vernal pool hydrology is present, especially given the size of the proposed wetland areas, many of which are over 0.5-acre large and two proposed areas are greater than 1 acre. The DEIR performance standard requires a minimum of 0.5-inch of inundation for at least 7 days and/or saturation for at least 14 days and/or at least one primary or two secondary wetland hydrology indicators listed in the USACE Arid West Regional Manual (many of which do not require surface water inundation to be present).

This means that the created wetlands could have only saturated soils within the upper 12 inches of soil with no surface water inundation (meeting primary Hydrology Indicator A3 - Saturation), for 5 years in a row, and the performance standard would be met. This example illustrates that the hydrology performance standard as written, would confirm presence of a wetland, but would not confirm presence of vernal pools, meaning that the functions specific to vernal pools would be lost and the performance standards would still be met. Creating vernal pools is a stated goal of their mitigation plan but establishing an appropriate vernal pool hydroperiod is very difficult to achieve. In order to replace lost wetland functions to meet their mitigation requirements the performance standards need to require the information necessary to prove that vernal pools were created. This is another example of how the proposed mitigation does not replace lost functions and does not support a finding of no significant environmental impact.

Comment Response to S&W-15c – Use of Reference Wetland
The City acknowledges that use of reference wetland is required in developing the Project’s mitigation plan, and specifically, the performance standards. The City writes:
“The Draft EIR acknowledges in MMBIO-3d that the Wetland Mitigation and Monitoring Plan shall be prepared in accordance with the California State Water Resources Control Board Procedures. The Procedures require the use of reference aquatic resources, as correctly stated by S&W. Therefore, MM BIO-3d requires, by referencing the Procedures in MM BIO-3d, the use of reference aquatic resources to assist in development performance standards.”
The City does not clarify if a reference wetland was used in preparing the proposed performance standards in the DEIR so we assume they did not. This is another example of the City’s proposed mitigation not adequately demonstrating avoidance of significant environmental impact.
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Comment Response to S&W-16 a and b – Buffer Mitigation
Our review of the DEIR identified that the City was not complying with City policy 8.3.1, which states:
“Where riparian corridors are retained, they shall be protected by an adequate buffer with a minimum 100 foot protection zone from the edge of the tree, shrub, or herb canopy.”
In the FEIR, the City argues the policy does not apply to the portion of No-Name Creek on the Project site because there is no existing riparian vegetation, and the area is a seasonal wetland12. However, wetlands and streams are not mutually exclusive and herbaceous vegetation is present in the area next to the mapped No-Name Creek, providing riparian vegetation. The City’s Biological Habitats Map in their 2019 General Plan identifies an “Other riparian and Blue-Line St[r]eams” area in approximately the northwest corner of the Project site13. The M&A delineation report references No-Name Creek in the northwest corner of the Project site and the M&A Vernal Pool Branchiopod Surveys report14 includes a photograph of the creek (Photograph #6) showing significant channelized flow on the Project site. Absence of a No-Name Creek label on the USACE AJD is not a reason to discount its presence, especially given that the stream appears to coincide with the mapped wetlands. The California Department of Fish and Wildlife Geographic Information System (GIS) California Streams data set15 shows No-Name Creek in the northwest corner of the Project area. In several locations (pages 3.3-29 and 3.3-38) the DEIR states that the entirety of No Name Creek will be incorporated into the wetland preserve. We maintain that the City does not adequately explain why the 100-foot riparian corridor protection zone is not applied to No-Name Creek within the Project site. 12 FEIR 3-306 13 American Canyon, Calif., 2019, Natural and historic/cultural resources element, in American Canyon General Plan: American Canyon, Calif., chapter 8.0, available:
https://portal.laserfiche.com/Portal/Browse.aspx?id=70132&repo=r-f53bdda4. 14 Monk & Associates (M&A), 2017, Vernal pool branchiopod surveys on the Giovannoni property and the Devlin Road and Vine Trail Extension Project Site, City of American Canyon, Napa County, California, by Monk & Associates, Walnut Creek, Calif., for the U.S. Fish and Wildlife Service Sacramento Field Office, Sacramento, Calif., March, 23 p. 15 California State Geoportal, 2022, California Department of Fish and Wildlife GIS, California Streams dataset, available: https://gis.data.ca.gov/datasets/CDFW::california-streams/explore, accessed November 2022. 3067
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New Road and Impacts to Proposed Wetland Preserve
Review of Google Earth aerial photography shows that a road was built across the Phase 2 site, connecting the southern and northern property boundaries (see enclosed New Road and Giovannoni Maps Overlay. The maps were created using ESRI ArcMap by digitizing the new road and the associated earth disturbance footprints shown on Google Earth imagery dated June 2022. We then georeferenced the DEIR Phase 1 Wetland Impact Exhibit 3.3-3 and the Wetland Mitigation Plan Exhibit 3.3-4 to overlay the new road disturbance footprints with these DEIR exhibits. Given the methods used in creating the enclosed overlay figures, the representation is approximate; however, the road clearly cuts through the proposed wetland preserve area, comes very close to directly impacting the existing wetlands within the wetland preserve and may have indirectly impacted these wetlands by cutting off wetland hydrology. Additionally, the earth disturbance footprint extends into the wetland preserve in areas proposed for wetland creation.

The new road results in direct and indirect impacts to the wetland preserve, the existing wetland in the vicinity, and No-Name Creek. Based on measurements using the overlay maps, the wetland preserve area has been reduced by approximately 1.5 acres. This 1.5-acre estimate includes the area of the new road within the preserve footprint and the area of the preserve that became disconnected from the body of the preserve as a result of the road construction Additionally, indirect impacts to No-Name Creek and the preserve wetlands are associated with the road, including untreated stormwater runoff (the road appears to be graveled and will contribute fine particulate laden runoff with or without regular use), impact of the wetland buffer within the wetland preserve in the area near the road, and disturbance associated with use such as noise, air pollution, and trash. The heavy equipment used to construct the road compacted the soils within the earth disturbance footprint, limiting root establishment and plant growth in this area. These construction disturbances will make it significantly more difficult to create wetlands in this area as well as replace the lost function of the impacted wetlands.

CONCLUSIONS
As described above, we maintain that the incorrect identification of Project site wetlands and absence of complete functional assessments for the impacted site wetlands result in an incomplete impacts analysis. Also, deficiencies including inadequate buffer widths, absence of quantitative hydrologic data to support wetland creation potential, low mitigation ratios, inadequate hydrologic performance standards, and lack of documented mitigation sequencing for Phase 2 indicate that the City has not provided sufficient information to 3068
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establish that the proposed mitigation can avoid or minimize the Project’s significant environmental impacts.

Sincerely,

SHANNON & WILSON
Sarah Corbin, PWS, MSES
Associate
Senior Biologist
SCC:KLW/scc
Enc. New Road and Giovannoni Maps Overlay (2 sheets)
Shannon & Wilson’s Water Resources Review of Draft Environmental Impact Report, Giovannoni Logistics Center
3069
M
arkupLegend
Note:Extentsof'EarthDisturbance'and'NewRoad'
weredigitizedbyShannon&WilsonusingGoogle
EarthimagerydatedJune,2022andareapproximate.

BasemapisgeoreferencedExhibit3.3-3intheCityof
AmericanCanyon-GiovannoniLogisticsCenter
ProjectDraftEIR(FirstCarbonSolutions,2022).

EarthDisturbance
NewRoad
FigureShowingNewlyConstructedRoadImpacts
NotAddressedinDEIR-November2022
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M
arkupLegend
Note:Extentsof'EarthDisturbance'and'NewRoad'
weredigitizedbyShannon&WilsonusingGoogle
EarthimagerydatedJune,2022andareapproximate.

BasemapisgeoreferencedExhibit3.3-4intheCityof
AmericanCanyon-GiovannoniLogisticsCenter
ProjectDraftEIR(FirstCarbonSolutions,2022).

EarthDisturbance
NewRoad
FigureShowingNewlyConstructedRoadImpacts
NotAddressedinDEIR-November2022
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SUBMITTED TO:

Adams Broadwell Joseph &
Cardozo PC
601 Gateway Boulevard,
Suite 1000
South San Francisco, CA
94080
BY:

Shannon & Wilson
400 N. 34th Street, Suite 100
Seattle, WA 98103-8636
(206) 632-8020
www.shannonwilson.com

WATER RESOURCES REVIEW OF DRAFT ENVIRONMENTAL

IMPACT REPORT
Giovannoni Logistics Center

CITY OF AMERICAN CANYON, CALIFORNIA
July 19, 2022
Shannon & Wilson No: 109577-0013072
Giovannoni Logistics Center
Water Resources Review of Draft Environmental Impact Report 109577-001 July 19, 2022
7/19/2022-109577-001-R1f.docx/wp/tvv i
Submitted To: Adams Broadwell Joseph & Cardozo PC
601 Gateway Boulevard, Suite 1000
South San Francisco, CA 94080
Attn: Mr. Richard M. Franco
Subject: WATER RESOURCES REVIEW OF DRAFT ENVIRONMENTAL IMPACT

REPORT, GIOVANNONI LOGISTICS CENTER, CITY OF AMERICAN

CANYON, CALIFORNIA
Shannon & Wilson prepared this report and participated in this project as a consultant to Adams Broadwell Joseph & Cardozo PC. Our scope of services was specified in the proposal dated June 24, 2022, and was authorized by Mr. Richard Franco in email dated June 27, 2022. This report presents our review of the adequacy of the proposed water resource impact documentation and analyses and the adequacy of the associated proposed mitigation in the Giovannoni Logistics Center Draft Environmental Impact Report and was prepared by the undersigned.

We appreciate the opportunity to be of service to you on this project. If you have questions concerning this report, or we may be of further service, please contact us.

Sincerely,

SHANNON & WILSON
Sarah Corbin, PWS, MSES Todd Kincaid, PhD
Associate Senior Associate
Senior Biologist Hydrogeologist/Hydrogeologic Modeler
SCC:KLW/scc:tdk
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ii

CONTENTS
1 Introduction ................................................................................................................................1 2 Wetland Resources Review ......................................................................................................1

2.1 Supporting Documentation ............................................................................................1

2.2 Wetland Delineation........................................................................................................1

2.3 Wetland Impacts ..............................................................................................................3

2.3.1 Wetland Impact Inconsistencies........................................................................3

2.3.2 Indirect and Cumulative Impacts .....................................................................4

2.3.2.1 Hydrology Impacts ................................................................................4

2.3.2.2 Water Quality Impacts...........................................................................4

2.3.2.3 Reduced Buffer Widths .........................................................................5

2.3.2.4 Cumulative Impacts...............................................................................5

2.4 Proposed Mitigation ........................................................................................................5

2.4.1 Wetland Mitigation .............................................................................................6

2.4.1.1 Mitigation Ratios ....................................................................................6

2.4.1.2 Mitigation Sequencing...........................................................................7

2.4.1.3 Mitigation Monitoring and Performance Standards.........................7

2.4.2 Buffer Mitigation .................................................................................................8 3 Groundwater Resources Review .............................................................................................9

3.1 Supporting Documentation ............................................................................................9

3.2 Water Supply Demand....................................................................................................9

3.3 Loss of Recharge.............................................................................................................10 4 High Level Stormwater Review.............................................................................................11

4.1 Supporting Documentation ..........................................................................................11

4.2 Summary .........................................................................................................................11 5 Main Conclusions.....................................................................................................................12 6 References .................................................................................................................................12 3074
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1 ACRONYMS
1 INTRODUCTION
This report summarizes the findings of our water resources reviews of Section 3.03 Biological Resources and Section 3.08 Hydrology and Water Quality of the Draft Environmental Impact Report (DEIR) (State Clearinghouse Number 2021010104), including referenced and supporting material, for the Giovannoni Logistics Center project (Project) in City of American Canyon, Napa County, California (City) (Firstcarbon Solutions, 2022). The reviews focused on adequacy of wetland, groundwater, and stormwater (collectively called water resources) impact analysis and adequacy of the associated proposed mitigation.

Independent analyses and assessments have not been performed. This report summarizes the analyses presented in the DEIR and supporting documents upon which the findings of impacts on water resources are based. Depth and extent of review varies by discipline.

Descriptions of the specific discipline reviews and the review findings are outlined in the sections below.
2 WETLAND RESOURCES REVIEW

2.1 Supporting Documentation
In addition to Section 3.03 of the DEIR, our review of the Project's wetland related impacts and mitigation relied on the following documents:

DEIR Appendix C.1 – Giovannoni Logistics Center Biological Resources Report (Huffman-Broadway Group, Inc., 2021)
DEIR Appendix C.2 – Monk and Associates 2016 Wetland Jurisdictional Delineation Report (Monk, 2016a)
DEIR Appendix C.3 – USACE 2016 Wetland Verification Map (Monk, 2016b) DEIR Appendix C.6 – Monk 2018 Devlin Road Biological Resources Assessment (Monk, 2018)
DEIR Appendix C.7 – Monk Green Island Road Widening Biological Resources Assessment (Monk, 2019)

2.2 Wetland Delineation
Project site wetlands were delineated by Monk in April and May of 2016 (Monk, 2016a).

The 2016 delineation report states the wetland delineations were completed using the 1987 Corps of Engineers Wetlands Delineation Manual (U.S. Army Corps of Engineers [Corps], 1987) 3075
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2 and the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region (Version 2.0) (U.S. Army Engineer Research and Development Center [USAERDC], 2008). The delineation methodology described in the Monk 2016 report is consistent with the State Water Boards State Wetland Definition and Procedures for Discharges of Dredge of Fill Material to Waters of the State (State Procedures) (California State Water Resources Control Board [CSWRCB], 2019a).

Of the 142 wetland determination data sheets included in the 2016 Monk report, we reviewed 20 representative data sheets for consistency with the Corps manuals identified above, including review of percent vegetative cover and dominant species calculations, species' indicator statuses, and consistency of observed soils with the chosen hydric soil indicators. We found errors in data sheets such as incorrect dominant species identification (Data Points [DPs] 89, 111, and 120), miscalculated absolute percent cover (DPs 42 and 43), and incorrectly identified hydric soil indicators (DP 43), none of which impacted the report's wetland and upland determinations. However, in data sheet DP 110, Monk incorrectly identifies Helminthotheca echioides as a Facultative Upland (FACU) species; the Corps 2020 National Wetland Plant List identifies the species as a Facultative (FAC) species in the current Arid West region (Corps, 2020). The Corps' 2014 Arid West Regional Wetland Plant List identified the species as FACU (Corps, 2014), but the Corps 2016 Arid West Regional Plant List incorporated the species' wetland indicator status change to FAC and was published April 28, 2016, making it the correct plant list to reference during the Monk data analysis and report preparation (report dated August 2016). Assigning H. echiodes a FAC wetland indicator status changes the findings on DP 110 from upland to wetland condition, meaning that more wetland was present on the project site during the Monk delineation fieldwork than is reflected in the Monk report and DEIR. A search for H. echiodes in the remaining wetland determination sheets identified DPs 40, 97, 98, and 105 as locations where application of the species’ correct indicator status would change the data sheet finding from upland to wetland. The locations of DP 40 and 110, as shown on the 2016 delineation maps, approximately coincide with two of the areas the Project proposes to create wetland for mitigation of Project impacts (as shown on DEIR Exhibit 3.3-4).

The Monk delineation and Corps Approved Jurisdictional Determination (AJD) is six years old. We reviewed recent Google Earth aerial imagery of the project site during spring and identified areas that appear to demonstrate potential wetland condition that were not identified as wetland in the 2016 Monk report, particularly the area north of No Name Creek (general location of DP 110). Corps AJDs are valid for five years and the Project will need to obtain an updated AJD (Corps, 2016a). The Corps applies the AJD expiration because wetland boundaries are expected to change over time due to both natural (e.g., climate patterns) and human-caused activities (Corps, 2005). Given the age of the delineation, the errors identified in the wetland determination data forms, and the 3076
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3 associated potential for revised wetland extents, it is likely that the wetland boundaries are not accurately identified, and additional wetland is present on the site.

2.3 Wetland Impacts
The DEIR states that the Project's Phases 1 and 2 will impact 0.496 acre and 3.7 acres, respectively, of wetland and notes that Phase 2 wetland impact quantities may change as design progresses. Our review covered the adequacy of the wetland impact analysis presented in the DEIR and supporting documents.

One of their main assumptions used to support the basis of the Project's impact analysis is not supported. The DEIR Project Description Section 2.3.13 states, “For the purposes of providing a conservative, worst-case scenario, this Draft EIR assumes that Phases 1 and 2 would be developed concurrently over a period of 18 months.” However, a prolonged construction schedule that extends beyond 18 months and instead extends over several years (e.g., multiple nesting seasons and multiple “rainy seasons”) increases the potential for construction-related impacts to aquatic resources (e.g., water quality issues and in-air construction noise). The DEIR does not explain or support their assumption.

The DEIR does not include a functional assessment of the site wetlands and no functional impact analysis is provided. Wetland impact analyses are incomplete without a functional assessment that evaluates hydrologic, water quality, and habitat functions of the site wetlands. Functions typical of vernal pool and other seasonal wetlands, such as those on the Project site, typically include providing rest and forage for migratory waterfowl along the Pacific Flyway; breeding habitat for amphibians and invertebrates; flood storage potential; and filtration of pollutants and excess nutrients from surface water and groundwater. The DEIR states that a functional assessment, such as the California Rapid Assessment Method, will be completed with the Project's Wetland Mitigation and Monitoring Plan. As described below in Section 2.4, the Project's proposed wetland mitigation cannot be deemed adequate without including consideration of impacted and mitigated wetland functions.

2.3.1 Wetland Impact Inconsistencies
Our review identified several discrepancies between the DEIR and supporting documents.

In comparing the itemized wetland impact areas in DEIR Table 3.3-1 with the wetland areas in the 2016 Monk report, we noted that the Project proposes to impact 189 square feet of Wetland W-89 while the Monk report quantifies W-89 size as 195 square feet, a discrepancy of 6 square feet. Although this does not change the Phase 1 impact quantity when converted to acres, the Project should count the entirety of the wetland as impacted. 3077
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4 We identified inconsistencies in the position and presence of Wetland IW-9 in the 2016 Monk report delineation figure and the AJD and DEIR wetland figures. In the 2016 Monk report, Wetland IW-9 is a 2,625-square-foot isolated linear wetland in the southeast portion of the project area that would partially coincide with or be immediately adjacent to the Project development footprint (DEIR Appendix C, p. C-129). The 2016 Monk report also includes Wetland IW-9 in its Attachment A Table of Aquatic Resources. However, the wetland is absent from the Monk October 2016 Confirmed Aquatic Resources Delineation Map/USACE 2016 Wetland Verification Map (DEIR Appendix C, p. C-419) and the wetlands are re-numbered accordingly. The wetland's absence is carried through in the DEIR figures and analysis. There is no wetland determination data sheet to support the wetland's inclusion or exclusion and no discussion of the change in the DEIR or supporting documents. It is not clear if the omission was purposeful or an oversight; however, IW-9, as originally shown in the 2016 Monk report, is not included in the DEIR impact analysis.

The DEIR Exhibit 3.3-3 includes Wetland W-90 within the Project footprint and excludes it from the proposed wetland preserve. However, there is no discussion of direct or indirect impacts to W-90 included in the DEIR.

2.3.2 Indirect and Cumulative Impacts

2.3.2.1 Hydrology Impacts
The DEIR states underground piping will convey stormwater from the Project's new pollutant generating impervious surfaces to bioretention and detention basins on the north boundary of the development. The DEIR Exhibit 3.3-4 identifies "passive or active control device to allow treated stormwater to enter the [created] wetland swale." However, the Project documents do not identify how site drainage patterns to and hydrology sources in the unimpacted wetlands will be maintained. Without pre-Project and post-Project water budget analyses for the site wetlands, their determination that additional wetlands will not be impacted is not supported.

2.3.2.2 Water Quality Impacts
The Project proposes use of a specialized biosoil in the bioretention facility to remove pollutants. However, DEIR Section 3.8.6 states: "The wetland preserve would facilitate the natural sequestration of pollutants of stormwater leaving the project site." Incorporation of the wetland preserve into the Project's post-construction stormwater management strategy would have long-term detrimental impacts to these wetlands and does not support their determination that additional wetlands will not be impacted. 3078
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5 2.3.2.3 Reduced Buffer Widths
The State Procedures manual (CSWRCB, 2019a) states that buffers help "ensure the longterm viability of those [aquatic] resources" and that "buffers may also provide habitat or corridors necessary for the ecological functioning of aquatic resources." The Corps South Pacific Division requires that mitigation plans "provide and maintain a buffer of at least 100 feet around all vernal pool preserves and mitigation sites" in their draft Mitigation and Monitoring Guidelines for Vernal Pools supplement (Corps, 2016b). Buffer widths between wetlands and the Project footprint are not provided, but use of the DEIR figures' scales suggests they are less than 100 feet in many places, particularly adjacent to the northern boundary of the Project footprint.

DEIR Exhibit 3.3-3 Phase 1 Wetland Impacts, Wetlands IW-7, 8, 9 and 10, appear to show an approximately 100-foot buffer adjacent to the Project. However, the buffer areas are identified as 'Proposed Landscape Areas.' This is not further defined, and it is not clear if the proposed landscape area buffers will consist of native or ornamental plants and whether they will be intensely maintained as manipulated landscape areas. Indirect impacts to these wetlands through a disturbed or landscaped buffer are not discussed in the DEIR.

Further, the connections and corridor between the wetlands in the southeastern Project area (Wetlands IW-7 to IW-10) and the remaining wetland complex to the north and east will disappear once the wetlands are flanked by the development. This corridor disconnection, the overall reduction of undeveloped buffer widths of wetlands that remain post-Project, and the indirect effects on the site wetlands are not analyzed or discussed.

2.3.2.4 Cumulative Impacts
The State Procedures manual (CSWRCB, 2019a) requires that compensatory mitigation be developed using a watershed profile, which "shall include information sufficient to evaluate direct, secondary (indirect), and cumulative impacts of [a] project…" The DEIR does not include an analysis of indirect impacts to wetland function associated with reduced buffer widths and increased noise, lights, and traffic compared to that of the existing condition.

The DEIR does not include an analysis of cumulative wetland impacts that incorporates current development trends in the area and the associated continued aquatic habitat fragmentation.

2.4 Proposed Mitigation
Our review of the adequacy of the Project's proposed mitigation in offsetting the Project's wetland-related impacts follows.
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6 2.4.1 Wetland Mitigation
The DEIR includes a conceptual mitigation plan shown in Exhibit 3.34 that provides a proposed wetland preservation area adjacent to the northern boundary of the Project and states that a detailed Wetland Mitigation and Monitoring Plan will be prepared but is not included in the DEIR. The DEIR states that the plan will propose to preserve 7.58 acres of existing seasonal wetlands and 0.13 acre of vernal pools; create 0.992 acre of seasonal wetlands in advance of, or concurrent with, Phase 1; and create 2.57 acres of seasonal wetlands and 1.13 acres of vernal pools in advance of Phase 2.

We are unable to evaluate if the proposed mitigation will adequately replace lost wetland function because the DEIR and supporting documentation does not include an assessment of impacted wetland function. Additionally, a water budget analysis, typically supported by hydrology monitoring in the proposed wetland creation areas, is not included. Overall, the Project does not provide the information necessary to determine that the proposed wetland acreages can be successfully created.

Our review of conceptual mitigation elements provided in the DEIR follows.

2.4.1.1 Mitigation Ratios
The Project proposes to mitigate for Phases 1 and 2 wetland impacts at 2:1 and 1:1 mitigation to impact ratios, respectively. The DEIR justifies the lower Phase 2 mitigation ratio because the mitigation will be constructed "at least 1 year prior to the start of Phase 2 construction." Both Devlin Road and Green Island Biological Resource reports, two nearby projects that have completed project permitting, identify 2:1 as the typical Corps and Regional Water Quality Control Board required ratio. Of note, unlike this Project, the Devlin Road and Green Island projects did not impact vernal pool wetlands (Monk, 2018 and 2019). The Corps’ Final 2015 Regional Compensatory Mitigation and Monitoring Guidelines for South Pacific Division identifies vernal pools as both "difficult to replace resources" and "regionally significant habitat types," (Corps, 2015) making vernal pool wetland creation an inherently high risk mitigation that warrants a higher than typical mitigation ratio.

A State guidance document that includes mitigation requirements, Staff Report Including the Substitute Environmental Documentation for the State Policy for Water Quality Control: State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (Procedures Staff Report), lists the difficulties of wetland replacement, using vernal pools as an example, and identifies mitigation that requires supporting structures, such as the Project’s proposed detention basin system and outfall, as factors that would increase required mitigation ratios (CSWRCB, 2019b). Successful wetland creation is largely driven by ability to provide appropriate hydrology, however, hydrologic analysis that 3080
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7 demonstrates wetland creation potential in the proposed mitigation area is not provided in the DEIR.

The Procedures Staff Report also identifies use of a mitigation bank as an avenue to avoid mitigating for temporal wetland loss, similar to the Project's justification for mitigating Phase 2 at a 1:1 ratio. However, the construction schedule for Phase 2 is not set, with references to both concurrent and possibly back-to-back construction. Mitigation banks must demonstrate achieved wetland functions, frequently over several years, prior to the sale of credits. The Project's assumption that the proposed constructed wetlands will have replaced all lost wetland function at the time of Phase 2 construction is not supported by the information provided and therefore, neither is the proposed 1:1 mitigation ratio. Further, the Corps states that mitigation ratios greater than 1:1 are typically required because "mitigation sites often provide reduced functions compared to the impacted aquatic resources (Corps, 2015).”
Although ultimately the required compensatory mitigation ratios will be provided and approved by the regulatory agencies, the proposed ratios in the DEIR are low given the information provided above.

2.4.1.2 Mitigation Sequencing
The 1990 Federal Mitigation Memorandum of Agreement between the Corps and U.S.

Environmental Protection Agency (EPA) requires applicants to complete a thorough mitigation sequencing process, wherein impacts to aquatic resources are first avoided to the maximum extent practicable, remaining impacts are minimized, and unavoidable impacts are then offset through compensatory mitigation (Corps and EPA, 1990). The DEIR does not address how the Project completed the required mitigation sequencing process during design, including but not limited to design decisions regarding building size and/or location, and whether higher quality and higher functioning aquatic resources were prioritized for avoidance.

2.4.1.3 Mitigation Monitoring and Performance Standards The Project proposes five years of monitoring, the minimum required in the State Procedures. The Corps Regional Compensatory Mitigation and Monitoring Guidelines for the South Pacific Division (Corps, 2015) identifies vernal pools as an aquatic resource that warrants longer monitoring periods than the standard five years: "Monitoring periods of more than 5 years are warranted for aquatic resources with slow development rates.

Examples of such aquatic resources within the South Pacific Division include vernal pools… (Corps, 2015)." The Corps' Draft Mitigation and Monitoring Guidelines for Vernal Pools supplement further requires that vernal pool construction projects be monitored for a 3081
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8 minimum of ten years. (Corps, 2016b). The DEIR proposed five-year mitigation monitoring period is not consistent with these federal guidelines.

Mitigation measure BIO-3d in Section 3.3 of the DEIR provides performance standards to be incorporated into the Project mitigation plan. Performance standards are tools to assess achievement of the mitigation's stated goals and objectives. The DEIR Section 3-03 Mitigation Measure states that the "basic objective of the Wetland Mitigation and Monitoring Plan is to ensure that project wetland impacts, and compensatory mitigation proposed to offset the wetland impacts, shall provide a no-net loss of area of wetlands, and wetlands established/created shall be in-kind to the wetlands impacted." More detailed mitigation goals and objectives that would relate to the project's impacts to wetlands with varied habitat conditions (e.g., isolated vs. non-isolated) are not included in the DEIR.

Without an understanding of the impacted wetland functions, there is no basis for establishing meaningful mitigation goals and associated meaningful ecological performance standards to achieve no net loss.

The Procedures Staff Report outlines the problematic trend mirrored by the DEIR in focusing on mitigation area and vegetation cover requirements without replacing lost ecological function, resulting in failure to comply with the State's 'no net loss' policy (CSWRCB, 2019b). Further, the State Procedures manual states: "The use of reference aquatic resources to establish performance standards will help ensure that those performance standards are reasonably achievable, by reflecting the range of variability exhibited by the regional class of aquatic resources as a result of natural processes and anthropogenic disturbances." The DEIR does not describe use of reference wetlands in the mitigation approach, which is needed to define the performance standards.

2.4.2 Buffer Mitigation
City policy 8.3.1 requires, "Where riparian corridors are retained, they shall be protected by an adequate buffer width of a minimum 100-foot protection zone…" The Corps South Pacific Division requires that mitigation plans "provide and maintain a buffer of at least 100 feet around all vernal pool preserves and mitigation sites" in their draft Mitigation and Monitoring Guidelines for Vernal Pools supplement (Corps, 2016b). Proposed buffer widths associated with No Name Creek and the associated wetlands are not discussed in the DEIR or supporting documents nor labeled in the figures. However, an approximate use of the figure scale suggests that buffer widths adjacent to the Project are less than 100 feet in many places.

DEIR Exhibit 3.3-4 Wetland Mitigation Plan states that the project will "plant trees and shrubs in select locations adjacent to established wetlands on the east and west side and adjacent to No Name Creek." The DEIR does not include extent (area) or specific locations 3082
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9 of plantings and does not state whether these plantings will be maintained, incorporated into the mitigation performance standards, and monitored. The lack of Project buffer impact analysis makes it difficult to evaluate if the proposed buffer plantings are adequate compensation to replace lost buffer function.
3 GROUNDWATER RESOURCES REVIEW

3.1 Supporting Documentation
Our review and assessment of potential impacts of the Project on groundwater resources relied on the following documents:

Section 3.8 of the DEIR – Hydrology and Water Quality
Draft Water Supply Assessment (DWSA) for the Giovannoni Logistics Center Project (Balance Hydrologics, 2021)

3.2 Water Supply Demand
The water supply to the Project, as defined in the DEIR, will not be derived from groundwater and therefore will not diminish groundwater levels.

The Project's water demand will be supplied by the City. Potential impacts to groundwater levels and flows due to the Project's water supply demand are therefore predicated on the sources of water from which the City derives its water supply and the degree to which the Project demand affects the City's projected future supplies. Both of these issues are discussed and evaluated in the DWSA, which relied on the 2015 Urban Water Management Plan (Kennedy Jenks Consultants, 2016).

The DWSA states that, at present, the City does not rely on groundwater for any part of its supply. Section 2.3 of the DWSA does, however, indicate that the City may consider adding groundwater as a source, depending on needs and opportunities.

The DWSA indicates that the Project's stated water supply demand falls within the City's anticipated supply through 2040 and would not prevent the City from meeting the anticipated demands, even in progressively dry years. These conclusions are based on their following assumptions:

Between 23% and 32% of the Project's water supply demand will be filled by recycled water. Achieving this goal is predicated on the Project being hooked up to the City's recycled water infrastructure. The DWSA indicates that use of the recycled water is feasible given the City's projected expansion in demand and their capacity to meet that demand.
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10 The City will be able to capitalize on carryover water from the State Water Plan as described in Section 4.2.1 of the DWSA to make up for shortfalls during dry periods, or the City's actual consumption will continue to be significantly below projected demand as was recorded in the six years between 2015 and 2020.

Project water demand conforms to the following stated estimates.

Potable water use: - Phase 1: 10.8 acre-feet per year (afy) - Phase 2: 13.1 afy Recycled water use: - Phase 1: 37.0 afy - Phase 2: 45.0 afy The DWSA states that the Project will be required to comply with the City's Zero Water Footprint policy, which will require the Project to commit to offsetting their potable water demand through off-site conservation measures. The DEIR does not address this requirement. To meet this requirement, the Project will be required to offset 100% of their potable water consumption through one or more types of actions that reduce the City's water consumption. The DWSA describes some potential qualifying actions as follows.

Funding conversion of irrigated landscape areas to recycled water.

Funding or assisting the City to improve the efficiency of the City’s water distribution system by reducing system losses.

3.3 Loss of Recharge
The proximity of the Project to groundwater discharge areas limits reductions in groundwater recharge due to the conversion of open space to impervious surfaces.

The Project is located less than two miles from the wetland areas associated with the Napa River and Fagan Marsh, which are the discharge areas for the surficial aquifer in the Project area. The water table (uppermost groundwater level) within that proximity to groundwater discharge areas is expected to be shallow, leaving little space available for groundwater storage. Infiltration recharge is expected to be small and not expected to contribute significantly to groundwater flow. A reduction in pervious surface will therefore not likely change the groundwater water budget for the groundwater basin. 3084
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11 4 HIGH LEVEL STORMWATER REVIEW

4.1 Supporting Documentation
Our review and assessment of potential stormwater-related impacts of the Project focused only on the completeness of the analyses described in the DEIR with respect to the size and scope of the Project. The accuracy of the referenced studies was not evaluated. Our review relied on and was limited to the following documents.

Section 3.8 of the DEIR – Hydrology and Water Quality
Draft Water Supply Assessment (DWSA) for the Giovannoni Logistics Center Project (Balance Hydrologics, 2021)
Memo on Preliminary Hydrologic and Hydraulic Modeling for the Proposed Giovannoni Logistics Center (Balance Hydrologics, 2020)

4.2 Summary
The DWSA acknowledges that the Project will be required to prepare a Stormwater Control Plan (SCP) in accordance with the Bay Area Stormwater Management Agencies Association Post-Construction Manual that must describe post-construction stormwater treatment measures, such as bioretention facilities and source control Best Management Practices, and a strategy for the ongoing maintenance of those facilities. A SCP has not been included in the DEIR.

The DEIR does describe the results of a preliminary assessment that focused on the potential change in peak runoff associated with Phase 1 of the Project. Important findings and dependencies include the following:

The Project will leave approximately 22.6% (47 acres) of the 208 acres as open space.

The Project will be required to demonstrate a 10% reduction in peak runoff flows from the current (pre-developed) condition.

Modeling performed as part of the preliminary assessment demonstrates that more than the required 10% reduction in peak runoff flows will be achieved through the development and implementation of two detention basins, one bioretention area dedicated for water quality, and one basin sized to comply with both flood control and water quality treatment standards.

Only Phase 1 was considered.

The ability of the Project to meet the 10% reduction requirement for Phase 1 appears to be dependent on the construction of the Devlin Road extension, which will result in more than the required reductions in peak flow runoff.
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12 It does not appear that Phase 2 construction will benefit from the Devlin Road extension or a feature similar to it in function with respect to stormwater retention. It therefore appears likely that the size of the detention basins and bioretention areas for the Phase 2 component of the Project will likely have to be larger than those planned for Phase 1. 5 MAIN CONCLUSIONS
More wetland was present on the project site during the 2016 Monk delineation fieldwork than is reflected in the Monk report and DEIR.

Wetland impact analysis is not complete; namely, it is lacking analysis and discussion of impacted wetland functions, impacts associated with reduced buffer widths, impacts associated with modified surface water drainage, and cumulative impacts associated with the area’s development trends.

We are unable to evaluate if the proposed conceptual mitigation will adequately offset wetland impacts because impacted wetland functions are not evaluated nor has analysis been completed to support the probable success of wetland creation.

Proposed wetland mitigation ratios for Phases 1 and 2 are low, given State and Federal guidance.

The proposed five-year mitigation monitoring period is not consistent with Corps guidelines for compensatory mitigation involving vernal pool wetlands.

The DEIR lacks detailed mitigation goals and objectives and associated performance standards. The provided conceptual mitigation does not incorporate reference wetlands in the strategy and as presented, is not sufficient to comply with the State's no-net-loss policy.

The Project will not have a significant adverse impact on groundwater resources.

It does not appear that Phase 2 construction will benefit from the Devlin Road extension or a feature similar to it in function with respect to stormwater retention.

It appears likely that the size of the detention basins and bioretention areas for the Phase 2 component of the Project will have to be larger than those planned for Phase 1.

The preliminary hydrologic assessment required for the proposed project is therefore incomplete.
6 REFERENCES
Balance Hydrologics, 2020, Preliminary hydrologic and hydraulic modeling for the proposed Giovannoni Logistics Center: Memorandum from Johnny Caspers and Ed Ballman, Balance Hydrologics, Berkeley, Calif., to Andrea Ballanca, Carlson, Barbee, and Gibson, Inc., San Ramon, Calif., December 3. 3086
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13 Balance Hydrologics, 2021, Draft water supply assessment for the Giovannoni Logistics Center Project: Prepared by Balance Hydrologics, Berkeley, Calif., for Buzz Oates Construction, Inc., Sacramento, Calif.

California State Water Resources Control Board (CSWRCB), 2019a, State policy for water quality control: state wetland definition and procedures for discharges of dredged or fill material to waters of the state (rev.): April 2, 44 p., available:
https://www.waterboards.ca.gov/water_issues/programs/cwa401/docs/2021/proce dures.pdf. California State Water Resources Control Board (CSWRCB), 2019b, Staff report including the substitute environmental documentation, state policy for water quality control:
state wetland definition and procedures for discharges of dredged or fill material to waters of the state (rev.): April 2, SCH#2011012009, 253 p., available:
https://www.waterboards.ca.gov/press_room/press_releases/2021/staffreport.pdf. Firstcarbon Solutions, 2022, Draft environmental impact report, Giovannoni Logistics Center project, City of American Canyon, Napa County, California, State Clearinghouse Number 2021010104: Report prepared by Firstcarbon Solutions, Irvine, Calif., for City of American Canyon, Calif., May.

Huffman-Broadway Group, Inc., 2021, Biological resources report, Giovannoni Logistics Center, American Canyon, California: Report prepared by for Huffman-Broadway Group, Inc., San Rafael, Calif., for Buzz Oates Construction, Inc., Sacramento, Calif., May.

Kennedy Jenks Consultants, 2016, Final 2015 urban water management plan: Report prepared by Kennedy Jenks Consultants, no 1568037*00, for the City of American Canyon, June, available:

Kehttps://www.cityofamericancanyon.org/home/showpublisheddocument/17856/6 37123637363600000.

Monk and Associates, 2016a, Request for a confirmed/approved jurisdictional determination aquatic resources delineation report, Giovannoni property, City of American Canyon, Napa County, California: Report prepared by Monk and Associates, Walnut Creek, Calif., for Albert D. Giovannoni Trust, Napa, Calif., August, 308 p.

Monk and Associates, 2016b, Confirmed aquatic resources delineation map, Giovannoni project site, City of American Canyon, California: October, 1 p.

Monk and Associates, 2018, Biological resource analysis, Devlin Road/ vine trail extension project, City of American Canyon, California: Report prepared by Monk and Associates, Walnut Creek, Calif., for GHD, Inc., Santa Rosa, Calif., October, 67 p. 3087
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14 Monk and Associates, 2019, Biological resources analysis, Green Island Road reconstruction and widening project, City of American Canyon, California: Report prepared by Monk and Associates, Walnut Creek, Calif., for City of American Canyon, Calif., July, 74 p.

U.S. Army Corps of Engineers (Corps), 1987, Corps of Engineers wetlands delineation manual: Vicksburg, Miss., U.S. Army Corps of Engineers Waterways Experiment Station, Wetlands Research Program, Technical Report Y-87-1, 143 p., available:
http://www.cpe.rutgers.edu/wetlands/1987-army-corps-wetlands-delineationmanual.pdf. U.S. Army Corps of Engineers (Corps), 2005, Regulatory guidance letter, Expiration of geographic jurisdictional determinations of waters of the United States, June, 3 p., available: https://www.nap.usace.army.mil/Portals/39/docs/regulatory/rgls/rgl05-

02.pdf
U.S. Army Corps of Engineers (Corps), 2014, Arid west 2014 regional wetland plant list:

Cold Regions Research and Engineering Laboratory, April, 51p., available:
https://wetlandplants.sec.usace.army.mil/nwpl_static/data/DOC/lists_2014/Regions/pdf/reg_AW_ 2014v1.pdf
U.S. Army Corps of Engineers (Corps), 2015, Final 2015 regional compensatory mitigation and monitoring guidelines for South Pacific division: January, 70 p., available:
https://www.spd.usace.army.mil/portals/13/docs/regulatory/mitigation/mitmon.pd f. U.S. Army Corps of Engineers (Corps), 2016a, Regulatory guidance letter, jurisdictional determinations: Letter no. 16-01, October, 8 p., available:
https://www.spn.usace.army.mil/Portals/68/docs/regulatory/resources/RGL/RGL16 -01.pdf.

U.S. Army Corps of Engineers (Corps), 2016b, Draft mitigation and monitoring guidelines for vernal pools: U.S. Army Corps of Engineers South Pacific Division, November, 23 p., available:
https://www.spd.usace.army.mil//Portals/13/docs/regulatory/publicnotices/DVPG L.pdf. U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA), 1990, Memorandum of agreement between the Environmental Protection Agency and the Department of the Army concerning the determination of mitigation under Clean Water Act Section 494(b)(1) guidelines: February 6, 6 p., available:
https://www.epa.gov/sites/default/files/2019-05/documents/1990_armyepa_mitigation_moa.pdf. 3088
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15 U. S. Army Corps of Engineers Engineer Research and Development Center, 2008, Regional supplement to the Corps of Engineers wetland delineation manual: arid west region (v. 2.0): Vicksburg, Miss., U. S. Army Corps of Engineers Engineer Research and Development Center, Report ERDC\EL TR-08-28, 133 p., available:
https://usace.contentdm.oclc.org/utils/getfile/collection/p266001coll1/id/7627. 3089

EXHIBIT B
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Scott Cashen, M.S.—Independent Biological Resources Consultant 1 November 15, 2022
Mr. Richard M. Franco
Adams Broadwell Joseph & Cardozo
601 Gateway Boulevard, Suite 1000
South San Francisco, CA 94080
Subject: Comments on the Final Environmental Impact Report for the Giovannoni Logistics Center Project
Dear Mr. Franco:

This letter contains my comments on the Final Environmental Impact Report (“FEIR”) prepared by the City of American Canyon (“City”) for the Giovannoni Logistics Center Project (“Project”). Buzz Oates LLC (“Applicant”) is proposing to develop a 2.4-million-square-foot logistics center on approximately 163 acres of an approximately 208-acre site located in the northwestern portion of the City of American Canyon. The remaining 44.8 acres of the site would serve as mitigation for the Project’s impacts to wetlands and wildlife habitat. I submitted a comment letter on the Draft Environmental Impact Report (“DEIR”) that was prepared for the Project. That letter established my professional qualifications and described the actions I took to evaluate the DEIR and underlying analyses. This letter addresses the FEIR and the City’s responses to comments.

New Road
On November 9, 2022, I inspected the Project site from various vantage points along Green Island Road and Devlin Road. During the site visit I noticed a new road (and dirt berm) had been installed on the Project site (Figure 1, below). The new road extends north-south through the Project site and into the proposed wetland preserve (Figure 2, below). The new road was not included in the DEIR’s Project description, nor was it depicted on the map of the proposed wetland preserve.1
Roads have negative effects on biotic integrity in both terrestrial and aquatic ecosystems. Roads of all kinds have seven general effects: mortality from road construction, mortality from collision with vehicles, modification of animal behavior, alteration of the physical environment, alteration of the chemical environment, spread of exotics, and increased use of areas by humans. 2 The new
road on the Project site almost certainly has already had one or more of these effects, but because the road is not discussed in the DEIR or FEIR, I cannot assess the full extent of the road’s effects on the site’s plant and animal populations or the biotic integrity of the proposed wetland preserve.
1 See DEIR, Exhibit 3.3-4.
2 Trombulak SC, Frissell CA. 2000. Review of ecological effects of roads on terrestrial and aquatic communities.

Conservation Biology 14:18–30.
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2 Figure 1. New road and berm at the Project site.
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3 Figure 2. Aerial image (dated June 2022) of new road.

Vernal Pool Fairy Shrimp (Cashen-2)
The Project site provides potential habitat for the vernal pool fairy shrimp, a federally threatened species. LSA conducted dry season vernal pool fairy shrimp surveys at the Project site in summer of 2016, and Monk & Associates conducted wet season surveys in winter of 2016-2017.

I commented that the results of those surveys are outdated and can no longer be used to assume absence of the species at the Project site. The FEIR provided the following response:
“Generally, when surveys are older than 5 years the United States Fish and Wildlife Service (USFWS) may request new surveys to be conducted, or they may not. Nonetheless, the referenced vernal pool branchiopod protocol surveys were less than 5 years old when the Draft EIR was released and, from a biological standpoint, the surveys were reliable and sufficient to support the conclusion that federally listed threatened vernal pool fairy shrimp do not occur on the project site.”
The statement that the surveys were less than 5 years old when the DEIR was released is false.

The surveys terminated on February 15, 2017.3 The DEIR was released on May 20, 2022.

Furthermore, the issue is not whether the surveys were reliable and sufficient to support the absence determination, but rather, that fairy shrimp easily could have colonized the Project site since February 2017. This is the reason why the USFWS considers the survey results valid for 3 DEIR, Appendix C.5, pp. 2 and 3.
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4 no more than five years. The FEIR provides no evidence that the USFWS has made an exception for the Project. As a result, I maintain the conclusion that the City does not have sufficient evidence to support the determination that the Project would have no impact on the vernal pool fairy shrimp.

Birds of Conservation Concern (Cashen-3)
Comment Cashen-3 pertained to the DEIR’s failure to analyze impacts to the marbled godwit and two other USFWS Bird Species of Conservation Concern (“BCC”) that were detected at the Project site. The FEIR provided the following response:
“Marbled godwit is an abundant wintering shorebird found along the shoreline of San Francisco Bay, ocean beaches, and wetlands. They nest in the Northern Plains and are not included on CDFW’s Special Animals List (latest update in July 2022). There is no reason that impacts to this abundant species needs to be a topic for evaluation in the EIR.”
The FEIR’s response does not rectify the issue. The fact that the marbled godwit nests in the Northern Plains is irrelevant because the species is listed as a Bird Species of Conservation Concern due to its nonbreeding status in Coastal California.4 The FEIR provides no evidence to substantiate the claim that the marbled godwit is an abundant species. Nonetheless, other factors beyond abundance dictate a species’ conservation status. The USFWS explains: “[o]ur conservation assessment was based on several factors, including population abundance and trends, threats on breeding and nonbreeding grounds, and size of breeding and nonbreeding ranges.”
5 It is unclear why the marbled godwit is not on CDFW’s Special Animals List, although this omission appears to be an oversight.

The DEIR failed to disclose and analyze potentially significant impacts to the cackling goose, which is considered a special-status species on its wintering grounds in California. The FEIR provided the following response:
“Cackling goose (Branta hutchinsii) is a goose species once considered conspecific with the common Canada goose (Branta canadensis). Cackling goose is a common species; however, the Aleutian subspecies of cackling goose was listed as endangered under the federal Endangered Species Act until its recovery to a population of over 100,000 individuals and its delisting from the Act in 2001.

The Aleutian subspecies remains on the CDFW Watch List. Note that MM BIO-4 requiring nesting surveys for all bird species during the breeding season would ensure significant impacts to all nesting bird species would not occur.” The FEIR’s response does not resolve the issue. As noted in the response, the Aleutian subspecies (Branta hutchinsii leucopareia) is a special-status species. To clarify, this is the subspecies referenced in Comment Cashen-3. My previous comment letter established the importance of the Project site as wintering habitat for cackling geese (including B. h. 4 U.S. Fish and Wildlife Service. 2021. Birds of Conservation Concern 2021. United States Department of the Interior, U.S. Fish and Wildlife Service, Migratory Birds, Falls Church, Virginia. Table 6. 5 Ibid, p. 4.
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5 leucopareia). The nesting bird survey required under MM BIO-4 does not mitigate Project impacts because the issue of conservation concern for the Aleutian subspecies is the loss of wintering habitat—not construction impacts to nest sites (B. h. leucopareia does not breed in California).6
Short-eared Owl (Cashen-4)
Comment Cashen-4 pertained to the DEIR’s failure to analyze the Project’s potentially significant impacts on the short-eared owl and its habitat due to the false belief that no suitable habitat was present at the Project site. The FEIR’s response states:
“The Draft EIR Appendix C.1 Biological Resources Report determined the project site did not support suitable habitat for the short-eared owl (a California Species of Special Concern and USFWS Bird Species of Conservation Concern), at least in part because the property is currently surrounded on all four sides by commercial development or heavily trafficked roadways and is bisected by a new road and public trail extension that create disturbances, all of which would not be conducive to nesting by this sensitive species.”
Although this rationale was not articulated in Appendix C.1 (which merely states: “[s]uitable habitat is not present at the site”), it is valid reasoning due to the indirect effects of development, roads, and traffic on habitat. However, for all other species addressed in the FEIR, the FEIR continues to provide opposing reasoning: that Project impacts would be less-than-significant because the onsite preserve would provide habitat for those species (e.g., golden eagle, northern harrier, and Swainson’s hawk, among others).

Response to Comment Cashen-4 then states:
“Although nesting by this species is not likely for this reason, nesting by shorteared owl, a species that resembles northern harrier in its habitat requirements and foraging habits (northern harrier by day and short-eared owl at night), is possible.

For this reason, recommended nesting surveys for northern harrier (see MM BIO1c) should include concurrent searches for nesting short-eared owl and mitigate for the presence of nesting birds, if found. Refer to Response to CDFW-8a for revised wording of MM BIO-1c, which now provides for the possibility of finding nesting short-eared owl as well as northern harrier. Implementation of MM BIO1c would ensure potential impacts to short-eared owl, as well as those for northern harrier, would be less than significant.”
The FEIR’s response does not rectify the issue because there remains no analysis of the significance of the Project’s impacts on short-eared owl habitat. Implementation of MM BIO-1c, which requires a pre-construction survey and nest buffer, does not mitigate the Project’s permanent impacts to habitat.

6 California Natural Diversity Database. 2022 July. Special Animals List. 3095
6 Special-Status Plants (Cashen-5a and -5b)
Many special-status plant species are annual plants that are only evident when environmental conditions are appropriate. The botanical survey report prepared by Helm Biological Consulting (“HBC”) states that nine of the special-status plant species that could occur at the Project site are wetland dependent, and that drought conditions prior to HBC’s field surveys could have affected HBC’s ability to detect presence of those nine species.7 The survey protocols issued by the California Department of Fish and Wildlife (“CDFW”) and California Native Plant Society (“CNPS”) identify the need for the botanist(s) to visit nearby reference sites when special-status plants are known to occur in the type(s) of habitat present in a particular project area.
8 The purpose of these reference site visits is to confirm that special-status plants that may occur at the project site would be evident and identifiable when the botanical field surveys take place.

HBC identified 23 “target” special-status plant species that are known to occur within a 10-mile radius of the Project site, and that are associated with habitats that are known to occur at the site.

HBC visited three reference sites that contained six of these target species. It is unclear if the reference site visits provided evidence that these six target species would be identifiable when HBC conducted its surveys because HBC’s survey report did not identify when the reference site visits were conducted, nor did it discuss HBC’s observations of phenological development of the target species at the reference sites.

As discussed in my previous comment letter, Helm’s surveys did not encompass the blooming periods of Napa bluecurls (Trichostema ruygtii) or pappose tarplant (Centromadia parryi ssp. parryi), both of which Helm identified as target species. Furthermore, Helm did not visit reference sites to verify that either species would be identifiable at the Project site when he conducted his surveys. The FEIR provided the following response to this issue:
“Because of significant early fall rainfall in 2020, lack of spring rainfall in 2021 and warm weather, the flowering periods were several months in advance of normal blooming periods. The last rainfall event that was not trace amounts, occurred on March 18, 2021. Based on the weather patterns leading up to the spring surveys for 2021 and based on the reference sites known to support the target plants, the dates HBC conducted the surveys on were reliable and sufficient to capture blooming periods or a visual image of the target species.” 9 These statements are not supported by data or other scientific evidence. Because HBC did not visit reference sites containing Napa bluecurls and pappose tarplant, the botanist had no evidence to support his belief that the surveys (conducted prior to the reported blooming periods) would provide reliable information on absence of these two species from the Project site. As discussed in my previous comments, data maintained by the California Consortium of Herbaria provides 7 DEIR, Appendix C.9, Brent Helm 2021 Rare Plant Survey Report, Appendix A. 8 California Department of Fish and Wildlife. 2018. Protocols for Surveying and Evaluating Impacts to Special Status Native Plant Populations and Sensitive Natural Communities. See also California Native Plant Society. 2001 (revised). CNPS Botanical Survey Guidelines.
9 FEIR, RTC Cashen-5b.
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7 evidence of the times of year a species is identifiable. Based on those data, Napa bluecurls has never been identifiable in April or May (i.e., when HBC’s surveys were conducted), and pappose tarplant is almost never identifiable in April or May.

An additional flaw with the City’s rationale is that it ignores species-specific variation in reproductive strategies (and phenology). Whereas some species respond to abnormal climatic conditions by flowering earlier in the year, others respond by remaining dormant (i.e., not germinating). For example, routine monitoring of sites known to contain Contra Costa goldfields (one HBC’s target species) has revealed thousands of plants during years with normal rainfall, but zero plants during drought years.10
Reliance on Other Survey Data
The FEIR argues that the DEIR did not rely solely on HBC’s 2021 botanical surveys. The FEIR states:
“the biological evaluation also considered plant data in the aquatic resources delineation prepared by Monk & Associates, and Biological Resource Reports prepared by Monk & Associates for the Devlin Road and Vine Trail Extension Project and the Green Island Road Reconstruction and Widening Project. In addition, HBG’s biological evaluation considered plant data in the CNDDB to determine whether populations of endangered, threatened, or rare species have occurred on the site historically or are currently known to exist in the project vicinity. All of this data was sufficient to analyze the proposed project ’s potential impacts to plant species.”
11 These additional sources of information do not rectify the issues raised in my previous comment letter. Special-status plant surveys were not conducted for the Green Island Road Reconstruction and Widening Project,
12 and the Biological Resources Report states the following with respect to the surveys that were conducted for the Devlin Road and Vine Trail Extension Project:
“No special-status plants were identified on the Project Site by Monk & Associates while conducting various studies on the property in 2016, including an aquatic resources delineation and other evaluations conducted during the March to July flowering season of 2016. However, these studies did not constitute protocol surveys. Therefore, HBG has retained Dr. Brent Helm to conduct protocol rare plant surveys during the 2021 flowering season.” 13 With respect to plant data in the CNDDB, the CNDDB is a positive detection database. This means the CNDDB would only have records of rare plants at the Project site if: (a) surveys had been conducted (historically) at the Project site; (b) rare plants had been detected; and (c) the observer submitted the rare plant data to the CNDDB. The CNDDB cautions: “[p]laces that are 10 California Natural Diversity Database. 2022. RareFind 5 [Internet]. California Department of Fish and Wildlife [Oct 31, 2022].
11 FEIR, RTC Cashen-5a.
12 DEIR, Appendix C.7, pp. 2 and 8.
13 DEIR, Appendix C.1, p. 24. [emphasis added].
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8 empty or have limited information in the database often signify that little survey work has been done there. You cannot imply that there is less diversity in these places due to lack of information. There are no organized inventory or survey efforts designed specifically to populate the database.”
14 Because the Project site is private property, there has been no opportunity for botanists to survey the site and submit the associated survey data to the CNDDB. For these reasons, plant data from Monk & Associates and in the CNDDB do not justify the DEIR’s determination that “no special-status plant species occur on the project site.” Wetlands (Cashen-6)
Comment Cashen-6 pertained to Project impacts to wetlands. One of the issues I raised was the DEIR’s failure to discuss the ecological functions of the wetlands at the Project site. The FEIR’s response states: “[f]unctional assessments were conducted to determine plant and animal communities supported on the project site, and these functional assessments were then used in the impact analysis and subsequent mitigation requirements. Refer to Response to S&W-6b for further discussion.” Although the DEIR states that Monk & Associates observed “several species of waterfowl and shorebirds in the on-site seasonal wetlands,” there is no discussion of the importance of those wetlands as habitat for migratory waterfowl and shorebirds. The remainder of the DEIR’s “functional assessment” is limited to the following statements:
“Seasonal wetlands provide wildlife with a seasonal water source that supports various animal species during the winter and spring months and sometimes into the early summer. Amphibians will lay their eggs in seasonal wetland habitats and complete much of their life cycle in the wetlands. No Name Creek would be considered a wildlife corridor, but the property is nearly entirely surrounded by development so the extent of wildlife corridors on the property is limited.” 15 These vague statements do not constitute a functional assessment. The DEIR must identify: (a) the specific animal species that use the wetlands as a seasonal water source and the functions the wetlands fulfill for those animals (e.g., provision of food resources, sheltering, courtship and pair formation); (b) the specific amphibian species that use the on-site wetlands as habitat;16 and (c) the species that use No Name Creek as a wildlife corridor.

I commented that the Applicant’s proposed wetland preserve would function as a habitat “island” surrounded by urban (industrial) development. The FEIR provided the following response to this issue:
“As shown in Draft EIR Exhibit 3.3-3, the Wetland Preserve would contain No Name Creek, which is hydrologically connected to the Napa Logistics Park Wetland Preserve to the north. It would also be contiguous to wetland areas within the Biaggi Bros. property to the west. Thus, the commenter’s claims that the Wetland Preserve would be an island are his opinion not supported by evidence.”
14 California Natural Diversity Database. 2018 Apr 2. CNDDB Key Facts. p. 1. 15 DEIR, p. 3.3-3.
16 The only information the DEIR provides in this regard is that “Pacific treefrog (Pseudacris regilla) was noted by Monk & Associates Biologists while studying the Green Island Road Extension.” 3098
9 It is incredible that the FEIR would state “the property is nearly entirely surrounded by development so the extent of wildlife corridors on the property is limited,” but then state that the Wetland Preserve’s function as a habitat island is an “opinion not supported by evidence.” Nevertheless, none of the exhibits (figures) in the DEIR depict hydrologic connectivity between the proposed wetland preserve and the Napa Logistics Park Wetland Preserve to the north. To the contrary, Figure 2 in DEIR Appendix C.6 identifies the area between the two preserves as “slated for development,” as shown in Figure 3, below. The new road that has been constructed in the Phase II portion of the Project site blocks connectivity with the Biaggi Bros. wetlands, which merely add approximately 3 acres to the habitat “island” (Figure 4, below). Even if the new road is removed, connectivity to the Biaggi Bros. wetlands would not eliminate the habitat “island” that the DEIR proposes as mitigation. Furthermore, even if the Napa Logistics Center Phase II Project does not directly impact No Name Creek, the proposed wetlands preserve would continue to function as a habitat island for most species because it would be surrounded by roads and industrial development.

Figure 3. Figure 2 in DEIR Appendix C.6.
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10 Figure 4. Biaggi Bros. wetlands in relation to new road (blue arrows). Red line depicts approximate northern boundary of the Phase 2 development area.

Construction Impacts on Wetland Functions (S&W-6a)
Comment S&W-6a pertained to the potential for more severe construction-related impacts if the construction schedule extended beyond the 18-month period stipulated in the DEIR. The FEIR’s response states: “[t]he project construction would occur over at least two nesting periods. If nesting does occur in the project vicinity and construction has commenced, it should be assumed the nesting bird(s) are habituated to the ambient level of noise and disturbance emanating from the project site.” The FEIR’s response does not rectify the issue because even species that appear to habituate to anthropogenic sources of noise and disturbance are susceptible to adverse impacts.17 Francis and Barber (2013) reported: “we have shown how behavioral modifications among individuals confronted with noise – even those individuals that outwardly appear to habituate – can lead to decreased fitness.”
18 17 Manci KM, Gladwin DN, Villella R, Cavendish MG. 1988. Effects of aircraft noise and sonic booms on domestic animals and wildlife: a literature synthesis. National Ecology Research Center Report # NERC-88/29. See also Wright MD, Goodman P, Cameron TC. 2010. Exploring behavioural responses of shorebirds to impulsive noise.

Wildfowl 60:150-167.
18 Francis CD, Barber JR. 2013. A framework for understanding noise impacts on wildlife: an urgent conservation priority. Frontiers in Ecology and the Environment 11:305-313. 3100
11 Ecological Integrity of the Wetland Preserve (S&W-11) Response to Comment S&W-11 states: “HBG determined that an increase in noise, lights and traffic generated by the project compared to existing conditions would not result in significant direct, indirect or cumulative impacts to wetland functions, and therefore do not require mitigation under CEQA Guidelines.” This determination is not reflected in the DEIR, which provided no analysis of how noise, lights, and traffic associated with the Project might impact wetland functions (including their function as wildlife habitat).

Response to Comment S&W-11 provides the following rationale:
“The western boundary of the Wetland Preserve is adjacent to a wine distribution warehouse and an ongoing construction site for a new warehouse that is part of the Napa Logistics Park project…The new Devlin Road Extension and Vine Trail Extension directs semi-truck traffic, vehicle traffic and pedestrians through the project site bisecting the Wetland Preserve generating noise, light, vehicle traffic and pedestrian noise and traffic. Although the proposed project would increase noise, light and traffic, the Wetland Preserve is surrounded on all four sides by commercial development, and bisected by a road and pedestrian trail. Therefore, the avian and terrestrial species that use the wetlands and uplands within the Wetland Preserve have habituated to the significant level of noise, light, traffic and pedestrian disturbances that currently exist and the levels of disturbances that the proposed project would not result in significant direct, indirect or cumulative impacts to wetland functions, and therefore do not require mitigation under CEQA Guidelines.”
The FEIR’s rationale suffers three critical flaws. First, the FEIR misapplies the baseline setting for biological resources. The DEIR’s description of the biological setting was based on: (a) field visits between December of 2020 and April of 2021, and (b) studies previously prepared for the proposed Project by other consultants (primarily field work conducted by Monk & Associates in 2016).19 The “ongoing construction site” for the new wine warehouse (Napa Logistics Park Phase II) and the Devlin Road/Vine Trail Extension did not exist in April of 2021, and only one of the buildings associated with the Napa Logistics Park Phase I Project had been constructed when Monk & Associates conducted its surveys in 2016. Therefore, the wildlife species detected within the Wetland Preserve in 2016, and between December 2020 and April 2021, existed in an environment lacking “the significant level of noise, light, traffic and pedestrian disturbances that currently exist.” In other words, the FEIR cannot assume the wildlife species that were habituated to 2016 disturbance levels are now habituated to current (and future) disturbance levels.

Second, the FEIR assumes that additional levels of disturbance from noise, light, traffic, and pedestrians would not have significant cumulative effects. This is not a valid assumption because impacts from noise, light, traffic, and human activity are additive. Therefore, the disturbance effects associated with the Project would compound the disturbance effects from the surrounding projects. These combined disturbance effects are likely to surpass the tolerance 19 DEIR, p. 3.3-20.
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12 threshold of many species20 and would significantly impact the Wetland Preserve’s function as wildlife habitat.

Third, although a few “weedy” species thrive in urban environments, most species that appear to habituate to noise, light, traffic, and human activity have reduced fitness (i.e., reduced survival and reproductive rates).21 The Wetland Preserve would function as a population “sink” (an area where mortality is greater than reproductive success) for these species. There is no evidence that a 45-acre wetland preserve, surrounded by industrial development, and bisected by a major road, can function as viable habitat for the sensitive species impacted by the Project. To the contrary, there is overwhelming scientific evidence that the only species that would persist in that environment are weedy species and habitat generalists with small home ranges.22 Response to Comment S&W-16b states: “[t]he purpose of the proposed tree and shrub plantings referenced on the Draft EIR Exhibit 3.3-4 is to provide vertical structure within the Wetland Preserve to enhance its habitat value.” By definition, habitat “enhancement” benefits species.

This is inconsistent with Response to Comment Cashen-14 and the Applicant’s Wildlife Hazard Assessment, which state that the Wetland Preserve would be designed to discourage birds and keep overall wildlife activity “at or below current levels.”23 Furthermore, most of the species associated with grassland and vernal pool (or seasonal wetland) environments are adapted to open landscapes lacking trees and shrubs. Planting trees and shrubs in the Wetland Preserve would degrade habitat for these species (e.g., northern harrier, shorteared owl, burrowing owl, golden eagle, Swainson’s hawk,24 shorebirds, and waterfowl). This is important because the FEIR asserts that the addition of the Wetland Preserve would prevent the Project from having significant impacts on the northern harrier, golden eagle, and Swainson’s hawk.

Swainson’s Hawk (Cashen 7a and 7b)
Environmental Setting
I commented that the Applicant’s effort to locate Swainson’s hawk nests that could be affected by the Project was limited to a single survey (on April 16, 2021), and that this survey effort was insufficient because it did not adhere to the Swainson’s hawk survey protocol. The FEIR provided the following response to this issue:
“Two surveys were conducted to analyze project impacts, not one as suggested by the commenter. The Draft EIR acknowledges in Section 3.3, Biological Resources, page 3.3-4 that HBG conducted spring season site reconnaissance 20 For example, see Miller JR, Wiens JA, Hobbs NT, Theobald DM. 2003. Effects of human settlement on bird communities in lowland riparian areas of Colorado (USA). Ecological Applications 13(4):1041-1059. 21 For example, see Francis CD, Barber JR. 2013. A framework for understanding noise impacts on wildlife: an urgent conservation priority. Frontiers in Ecology and the Environment 11:305-313. 22 Meffe GK, Carroll CR. 1994. Principles of Conservation Biology. Sinauer Associates, Inc. Sunderland, MA. pp. 246 and 247.
23 FEIR, RTC Cashen-14 and Appendix L. [emphasis added]. 24 Although golden eagles and Swainson’s hawks nest in trees, they forage in open landscapes lacking trees. 3102
13 surveys on April 16 and May 24, 2021, and HBG drove about 10 miles of local roads surrounding the project site during both the April and May 2021 field reviews to inspect trees for raptor nest structures.”
25 According to HBG’s Biological Resources Report, in 2016 and 2017 Monk & Associates conducted a Swainson’s hawk survey within a mile of Napa Logistics Phase II project, and “HBG wildlife biologist Emilie Strauss conducted a similar survey for nesting Swainson’s hawk for the Giovannoni Logistics Project on April 16, 2021. Ms. Strauss covered approximately 10 miles of local roads to inspect trees within approximately one mile from the Giovannoni Project Site and, again, no Swainson’s hawk nests or any other raptor nests were found.” 26 Regardless
of whether HBG conducted one or two surveys, the survey effort did not adhere to the Swainson’s hawk survey protocol, which recommends three surveys in Period II (Mar 20-Apr 5), three surveys in Period III (Apr 5-Apr 20), and three surveys in Period V (Jun 10-Jul 30).27 Moreover, the HBG biologist failed to detect an active Swainson’s hawk nest located 0.8 miles north of the Project site (i.e., within the survey area).28 This nest was detected a mere two days later (April 18, 2021) by biologists working for a different consulting company,29 and contrary to the FEIR’s claim, it provides direct evidence that the City failed to acquire the data needed to analyze the Project’s impacts on the Swainson’s hawk.

The FEIR states:
“The Draft EIR also acknowledges, by referencing Appendix C.1 Biological Resources Report, that the analysis relied on CNDDB data of Swainson’s hawk locations, and Biological Resource Reports prepared by Monk & Associates for the Devlin Road and Vine Trail Extension Project and the Green Island Road Reconstruction and Widening Project. This data was sufficient to analyze potential impacts the project may have on Swainson’s hawk.” As discussed further below, the DEIR’s analysis omitted nearly all of the CNDDB data on Swainson’s hawk nest locations. The statement that the DEIR also relied on the Biological Resource Reports prepared for the Devlin Road and Green Island Road projects does not alleviate the issue because Swainson’s hawk surveys were not conducted for the Green Island Road Project, and the two surveys that were conducted for the Devlin Road Project did not adhere to the survey protocol.30
Comment Cashen-7a pertained to the DEIR’s failure to substantiate the assertion that there are only a “limited number of Swainson’s hawk records within a 10-mile radius of the project site.” 25 FEIR, RTC Cashen-7b.
26 DEIR, Appendix C.1, pp. 28 and 29.
27 Swainson’s Hawk Technical Advisory Committee. 2000 May 31. Recommended Timing and Methodology for Swainson’s Hawk Nesting Surveys in California’s Central Valley. 28 Elliot R, CNDDB. 2022 (update). Unprocessed Data from CNDDB Online Field Survey Form [ds1002].

Biogeographic Information and Observation System (BIOS). Calif. Dept. of Fish and Wildlife. Available at:
<http://bios.dfg.ca.gov>.
29 Ibid.
30 Monk & Associated conducted surveys on April 5 and June 10, 2016, and February 27, 2017. The February survey was incapable of providing data on nest sites because Swainson’s hawks do not arrive in Napa County until mid-March.
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14 To the contrary, the CNDDB and the eBird database have numerous records of Swainson’s hawks within 10 miles of the Project site. The FEIR provided the following response to this issue:
“The California Natural Diversity Data Base is a reliable source of scientific data and was used to determine the number of occurrences of Swainson’s hawk within a 10-mile radius of the project site. The commenter references the eBird data base, which shows multiple sightings of Swainson’s hawk in the project area; but a knowledgeable person’s interpretation of the eBird data would recognize that the multiple sightings of Swainson’s hawk are of multiple observers seeing the same bird(s) over and over.”
I agree that the CNDDB is a reliable source of scientific data; however, nowhere does the DEIR report the number of Swainson’s hawk occurrences within a 10-mile radius of the Project site. In addition to this issue, the DEIR provided false information on the status of Swainson’s hawk nest sites in the vicinity of the Project site. The DEIR states: “[t]he closest known nesting record for Swainson’s hawk as reported in the CNDDB is a nest site last active in 2008 (CNDDB Occurrence No. 1718) located approximately 2.1 miles north of the Project Site.” 31 This
suggests that there have not been any active Swainson’s hawk nests within 10 miles of the Project site since 2008, which is absolutely false. The CNDDB has 18 records of Swainson’s hawk nests that were active between 2017 and 2022, and that are located within 10 miles of the Project site.32 These records indicate presence of at least six active nesting territories, 33 including an active nest territory located approximately 0.8 miles north of the Project site.34 The FEIR’s statement that “a knowledgeable person’s interpretation of the eBird data would recognize that the multiple sightings of Swainson’s hawk are of multiple observers seeing the same bird(s) over and over” is disingenuous because I did not claim that the each eBird data point represented a unique bird (nor did I claim that each data point represented the same bird).

The importance of the eBird data is that they provide additional evidence that the DEIR erred in its belief that there are only a “limited number of Swainson’s hawk records within a 10-mile radius of the project site.” Irrespective of how many individual birds are associated with the eBird records, the data provide an indication of where Swainson’s hawk activity is concentrated in the region. Figure 5 depicts the eBird data from 2021. These data reveal the following:

1. Most of the Swainson’s hawk activity (sightings) was north of the Project site where multiple nesting territories are located.

2. Birds associated with these territories foraged in areas west of their territories. Some birds also foraged in areas south of their territories, including at the Project site. This is 31 DEIR, Appendix C.1, p. 28.
32 Elliot R, CNDDB. 2022 (update). Unprocessed Data from CNDDB Online Field Survey Form [ds1002].

Biogeographic Information and Observation System (BIOS). Calif. Dept. of Fish and Wildlife. Available at:
<http://bios.dfg.ca.gov>.
33 As reported in Master Response 1, Swainson’s hawks may change nesting locations from year to year. However, the number of active nests detected in a given year represents the minimum number of nesting territories. The CNDDB has records of six active nests within 10-miles of the Project site in 2021. 34 Elliot R, CNDDB. 2022 (update). Unprocessed Data from CNDDB Online Field Survey Form [ds1002].

Biogeographic Information and Observation System (BIOS). Calif. Dept. of Fish and Wildlife. Available at:
<http://bios.dfg.ca.gov>.
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15 supported by HBG’s observations of Swainson’s hawks foraging at the Project site during surveys conducted in April and May 2021.35,36

3. The data do not support the City’s argument that Newell Open Space and Lynch Canyon Open Space provide foraging habitat for Swainson’s hawks. In 2021, there was one eBird record of a “possible Swainson’s hawk” at Lynch Canyon Open Space, and no records of Swainson’s hawks at Newell Open Space.

Figure 5. eBird data of Swainson’s hawk detections (blue pins) in 2021. The Project site is located within the red circle; the “possible Swainson’s hawk” at Lynch Canyon Open Space is located within the yellow circle.

Impact Analysis
The DEIR’s incorporation of false information on Swainson’s hawk nest sites is a critical flaw because that information was the foundation of the DEIR’s impact analysis and the City’s subsequent conclusion that compensatory mitigation is not warranted. For example, Master Response 1 in the FEIR states:
“there are several large open space preserves within 2 and 5 miles of the project site that, combined, provide approximately 2,000 acres of suitable foraging habitat for the Swainson’s hawk within a 10-mile radius of the project site. This demonstrates that, based upon the limited number of known Swainson’s hawk to occur within a 10-mile radius of the project site, and with the acreage of existing foraging habitat currently protected, there is more than sufficient foraging habitat near the project site. Accordingly, the proposed project would not result in significant impacts to foraging habitat nor affect the nesting populations of 35 DEIR, p. 3.3-24.
36 These observations are not in the eBird database.
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16 Swainson’s hawk near the project site either directly, indirectly, or cumulatively.

Therefore, no mitigation is warranted for Swainson’s hawk foraging habitat.” Whereas the 2,000 acres of foraging habitat referenced in the City’s response might be sufficient for the single nesting territory identified in the DEIR, it is not enough to support the six (or more) active nesting territories that occur within 10 miles of the Project site. As a frame of reference, Swainson’s hawk home range sizes in the Central Valley range from 6,820 to 9,978 acres.37 Furthermore, research has shown that survival of breeding Swainson’s hawks is dependent on several factors, not just the total amount of suitable foraging habitat. For example, Briggs et al. (2011) reported: “[t]he distance an individual had to travel to agriculture, where most individuals forage, was negatively related to survival.”38 Even if the Project does not cause a significant reduction in available foraging habitat, it would force the Swainson’s hawks that nest north of the Project site to travel further to forage, which in turn would affect their survival.

Need for Compensatory Mitigation
Master Response 1 states:
“Widespread nesting recovery documented by Furnas et al. (2022) has yet to be incorporated into CDFW policy and/or in records kept within the CNDDB.

Accordingly, the “Staff Report Regarding Mitigation for Impacts to Swainson's Hawks (Buteo swainsoni) in the Central Valley of California” (Staff Report), besides being geographically inappropriate for the proposed project in Napa County, is also not relevant to current nest territory expansion of the Swainson’s hawk population into Napa County and elsewhere in the State. Thus, this document is not appropriately used as a basis for determining mitigation ratios for impacts to annual grassland in Napa County. The Staff Report recommends mitigation for projects that impacts foraging habitat within 10 miles of an “active” Swainson’s hawk nest (as defined by the CDFW Staff Report). For the reasons provided previously, this mitigation requirement does not reflect the current population expansion of the Swainson’s hawk in California, and its use is geographically limited.”
CDFW’s Staff Report focuses on Swainson’s hawks in the Central Valley because there were no Swainson’s hawk nest sites west of the Central Valley when the Staff Report was issued.

However, the underlying threats addressed in the Staff Report (e.g., habitat loss) apply to birds west of the Central Valley. There is nothing unique about Napa County that makes the Swainson’s hawks in Napa County less susceptible to the threats addressed in the Staff Report.

Whereas the Furnas et al. (2022) study suggests a substantial recovery of the Swainson’s hawk population, the authors cautioned: “[d]espite an overall increasing summer range population of the Swainson’s hawks in California, we recommend caution with respect to conservation 37 California Department of Fish and Wildlife. 2016. Status Review: Swainson’s Hawk (Buteo swainsoni) in California. Table 1.
38 Briggs CW, Woodbridge B, Collopy MW. 2011. Correlates of Survival in Swainson’s Hawks Breeding in Northern California. Journal of Wildlife Management 75(6):1307-1314. 3106
17 planning for the species in the state. The stability of the recovery remains unclear.” Furthermore, the CEQA significance threshold adopted in the EIR is whether:
“The proposed project could have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special-status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Wildlife or United States Fish and Wildlife Service.”
Habitat loss is known to have a substantial adverse effect on the Swainson’s hawk, which remains a state-listed species.39 Therefore, Project impacts to the Swainson’s hawk are potentially significant.

Habitat Value of the Wetland Preserve
The FEIR argues (in part) that no mitigation is warranted for impacts to Swainson’s hawk foraging habitat because the Project includes “addition of a 45-acre open space area providing suitable foraging habitat for the species.”40 This argument is inconsistent with scientific evidence that shows Swainson’s hawks avoid foraging in built-up areas.41 As reported by Monk & Associates, the tall walls of a warehouse inhibit Swainson’s hawk’s sight and maneuverability with respect to hunting and “stooping” (diving) for prey. 42 Golden Eagle (Cashen-8)
Comment Cashen-8 states: “[b]ecause the DEIR does not incorporate mitigation for the Project’s negative impacts on golden eagle foraging habitat, potentially significant impacts on the species remain unmitigated.” The FEIR provided the following response to this issue:
“Development of the proposed project would remove some foraging area for this species. Development of the proposed project would also provide and preserve in perpetuity approximately 45 acres of open space that would include habitat currently suitable for foraging by the golden eagle, as indicated by the observation of a golden eagle foraging on the site in spring 2021. The adjacent Napa Logistics Park Project has preserved 37 acres of grassland and wetlands in perpetuity that provides foraging habitat for golden eagle. Between these two preservation areas abutting and directly adjacent to the project site, approximately 82 acres of suitable habitat would be available for the golden eagle. In addition, there are several large open space preserves within 2 and 5 miles of the project site that combined provide approximately 2,000 acres of suitable foraging habitat.” 39 California Department of Fish and Wildlife. 2016. Status Review: Swainson’s Hawk (Buteo swainsoni) in California.
40 FEIR, RTC Cashen-7a.
41 Smallwood KS. 1995. Scaling Swainson’s Hawk population density for assessing habitat use across an agricultural landscape. Journal of Raptor Research 29(3):172-178. 42 Monk & Associates. 2020 Dec 15. Response to Comments Regarding the Mitigation Negative Declaration Safe Harbor 3.0 Project (SCH No. 2020110227) Napa County, California. p. 4. 3107
18 A fundamental flaw with the FEIR’s logic is that it assumes the Project would not alter habitat quality, which is a function of various biotic and abiotic factors. As explained in my previous comments, and the comments issued by CDFW, golden eagles are highly sensitive to human disturbance.
43 Because golden eagles require large patches of habitat that are relatively isolated from human disturbance, there is virtually zero possibility that golden eagles will forage in a 45- acre patch of habitat that is bisected by a major road and surrounded by industrial development.

Furthermore, there are no eBird records of golden eagles at the 37-acre preserve associated with the Napa Logistics Park Project, nor does the DEIR provide evidence that golden eagles have ever been observed foraging at that preserve. The fact that a golden eagle was foraging at the 208-acre Project site in spring 2021, prior to construction of the Devlin Road Extension and Phase II of the Napa Logistics Park Project, is not evidence that golden eagles will forage at the 45-acre preserve after the Project is constructed.

Breeding golden eagles occupy discrete territories, which are often occupied for many decades.44 These territories maintain the local-area eagle population.45 When one of the eagles dies, it is replaced by a “floater” (subadult or nonbreeding adult) that fills the territory vacancy. However, when the territory is eliminated (e.g., due to development), the pair is forced to become “floaters” and there is an overall net loss in the reproductive potential of the local-area population (i.e., under most circumstances the pair cannot simply establish a new territory elsewhere). Consequently, although death of an eagle has an impact on the population, the primary threat to persistence of the local-area population is the loss of historical territories.

Golden eagles aggressively defend their territories, are known to have territories in the open space preserves located 2 to 5 miles from the Project site,46 and seldom range further than 3 km (1.86 miles) from their territory centers.
47 According to the Applicant’s Biological Resources
Report: “[b]reeding season raptor observations included foraging Northern harrier…as well as foraging by state listed threatened Swainson’s hawk (Buteo swainsoni). A California Fully Protected golden eagle (Aquila chrysaetos) was also observed over the Project Site… These three special status raptor species have nested in this part of Napa County in the past, and it is entirely possible these individuals could be nesting somewhere in the vicinity of the Project Site.”
48 This conclusion is consistent with eBird records, which suggest there may be a golden eagle territory west of Hwy 29/12. The Project would directly, indirectly, and cumulatively impact habitat for that territory (if present). The 2,000 acres of open space preserves east of Hwy 29/12 have no value in maintaining a territory west of Hwy 29/12 because foraging habitat 43 See Cashen-8 and CDFW-7a.
44 See U.S. Fish and Wildlife Service. 2016. Final Programmatic Environmental Impact Statement for the Eagle Rule Revision. Available at: <https://www.fws.gov/migratorybirds/pdf/management/FINAL-PEIS-Permits-toIncidentally-Take-Eagles.pdf>. 45 The local-area population is a geographic scale used for management of eagles. It is defined as the 90𝑡ℎ quantile of the natal dispersal distance for golden eagles (109 mi), and the median female natal dispersal distance for bald eagles (86 mi). See U.S. Fish and Wildlife Service. 2016. Bald and Golden Eagles: Population demographics and estimation of sustainable take in the United States, 2016 update. Division of Migratory Bird Management, Washington D.C., USA.
46 DEIR, Appendix C.1, p. 30. See also Bruce Randolph Anderson & Associates. 2001. Management Plan: Jack and Bernice Newell Open Space Preserve. Available at:
<https://www.cityofamericancanyon.org/home/showpublisheddocument/2629/637123645278730000>. 47 U.S. Fish and Wildlife Service. 2020. Updated Eagle Nest Survey Protocol. p. 1. 48 DEIR, Appendix C.1, p. 21. [emphasis added].
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19 at the open space preserves is already occupied (defended) by other territorial pairs. In other words, the territorial pair associated with foraging habitat at the Project site cannot merely forage at the open space preserves once habitat is eliminated from the Project site, because eagles that occupy the preserves will aggressively defend their habitat from intruders.

Baseline Setting and Project Impacts
Response to Comment Cashen-8 states: “[b]ased upon the limited number of golden eagle records within a 10-mile radius of the project site, there is sufficient foraging habitat in and within the vicinity of the project site.”
49 This determination is not supported by evidence
because the DEIR did not establish the number of golden eagle records within a 10-mile radius of the Project site, nor did it establish the amount of foraging habitat needed to maintain golden eagle territories in the vicinity of the Project site.

The DEIR states:
“The closest known nesting record for golden eagle as reported in the CNDDB is a nest site (CNDDB Occurrence No. 82) located approximately 3.2 miles north of the Project Site in a eucalyptus tree surrounded by a vineyard. The CNDDB reports that this tree was cut down in 2008 and no longer provides a suitable golden eagle nest site. An additional nesting record is a nest site found by biologists with Monk & Associates approximately 4.5 miles east of the Project Site within the Newell Open Space within the City of American Canyon. This nest, also in a eucalyptus tree, was active in 2016 and 2017.” 50 The CNDDB does not provide adequate information on golden eagle nest sites in the vicinity of the Project site due to a backlog of nest records, and because information on golden eagle nest sites often is not reported due to concerns of persecution. Although the CNDDB can be used as a tool, obtaining adequate information on golden eagle nest sites in the vicinity of the Project site requires: (a) protocol-level surveys,51 or at a minimum, (b) acquisition of data from the USFWS’s Eagle Permit Coordinator. HBG did not conduct either of these tasks. The City has no basis for its determination that “there is sufficient foraging habitat in and within the vicinity of the project site” without knowledge of the breeding territories (i.e., abundance and location) in the vicinity of the Project site.

Response to Comment Cashen-8 states the following regarding compliance with the Eagle Act:
“[a]lthough the proposed project would result in a net loss of foraging habitat, such a net loss occurring in the particular area in which the project site is located would not result in a “take” as defined by the Golden Eagle Protection Act.” This statement is not supported by scientific evidence or analysis. The Eagle Act defines “take” as “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.” “Disturb” means: “to agitate or bother a Bald or Golden eagle to a degree that causes, or is likely to cause, based on the best scientific 49 FEIR, RTC Cashen-8.
50 DEIR, Appendix C.1, p. 30.
51 See Pagel JE, Whittington DM, Allen GT. 2010 Feb. Interim Golden Eagle inventory and monitoring protocols; and other recommendations. Division of Migratory Birds, United States Fish and Wildlife Service. See also U.S.

Fish and Wildlife Service. 2020. Updated Eagle Nest Survey Protocol. 3109
20 information available, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior.” In addition to immediate impacts, this definition also covers impacts that result from human-induced alterations initiated around a previously used nest site during a time when eagles are not present, if, upon the eagle’s return, such alterations agitate or bother an eagle to a degree that injures an eagle or substantially interferes with normal breeding, feeding, or sheltering habits and causes, or is likely to cause, a loss of productivity or nest abandonment.52 Loss of foraging habitat qualifies as a form of disturbance under the Eagle Act because habitat loss can decrease productivity (i.e., #2 above) or cause nest abandonment (i.e., #3 above). At a minimum, the incremental loss of habitat from the Project site, in conjunction with habitat loss caused by other projects in the region, would cause a potentially significant cumulative impact on the golden eagle. Because the Project site is known to be used as foraging habitat for the golden eagle, and because the DEIR does not incorporate effective mitigation, the Project’s contribution to a significant cumulative impact is cumulatively considerable.

Northern Harrier (Cashen-9)
Although the DEIR states “the proposed project would result in an approximately 163-acre reduction in avian foraging habitat,”53 it provides no analysis of the significance of this impact on the northern harrier. The FEIR provided the following response to this issue:
“The operative significance threshold for impacts to northern harrier, an unlisted species, is whether the proposed project would have a substantial adverse effect on the species, either directly or through habitat modifications. Although the proposed project would result in a net loss of potential northern harrier foraging habitat, such a net loss occurring in the particular area in which the project site is located would not cause a substantial adverse effect on the species. There is no need to “net out the impact of a proposed project” for that impact to be less than significant. (See, Save Panoche Valley v. San Benito County (2013) 217 Cal.App.4th 503, 529.)”
54 There are three flaws with the FEIR’s response. First, the impact would not be limited to “potential” foraging habitat. The Project site is known to provide foraging habitat for the northern harrier because harriers were observed foraging over the Project site during winter and spring (breeding) season surveys conducted by Helm Biological Consulting. 55 In addition, I
observed a northern harrier foraging at the site during my site visit on November 9, 2022.

Second, although the DEIR states “nesting by this species at the site is possible,” there is no analysis of the net loss of nesting habitat.56 Third, the FEIR fails to explain why the habitat loss “would not cause a substantial adverse effect on the species.” As discussed in my previous comments, one of the primary threats to the northern harrier is the loss and degradation of 52 Legal Protections for the Golden Eagle. 24 Jun 2015 email communication to Scott Cashen from Heather Beeler, Eagle Permit Coordinator, USFWS.
53 DEIR, p. 3.9-51.
54 FEIR, RTC Cashen-9.
55 DEIR, p. 3.3-25.
56 Ibid.
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21 nesting and foraging habitat.57 Because nesting territories are the ultimate source of population recruitment (stability), and because reproductive success is dependent on access to high quality foraging habitat, the net loss of habitat from the Project site could indeed have a substantial adverse effect on the species. For these reasons, Project impacts on the northern harrier remain significant.

Burrowing Owl (Cashen-10)
Response to Comment Cashen-10 states:
“based upon the lack of burrowing owls and burrowing owl habitat on the project site, the number of known burrowing owls to occur within a 10-mile radius of the project site and the acreage of existing suitable habitat currently protected within 2 and 5 miles of the project site, the proposed project would not result in significant impacts to burrowing owl habitat directly, indirectly, or cumulatively, therefore no mitigation is warranted for burrowing owl habitat.” Burrowing owls often use burrows created by ground squirrels. The Biological Resource Report states that the only location supporting ground squirrels in December 2020 and April 2021 was an area around the rubble pile and compost at the perimeter of Clark’s Rocks along Green Island Road.
58 I observed several ground squirrels along the northern border of Project site during my 9 November 2022 site visit. Therefore, it appears ground squirrels colonized additional portions of the Project site after HBG’s reconnaissance-level investigation. Whereas the Project site may have lacked burrowing habitat between December 2020 and April 2021, it currently provides potential habitat for burrowing owls.

The DEIR states: “[a] small number of burrowing owl have been recorded in the CNDDB within the general project vicinity, with the nearest reports from as close as about 1.7 miles north of the project site and about 2.5 miles south.”
59 The fact that only a “small number” of burrowing owls have been recorded in the vicinity of the Project site increases the severity of the Project’s potential impacts; it does not eliminate the potential for significant impacts (as suggested in the FEIR’s response). Because nesting burrowing owls may already be extirpated from Napa County, the presence of nesting burrowing owls at the Project site would be extremely significant from a conservation perspective. Furthermore, because burrowing owls have high fidelity to nest sites, the protected open space habitat located 2 to 5 miles from the Project site has no value to owls that are displaced from the Project site (i.e., the owls will not merely “move” 2 to 5 miles to the protected open spaces). This issue is compounded by the EIR’s failure to provide evidence that the protected areas (i.e., Newell Open Space, Lynch Canyon Open Space, and CRLF Preserve) support burrowing owls. Based on data provided in the CNDDB and eBird databases, Lynch Canyon Open Space supports wintering burrowing owls, but none of the sites support breeding burrowing owls.
57 Shuford WD, Gardali T (editors). 2008. California Bird Species of Special Concern: A ranked assessment of species, subspecies, and distinct populations of birds of immediate conservation concern in California. Studies of Western Birds 1. Western Field Ornithologists, Camarillo, California, and California Department of Fish and Game, Sacramento.
58 DEIR, Appendix C.1, p. 31.
59 DEIR, p. 3.3-25.
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22 Burrowing Owl Surveys
CDFW’s comment letter recommended protocol-level breeding and nonbreeding surveys for burrowing owls in order to provide an adequate environmental setting, and to reduce impacts to burrowing owl to less-than-significant levels.60 The FEIR provided the following response:
“The biological resource report referenced in the Draft EIR made an assessment that the project site did not support suitable habitat for burrowing owl. This assessment demonstrated that, based on the absence of suitable habitat on the project site due to general lack of California ground squirrel and ground squirrel colonies, and the fact no burrowing owl were observed during several biological field surveys conducted by Huffman- Broadway Group (HBG) Biologists between December 2020 and April 2021, Helm Biological Consulting in December 2020 and April and May 2021, or during previous biological studies conducted by Monk & Associates, LSA Associates, or Rana Resources, and that the nearest burrowing owl recorded in the California Natural Diversity Database (CNDDB) is 1.7 miles from the project site, breeding and nonbreeding surveys are not warranted.”
As discussed above, the Project site currently provides potential habitat for burrowing owls. The fact that the nearest burrowing owl record in the CNDDB is 1.7 miles from the Project site is not evidence that surveys are unwarranted because 1.7 miles is well within the dispersal distance of burrowing owls.61 The argument that protocol-level surveys are unwarranted because other (non-protocol) surveys failed to detect burrowing owls at the site is a logical fallacy: if nonprotocol level surveys provided sufficient data on burrowing owls there would be no need for a survey protocol. Burrowing owls can be difficult to detect due to their cryptic coloration, extensive use of burrows, and tendency to flush (fly away) when approached.62 As a result, burrowing owls are not reliably detected during surveys for other resources, such as those listed in the FEIR’s response (e.g., the rare plant surveys conducted by Helm Biological Consulting).

Furthermore, the burrowing owl survey protocol establishes minimum requirements for the timing and number of surveys. These minimum requirements were based on detection probabilities reported in scientific studies.63 Because the non-protocol surveys conducted for the Project did not adhere to the minimum survey requirements established in the protocol, they do not provide substantial evidence that burrowing owls would have been detected during those surveys.
60 FEIR, Comment CDFW-9b.
61 Rosier JR, Ronan NA, Rosenberg DK. 2006. Post-Breeding Dispersal of Burrowing Owls in an Extensive California Grassland. The American Midland Naturalist 155(1):162-167. See also Rosenberg DK, Trulio LA, Catlin D, Chromczack D, Gervais JA, Ronan N, Haley KA. 2007. The ecology of the Burrowing Owl in California.

Unpubl. report to Bureau of Land Management. 212 pp.
62 Klute DS, Ayers LW, Green MT, Howe WH, Jones SL, Shaffer JA, Sheffield SR, Zimmerman TS. 2003. Status assessment and conservation plan for the western Burrowing Owl in the United States. Bio Tech Pub FWS/BTPR6001-2003. Washington: US Fish and Wildlife. 63 See Appendix D In: California Department of Fish and Game. 2012. Staff Report on Burrowing Owl Mitigation. 3112
23 Impacts and Mitigation
The FEIR states:
“if burrowing owl is ultimately found on the site and burrow eviction/relocation of burrowing owls during the non-nesting season is a selected strategy to move forward with the project without direct impacts to burrowing owl individuals, the applicant will coordinate this effort with CDFW and provide habitat mitigation consistent with the 2012 CDFW Staff Report on burrowing owl. Modifications to MM BIO-1d, as shown in the Errata, confirm this requirement.” 64 The mitigation requirements of MM BIO-1d are vague and do not ensure Project impacts to burrowing owls would be reduced to less-than-significant levels. MM BIO-1d does not identify:
(a) the habitat mitigation that would be provided (e.g., quantity and location of compensation habitat); (b) performance standards for the mitigation; (c) the monitoring and reporting program; (d) the mechanism for ensuring protection and management of the habitat mitigation; and (e) financial assurances. There are no potential compensation sites in Napa County that contain breeding burrowing owls. Furthermore, burrowing owls rarely colonize (or recolonize) other areas after they are displaced from a project site, despite the presence of apparently suitable habitat elsewhere.
65 Therefore, the Applicant would either need to: (a) acquire compensation habitat in another county, or (b) acquire compensation land in Napa County and hope that it someday attracts breeding owls. The first scenario would not mitigate the Project’s extremely significant impact on the Napa County burrowing owl population; the second scenario is unlikely to benefit burrowing owls, especially in absence of contingency measures and enforceable performance standards.

The FEIR concludes: “[a]lthough the proposed project would result in the loss of burrowing owl nests or a net loss of potential burrowing owl foraging habitat, such losses would not cause a substantial adverse effect on the species.”
66 This conclusion is absurd. Currently, there are no
known burrowing owl nest sites, and very few wintering sites, in Napa County. Therefore, impacts to occupied burrows at the Project site would be an extremely significant impact because loss of those burrows (and owls) would further reduce the potential for recovery of the Napa County burrowing owl population. This constitutes a substantial adverse effect on the species.

Because the FEIR does incorporate mitigation to address this issue, the Project’s impacts on the burrowing owl remain potentially significant and probably unmitigable.

Invasive Plants (Cashen-12)
Comment Cashen-12 discussed the DEIR’s failure to incorporate mitigation that would minimize the Project’s potential to introduce invasive plant species or facilitate their spread. The FEIR’s response states:
64 FEIR, RTC Cashen-10.
65 Rosenburg DK, Haley KL. 2004. The Ecology of Burrowing Owls in the Agroecosystem of the Imperial Valley, California. Studies in Avian Biology 27:120-135. See also Wilkerson RL, Siegel RB. 2010. Assessing changes in the distribution and abundance of burrowing owls in California, 1993-2007. Bird Populations 10:1-36. 66 FEIR, RTC Cashen-10.
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24 “The managed landscaped areas within the development could provide a limited opportunity for an invasive plant; however, these areas are managed landscaped areas with planted trees and shrubs that would be managed, by techniques such as weeding, to allow for the growth of the plants, included in the landscape plan once proposed. Therefore, no mitigation is warranted for invasive plant species during construction or after construction on the developed portion of the project site.”
The FEIR’s response is somewhat inconsistent with Response to Comment S&W-10b, which indicates the landscaped areas would consist of native grasses and shrubs (not trees), and that “[m]aintenance may include invasive [sic] low intensity tasks such as removing trash and replacing grasses or shrubs as needed.” Whereas the Applicant may intend to conduct “weeding” in the managed landscape areas, the removal of invasive plants from those areas is not incorporated as a mandatory (enforceable) mitigation measure.

The FEIR states the following regarding invasive plants in the Wetland Preserve:
“If an invasive plant is introduced into the Wetland Preserve, the Draft EIR set forth mitigation measures under MM BIO-3d. MM BIO-3d provides mitigation measures in Draft EIR Section 3.3, Biological Resources, page 3.3-36 to monitor for the establishment of an invasive plant species in wetlands and provides a contingency measure on page 3.3-37 to address invasive plant species should the invasive plant performance standard not be met.”
67 There are four major flaws with the City’s rationale. First, MM BIO-3d defines invasive plants as species rated as “high” by the California Invasive Plant Council (“Cal-IPC”). This is inconsistent with the Cal-IPC definition, which is: “plants that are not native to an environment, and once introduced, they establish, quickly reproduce and spread, and cause harm to the environment, economy, or human health.”
68 All of the plants listed in the Cal-IPC Inventory
have the potential to cause significant impacts on the environment, not just those rated as “high” by Cal-IPC.69
Second, MM BIO-3d allows up to 5% absolute cover of invasive plant species rated as “high” upon cessation of the 5-year maintenance and monitoring period. The Cal-IPC states the following regarding “high” species: “[t]hese species have severe ecological impacts on physical processes, plant and animal communities, and vegetation structure. Their reproductive biology and other attributes are conducive to moderate to high rates of dispersal and establishment. Most are widely distributed ecologically.”
70 Thus, any amount of “high” species that occur in the Wetland Preserve are likely to multiply and spread into surrounding areas after cessation of the 5-year maintenance period.
67 FEIR, RTC Cashen-12.
68 Cal-IPC. 2022. About invasive plants (web page). Available at: <https://www.cal-ipc.org/plants/impact/>. (Accessed 12 Nov 2022).
69 See Cal-IPC. 2022. Cal-IPC Inventory (web page). Available at: <https://www.cal-ipc.org/plants/inventory/>. 70 Ibid.
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25 Third, the monitoring required under MM BIO-3d is limited to data collection from at least one, 5-foot radius sample plot at each of the established/created wetlands. Thus, there would be no monitoring for invasive plants in the majority of the Wetland Preserve.

Fourth, the invasive plant performance standards proposed in MM BIO-3d apply only to the established/created wetlands;
71 there are no performance standards for invasive plants in the upland areas.

The California Invasive Plant Council has published guidelines for preventing the spread of invasive plants.72 In addition, the U.S. Department of the Interior’s “Early Detection Rapid Response” framework describes the proactive approach needed to minimize the colonization or spread of invasive plants.
73 The strategies described in these two documents are feasible and they should be incorporated as required mitigation. Because the FEIR fails to incorporate appropriate mitigation, potentially significant impacts associated with the colonization and spread of invasive plants remain potentially significant.

Cumulative Impacts (Cashen-13)
A fundamental flaw with the DEIR’s cumulative impacts analysis is that it applies a narrow scale (i.e., 0.5-mile radius from the Project site) to identify other projects that could contribute to cumulative effects, but a much broader scale (i.e., a 10-mile radius or the “American Canyon area”) to analyze the abundance of remaining habitat. The FEIR’s response to this issue was limited to the following statements: “[t]he discussion of the abundance of Swainson’s hawk foraging habitat in the project vicinity in Section 3.3, Biological Resources, was a separate analysis. Regardless, much of that foraging habitat is within 0.5-mile of the project site.” 74 The
FEIR’s response is confusing because the flaw in the DEIR’s cumulative impacts analysis was applied to all of the special-status species analyzed in DEIR, not just the Swainson’s hawk.

Furthermore, the assertion that “much of that [Swainson’s hawk] foraging habitat is within 0.5- mile of the project site” is not supported by evidence. To the contrary, under the cumulative impacts scenario there will be virtually no foraging habitat remaining within 0.5-miles of the Project site (see Figure 6, below).

Response to Comment Cashen-13 reiterates the City’s position that the area within 0.5-miles of the Project site is an appropriate scope for analyzing cumulative impacts to biological resources.

Figure 6, below, depicts the cumulative impacts scenario within 0.5-miles of the Project site. As is overly evident in the figure, minimal habitat would remain within 0.5-miles of the Project site, and thus the cumulative impact to habitat is significant. The proposed Wetland Preserve does not mitigate the impact because it: (a) would be exposed to numerous edge effects (e.g., noise, human activity) that functionally eliminate habitat, (b) would be designed and managed to discourage wildlife use, and (c) is too small to satisfy the habitat patch size requirements of the 71 It is unclear if the “established wetlands” are synonymous with the “created wetlands” or the existing wetlands. 72 Cal-IPC. 2012. Preventing the Spread of Invasive Plants: Best Management Practices for Land Managers (3rd ed.). Cal-IPC Publication 2012-03. California Invasive Plant Council, Berkeley, CA. 73 U.S. Department of the Interior. 2016. Safeguarding America’s lands and waters from invasive species: A national framework for early detection and rapid response, Washington D.C., 55p. 74 FEIR, RTC Cashen-13.
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26 species that would be impacted by the Project (e.g., northern harrier and golden eagle, among others). The fact that there are open space preserves two to five miles from the Project site does not render the cumulative impact less-than-significant because those preserves are not located within the geographic scope of the City’s cumulative impacts analysis. Therefore, the City must either: (a) make the determination that the Project’s contribution to cumulative impacts is significant and unavoidable, or (b) issue a revised DEIR that identifies and provides analysis of cumulative projects within the same geographic area that is used to analyze abundance of remaining habitat (e.g., a 10-mile radius).

Figure 6. Cumulative impacts within 0.5 miles (red line) of the Project site (blue polygon). Yellow polygons depict existing development. Purple polygons depict cumulative projects identified in the DEIR (Napa-Vallejo Waste, Napa Airport Corporate Center, and Sentinels of Freedom). Green polygons depict vineyards, which do not provide foraging habitat for Swainson’s hawks, golden eagles, and northern harriers.

MITIGATION ISSUES
Nest Buffers
Several of the DEIR’s mitigation measures incorporate nest buffers (construction set-back distances) that are much smaller than those recommended in USFWS and CDFW guidelines.

For example, although the USFWS recommends a 1-mile buffer zone around golden eagle nests, MM BIO-1b only requires a 1,000-foot buffer zone. It is important to note that the buffers 3116
27 recommended in the USFWS and CDFW guidelines are based on the best available scientific information and were not arbitrarily derived. In contrast, the FEIR continues to omit scientific evidence that the buffers proposed in the various mitigation measures would be sufficient.

The FEIR argues that adherence to the buffer distances recommended by the USFWS and CDFW is not necessary because a “qualified biologist” could require a larger buffer if deemed necessary. For example, the FEIR’s response to Comment Cashen-16 states:
“Regardless, MM BIO-1b establishes a minimum 1000-foot buffer zone, which means the qualified Raptor Biologist could require a larger buffer than 1000 feet or adhere to the USFWS 1-mile buffer recommendation or establish a buffer greater than 1 mile if it is determined, by the qualified Raptor Biologist, that a larger buffer is warranted.”
The fact that the Project biologist could require a larger buffer does ensure Project impacts would be reduced to less-than-significant levels. Based on my experience with construction projects, construction contractors are only willing to implement legally binding mitigation measures, because implementation of more restrictive measures increases construction costs and delays. In this case, there is no legal mechanism that would ensure the construction contractor adheres to a larger buffer, especially because (according to the MMRP) the City would verify compliance with the mitigation measure before any construction-related ground disturbance, and before the Project biologist could evaluate construction activities to determine whether larger buffers are warranted. In addition, the Project biologist would be hired by the Applicant or construction contractor. This creates an inherent conflict between the needs of the organism (e.g., nesting bird), and the Applicant’s and biologist’s desire to create a mutually beneficially financial situation. These issues are exacerbated by the FEIR’s failure to establish: (1) a mechanism for documenting the rationale behind the selected buffer size, and for ensuring larger buffers recommended by the biologist are enforced, and (2) a monitoring and reporting program designed to evaluate the adequacy of the reduced buffers and trigger adaptive management measures if needed. For these reasons, the reduced buffers proposed in the FEIR do not ensure effective mitigation.

Biologist Qualifications
Although the FEIR states that the “qualified Raptor Biologist” (MM BIO-1a, -1b, -1c) or “qualified Biologist” (MM BIO-4) could require larger nest buffers, it fails to provide assurances that the biologist would have the expertise needed to determine when a larger buffer is warranted. For example, the only requirement that MM BIO-1b establishes for the qualified Raptor Biologist is that the biologist have: “at least 2 years of experience surveying for and detecting nesting golden eagles.” The fact that a biologist has detected nesting eagles does not mean that they have knowledge and experience with eagle behavior and the various disturbance factors that influence reproductive success.
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28 Swainson’s Hawk (Cashen-15)
MM BIO-1a requires installation of a 1,000-foot buffer around Swainson’s hawk nest sites.

CDFW mitigation guidelines call for a ¼-mile or ½-mile buffer.75 The DEIR does not provide evidence that a 1,000-foot buffer would be sufficient to prevent impacts, nor does it require monitoring to validate the adequacy of a 1,000-foot buffer. The FEIR provided the following response to this issue:
“There are no trees on the project site and, thus, the Swainson’ s hawk does not have the potential to nest on-site. Instead, MM BIO-1a applies to Swainson’s hawk nesting within the zone of influence, which is generally defined as within 1,000 feet of the project site.”
76 The CDFW defines the zone of influence (buffer zone) as either ¼-mile (near urban areas) or ½- mile (in nesting areas away from urban development).77 I am unaware of any scientific literature that defines the zone of influence as 1,000 feet, nor does the FEIR cite literature substantiating that zone of influence (which appears to have been arbitrarily derived by Monk & Associates).

As a result, the FEIR does not resolve the issues I raised in Comment Cashen-15.

Burrowing Owl (Cashen-18b)
“Passive relocation” involves installation of one-way doors in burrow openings to evict burrowing owls and prevent burrow re-occupation. The DEIR did not disclose or evaluate impacts to burrowing owls due to burrow exclusion, nor did it identify mitigation measures sufficient to reduce such impacts below a level of significance. The FEIR provided the following response to this issue:
“MM BIO-1d does not allow passive relocation of burrowing owls during the breeding season. The passive relocation effort outlined in MM BIO-1d is restricted to relocating owls during the nonbreeding season often referred to as overwintering owls. If burrowing owl are found to be present during the breeding season (February 1 to August 31), the proposed project ground- disturbing activities shall follow the CDFW 2012 Staff Report recommended avoidance protocol whereby occupied burrows shall be avoided with a non-disturbance buffer. Therefore, implementation of MM BIO-1d would ensure project impacts to overwintering owls and breeding pairs would be reduced to less than significant.”
As discussed in my previous comment letter and in CDFW’s Staff Report on Burrowing Owl Mitigation, passive relocation (i.e., eviction) can cause significant impacts to burrowing owls regardless of when the owls are evicted. My comment letter identified the types of impacts that 75 California Department of Fish and Game. 1994. Staff report regarding mitigation for impacts to Swainson’s hawks (Buteo swainsoni) in the Central Valley of California. p. 11. 76 FEIR, RTC Cashen-15.
77 California Department of Fish and Game. 1994. Staff report regarding mitigation for impacts to Swainson’s hawks (Buteo swainsoni) in the Central Valley of California. p. 11. 3118
29 can occur to burrowing owls evicted during the nonbreeding season (e.g., loss of refuge from predators).

The FEIR’s determination that MM BIO-1d would ensure Project impacts would be reduced to less than significant levels because the Applicant “shall follow the CDFW 2012 Staff Report recommended avoidance protocol” is not supported by evidence because MM BIO-1d does not require adherence to the impact avoidance measures in CDFW’s Staff Report. For example, the 100-foot buffer required under MM BIO-1d is substantially less than the 500-meter (1,640-foot) buffer recommended by CDFW. CDFW’s Staff Report states: “if it is decided to allow activities closer than the setback distances recommended, a broad-scale, long-term, scientifically-rigorous monitoring program ensures that burrowing owls are not detrimentally affected by alternative approaches.”
78 Not only does MM BIO-1d fail to require this level of monitoring, but it requires no monitoring whatsoever.

Nesting Birds (Cashen-20)
Comment Cashen-20a pertained to MM BIO-4’s failure to establish standards for the: (a) nest searching techniques, (b) minimum level of effort (i.e., survey hours per unit area), and (c) qualifications of the biologist conducting the survey. The FEIR provided the following response:
“MM BIO-4 does establish standards for conducting pre-construction breeding bird survey.

Standards include timeframes when the survey can begin, provides a specific survey geographic range outside of the project site for ground nesting birds.” The FEIR’s response does not rectify the issue because it does not address the standards discussed in my comment.

Comment Cashen-20b stated that the 50-foot nest buffers proposed in MM BIO-4 would not be sufficient to prevent noise impacts on nesting birds. The DEIR indicates that construction noise levels may reach 90 dBA at a distance of 50 feet.79 The FEIR provided the following response:
“To clarify, Draft EIR Section 3.10, Noise, page 3.10-17, disclosed construction noise levels may be as high as 90 dBA maximum noise/sound level (Lmax) (i.e., instantaneous noise level). Actual average noise levels during construction activities would be lower. Regardless, the buffers outlined in MM BIO-4 are minimum buffers and may be increased should the qualified Biologist determine a larger buffer is warranted to protect a nest.”
The FEIR’s response circumvents the issue. According to the DEIR, construction equipment would result in a reasonable worst-case hourly average of 86 dBA Leq at a distance of 50 feet from the acoustic center of the construction area. Noise at this level would have adverse effects on nesting birds. For example, multiple bird studies have documented changes in song characteristics, reproduction, abundance, stress hormone levels, and species richness at levels ≥45 dBA.80
78 California Department of Fish and Game. 2012. Staff Report on Burrowing Owl Mitigation. pp. 9 and 10. 79 DEIR, p. 3.10-17.
80 Shannon G, McKenna MF, Angeloni LM, Crooks KR, Fristrup KM, Brown E, Warner KA, Nelson MD, White C, Briggs J, McFarland S. 2016. A synthesis of two decades of research documenting the effects of noise on wildlife.

Biological Reviews 91(4):982-1005.
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30 Response to Comment Cashen-20b further states: “the buffers outlined in MM BIO-4 are minimum buffers and may be increased should the qualified Biologist determine a larger buffer is warranted to protect a nest.” A fundamental flaw with this reasoning is that it fails to account for the fact that disturbance levels (e.g., from construction activity and noise) may increase after the buffer is established.81 Therefore, a buffer deemed appropriate during the first week of construction—or prior to initiation of construction, as suggested in MM BIO-4—may not be appropriate during the second week of construction. MM BIO-4 fails to account for this possibility because it does not incorporate construction monitoring, nest monitoring, or any other system for evaluating and adjusting the buffer once it is established by the Project biologist.

This issue is compounded by the absence of performance standards for MM BIO-4. Response to Comment Cashen-20c states:
“The MM BIO-4 requires buffer zones to be maintained until it can be documented that either the nest has failed, or the young have fledged, which is the industry standard approach. The Biologist must document the nest has either failed or the young have fledged prior to the buffer being removed. With respect to ensuring construction crews abide by the nesting bird buffers, this would be required to be noted on construction plans and, thus, construction personnel would be aware of this requirement.”
Maintaining the buffer until the nest is no longer active is not a performance standard, nor is documenting the fate of the nest. An appropriate performance standard would incorporate a quantifiable metric of nesting success (e.g., young successfully fledge from 75% of the nests in the Project area). MM BIO-4 allows the Project biologist to establish nest buffers considerably smaller than the minimum no-disturbance buffers recommended by CDFW and USFWS (and in scientific literature), then remove the buffers after Project activities have caused the associated nests to fail. This approach does not mitigate Project impacts on nesting birds.

The FEIR’s response further indicates that nest monitoring is not needed because the construction personnel would be aware of the nest buffer requirements. This is not a reliable approach to mitigation. Even when construction workers are aware of buffer requirements, they do not always adhere to those buffer requirements. I have watched construction workers violate nest buffers demarcated by girders, flagging, and “keep out” signs. I am also aware of instances in which construction workers covertly destroyed nests so work could proceed in a given area.

Even when construction workers have good intentions, it is extremely difficult to convey the mitigation requirements to all personnel due to the number of subcontractors involved at various stages of construction (and most construction workers do not review the construction plans, but rather, they follow orders from the foreman).

CONCLUSION
The FEIR fails to rectify the issues raised in my previous comment letter, and those in the comment letter submitted by the CDFW. The Project would have significant direct and indirect impacts on sensitive biological resources, and it would have a considerable contribution to 81 The FEIR (pp. 3-318 and -319) acknowledges: “[c]onstruction activities vary and may include low disturbance activities such as engineering surveys, high levels of disturbance such as large-scale grading, or there may be areas within a large construction site, such as the project site, that may have no disturbances for long periods.” 3120
31 significant cumulative impacts. The proposed wetland “preserve” is bisected by a major road and would be surrounded by industrial development. As a result, the “preserve” would not have ecological integrity, and it would not mitigate the Project’s significant impacts on habitat. The FEIR’s mitigation measures do not adhere to CDFW and USFWS guidelines, and thus they would not reduce the Project’s impacts to less-than-significant levels.

The “analysis” in the FEIR is not supported by evidence, is lacking entirely, or is based on erroneous information. The cumulative impacts analysis is fatally flawed because it applies one geographic scale to identify cumulative projects, but a much larger scale to identify abundance of remaining habitat. The FEIR is replete with contradictory reasoning in order to achieve the desired determinations. For example, the FEIR argues that the short-eared owl is unlikely to occur at the Project site because the site is completely surrounded by industrial development, but it also argues that the onsite wetland preserve would not function as a habitat “island” after the Project is constructed.

In conclusion, there is insufficient information to support the findings in the FEIR. To the contrary, there is abundant evidence that directly contradicts those finding. The Project would have significant impacts that were not properly analyzed, and the mitigation proposed in the FEIR is scientifically indefensible. For these reasons, the DEIR needs to be revised and recirculated for public review.

Sincerely,
Scott Cashen, M.S.

Senior Biologist
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Scott Cashen, M.S.

Senior Wildlife Biologist
Scott Cashen has 28 years of professional experience in natural resources management. During that time he has worked as a field biologist, forester, environmental consultant, and instructor of Wildlife Management. Mr. Cashen focuses on CEQA/NEPA compliance issues, endangered species, scientific field studies, and other topics that require a high level of scientific expertise.

Mr. Cashen has knowledge and experience with numerous taxa, ecoregions, biological resource issues, and environmental regulations. As a biological resources expert, Mr.

Cashen is knowledgeable of the various agency-promulgated guidelines for field surveys, impact assessments, and mitigation. Mr. Cashen has led field investigations on several special-status species, including ones focusing on the yellow-legged frog, red-legged frog, desert tortoise, steelhead, burrowing owl, California spotted owl, northern goshawk, willow flycatcher, Peninsular bighorn sheep, red panda, and various forest carnivores.

Mr. Cashen is a recognized expert on the environmental impacts of renewable energy development. He has been involved in the environmental review process of over 100 solar, wind, biomass, and geothermal energy projects. Mr. Cashen’s role in this capacity has encompassed all stages of the environmental review process, from initial document review through litigation support. Mr. Cashen provided expert witness testimony on several of the Department of the Interior’s “fast-tracked” renewable energy projects. His testimony on those projects helped lead agencies develop project alternatives and mitigation measures to reduce environmental impacts associated with the projects.

Mr. Cashen was a member of the independent scientific review panel for the Quincy Library Group project, the largest community forestry project in the United States. As a member of the panel, Mr. Cashen was responsible for advising the U.S. Forest Service on its scientific monitoring program, and for preparing a final report to Congress describing the effectiveness of the Herger-Feinstein Forest Recovery Act of 1998.

AREAS OF EXPERTISE
• CEQA, NEPA, and Endangered Species Act compliance issues • Comprehensive biological resource assessments
• Endangered species management
• Renewable energy development
• Scientific field studies, grant writing and technical editing

EDUCATION
M.S. Wildlife and Fisheries Science - The Pennsylvania State University (1998) Thesis: Avian Use of Restored Wetlands in Pennsylvania
B.S. Resource Management - The University of California, Berkeley (1992) 3122
Cashen, Curriculum Vitae 2

PROFESSIONAL EXPERIENCE
Litigation Support / Expert Witness
Mr. Cashen has served as a biological resources expert for over 125 projects subject to environmental review under the California Environmental Quality Act (CEQA) and/or the National Environmental Policy Act (NEPA). As a biological resources expert, Mr.

Cashen reviews CEQA/NEPA documents and provides his clients with an assessment of biological resource issues. He then submits formal comments on the scientific and legal adequacy of the project’s environmental documents (e.g., Environmental Impact Report).

If needed, Mr. Cashen conducts field studies to generate evidence for legal testimony, or he can obtain supplemental testimony from his deep network of species-specific experts.

Mr. Cashen has provided written and oral testimony to the California Energy Commission, California Public Utilities Commission, and U.S. district courts. His clients have included law firms, non-profit organizations, and citizen groups.

REPRESENTATIVE EXPERIENCE
Solar Energy Geothermal Energy
• Abengoa Mojave Solar Project • Casa Diablo IV Geothermal • Avenal Energy Power Plant • Project East Brawley Geothermal • Development • Beacon Solar Energy Project • Mammoth Pacific 1 Replacement • Blythe Solar Power Project • Facility Orni 21 Geothermal Project • ff
• Steamfield
• Calico Solar Project • Western GeoPower Plant
• California Flats Solar Project Wind Energy
• Calipatria Solar Farm II • Catalina Renewable Energy
• Carrizo Energy Solar Farm • Project Ocotillo Wind Energy Project • Catalina Renewable Energy
Project
• SD County Wind Energy
• Fink Road Solar Farm • Ordinance Searchlight Wind Project • Genesis Solar Energy Project • Shu’luuk Wind Project
• Heber Solar Energy Facility • Tres Vaqueros Repowering Project • Imperial Valley Solar Project • Tule Wind Project
• Ivanpah Solar Electric Generating
System
• Vasco Winds Relicensing Project
• Maricopa Sun Solar Complex Biomass Facilities
• McCoy Solar Project • CA Ethanol Project
• • Mt. Signal and Calexico Solar
Projects
• Colusa Biomass Project
• Panoche Valley Solar • Tracy Green Energy Project
• • San Joaquin Solar I & II Other Development Projects • San Luis Solar Project • Cal-Am Desalination Project
• Stateline Solar Project • Carnegie SVRA Expansion Project • Solar Gen II Projects • Lakeview Substation Project
• SR Solis Oro Loma • Monterey Bay Shores Ecoresort
• Vestal Solar Facilities • Phillips 66 Rail Spur
•
•
• Victorville 2 Power Project • Valero Benecia Crude By Rail • Willow Springs Solar • World Logistics Center
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Cashen, Curriculum Vitae 3
Project Management
Mr. Cashen has managed several large-scale wildlife, forestry, and natural resource management projects. Many of the projects have required hiring and training field crews, coordinating with other professionals, and communicating with project stakeholders. Mr.

Cashen’s experience in study design, data collection, and scientific writing make him an effective project manager, and his background in several different natural resource disciplines enable him to address the many facets of contemporary land management in a cost-effective manner.

REPRESENTATIVE EXPERIENCE
Wildlife Studies
• Peninsular Bighorn Sheep Resource Use and Behavior Study: (CA State Parks) • “KV” Spotted Owl and Northern Goshawk Inventory: (USFS, Plumas NF) • Amphibian Inventory Project: (USFS, Plumas NF)
• San Mateo Creek Steelhead Restoration Project: (Trout Unlimited and CA Coastal Conservancy, Orange County)
• Delta Meadows State Park Special-Status Species Inventory: (CA State Parks, Locke)
Natural Resources Management
• Mather Lake Resource Management Study and Plan – (Sacramento County) • Placer County Vernal Pool Study – (Placer County)
• Weidemann Ranch Mitigation Project – (Toll Brothers, Inc., San Ramon) • Ion Communities Biological Resource Assessments – (Ion Communities, Riverside and San Bernardino Counties)
• Del Rio Hills Biological Resource Assessment – (The Wyro Company, Rio Vista) Forestry
• Forest Health Improvement Projects – (CalFire, SD and Riverside Counties) • San Diego Bark Beetle Tree Removal Project – (SDG&E, San Diego Co.) • San Diego Bark Beetle Tree Removal Project – (San Diego County/NRCS) • Hillslope Monitoring Project – (CalFire, throughout California) 3124
Cashen, Curriculum Vitae 4
Biological Resources
Mr. Cashen has a diverse background with biological resources. He has conducted comprehensive biological resource assessments, habitat evaluations, species inventories, and scientific peer review. Mr. Cashen has led investigations on several special-status species, including ones focusing on the foothill yellow-legged frog, mountain yellowlegged frog, desert tortoise, steelhead, burrowing owl, California spotted owl, northern goshawk, willow flycatcher, Peninsular bighorn sheep, red panda, and forest carnivores.

REPRESENTATIVE EXPERIENCE
Biological Assessments/Biological Evaluations (“BA/BE”) • Aquatic Species BA/BE – Reliable Power Project (SFPUC) • Terrestrial Species BA/BE – Reliable Power Project (SFPUC) • Management Indicator Species Report – Reliable Power Project (SFPUC) • Migratory Bird Report – Reliable Power Project (SFPUC) • Terrestrial and Aquatic Species BA – Lower Cherry Aqueduct (SFPUC) • Terrestrial and Aquatic Species BE – Lower Cherry Aqueduct (SFPUC) • Terrestrial and Aquatic Species BA/BE – Public Lands Lease Application (Society for the Conservation of Bighorn Sheep)
• Terrestrial and Aquatic Species BA/BE – Simon Newman Ranch (The Nature Conservancy)
• Draft EIR (Vegetation and Special-Status Plants) - Wildland Fire Resiliency Program (Midpeninsula Regional Open Space District)
Avian
• Study design and Lead Investigator - Delta Meadows State Park Special-Status Species Inventory (CA State Parks: Locke)
• Study design and lead bird surveyor - Placer County Vernal Pool Study (Placer County: throughout Placer County)
• Surveyor - Willow flycatcher habitat mapping (USFS: Plumas NF) • Surveyor - Tolay Creek, Cullinan Ranch, and Guadacanal Village restoration projects (Ducks Unlimited/USGS: San Pablo Bay)
• Study design and Lead Investigator - Bird use of restored wetlands research (Pennsylvania Game Commission: throughout Pennsylvania) • Study design and surveyor - Baseline inventory of bird species at a 400-acre site in Napa County (HCV Associates: Napa)
• Surveyor - Baseline inventory of bird abundance following diesel spill (LFR Levine-Fricke: Suisun Bay)
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Cashen, Curriculum Vitae 5
• Study design and lead bird surveyor - Green Valley Creek Riparian Restoration Site (City of Fairfield: Fairfield, CA)
• Surveyor - Burrowing owl relocation and monitoring (US Navy: Dixon, CA) • Surveyor - Pre-construction burrowing owl surveys (various clients: Livermore, San Ramon, Rio Vista, Napa, Victorville, Imperial County, San Diego County) • Surveyor - Backcountry bird inventory (National Park Service: Eagle, Alaska) • Lead surveyor - Tidal salt marsh bird surveys (Point Reyes Bird Observatory:
throughout Bay Area)
• Surveyor – Pre-construction surveys for nesting birds (various clients and locations)
Amphibian
• Crew Leader - Red-legged frog, foothill yellow-legged frog, and mountain yellow-legged frog surveys (USFS: Plumas NF)
• Surveyor - Foothill yellow-legged frog surveys (PG&E: North Fork Feather River)
• Surveyor - Mountain yellow-legged frog surveys (El Dorado Irrigation District:

Desolation Wilderness)
• Crew Leader - Bullfrog eradication (Trout Unlimited: Cleveland NF) Fish and Aquatic Resources
• Surveyor - Hardhead minnow and other fish surveys (USFS: Plumas NF) • Surveyor - Weber Creek aquatic habitat mapping (El Dorado Irrigation District:

Placerville, CA)
• Surveyor - Green Valley Creek aquatic habitat mapping (City of Fairfield:

Fairfield, CA)
• GPS Specialist - Salmonid spawning habitat mapping (CDFG: Sacramento River) • Surveyor - Fish composition and abundance study (PG&E: Upper North Fork Feather River and Lake Almanor)
• Crew Leader - Surveys of steelhead abundance and habitat use (CA Coastal Conservancy: Gualala River estuary)
• Crew Leader - Exotic species identification and eradication (Trout Unlimited:

Cleveland NF)
Mammals
• Principal Investigator – Peninsular bighorn sheep resource use and behavior study (California State Parks: Freeman Properties)
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• Scientific Advisor –Study on red panda occupancy and abundance in eastern Nepal (The Red Panda Network: CA and Nepal)
• Surveyor - Forest carnivore surveys (University of CA: Tahoe NF) • Surveyor - Relocation and monitoring of salt marsh harvest mice and other small mammals (US Navy: Skagg’s Island, CA)
• Surveyor – Surveys for Monterey dusky-footed woodrat. Relocation of woodrat houses (Touré Associates: Prunedale)
Natural Resource Investigations / Multiple Species Studies • Scientific Review Team Member – Member of the scientific review team assessing the effectiveness of the US Forest Service’s implementation of the Herger-Feinstein Quincy Library Group Act.
• Lead Consultant - Baseline biological resource assessments and habitat mapping for CDF management units (CDF: San Diego, San Bernardino, and Riverside Counties)
• Biological Resources Expert – Peer review of CEQA/NEPA documents (various law firms, non-profit organizations, and citizen groups) • Lead Consultant - Pre- and post-harvest biological resource assessments of tree removal sites (SDG&E: San Diego County)
• Crew Leader - T&E species habitat evaluations for Biological Assessment in support of a steelhead restoration plan (Trout Unlimited: Cleveland NF) • Lead Investigator - Resource Management Study and Plan for Mather Lake Regional Park (County of Sacramento: Sacramento, CA)
• Lead Investigator - Biological Resources Assessment for 1,070-acre Alfaro Ranch property (Yuba County, CA)
• Lead Investigator - Wildlife Strike Hazard Management Plan (HCV Associates:

Napa)
• Lead Investigator - Del Rio Hills Biological Resource Assessment (The Wyro Company: Rio Vista, CA)
• Lead Investigator – Ion Communities project sites (Ion Communities: Riverside and San Bernardino Counties)
• Surveyor – Tahoe Pilot Project: Validation of California’s Wildlife Habitat Relationships (CWHR) Model (University of California: Tahoe NF) 3127
Cashen, Curriculum Vitae 7
Forestry
Mr. Cashen has five years of experience working as a consulting forester on projects throughout California. Mr. Cashen has consulted with landowners and timber operators on forest management practices; and he has worked on a variety of forestry tasks including selective tree marking, forest inventory, harvest layout, erosion control, and supervision of logging operations. Mr. Cashen’s experience with many different natural resources enable him to provide a holistic approach to forest management, rather than just management of timber resources.

REPRESENTATIVE EXPERIENCE
• Lead Consultant - CalFire fuels treatment projects (SD and Riverside Counties) • Lead Consultant and supervisor of harvest activities – San Diego Gas and Electric Bark Beetle Tree Removal Project (San Diego)
• Crew Leader - Hillslope Monitoring Program (CalFire: throughout California) • Consulting Forester – Forest inventories and timber harvest projects (various clients throughout California)
Grant Writing and Technical Editing
Mr. Cashen has prepared and submitted over 50 proposals and grant applications.

Many of the projects listed herein were acquired through proposals he wrote. Mr.

Cashen’s clients and colleagues have recognized his strong scientific writing skills and ability to generate technically superior proposal packages. Consequently, he routinely prepares funding applications and conducts technical editing for various clients.

PERMITS
U.S. Fish and Wildlife Service Section 10(a)(1)(A) Recovery Permit for the Peninsular bighorn sheep

PROFESSIONAL ORGANIZATIONS / ASSOCIATIONS
The Wildlife Society
Cal Alumni Foresters
Mt. Diablo Audubon Society

OTHER AFFILIATIONS
Scientific Advisor and Grant Writer – The Red Panda Network Scientific Advisor – Mt. Diablo Audubon Society
Grant Writer – American Conservation Experience
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Cashen, Curriculum Vitae 8

TEACHING EXPERIENCE
Instructor: Wildlife Management - The Pennsylvania State University, 1998 Teaching Assistant: Ornithology - The Pennsylvania State University, 1996-1997

PUBLICATIONS
Gutiérrez RJ, AS Cheng, DR Becker, S Cashen, et al. 2015. Legislated collaboration in a conservation conflict: a case study of the Quincy Library group in California, USA.

Chapter 19 in: Redpath SR, et al. (eds). Conflicts in Conservation: Navigating Towards Solutions. Cambridge Univ. Press, Cambridge, UK.

Cheng AS, RJ Gutiérrez RJ, S Cashen, et al. 2016. Is There a Place for Legislating PlaceBased Collaborative Forestry Proposals?: Examining the Herger-Feinstein Quincy Library Group Forest Recovery Act Pilot Project. Journal of Forestry. 3129

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Adams Broadwell (AB-NOV. 17)2
Response to AB-NOV. 17-1
The commenter provided introductory remarks and alleged that the Giovannoni Logistics Center project EIR is legally inadequate.

The commenter’s specific comments about the EIR are addressed in Response to AB-NOV.17-2 through Response to AB-NOV.17-3.

Response to AB-NOV. 17-2
The commenter provided a statement of interest. No response is necessary.

Response to AB-NOV. 17-3
The commenter asserted that the Draft EIR must be revised and recirculated to address new information. This comment is addressed in further detail in Response to AB NOV.17-4.

Response to AB-NOV. 17-4
The commenter claimed there is a significant change to the project’s environmental setting, noting that a “new road and dirt berm” had been installed within the western portion of the project site in Fall 2022. The commenter alleged that the Draft EIR did not disclose this road or its impacts and mitigation measures.

The utility alignment and unpaved road are addressed in Master Response B.

Response to AB-NOV. 17-5
The commenter alleged that the Final EIR failed to disclose or discuss the proposed Development Agreement.

The Final EIR did not disclose or discuss the Development Agreement because such a discretionary approval is not being sought by the applicant in conjunction with the Phase I entitlements. Should the applicant seek to pursue a Development Agreement for Phase II, such an approval may trigger additional environmental review. However, it would be speculative to engage in further discussion of this issue as it relates to the Giovannoni Logistics Center project.

On a broader note, the courts have held that, where an EIR failed to mention a proposed Development Agreement that did not change the terms or character of the proposed development addressed in the EIR, the lack of any reference to the Development Agreement was not a prejudicial abuse of discretion. (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 925-927; see also Native Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 909 [no violation of CEQA occurred where an EIR mentioned the possible approval of the Development Agreement but did not describe its proposed terms].) 2 The law firm of Adams Broadwell submitted comments on behalf of Napa/Solano Residents for Responsible Development. 3131
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The commenter alleged that the Vehicle Miles Traveled (VMT) analysis remained unsupported by substantial evidence and reiterated previous comments about this analysis that were included in Napa-Solano Residents for Responsible Growth letter dated July 20, 2022.

VMT is addressed in Master Response D.

Response to AB-NOV. 17-7
The commenter alleged that impacts to biological resources remain significant and unmitigated. The comment reiterated previous comments regarding the wetland delineation that were included in Napa-Solano Residents for Responsible Growth letter dated July 20, 2022.

Wetlands are addressed in Master Response C.

Response to AB-NOV. 17-7 continued
The commenter also claims the United States Army Corp of Engineers (USACE) carried the City’s errors into its Approved Jurisdictional Determination (AJD).

This comment is inaccurate. The City did not submit the Monk and Associates 2016 wetland jurisdictional delineation to the USACE, so this was not the City’s error as inaccurately claimed by the commenter. It is also inaccurate to claim the USACE carried the errors referenced in the Final EIR Response S&W-5b onto the AJD, and the commenter provided no evidence that the USACE did carry this error into the AJD. The facts that the USACE conducted its own independent review of the Monk & Associates 2016 wetland jurisdictional delineation and conducted its own independent field review, as well as the fact that the United States Environmental Protection Agency reviewed the USACE data prior to the USACE finalizing the AJD, makes it very unlikely this was an oversight by the USACE. The USACE AJD is a reasonably accurate delineation of the location and extent of wetlands on the project site.

Response to AB-NOV. 17-7 continued
The commenter also claims the Draft EIR failed to include a proper and comprehensive functional assessment and stated that the rare plant survey and evaluation for presence of wildlife species “do not themselves constitute a complete and proper functional assessment.” Wetlands are addressed in Master Response C.

Response to AB-NOV. 17-7 continued
The commenter also reiterated previous comments that in the absence of a pre- and post-project water budget analysis, there is no basis to assume that there is sufficient hydrology to create the additional wetlands, and that it cannot be shown that creation of new wetlands in the proposed Wetland Preserve will not impact the remaining existing wetlands.

Wetlands are addressed in Master Response C.

Response to AB-NOV. 17-7 continued
The commenter reiterated previous comments that describe the importance of vegetated buffers to protect wetland functions by providing a visual and noise screen from adjacent land uses, to protect 3132
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The commenter suggests the Final EIR fails to identify minimum buffer widths for the proposed Wetland Preserve and suggests that the presence of bioretention basins adjacent to the preserve would not provide adequate buffer protection.

Wetlands are addressed in Master Response C.

Response to AB-NOV. 17-7 continued
The commenter also states that Mr. Cashen pointed out that the Final EIR Volume 1 failed to discuss the importance of the wetlands as habitat to the observed migratory waterfowl and shorebirds.

The Draft EIR included a Biological Resources Report prepared by Helm Biological Consulting (HBC) titled Biological Resources Report, Giovannoni Logistics Center, American Canyon, California. In this biological resource report, HBC does acknowledge the wetlands do provide habitat to several species of waterfowl, waterbirds, and shorebirds, including those observed on the site during field reviews, such as mallard (Anas platyrhynchos), American wigeon (Anas americana), greater yellowlegs (Tringa melanoleuca), long-billed curlew (Numenius americanus), marbled godwit (Limosa fedoa), western sandpiper (Calidris mauri), and Wilson’s snipe (Gallinago delicata). HBC also reviewed the potential of the wetlands to provide habitat for special-status waterfowl, waterbirds, and shorebirds as shown in Table 2 of the HBC report. In addition, as addressed in the Master Response C, Wetlands, functional assessments were conducted to determine plant and animal communities supported on the project site, and these functional assessments were then used in the impact analysis and subsequent mitigation requirements.

Response to AB-NOV. 17-8
The commenter alleged that the Final EIR failed to adequately assess impacts to the Swainson’s hawk and golden eagle. The commenter reiterated previous comments that were included in NapaSolano Residents for Responsible Growth letter dated July 20, 2022. Referring to comments provided by Scott Cashen in a separate letter attached to the Adams Broadwell comments (see Comment CASHEN.NOV. 15-8), the commenter suggests that the Draft EIR concluded, without substantial evidence, that the proposed project would not result in significant impacts to foraging habitat or affect the nesting populations of Swainson’s hawk or golden eagle near the project site either directly, indirectly or cumulatively, and that, for these reasons, no mitigation was warranted for loss of foraging habitat for these species. The commenter disagrees with these conclusions.

Master Response A addresses the potential loss of foraging habitat for Swainson’s hawk and golden eagle as a result of the project. Substantial evidence was provided in the Draft EIR and in Final EIR Volume 1, and further evidence is provided in Master Response A, that the proposed project would not result in significant impacts to foraging habitat. The potential that the project could affect nesting populations of Swainson’s hawk and golden eagle is addressed in Response to CASHEN NOV.15-8 and Response to CASHEN NOV.15-9.

Response to AB-NOV. 17-9
The commenter claimed that the City may not make the necessary findings to approve the tentative parcel map and design permit. The comment reiterated previous comments regarding conflicts with 3133
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Response to AB-NOV. 17-10
The commenter stated that the City may not adopt the Statement of Overriding Consideration because it has not adopted all feasible air quality mitigation measures.

The comment letter argued that the City is failing to require the project proponent to comply with various air quality mitigation measures suggested in earlier correspondence. The commenter asserts these proposed measures are feasible and thus must be imposed under CEQA. In response to this comment and other similar comments, Joe Livaich, a representative of Buzz Oates, provided the City with a letter in which he explained why, in his informed opinion based on his professional experience, the rejected measures proposed by Napa-Solano Residents for Responsible Growth are not feasible. Mr. Livaich states that a reasonable and prudent investor would resist these suggested measures because they would place the Giovannoni Logistics Park at a competitive disadvantage relative to its competitors. City staff finds his reasoning and the evidence he invokes to be persuasive. Staff is aware that, under CEQA case law, a lead agency may reject proposed mitigation as infeasible if such mitigation could affect a project’s rate of return such that a reasonable and prudent investor would find the return to be insufficient in light of the economic risks involved. (See, e.g., Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 600; and San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 693– 694 [applying the prudent person standard to determine economic feasibility of proposed alternatives].)
Mr. Livaich’s letter is provided in Appendix N.

Response to AB-NOV. 17-11
The commenter provided closing remarks. No response is necessary.

Response to AB-NOV. 17-Attachments
The commenter provided new comments from S&W and Scott Cashen. They are addressed as follows:

Response to S&W.NOV. 16-3
The commenter suggest that the USACE AJD incorporated errors that the commenter and the City recognized was within the 2016 Monk & Associates (M&A) Wetland Jurisdictional Delineation Report. The commenter then suggests, assuming the USACE incorporated these areas into the AJD, that the Draft EIR’s wetland analysis is based on an inaccurate delineation.

Wetlands are addressed in Master Response C. In addition, the commenter states, without evidence, “The USACE used the information the M&A report provided as the basis for their JD review, but did not catch these errors.” The commenter has no evidence that the USACE did not catch and consider these errors when they reviewed the report independently and conducted an independent site visit prior to issuing the AJD.
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The commenter stated that the City provided new information regarding the USACE AJD, namely, that the USACE changed the AJD date to October 25, 2021.

In the Final EIR Response to Comment S&W-5c, as found in Volume 1 published on October 31, 2022, the City incorrectly stated the AJD date as October 25, 2021. The correct AJD date is October 25, 2016; and according to USACE project Manager, Mr. Bryan Matsumoto, because the USACE application was submitted prior to the AJD expiring, the USACE will be using the AJD dated October 25, 2016, to process the permit. The AJD therefore remains valid and sufficient for the USACE and for assessing wetland impacts in the Draft EIR.

Response to S&W.NOV. 16-5
The commenter states that the Draft EIR Section 2.3.13 said, “For the purposes of providing a conservative, worst-case scenario, this Draft EIR assumes that Phase 1 and Phase 2 would be developed concurrently over a period of 18 months.” The commenter disagrees with this statement, suggesting the “worst-case scenario” would be sequential or spaced-out construction, which would increase construction-related impacts to aquatic resources. The commenter suggests that construction impacts and the risks associated with construction noise disturbance and risk of spills (e.g., hydraulic line breaks) are directly correlated to the duration of construction. A shorter construction window, the commenter says, will result in a shorter impact window and less chance of a spill occurring than that of a longer construction project.

Phase 1 and 2 is anticipated to be constructed concurrently over an 18-month period, or in sequential order (e.g., approximately 9 months for Phase 1, once Phase 1 is complete then 9 months for Phase 2). The City disagrees with the commenter’s suggestion that construction in sequential order would increase construction-related impacts compared to construction being conducted concurrently over an 18-month period. Mitigation measures outlined in the Draft EIR for noise disturbances and other construction-related impacts such as spills (e.g., hydraulic line breaks) or biological impacts would ensure the level of construction-related impacts is less than significant. For example, implementation of a Stormwater Mitigation Plan would ensure construction-related impacts such as spills and management of stormwater and sedimentation would not result in increased risk to wetlands or other aquatic or biological resources on or adjacent to the project site, whether or not the project was constructed concurrently or in sequential order.

Response to S&W.NOV. 16-5 continued:

The commenter also disagrees with the City’s Final EIR Response to Comment S&W-6a, which states that “a prolonged construction period that extends beyond 18 months would not increase construction-related impacts.”
The response suggests that a prolonged construction period that extends beyond 18 months was specific to direct wetland impacts, not indirect impacts or other construction-related impacts (noise, traffic etc.) associated with a prolonged construction period. That being said, the construction period is not anticipated to extend beyond 18 months to construct both Phase 1 and Phase 2. 3135
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The commenter disagrees that a proper wetland functional assessment was conducted and states elements of a formal functional assessment are missing from the Draft EIR and Final EIR such as wetlands’ hydrology (e.g., water sources, hydroperiods, hydrologic connectivity), buffer and landscape (e.g., buffer width and condition), physical structures (e.g., topographic complexity) typical of vernal pool and seasonal depressional wetlands, plant community interspersion, and assessment of anthropogenic stressors.

Wetlands are addressed in Master Response C. Also refer to Response to AB-NOV. 17-7 in Final EIR Volume 1.

Response to S&W.NOV. 16-7
The commenter stated that it is “ . . . nonsensical to state that filling 97% of a small, 195-square-foot wetland would not have any impact on the remaining 3%, or 6 square feet.” The commenter goes on to state that the remaining portion of Wetland W-89 will no longer perform functions as it did when part of the larger wetland unit and, depending on topography along the wetland margin (where the 6 square feet of “unimpacted wetland” is likely located), may lose the ability retain hydrology and therefore would likely not remain as wetland. The project should include the entirety of Wetland W89 in its impact analysis.

The City disagrees with the commenter’s assumption that the remaining 6 square feet of wetland will no longer perform functions as it would have when it was part of the 195-square-foot wetland.

The W-89 is a seasonal wetland supported by direct precipitation. The remaining unimpacted 6 square feet will continue to receive precipitation, continue to support wetlands plants and hydric soils, and continue to provide habitat for a wide variety of plants and animals.

Response to S&W.NOV. 16-8
The commenter reiterated previous comments that were included in Napa-Solano Residents for Responsible Growth letter dated July 20, 2022. These comments suggested that without a quantitative analysis of wetland hydrology sources, there is no basis to assume that constructing the development immediately adjacent to the site’s wetlands will not result in indirect hydrology impacts.

As stated in Final EIR Volume 1 Response to Comment S&W-8, the main source of hydrology for the unimpacted wetlands is direct precipitation and a significant amount of water flow from a culvert near the northeastern boundary which flows east to west toward No Name Creek. In addition, the site generally slopes from east to west across the Phase 1 and 2 project sites. The Phase 2 project also has topography that slopes from south to north. With the main sources of hydrology being direct precipitation and waterflow from a culvert near the northeastern boundary, and the topography of the site generally sloping from east to west, there is no basis to assume that proposed project development would indirectly impact the wetland hydrology of the remaining wetlands. The City maintains that the project will not result in indirect hydrology impacts to the existing wetlands.

Response to S&W.NOV. 16-8 continued
The commenter then stated that the City acknowledged that a water budget is needed to ensure that the proposed created wetlands do not indirectly impact the existing wetlands. 3136
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Response to S&W.NOV. 16-9
The commenter reiterated that the City clarified that the Wetland Preserve will not serve as water quality treatment for the project’s stormwater discharge. No further response is required.

Response to S&W.NOV. 16-10
The commenter reiterated previous comments that were included in Napa-Solano Residents for Responsible Growth letter dated July 20, 2022. The commenter states the Phase 1 project does not identify even minimum buffer widths associated with the proposed Wetland Preserve and suggests that the presence of the periodically maintained bioretention basins adjacent to the preserve are not adequate buffer protection to the Wetland Preserve. The commenter also states that the stormwater ponds would not provide a visual or noise screen, would not provide upland habitat, and would introduce disturbance (maintenance) adjacent to the preserve, and no buffers have been identified on the Wetland Preserve on the Phase 2 portion of the project site.

Wetlands are addressed in Master Response C.

Response to S&W.NOV. 16-11
The commenter disagrees with the Final EIR Volume 1 Response to Comment S&W-11 and suggests that the analyses in the Draft EIR and Final EIR are flawed because they did not consider the impacts of noise, light, and traffic that the Phase 1 and Phase 2 development would have on the Wetland Preserve. The commenter states that, while the proposed location of the Wetland Preserve is flanked on the west, north, and east by the land uses and developments described in the Final EIR, the southern boundary is adjacent to a broad swath of undeveloped land ranging from approximately 800 feet to over 1,500 feet. The proposed Phase 1 development brings the noise, light, and traffic described in the Final EIR adjacent to the proposed preserve, reducing the existing 800 to 1,500-foot buffer to an undisclosed distance, but based on project drawings, appears to be less than 100 feet.

The commenter is correct that the development for Phase 1 will bring noise, light, and traffic to the southern boundary of the Wetland Preserve, thereby reducing the buffer from 800 to 1,500 to in some areas less than 100 feet, and the City assumes the Phase 2 development would also bring 3137
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Therefore, although the buffers along the southern boundary will be reduced by the Phase 1 and 2 development, the avian and terrestrial species that use the wetlands and uplands within the Wetland Preserve have habituated to the significant levels of noise, light, traffic, and pedestrian disturbances that currently exist. Given the bioretention basins are positioned between the Wetland Preserve and Phase 1 and 2 hardscaped area, thus providing a buffer to disturbances, and given the existing noise, light, traffic, and pedestrian disturbances that currently exist, the levels of disturbances the project will add from reducing the buffer distance along the southern boundary will not result in significant direct, indirect, or cumulative impacts to wetland functions, and therefore do not require mitigation under CEQA.

Response to S&W.NOV. 16-11 continued
The commenter also disagrees with the City’s assessment that compliance with the mitigation measures outlined in Draft EIR Section 3.3, Biological Resources, would reduce the impact of the proposed project’s contribution to the cumulative impacts to less than significant.

In addition, the City maintains that compliance with the mitigation measures outlined in Draft EIR Section 3.3, Biological Resources, would reduce the impact of the proposed project’s contribution to the cumulative impacts, including fragmentation, to less than significant. Therefore, a mitigation measure specific to cumulative wetland impacts and habitat fragmentation is not required. See also Master Response C (Wetlands).

Response to S&W.NOV. 16-12
The commenter reiterated previous comments that were included in Napa-Solano Residents for Responsible Growth letter dated July 20, 2022. The commenter maintains that an adequate functional assessment to fully assess project wetland impacts was not performed and therefore the proposed conceptual mitigation could not be appropriately tailored to provide those impacted functions or mitigate the loss of wetlands. The commenter also maintains that the wetland preservation site has not been shown to be appropriate for wetland creation.

This comment is addressed in detail in Final EIR Volume 1 Response to AB-NOV. 17-7 and Master Response C. The City maintains that comprehensive functional assessments were conducted, which 3138
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Response to S&W.NOV. 16-13
The commenter reiterated previous comments that were included in Napa-Solano Residents for Responsible Growth letter dated July 20, 2022. The commenter disagrees with the Final EIR’s response to S&W-13a and 13b and maintains that quantitative hydrologic data is required to demonstrate that an additional wetland can be created and that the vernal pools will be fully functioning wetlands within 1 year.

This comment is addressed in detail in Final EIR Volume 1 Response to AB-NOV. 17-7 and Master Response C. The City maintains that sufficient data, including hydrology data, was obtained to determine that the Wetland Preserve could support the creation/establishment of additional wetlands to offset wetland impacts associated with the project, and the created vernal pools would be functioning within 1 year.

Response to S&W.NOV. 16-14
Based on its review of the Draft EIR, the commenter states that the City did not provide a description of the required mitigation sequencing process. In the Final EIR Volume 1, the City provides a description of considerations used in establishing the proposed Phase 1 development footprint. The commenter adds that no justification is provided for the Phase 2 development, which results in 3.71 acres of wetland impact, including the entirety of Wetland 16, a 3.3-acre wetland. The commenter also questions the City’s statement that both Phase 1 and Phase 2 designs avoid and minimize wetland impacts, and asserts that this statement is not supported because no design alternatives are provided for Phase 2, nor is a description of the avoidance and minimization measures specific to the Phase 2 development. The commenter further states that an alternatives analysis is fundamental to avoiding and minimizing wetland impacts. The commenter suggested that, based on a schematic design analysis of the space available on the Phase 2 site, while focusing on avoidance of the largest

3.3-acre wetland (Wetland 16), it appears that the same available square footage used in the Phase 1 development could be accommodated without directly impacting Wetland 16. Finally, the commenter concludes that the City has not demonstrated why the Phase 2 impacts are unavoidable or cannot at a minimum, be minimized.

In response to these concerns, the City notes that Mitigation Measures (MM) BIO-2, MM BIO-3a, MM BIO-3b, MM BIO-3c, and MM BIO-3d all contain performance standards and identify when each required element must be completed. These measures have all been drafted consistent with CEQA Guidelines requirements for feasible mitigation. The commenter’s comments reflect nothing more than a difference of opinion regarding how to draft mitigation measures, and nothing said in the comments points to legal inadequacies in MM BIO-2, MM BIO-3a, MM BIO-3b, MM BIO-3c, and MM BIO-3d. Refer to Master Response C for further discussion of wetlands. 3139
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The commenter reiterated previous comments that were included in Napa-Solano Residents for Responsible Growth letter dated July 20, 2022. The commenter disagrees with the Final EIR’s Response to Comment S&W-15a to the effect that the City’s proposed 5-year mitigation monitoring period is sufficient to document successful mitigation implementation. The commenter references the USACE’s 2015 Regional Compensatory Mitigation and Monitoring Guidelines for the South Pacific Division, which suggests monitoring periods longer than 5-years may be warranted for aquatic resources with a slow development rate. Vernal pools are listed as one aquatic resource the guidelines recommend have a longer monitoring period.

The City maintains that a minimum 5-year monitoring period is adequate to confirm mitigation success. If mitigation performance standards are not met within the 5-year monitoring period, then contingency measures would be implemented. The contingency measures provided in the Draft EIR require the monitoring obligations to continue (i.e., beyond the minimum 5 years) until the RWQCB gives final confirmation that the mitigation met all the performance standards.

Response to S&W.NOV. 16-16
The commenter reiterated previous comments that were included in Napa-Solano Residents for Responsible Growth letter dated July 20, 2022. The commenter maintains that an adequate functional assessment was not performed and therefore there is no basis for establishing mitigation goals and performance standards to document replacement of the lost wetland functions. The commenter also suggests that the performance standards proposed in Draft EIR are not adequate to verify whether the stated mitigation goals have been met.

This comment is addressed in detail in Response to AB-NOV. 17-7 and Master Response C. The City maintains that comprehensive functional assessments were conducted, which assessed attributes of the wetlands sufficient to evaluate wetland impacts, and sufficient to propose wetland mitigation ratios and performance standards to offset wetland impacts. The performance standards outlined in the Draft EIR are “minimum” performance standards required to determine whether the wetland goals are being met. Additional performance standards will likely be added by the USACE pursuant to the Clean Water Act and by the RWQCB pursuant to the Porter-Cologne Water Quality Control Act during the wetland permitting processes conducted by the two expert agencies.

Response to S&W.NOV. 16-17
The commenter reiterates the City’s response to the Final EIR Comment S&W-15c. The commenter then states the City did not clarify whether a reference wetland was used in preparing the proposed performance standards in the Draft EIR and suggests that the failure to use a reference wetland is an example of why the City’s proposed mitigation does not adequately demonstrate the avoidance of significant environmental impact.

The commenter is correct in that the City did not use a reference wetland to prepare the performance standards. A reference wetland is typically not used to prepare performance standards or to demonstrate avoidance of significant environmental effects. A reference wetland is one tool used to assess whether a created/established wetland is progressing toward the mitigation goals. 3140
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The commenter reiterated previous comments that were included in Napa-Solano Residents for Responsible Growth letter dated July 20, 2022. The commenter disagrees with the Final EIR Response to Comment S&W-16a and b, and maintains that the City is not complying with City policy

8.3.1. The commenter states that wetlands and streams are not mutually exclusive and herbaceous vegetation is present in the area next to the mapped No Name Creek, providing riparian vegetation.

Herbaceous vegetation (non-woody plants such as grasses, flowering plants etc.) next to the mapped seasonal wetland, referred as No Name Creek by the commenter, does not constitute what is considered riparian vegetation for the purpose of local, State and federal regulations. CDFW’s A Filed Guide to Lake and Streambed Alteration Agreements Sections 1600-1607 California Fish and Game Code dated January 1994 defines “Riparian Vegetation” as vegetation composed primarily of woody hydrophytes, such as willows, alders, cottonwoods, sycamores, box elders, aspens etc. The definition does not include upland herbaceous vegetations, which is found throughout the entire project site.

The City maintains the seasonal wetland referenced does not support riparian vegetation, does not exhibit natural physical features that creeks typically exhibit such as scour, shelving, debris deposits etc. which would indicate the fluctuation and flow of surface water, and does not exhibit an ordinary high water mark (OHWM) which defines the federal geographic and jurisdictional limits of creeks according to 33 Code of Federal Regulations Section 329.11(a)1. Therefore, the City maintains the reach of No Name Creek within the Wetland Preserve is not subject to creek setbacks required pursuant to the 2019 General Plan Policy 8.3.1.

Response to S&W.NOV. 16-18 continued
The commenter references the City’s Biological Habitats Map in their 2019 General Plan, which identifies an “Other riparian and Blue-Line St[r]eams” area in approximately the northwest corner of the project site, and the M&A delineation report, which references No Name Creek in the northwest corner of the project site. The commenter also references the M&A Vernal Pool Branchiopod Surveys report and suggests that the photograph of the seasonal wetland (Photograph No. 6) exhibits significant channelized flow.

It is common for wetland complexes and vernal pool complexes to fill with water and flow topographically downslope after storm events. The photograph referenced was taken on January 5, 2017 after several days of “heavy rains” according to the data sheets in the M&A Vernal Pool Branchiopod Surveys report. The Photograph No. 6 referenced does show water that appears to be slowly moving, which is to be expected as the seasonal wetland is downslope from the majority of the existing wetlands on the project site. Photograph No. 6 also shows clear evidence of rooted herbaceous vegetation within the seasonal wetland and a uniform channel width, but no riparian vegetation. The uniform width of the seasonal wetland was likely not formed by water velocity, but is the result of the seasonal wetland being excavated in an attempt to drain or move water off the site.

There are several linear ditches, referred to as “linear wetlands “on the USACE AJD map, on the project site that were clearly constructed and are not natural features.

If water velocity had created the uniform widths of the channel, then an “ordinary high water mark” would have been evident and M&A would have labeled this reach of the seasonal wetland as a “creek,” and the USACE would have required the seasonal wetland to be labeled a “creek” with the 3141
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Response to S&W.NOV. 16-18 continued
The commenter also suggests that the absence of a No Name Creek label on the USACE AJD is not a reason to discount its presence, especially given that the stream appears to coincide with the mapped wetlands. The CDFW Geographic Information System (GIS) California Streams data set shows No Name Creek in the northwest corner of the project area. In several locations (pages 3.3-29 and 3.3-38), the Draft EIR states that the entirety of No Name Creek will be incorporated into the Wetland Preserve. The commenter maintains that the City does not adequately explain why the 100- foot riparian corridor protection zone is not applied to No Name Creek within the project site.

An aquatic feature labeled as a “Creek” on the City’s Biological Habitats Map, CDFW GIS California Streams data set, or the United States Geological Survey (USGS) quadrangle maps does not guarantee the feature is really a creek, and it does not guarantee the extent and location of the creek is correctly mapped. The data on these maps are typically gathered from aerial imagery interpretation and not verified by conducting a site visit. That being said, the data can be helpful when planning to conduct field work but it cannot be relied on to verify the presence or absence of a creek or the accuracy of the location of a creek. Field work to verify the presence or absence of a creek, riparian vegetation associated with a creek, or a wetland, ditch, or an upland that may look like a creek from an aerial must be verified by collecting data on the ground.

The M&A delineation report references No Name Creek in the northwest corner of the project site, but labels it as a seasonal wetland on the delineation map, not a creek, based on field data taken on the ground. If that segment of No Name Creek was functioning as a creek and exhibiting an OHWM M&A would have referenced the OHWM in the delineation report and on the delineation map. In addition, the USACE would have required the seasonal wetland to be mapped as a creek with an OHWM labeled on the AJD. Although the commenter clearly does not have faith in the USACE’s ability to distinguish between a seasonal wetland and a creek, the City does. In light of the fact that neither M&A nor the USACE found that the seasonal wetland was exhibiting an OHWM, and the fact that the seasonal wetland does not support riparian vegetation, the City agrees with the M&A delineation report and the USACE’s conclusions that this reach of No Name Creek is functioning as a seasonal wetland and, therefore, it is not subject to creek setbacks required pursuant to the 2019 General Plan Policy 8.3.1. Nevertheless, vegetated buffers between the Phase 2 development and the seasonal wetland the commenter is suggesting is a creek, would be similar to the Phase 1 vegetated buffers (e.g., range from 25-150 feet), with a minimum 25-foot buffer from Phase 2 hardscaped development (buildings, parking lots, non-pervious unvegetated surfaces etc.).

Response to S&W.NOV. 16-19
The commenter suggests a newly installed gravel maintenance road and subsurface sewer pipe would results in direct and indirect impacts to the Wetland Preserve, the existing wetland in the vicinity, and No Name Creek.

This comment is addressed in Master Response B.
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The commenter summarizes its conclusions. No response required.

Response to CASHEN.NOV. 15-2
The commenter suggests that the gravel maintenance road will have negative effects on the biotic integrity of terrestrial and aquatic ecosystems within the Wetland Preserve. Cashen goes on to state because the road is not discussed in the Draft EIR or Final EIR, the full extent of the road’s effects on the site’s plant and animal populations or the biotic integrity of the proposed Wetland Preserve cannot be assessed.

This comment is addressed in Master Response B.

Response to CASHEN.NOV. 15-3
The commenter states that the FEIR response that the surveys were less than 5 years old when the Draft EIR was released is false. The surveys terminated on February 15, 2017. The Draft EIR was released on May 20, 2022. The commenter also reiterated previous comments that were included in Napa-Solano Residents for Responsible Growth letter dated July 20, 2022, to the effect that the results of the vernal pool fairy shrimp surveys were outdated and can no longer be used to assume absence of the species at the project site. The commenter then states “the issue is not whether the surveys were reliable and sufficient to support the absence determination, but rather, that fairy shrimp easily could have colonized the project site since February 2017. This is the reason why the United States Fish and Wildlife Service (USFWS) considers the survey results valid for no more than five years.” The commenter states that the Final EIR provides no evidence that the USFWS has made an exception for the project, and argues that the City does not have sufficient evidence to support the determination that the proposed project would have no impact on the vernal pool fairy shrimp.

The commenter is correct the vernal pool shrimp surveys were completed on February 15, 2017, and the Draft EIR was released on May 20, 2022, which is 5 years and 3 months. Nonetheless, as previously stated in Final EIR Response to Cashen-2, when surveys are older than 5 years the USFWS may request new surveys to be conducted, or it may not.

The City relied on the Biological Resources Report prepared by HBC to determine whether the proposed project would have an effect on vernal pool fairy shrimp. The Biological Resources Report was completed in May of 2021 and concluded the proposed project would have no significant effect to vernal pool fairy shrimp based on the referenced surveys. In addition, the vernal pool fairy shrimp surveys were submitted to the USACE, along with the Pre-construction Notification application for the Phase 1 Giovannoni Logistics Center Project, on July 10, 2021. The USACE, acting as the federal lead agency, is required under Section 7 of the Endangered Species Act to consult with the USFWS if a project USACE is permitting may have an effect on a federally listed species. The USACE reviewed the project and survey results and determined consultation with the USFWS for fairy shrimp was not warranted.

Although the vernal pool fairy shrimp surveys were 5 years and 3 months old from the date the Draft EIR was issued, and are now nearly 6 years old, based on the Biological Resources Report conclusions that the proposed project would have no effect on vernal pool fairy shrimp and the fact that the USACE did initiate a vernal pool fairy shrimp consultation with the USFWS, the City maintains the 3143
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Notably, CEQA requirements are independent of the Endangered Species Act and Clean Water Act (CWA) requirements, and the conclusions in an EIR, if supported by substantial evidence, can be achieved through means other than compliance with formal survey requirements or protocols under other environmental statutes, such as the Endangered Species Act. (See, e.g., Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1396-1398 [EIR for proposed dairy was not required to conduct ESA protocol surveys to determine the presence or absence of endangered kit fox]). The same is true, of course, for methodologies recommended by nongovernmental entities such as the California Native Plant Society (CNPS).

Response to CASHEN.NOV. 15-4
The commenter suggests the Draft EIR failed to analyze impacts to the marbled godwit, Cackling goose, and the Aleutian subspecies of cackling goose and the Final EIR response did not rectify the issue.

Marbled godwit: The Final EIR clarified that marbled godwit is an abundant shorebird in the San Francisco Bay region and is not included on CDFW’s Special Animals list. In his comment, Mr. Cashen reiterates his concern for marbled godwit as a Bird Species of Conservation Concern by USFWS and indicates this designation relates to the threats on both breeding and nonbreeding grounds.

Mr. Cashen seems to be directing his remarks to the fact that Biologists with M&A observed marbled godwit at the site during their biological studies related to the Green Island Road Widening and Devlin Road Extension projects in 2018 and 2019, as mentioned in the Draft EIR. The project site is not within the breeding range of this species, which breeds in the Northern Plains. Though USFWS may have concerns with respect to wintering habitat for marbled godwits on a large scale (as Mr.

Cashen points out), marbled godwit is one of the most abundant shorebirds using the mudflats and shoreline of San Francisco Bay in the winter. Though the seasonal wetlands at the project site may provide suitable winter habitat for marbled godwit, the extent of such habitat on the site is comparatively small and unimportant compared to the extensive mudflats and other wintering habitats for the species within the region. One of the Biologists working on the project site may have observed an incidental visit to the site by a marbled godwit, but there is no aspect of the quality of the on-site habitat that makes the site uniquely suited to support this species.

The Final EIR pointed out that marbled godwit is not on CDFW’s Special Animals List, which includes USFWS Bird Species of Conservation Concern, and Mr. Cashen points out that this must be an oversight. CDFW updates the Special Animals List on a quarterly basis, and just released its updated Special Animals List (dated January 2023). Marbled godwit is still not on the list.

Aleutian subspecies of cackling goose: In his comment, Mr. Cashen indicates his view that the Final EIR (Volume 1, issued on October 31, 2022) did not appropriately respond to his comments on the Draft EIR in which he suggested that the project site is an important wintering habitat for this special-status species. Volume 1 of the Final EIR provided a history of the status of this subspecies of 3144
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Aleutian cackling goose breeds off the coast of Alaska on the Aleutian and neighboring islands and winters primarily in the Sacramento and San Joaquin Valleys, though some geese winter along the coast in Northern California. Winter habitats are inland lakes and marshes that provide roosting areas protected from predators. Winter habitats include agricultural lands such as flooded rice fields, pastures, crop stubble in which the geese consume grass, sprouted grain, waste crops following harvest, and grassy fields in urban and suburban settings, including golf courses. Aleutian cackling goose was not observed during field reviews of the site. Like with the marbled godwit, incidental use of the seasonal wetlands and grasslands of the project site by an Aleutian cackling goose is certainly possible, but there is no aspect of the quality of the on-site habitat that makes the site uniquely suited to support this subspecies.

Response to CASHEN.NOV. 15-5
The commenter is not satisfied with the Final EIR Volume 1’s Response to Cashen-4 comment and suggests the Final EIR does not rectify the issue raised in that comment because there remains no analysis of the significance of the project’s impacts on short-eared owl habitat.

The Final EIR Volume 1 Response to Cashen-4 recognized that nesting and foraging habitats for short-eared owl (a California designated Species of Special Concern specifically for nesting) are similar to those of northern harrier (the harrier occupies this niche during the day and the owl at night), and that the project site could conceivably serve as a wintering habitat or even nesting site for either species. Northern harriers are a fairly common wintering species with a history of some nesting in appropriate habitats in the San Francisco Bay Area. Although wintering short-eared owls can be found in appropriate habitats, nesting by short-eared owl in the Bay Area is a fairly rare occurrence. The ebird report of short-eared owl near the project site mentioned by the commenter was of a wintering individual observed near Napa Logistics on February 22, 2022.

Based on Mr. Cashen’s valid comments on the Draft EIR with respect to this species, the mitigation measure requiring pre-construction surveys for northern harrier was modified to also include shorteared owl (with similar habitat requirements) to ensure protection of any nesting owls that might be found prior to construction, regardless of how unlikely that occurrence may be. The Final EIR discusses that the Wetland Preserve included as part of the proposed project would provide foraging habitat for northern harrier; and it should be noted that, as short-eared owl shares the foraging habitat requirements of northern harrier, the Reserve would provide a foraging area for short-eared owl as well. Also note that both northern harrier (once referred to as the Marsh Hawk) and shorteared owl prefer foraging habitats with a mix of uplands and wetlands, and the Wetland Preserve should serve as quality foraging area for both species.

Response to CASHEN.NOV. 15-6
The commenter reiterated previous comments that were included in Napa-Solano Residents for Responsible Growth letter dated July 20, 2022, regarding the data used to assess potential impacts to special-status plant species. The commenter also stated that it was unclear whether the reference site visits provided evidence that these six target species would be identifiable when HBC conducted 3145
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Although not explicitly stated in the survey reports, the reference sites listed in HBC’s 2021 botanical survey report did provide evidence of the six targeted species listed. In addition, the references sites listed in HBC’s 2022 botanical survey also provided evidence of the targeted species listed.

The commenter also disagreed with the Final EIR Volume 1 Response to Cashen-5b and suggested that pappose tarplant and Napa bluecurls are almost never identifiable in April or May (i.e., when HBC’s surveys were conducted). In support of this point, Mr. Cashen cites data maintained by the California Consortium of Herbaria. The Final EIR response to Cashen-5b stated:
”Because of significant early fall rainfall in 2020, lack of spring rainfall in 2021 and warm weather, the flowering periods were several months in advance of normal blooming periods. The last rainfall event that was not trace amounts, occurred on March 18, 2021. Based on the weather patterns leading up to the spring surveys for 2021 and based on the reference sites known to support the target plants, the dates HBC conducted the surveys on were reliable and sufficient to capture blooming periods or a visual image of the target species.”
As stated in the Final EIR Volume 1 Response to Cashen-5b, blooming periods may vary depending on weather patterns. Because of blooming periods varying from year to year, and in accordance with the CDFW’s protocol, HBC conducted visits to several reference sites with known special-status plants targeted for field surveys to determine whether those special-status plants were identifiable at the times of year the botanical field surveys took place. Based on the time of the year the targeted plants were blooming on the reference sites, HBC then conducted the protocol surveys on the project site, per CDFW’s protocol. Because of blooming periods changing during the 2022 survey compared to the 2021 survey, HBC conducted the surveys on April 6, 2022, May 8, 2022, June 17, 2022, July 1, 2022, and September 19, 2022. The 2022 survey dates would cover the blooming period Napa bluecurls and pappose tarplant suggested by the commenter. Regardless, Napa bluecurls and pappose tarplant are hardy plants that can be identified from the previous year’s growth. If the survey observed previous year’s growth of the Napa bluecurls or pappose tarplant, the reports would have reflected such growth. The M&A 2017 survey did not observe them blooming on-site or observe remnants from the previous year’s growth. In addition, HBC did not observe Napa bluecurls and pappose tarplant blooming on-site during the 2021 and 2022 surveys or observe remnants of from the previous year’s growth.

As described above, based on the data provided in the botanical surveys and the fact that the target plants listed in the 2021 and 2022 survey reports were observed at the reference sites, the City maintains that the botanical survey conducted by HBC, and the other plant data referenced in the Final EIR response to Cashen-5, were sufficient to analyze the proposed project ’s potential impacts to plant species. To date, there has been 3 years of protocol-level special-status native plant surveys conducted on-site. No special-status species blooming or special-status plant growth from previous years were observed during any of these surveys. M&A completed their surveys in 2017, and HBC 3146
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Response to CASHEN.NOV. 15-7
The commenter reiterated previous comments that were included in the Napa-Solano Residents for Responsible Growth letter dated July 20, 2022, suggesting the Draft EIR failed to include a proper and comprehensive ecological functional assessment and that the Wetland Preserve would function as a habitat “island” surrounded by urban (industrial) development.

As addressed in Volume 1 of the Final EIR in Response S&W-6b, 8, 12 and CASHEN-6, and further addressed in response to Response to AB-NOV. 17-7 and Master Response C-Wetlands, comprehensive assessments were conducted, which assessed attributes of the impacted wetlands sufficient to evaluate wetland functional impacts, and to propose wetland mitigation ratios and performance standards sufficient to offset wetland impacts as outlined in the Draft EIR. With respect to the Wetland Preserve functioning as a habitat island, as addressed in Final EIR Volume 1 responses to CASHEN-6 and AB Comment 8, the Wetland Preserve is hydrologically connected to the Napa Logistics Park Wetland Preserve to the north and would also be contiguous to wetland areas within the Biaggi Bros. property to the west. Connectivity to adjacent undeveloped parcels to the northeast and southeast will remain for terrestrial and avian species, including areas within the nearby San Pablo Bay Wetlands Important Bird Area. Refer to Exhibit C, which illustrates the hydrological connectivity and wildlife corridors referenced in this response.

Response to CASHEN.NOV. 15-7 continued
The commenter reiterated previous comments that were included in Napa-Solano Residents for Responsible Growth letter dated July 20, 2022, suggesting there would be more severe constructionrelated impacts (e.g., water quality, air, noise nesting bird impacts etc.) if the construction schedule extended beyond the 18-month period stipulated in the Draft EIR.

The Draft EIR stipulated that the worst-case scenario, when assessing impacts, would consist of Phases 1 and 2 being constructed concurrently over an 18-month period. (Draft EIR, p. 2-9.) Master Response 3 in Final EIR Volume 1 explained this approach in greater detail, including why the worstcase scenario was conservative for biological resource impact analysis in particular. As was explained there:
[U]sing a “front loaded” buildout horizon allowed the Draft EIR to disclose the maximum amount of impacts to aquatic resources wetland impacts.

Constructing Phase 1 and 2 concurrently over an 18-month period would impact

0.496-acre of wetlands for Phase 1 and 3.7 acres of wetlands for Phase 2 for a total of 4.196 acres of wetlands, which is the worst-case scenario, meaning the maximum acreage of wetland impacts would be 4.196 acres. The “worst-case scenario” assumption is not linked to the number of months it would take to complete each Phase but rather is a function of the acreage of wetland impacts. Phase 2 wetland impacts were assessed based on a full buildout with a maximum impact of 3.7 acres 3147
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It should be noted that, if construction takes 18 months to complete or longer, all mitigation measures outlined in the Draft EIR would apply for the entirety of the construction period. Therefore, there is no basis to assume new impacts would occur if Phases 1 and 2 take two months to complete or 24 months. It should also be noted that the project will occur over at least two nesting periods, and if birds do nest in the project vicinity and construction has commenced, it should be assumed that the nesting bird(s) are habituated to the ambient level of noise and disturbance emanating from the project site. Therefore, a prolonged construction period that extends beyond 18 months would not increase the chance of construction-related impacts. Regardless, for consistency and to address the commenters concerns, MM BIO-4 was revised to require additional pre-construction breeding bird surveys if construction activities are discontinued for more than 7 days.

The construction period is not anticipated to extend beyond 18-months to construct both Phase 1 and Phase 2; therefore, the City maintains its assessment that constructing Phase 1 and 2 concurrently over an 18-month period as the worst-case scenario was sufficient to support the impact conclusions in the Draft EIR.

Response to CASHEN.NOV. 15-7 continued
The commenter disagrees with the Final EIR Volume 1 Response to Comment S&W-11, which provides the rationale that increases in noise, lights, and traffic generated by the project compared to existing conditions would not result in significant direct, indirect, or cumulative impacts to wetland functions, and therefore do not require mitigation under CEQA Guidelines.

The City maintains the rationale provided in the Final EIR Volume 1’s Responses to Comments S&W11 and S&W.NOV. 16-11, which conclude that increases in noise, lights, and traffic generated by the project compared to existing conditions would not result in significant direct, indirect, or cumulative impacts to wetland functions.

Response to CASHEN.NOV. 15-7 continued
The commenter suggests that planting trees and shrubs contradicts the Wildlife Hazzard Assessment and the Response to Comment Cashen-14, which addresses airport wildlife hazards and responses to potential airport wildlife hazards. The commenter implies that, to the extent that trees or shrubs could have biological benefits, such benefits, by possibly attracting avian species, could undermine the City’s separate strategy, driven by airport compatibility concerns, of not attracting species that could increase dangers of bird strikes on airplanes. The commenter then makes a different point, stating that planting shrubs and trees would “degrade” habitat for the northern harrier, short-eared owl, burrowing owl, golden eagle, Swainson’s hawk, shorebirds, and waterfowl.

The number of shrubs and trees planted will be limited to select areas near select wetlands in order to enhance the habitat complexity of the Wetland Preserve. It is anticipated that approximately 10 3148
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These plantings would enhance wetland habitat values, not degrade them. At the same time, these plantings, while benefiting wetland-dependent species, will not be so plentiful as to adversely affect avian species adapted to open grasslands. Such species, moreover, do sometimes make use of shrubs and trees within grassland environments. Notably, an HBC Biologist conducting a site visit did observe a northern harrier perched on one of the few shrubs on the project site, which indicates the northern harrier may benefit from additional shrubs and trees to perch on and rest or look for prey.

Still, the anticipated plantings should not attract avian species to such an extent that there would be an increased possibility of bird strikes compared with existing conditions.

Response to CASHEN.NOV. 15-8
The commenter suggests that the Draft EIR concluded, without substantial evidence, that the proposed project would not affect the nesting populations of Swainson’s hawk or golden eagle near the project site either directly, indirectly or cumulatively. The commenter reiterated previous comments that were included in Napa-Solano Residents for Responsible Growth letter dated July 20, 2022 to the effect that the City’s efforts to identify the extent of Swainson’s hawk nests near the project site were completely inadequate; and the commenter suggests that Swainson’s hawk survey protocol, which recommends three surveys in each of three discrete time periods between March 20 and July 30, are required to adequately identify the extent of Swainson’s hawk. The commenter provides evidence rebutting the Final EIR Volume 1’s assertion that there are but a limited number of Swainson’s hawk records within a 10-mile radius of the project site, and provides evidence directly rebutting the Final EIR Volume 1’s unsupported assertion that “[t]he closest known nesting record for Swainson’s hawk as reported in the CNDDB is a nest site last active in 2008 (CNDDB Occurrence No. 1718) located approximately 2.1 miles north of the project site.” The commenter states a Swainson’s hawk nest was located 0.8 mile from the project site two days after the City’s survey, and cites evidence of 18 records of active Swainson’s hawk nests between 2017 and 2022 within 10 miles of the project site. Mr. Cashen also indicates that ebird records suggest that Swainson’s hawks may not be using either the Newell Open Space or Lynch Canyon Open Space areas, which were included in the EIR analysis of protected public areas within 10 miles of the project site and which could be available for use by Swainson’s hawk nesting within 10 miles of the project site.

A summary of the information sources used in preparation of the Draft EIR analysis of impacts to Swainson’s hawk and golden eagle is provided below. As addressed in the Final EIR Volume 2 in Master Response A and CASHEN-7a-c in Final EIR Volume 1, the substantial evidence assessed to make determinations regarding the significance of the impacts to Swainson’s hawk and golden eagle included the following:
• Site assessment of the project site and spring season site reconnaissance surveys conducted by an HBC Biologist on April 16 and May 24, 2021, which is referenced in the HBC Biological Resources Report appended to the Draft EIR. During the site reconnaissance, Swainson’s hawk and a golden eagle were observed exhibiting foraging behavior over the project site. The site reconnaissance included driving about 10 miles of local roads surrounding the project site to inspect trees for raptor nest structures. No Swainson’s hawk or golden eagle nest structures were observed during either reconnaissance.
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• A protocol nesting survey for Swainson’s hawk conducted by M&A for the Napa Logistics project (adjacent property to the north of the Giovannoni site) in 2016/2017. • Swainson’s hawk and golden eagle data provided in the Biological Resource Reports prepared by M&A for the Devlin Road and Vine Trail Extension project and the Green Island Road Reconstruction and Widening project.
• The Napa Airport Corporate Center Final EIR, which provided an inventory of open space preserve acreage within close proximity to the project site. • Several reports prepared by Swainson’s hawk experts including Dr. Bloom’s 1979 report titled ”The Status of the Swainson’s Hawk; CDFW-led surveys in 1988 and 2005-2007,” which showed a steady increase in Swainson’s hawk breeding pair population when compared to Dr.

Bloom’s 1979 report; Dr. Brett Furnas’ 2022 study titled “ Rapid Growth of the Swainson’s Hawk Population in California Since 2005,” which has yet to be incorporated into CDFW policy. • CDFW’s Life History Account data, which indicates that, like the Swainson’s hawk, the golden eagle feeds on small mammals, reptiles, and birds, as well as on carrion, and forages in a variety of habitats, including grasslands, deserts, savannas, and early successional stages of forests. Like the Swainson’s hawk, the golden eagle can survive on a range of prey in a variety of very different habitats throughout California. Accordingly, for the same reasons the proposed project would not result in an indirect or cumulative loss of Swainson’s hawk foraging habitat, the proposed project also would not result in a significant indirect or cumulative loss of golden eagle foraging habitat.

A recent consultation by HBC with the CNDDB (January 2023) found eight occurrence reports of nest sites used by Swainson’s hawk and four by golden eagles within 10 miles of the project site. One of the Swainson’s hawk nest sites was located east of Interstate 80 (I-80) more than 7 miles southwest of the project site, but the other seven nest sites were located north of the project site between American Canyon and the City of Napa. The four golden eagle nests reported in the CNDDB were located between 3.4 and 7.8 miles from the project site. These seven Swainson’s hawk nest sites documented multiple instances of either attempted or successful nesting by Swainson’s hawk between 2007 and 2013 at locations that are between 1.2 miles and 5 miles north of the project site boundary. A check of recent ebird sightings of Swainson’s hawk in the project area found additional reports of Swainson’s hawk, with evidence of potential nesting in 2016, 2021, and 2022 at locations on Soscol Road and near Sheehy Creek, which are locations also mentioned in the CNDDB reports.

Mr. Cashen cites his research that documents 18 records of active Swainson’s hawk nests over a 5- year period between 2017 and 2022 within 10 miles of the project site and a Swainson’s hawk nest found 0.8 mile from the project site in May of 2022 that was not located during the reconnaissance surveys conducted for the EIR. Surveys conducted for the EIR in April and May of 2021 were not surveys conducted according to CDFW protocol. These surveys found Swainson’s hawk and a golden 3150
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The information included in the Draft EIR that included results of HBC’s reconnaissance surveys, Swainson’s hawk and golden eagle nesting records from the CNDDB, and the data obtained from the aforementioned surveys and reports used in the Draft EIR and Final EIR was sufficient to determine the extent of Swainson’s hawk and golden eagle nests near the project site and to make a determination that impacts to Swainson’s hawk and golden eagle nests as a result of the project were potentially significant and required mitigation. As stated in the Biological Resources Report prepared by HBC regarding Swainson’s hawk: “future nesting in suitable nest trees as close as about

0.5 mile from the Giovannoni Logistics project site cannot be ruled out.” Therefore, recommended mitigation included in Final EIR MM BIO-1a, which required, prior to the start of construction, that a Swainson’s hawk protocol survey be conducted in accordance with the CDFW “Recommended timing and methodology for Swainson’s Hawk Nesting Surveys in California’ s Central Valley.” Note that such protocol surveys conducted prior to construction would determine if active Swainson’s hawk nests are present in the vicinity of the project during the construction period and would trigger appropriate protections as provided by Draft EIR MM BIO-1a to ensure that disturbances to active nests do not occur. Recent additional evidence of the potential for nesting by Swainson’s hawk or golden eagle in the project vicinity–which include updated CNDDB data, recent ebird reports of nesting by Swainson’s hawk in the area, and data mentioned by the commenter regarding additional nesting records within 10 miles of the site and even within 0.8 mile of the site–do not change the findings in the EIR that pre-construction protocol surveys are necessary and, in fact, only serve to reinforce the mitigation measures required by the EIR (and as revised in Response to CASHEN.NOV.15-15 and CASHEN.NOV.15-16).

Response to CASHEN.NOV. 17-8 continued
The commenter suggests that the Draft EIR concluded, without substantial evidence, that the proposed project would not result in significant impacts to foraging habitat for Swainson’s hawk or golden eagle near the project site either directly, indirectly, or cumulatively, and further concluded that, as a result, no mitigation was warranted for loss of foraging habitat for these species.

The loss of potential foraging habitat for Swainson’s hawk is addressed in Master Response A.

Response to CASHEN.NOV. 17-8 continued
The commenter suggests that findings regarding the amount of foraging habitat in protected open space within 10 miles of the project may not be correct. The commenter cites that home ranges are much larger than the 2,000 acres stated as available to Swainson’s hawks in the area and that 2,000 acres may not be enough to support the six active nesting territories currently found in the project vicinity. Mr. Cashen alleges that development of the site would require the hawks to forage further north, traveling greater distances, which could compromise survival. Mr. Cashen also indicates that ebird records suggest that Swainson’s hawks may not be using either the Newell Open Space or Lynch Canyon Open Space areas, which were included in the EIR analysis of protected public areas within 10 miles of the project site and which could be available for use by Swainson’s hawk foraging within 10 miles of the project site.
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This amount of suitable foraging habitat near the site would be available to any Swainson’s hawk nesting near the project site without traveling further north to find suitable foraging areas. The commenter indicates that this amount of foraging habitat would not meet the needs of the six nesting territories for Swainson’s hawk in the project vicinity. Based on the information available from the CNDDB, it appears as though there may be as many as six Swainson’s hawk nesting territories north of the project, but there is nothing in the CNDDB data or ebird data or otherwise that suggests that all six would be active during the same nesting season. In addition, habitat within the Lynch Canyon Open Space consists of rolling hills vegetated with annual grasslands and riparian canyons suitable habitat for foraging by Swainson’s hawks. The Newell Open Space contains some forested area, but the presence of open grasslands within this Open Space area is also capable of supporting foraging by the species. The lack of ebird sightings in either location does not mean that use of these areas for this purpose does not occur.

Response to CASHEN.NOV. 17-8 continued
Mr. Cashen suggests that the 45-acre Wetland Preserve cannot provide foraging habitat for Swainson’s hawk because Swainson’s hawks avoid foraging in built-up areas where high walls inhibit sight and maneuverability necessary for foraging. Other comments (see Comment CBD-18) suggest that the Wetland Preserve would provide less than optimal quality habitat for foraging by Swainson’s hawk because the hawks tend to avoid foraging in wetland habitats.

Mr. Cashen cites that M&A statement regarding the fact that Swainson’s hawk avoid foraging in areas with pre-existing buildings and suggests that the Swainson’s hawk will not use the 45-acre Wetland Preserve as a foraging area. It should be pointed out that the project site itself is surrounded by development, including the buildings for the Napa Logistics project to the north and a wine warehouse to the south, and Swainson’s hawks were observed foraging over the project site every time project Biologists visited the project site during the spring or summer months. It is expected that Swainson’s hawk would use the proposed Wetland Preserve in addition to the adjacent Napa Logistics Park Preserve.

As pointed out in the Draft EIR, suitable foraging areas for Swainson’s hawk include grasslands, pastures, alfalfa and other hay crops, and certain grain and row croplands. While Swainson’s hawk 3152
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Response to CASHEN.NOV. 15-9
The commenter indicates that because some records of nesting by golden eagles are suppressed in the CNDDB, it is necessary to acquire additional information pertaining to golden eagle nesting in the project area. The commenter further indicates that the proposed project would result in a significant cumulative loss of foraging habitat and may result in a “take” of golden eagle as defined by the Golden Eagle Protection Act.

The EIR included readily available information from the CNDDB regarding the location of golden eagle nest sites in the vicinity. This information revealed four golden eagle nest sites within 10 miles of the project site. Among these were an extirpated nest site from 3.2 miles north of the site and an additional nest site within the Newell Open Space approximately 4.5 miles east of the project. This information, coupled with the observation of a golden eagle foraging at the project site during spring surveys conducted by HBC in April of 2021, is sufficient information to make a determination that the proposed project may result in impacts to nesting golden eagle that would be considered potentially significant and requiring mitigation. The Biological Resources Report prepared by HBC makes a statement regarding potential nesting for golden eagle similar to the one made for Swainson’s hawk, namely, that with potential nest trees near the site and known prior nests in the general area of American Canyon, nesting in suitable nest trees near the project site “cannot be ruled out.” Therefore, the Final EIR Volume 1 recommended MM BIO-1b, which requires that, prior to the start of construction, a golden eagle protocol survey be conducted. Note that such a survey conducted prior to construction would determine if active golden eagle nests are present in the vicinity of the project during the construction period and would trigger appropriate protections as provided by MM BIO-1b to ensure that disturbances to active nests do not occur.

The loss of potential foraging habitat for golden eagle is addressed in Master Response A.

The Master Response explains, based on CEQA criteria, why loss of suitable habitat for golden eagle would not cause a substantial adverse impact with respect to the loss of foraging habitat. 3153
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Mr. Cashen indicates that the EIR should note that northern harrier does in fact forage on the project site and explains why, in his opinion, the loss of suitable habitat for this species would cause a substantial adverse impact on the species, including the loss of foraging habitat.

The EIR clearly states that the project site provides suitable nesting and foraging habitat for northern harrier. Northern harrier was observed on the site each time a Biologist visited the site, including foraging individuals in the winter and also during the summer, and it was acknowledged that these individuals seen during summer could represent individuals nesting somewhere in the vicinity of the project. Because of anticipated impacts of the project, the EIR requires MM BIO-2c to conduct preconstruction surveys for northern harrier and establish appropriate buffer zones to protect any nesting pairs encountered. The extensive discussion of the significance of the loss of foraging habitat for Swainson’s hawk contained within Master Response A applies to loss of potential foraging habitat within the project site for northern harrier as well, and explains, based on CEQA criteria, why loss of suitable habitat for northern harrier would not cause a substantial adverse impact on the species, including the loss of foraging habitat.

Response to CASHEN.NOV. 15-11
The commenter indicates that burrowing owl habitat exists on the project site and that a protocol survey for burrowing owls should be conducted to verify whether burrowing owl is present on the site. The commenter also indicates that MM BIO-1d does not ensure that impacts to burrowing owl would be reduced to less than significant levels as greater detail on habitat mitigation that would be provided if burrowing owls were to be found on the site during pre-construction surveys is needed, including performance standards, monitoring and reporting programs, and site management. Mr.

Cashen also indicates that any burrowing owl found would constitute a significant impact, as no breeding burrowing owls and few wintering owls are known from Napa County.

Protocol surveys for burrowing owl were not conducted for this site because habitat assessment conducted for the site during initial site reconnaissance did not find extensive habitat for burrowing owl on the project site. Burrowing owls generally occur in areas with burrows of California ground squirrel that could be occupied by burrowing owl and with low height vegetation near burrows and in foraging areas. Vegetation throughout the site was either vegetation within wetlands (with saturated soils that would not be conducive to creation of ground squirrel dens nor occupation by burrowing owl) or tall-growing upland vegetation of a stature too high to accommodate burrowing owl. Nearly the entire site was devoid of ground squirrels or ground squirrel colonies. As indicated in the Draft EIR, during initial site surveys, ground squirrels were observed only in the vicinity of the rubble pile and compost at the perimeter of Clark’s Rocks along Green Valley Road. Mr. Cashen states that additional ground squirrels were found by him along the northern perimeter of the site (apparently along the border with Napa Logistics). The Draft EIR points out, however, that the project site has been subject to review by Biologists working for four separate biological consulting firms over the 5-year period between 2016 and 2021, and none encountered burrowing owl on the property.

As the majority of the site was characterized by wetlands or high-growing vegetation not conducive to burrowing owl, and as the site was nearly devoid of ground squirrels or ground squirrel colonies, 3154
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MM BIO-1d recommends establishment of appropriate buffer zones around any burrowing owl present at the site during construction activities, and mentions possible passive relocation of a burrowing owl only if found as a wintering species. According to CDFW adopted survey protocol and mitigation guidelines for burrowing owls as described in a March 7, 2012 Staff Report, such a relocation would require consultation with CDFW, preparation of a relocation plan, and habitat compensation. At this juncture, such compensation would only be needed if a decision was eventually made to relocate a wintering owl from a construction site. Given the nature of the on-site habitat, which is for the most part not conducive to occupation by burrowing owl, the fact that burrowing owl is apparently extirpated as a nesting species and nearly extirpated as a wintering species from Napa County (as indicated by the commenter), the remote probability of encountering a wintering owl in the limited areas of suitable habitat during pre-construction surveys, and the speculative nature of whether such events could lead to a decision to passively relocate such an owl, the need for habitat compensation for this project is purely speculative and a remote possibility at best. Certainly, such a speculative venture would not need a detailed plan as part of an EIR to include performance standards, monitoring requirements, management, etc.

Response to CASHEN.NOV. 15-12
The commenter disagrees with the Final EIR Volume 1 Response to Comment CASHEN-12, which addresses the commenter’s concern that the project has the potential to introduce invasive plant species or facilitate their spread during construction. The commenter also criticizes the Response to Comment S&W-10b found in Volume 1 of the Final EIR, and states that MM BIO-3d is not sufficient to reduce the colonization and spread of invasive plants to a level that is insignificant. He states that, whereas the applicant may intend to conduct “weeding” in the managed landscape areas, the removal of invasive plants from those areas is not incorporated as a mandatory (enforceable) mitigation measure.

To address the commenter’s concern, MM BIO-3d has been modified to include language requiring the managed landscaped areas to remove species rated as “high” by the California Invasive Plant Council (Cal-IPC) or on the “Alert” or “Watch” list.

Response to CASHEN.NOV. 15-12 continued
The commenter also suggests all of the plants listed in the Cal-IPC Inventory have the potential to cause significant impacts on the environment, not just those rated as “high” by Cal-IPC.

The commenter is correct any plant that is non-native to a region has the potential to adversely affect the environment. The Cal-IPC rates non-native plants into five categories. The Cal-IPC ratings that have the most impact to the least are listed as follows:
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• Moderate–These species have substantial and apparent—but generally not severe—ecological impacts on physical processes, plant and animal communities, and vegetation structure. Their reproductive biology and other attributes are conducive to moderate to high rates of dispersal, though establishment is generally dependent upon ecological disturbance.

Ecological amplitude and distribution may range from limited to widespread. • Limited–These species are invasive but their ecological impacts are minor on a Statewide level or there was not enough information to justify a higher score. Their reproductive biology and other attributes result in low to moderate rates of invasiveness. Ecological amplitude and distribution are generally limited, but these species may be locally persistent and problematic. • Alert–An Alert is listed on species with High or Moderate impacts that have limited distribution in California, but may have the potential to spread much further. • Watch–These species have been assessed as posing a high risk of becoming invasive in the future in California.

Based on the Cal-IPC rating system, the plants listed as “High” have the potential to cause “severe ecological impacts,” which would be considered a significant impact that requires mitigation. Plants rated as “Moderate” or “Limited” do not pose “severe ecological impacts” but do pose a certain level of risk. Plants rated on the Alert or Watch list may include species with High ratings or species that pose a high risk of becoming invasive in California. To address the commenter’s concern and to ensure consistency, MM BIO-3d has been modified to include a condition which requires the managed landscaped areas and Wetland Preserve to remove species rated as “High” or on the “Alert” or “Watch” list if the plant/s have a 5 percent or greater absolute cover.

Response to CASHEN.NOV. 15-12 continued
The commenter also suggested that the invasive species performance standard would end after the 5-year monitoring period, and expressed concerns that the monitoring required under MM BIO-3d is limited to data collection from at least one, 5-foot radius sample plot at each of the established/created wetlands. Thus, the commenter expressed concern that there would be no monitoring for invasive plants in the majority of the Wetland Preserve, including the upland areas.

Once the Wetland Preserve meets all the performance standards, a long-term management plan will be prepared. Monitoring of invasive species would be included in this long-term management plan.

To address the commenter’s concern, the MM BIO-3d performance standards have been modified to include more coverage over the established/created wetland and include monitoring in the upland areas. The monitoring requirement will include a 5-foot radius sample plot every fifty-feet along a transect through each established/created wetland. In addition, a minimum of three 5-foot radius sample plots on the east side and three on the west side will be placed at random upland locations along a linear transect east to west within the Wetland Preserve. Within the uplands, the 5 percent 3156
City of American Canyon—Giovannoni Logistics Center Project Final EIR–Volume 2 Responses to Written Comments
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The City maintains MM BIO-3d, with the edits referenced in this response, is sufficient to address potential impacts associated with invasive plant species that may be introduced on the landscaped areas within the project site and within the Wetland Preserve to a level of less than significant.

Response to CASHEN.NOV. 15-13
The commenter suggests the Draft EIR’s cumulative impacts analysis is flawed because it applies a narrow scale (i.e., 0.5-mile radius from the project site) to identify other projects that could contribute to cumulative effects for all special-status species analyzed in Draft EIR, not just the Swainson’s hawk. The commenter suggests the proposed Wetland Preserve does not mitigate the impact because it: (a) would be exposed to numerous edge effects (e.g., noise, human activity) that functionally eliminate habitat, (b) would be designed and managed to discourage wildlife use, and (c) is too small to satisfy the habitat patch size requirements of the species that would be impacted by the project (e.g., northern harrier and golden eagle, among others). The commenter also suggested the assertion that “much of that [Swainson’s hawk] foraging habitat is within 0.5- mile of the project site” is not supported by evidence. To the contrary, it is claimed, under the cumulative impacts scenario there will be virtually no foraging habitat remaining within 0.5-mile of the project site.

As stated in the Final EIR Volume 1 Response to CASHEN-13, for Biological Resources, 0.5-mile was used because of the project site’s location between the marshes associated with the Napa River and urban development with the City of American Canyon. The City maintains the use of 0.5-mile radius to assess cumulative effects for all special-status species analyzed was sufficient to support the conclusion in the Draft EIR. As the Draft EIR explained, “[t]he project site is located at the transition between urban development and the marshes associated with the Napa River; accordingly, habitats in these areas tend to be disrupted and impacts would be localized.” (Draft EIR, p. 4-5.) The City does not agree with the commenter’s view that the Wetland Preserve has very limited value for mitigation purposes. As described in Response to AB-8, the 45-acre Wetland Preserve is hydrologically connected to the existing 37-acre Napa Logistics Park Preserve, and is adjacent to and hydrologically connected with the nearby approximately 78,000-acre designated San Pablo Bay Wetlands Important Bird Area. The Wetland Preserve abuts a constructed wetland area within the Biaggi Bros. property separated only by a barbed wire fence, and terrestrial wildlife can move between the 45-acre Wetland Preserve 37-acre Napa Logistics Park Preserve wildlife via a large clear span bridge that crosses under Devlin Road connecting the Wetland Preserve to the Napa Logistics Park. In addition, terrestrial wildlife can continue to access undeveloped parcels to the northeast and southeast by crossing over existing railroad tracks or a culvert that crosses under the railroad tracks.

The City also maintains that the Wetland Preserve and wetlands that will be established within the Wetland Preserve will adequately mitigate the project’s biological impacts. 3157
City of American Canyon—Giovannoni Logistics Center Project Responses to Written Comments Final EIR–Volume 2
3-134 FirstCarbon Solutions https://adecinnovations.sharepoint.com/sites/PublicationsSite/Shared Documents/Publications/Client (PN-JN)/5460/54600001/EIR/4 - Final EIR - Vol II/54600001 Sec03-00 Responses to Written Comments.docx The commenter’s assertion that “under the cumulative impacts scenario there will be virtually no foraging habitat remaining within 0.5-mile of the project site” is demonstrably inaccurate. The 45- acre Wetland Preserve will provide foraging habitat for Swainson’s hawk, northern harrier, and golden eagle, among other avian species. Coupled with the 37-acre Napa Logistics Park Preserve, the 45-acre Wetland Preserve will create a combined total of 82 acres of “preserved” foraging habitat within the 0.5-mile radius. In addition, as supported by the commenter’s Figure 6, there remains a significant amount of farmed land suitable as foraging habitat for the Swainson’s hawk, northern harrier, and golden eagle within the 0.5-mile radius. Based on the commenter’s Figure 6, excluding the areas the commenter asserts are not suitable foraging habitat, there are approximately 339 acres of potential foraging habitat, plus the 45-acre Wetland Preserve and 37-acre Napa Logistics Park Preserve, for a total of 412 acres of potential foraging habitat exclusively within the 0.5-mile radius.

As was discussed both in Section 3.3 (Biological Resources) of the Draft EIR (see esp. p. 3.3-24) and in Master Response A (Swainson’s Hawk and Other Raptors) in the Final EIR Volume 2, there is abundant protected habitat for Swainson’s hawk and golden eagle to access outside of the 0.5-mile radius from the project site. Indeed, there are several thousand acres of preserved land suitable for foraging habitat within 2 to 5 miles of the project site. This is in addition to the approximately 412 acres of suitable foraging habitat within the 0.5-mile radius geographic scope of the City’s cumulative impacts analysis. Taken together, the existence of all of this foraging habitat in the general vicinity of the project supports the City’s conclusion that the project will result in less than cumulatively considerable impacts on Swainson’s hawk foraging habitat and that, as a result, no mitigation is warranted. The same is true for golden eagle, northern harrier, and other avian species that forage on the project site.

Response to CASHEN.NOV. 15-14
The commenter suggests that construction setback distance should pre-construction surveys discover a nesting golden eagle are smaller than that recommended by USFWS or CDFW guidelines, and suggests that the 1,000-foot buffer distance referenced in the EIR was based on previous evaluations conducted for the City of American Canyon by M&A. The commenter suggests that a buffer zone distance used by the above-referenced agencies, which is based on best available scientific information, should be used instead.

The 1,000-foot buffer zone distance used in the EIR for golden eagle was, at least in part, based on a variety of environmental documents that had been previously prepared for the City of American and had been implemented by the City in the past. The Final EIR Volume 1 indicates that the 1,000-foot buffer distance used in the EIR is a minimum that could be increased by the qualified Raptor Biologist and recognizes the USFWS and CDFW buffer distances of 1 mile for golden eagle. In recognition of this, the minimum buffer distance cited in MM BIO-1b has been revised to be consistent with agency guidelines. MM BIO-1b is also revised to accommodate the comment in CASHEN.NOV. 15-14 regarding the qualifications of the qualified Raptor Biologist. MM BIO-1b is revised as follows:

MM BIO-1b No more than 30 days prior to the first ground disturbance activity, pre-construction golden eagle nesting surveys shall be conducted in the project vicinity by a qualified 3158
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Preconstruction surveys shall include investigation of all potential nesting trees within a survey area determined by the qualified Raptor Biologist, but no less than a 1 mile radius around all project activities. If active golden eagle nests are identified within any trees within the survey areas a 1 mile radius of the project site, a qualified Raptor Biologist shall establish a protection buffer of approximately 1 mile that is adequate to ensure noise or activity from the proposed project would not cause nest disturbance of young or adult bird mortality. Buffer zones may vary in size as some golden eagles are more acclimated to disturbance than others. Size of buffer zone may be modified by the qualified Raptor Biologist considering the type of construction activity that may occur and the behavioral factors and extent that golden eagle may have acclimated to disturbance. No construction or earthmoving activity shall occur within the established buffer zone until it is determined by a qualified Raptor Biologist that the young golden eagles have fledged or that the nesting cycle is complete based on monitoring of the active nest by the qualified Biologist.

Response to CASHEN.NOV. 15-15
The commenter questions qualifications for the qualified Raptor Biologist of 2 years of experience surveying for and detecting nesting golden eagles.

A requirement that the qualified Raptor Biologist have at least 2 years of experience surveying for and detecting nesting golden eagles is not out of the mainstream for qualifications necessary to conduct such surveys. Nevertheless, the minimum qualifications for the Raptor Biologist to conduct golden eagle surveys has been modified as indicated in Response to CASHEN.NOV. 15-14.

Response to CASHEN.NOV. 15-16
The commenter suggests that construction setback distance should pre-construction surveys discover a nesting Swainson’s hawk is smaller than that recommended by USFWS or CDFW guidelines, and suggests that the 1,000-foot buffer distance referenced in the EIR was based on previous evaluations conducted for the City of American Canyon by M&A. The commenter suggests use of a buffer zone distance used by the above-referenced agencies (0.25 mile for projects in urbanized areas), which is based on best available scientific information, should be used instead.

The 1,000-foot buffer zone distance used in the EIR for Swainson’s hawk was, at least in part, based on a variety of environmental documents that had been previously prepared for the City of American and had been implemented by the City in the past. The Final EIR indicates that the 1,000-foot buffer distance used in the EIR is a minimum that could be increased by the qualified Raptor Biologist and recognizes the USFWS and CDFW buffer distances of 0.25-mile for Swainson’s hawk. In recognition of this, the minimum buffer distance has been revised to be consistent with agency guidelines. The minimum qualifications for the Raptor Biologist to conduct Swainson’s hawk surveys has been modified as was also done for golden eagle surveys described in Response to CASHEN.NOV. 15-14. 3159
City of American Canyon—Giovannoni Logistics Center Project Responses to Written Comments Final EIR–Volume 2
3-136 FirstCarbon Solutions https://adecinnovations.sharepoint.com/sites/PublicationsSite/Shared Documents/Publications/Client (PN-JN)/5460/54600001/EIR/4 - Final EIR - Vol II/54600001 Sec03-00 Responses to Written Comments.docx The surveys required in the EIR are to be conducted in accordance with CDFW’s “Recommended Timing and Methodology for Swainson’s Hawk Nesting Surveys in California’s Central Valley” (CDFW 2000). The protocol recommends a preliminary (optional survey) between January and March 20, but required surveys conducted during March 20 to April 5, April 5 to April 20, and June 10 to July

30. These pre-construction surveys shall include investigation of all potential nesting trees within

0.5-mile radius around all project activities and shall be completed for at least two survey periods immediately prior to commencement of project construction.

MM BIO-1a is revised as follows:

MM BIO-1a Pre-construction surveys for Swainson’s hawk shall be conducted in the project site vicinity prior to initiation of project construction activities and each year following initiation of construction if project activities are delayed or discontinued for 7 or more days prior to the first required survey period (March 20 to April 5) and are scheduled to recommence construction activities during the second survey period but before August 1. These pre-construction surveys shall include investigation of all potential nesting trees within a half-mile radius around all project activities and shall be completed for at least two survey periods immediately prior to commencement of project construction. Surveys shall be conducted in accordance with CDFW’s “Recommended timing and methodology for Swainson’s Hawk Nesting Surveys in California’s Central Valley” (CDFW 2000) to maximize the potential for locating nesting Swainson’s hawk and reduce the potential for nest failures due to project activities and/or disturbances.

If no nesting Swainson’s hawk are found during the first or second required survey periods starting March 20 and extending to April 20, then project construction may commence. If during the third survey (June 10 to July 30) Swainson’s hawk are found to be nesting in the project vicinity and construction has commenced, it shall be assumed the Swainson’s hawk commenced nesting and thus the Swainson’s hawk are habituated to the ambient level of noise and disturbance emanating from the project site. If Swainson’s hawk are found to be nesting within 0.25 mile of the project site, a non-disturbance buffer shall be established to keep all construction activities a minimum of 0.25 mile from the nest site. The CDFW shall be consulted regarding the adequacy of the buffer established by the qualified Raptor Biologist. At that time the necessity for acquiring a Fish and Game Section 2081 Incidental Take Permit (ITP) authorization would be determined. An ITP authorization shall be required if there were a valid concern the project activities would result in the “take” of an adult Swainson’s hawk, eggs, or nestlings.

Surveys shall be conducted by a qualified Raptor Biologist with at least a minimum of a 4-year college degree in wildlife biology or related environmental science, familiarity with Swainson’s hawk and its local ecology, and 2 years of experience surveying for and detecting Swainson’s hawk pursuant to “Recommended timing and methodology for Swainson’s Hawk Nesting Surveys in California’s Central Valley” survey protocol. No disturbance such as construction or earthmoving activity shall 3160
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Response to CASHEN.NOV. 15-17
The commenter indicates that greater information is needed to ensure significant impacts are mitigated if a passive relocation program is initiated to relocate an owl wintering on the site within a proposed construction zone. The commenter states his opinion that a 100-foot buffer zone to protect a burrowing owl, if found on the site near proposed construction, is less than CDFW guidelines and may not be as sufficient to protect an occupied burrow.

For additional information related to details needed to ensure impacts are mitigated to levels of insignificance should a passive relocation program be necessary, please refer to Response CASHEN.NOV. 15-11 above. Also note that as a Species of Special Concern, burrowing owl is not a listed species and the CDFW adopted survey protocol and mitigation guidelines for burrowing owl as described in the March 7, 2012 Staff Report are guidelines and not legal requirements. Guidelines for buffer zones to protect nesting burrowing owl (ranging between 50m to 500m depending on time of year and disturbance level) are more rigorous than for an occupied burrow during the winter. A 100- foot buffer zone for an occupied burrow in the winter is typical and would be considered a minimum. The buffer zone could be modified by the qualified Raptor Biologist considering the type of construction activity that may occur, as well as behavioral factors and extent that burrowing owl may have acclimated to disturbance.

Response to CASHEN.NOV. 15-18
The commenter indicates that the buffer zone requirements to protect active nests of nesting birds is inadequate.

In response to the commenter’s concerns, MM BIO-4 has been clarified to increase the required setback from active nests of birds protected by the Migratory Bird Treaty Act and California Fish and Game Code.

MM BIO-4 If construction occurs during the breeding season of migratory and resident birds (February 1 to August 31), a qualified Biologist shall conduct a pre-construction breeding bird survey in areas of suitable habitat within 7 days prior to the onset of construction activity. Surveys shall be conducted within the project footprint and 100 50 feet from the construction limits for nesting passerines, 250 feet from the construction limits for nesting accipiters and a minimum of 500 feet from the construction limits for nesting raptors. If the survey area is found to be absent of nesting birds, no further mitigation would be required. However, if construction activities are delayed by more than 7 days, an additional nesting bird survey shall be performed. If bird nests are found, appropriate buffer zones shall be established around all active nests to protect nesting adults and their young from direct or indirect impacts related to project construction disturbance. Size of buffer zones shall be determined per recommendations of the qualified Biologist based on-site conditions and species involved, but typical buffers around active nests are 500 feet 3161
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5188-013acp
KEVIN T. CARMICHAEL
CHRISTINA M. CARO
THOMAS A. ENSLOW
KELILAH D. FEDERMAN
RICHARD M. FRANCO
ANDREW J. GRAF
TANYA A. GULESSERIAN
RACHAEL E. KOSS
AIDAN P. MARSHALL
TARA C. RENGIFO
Of Counsel
MARC D. JOSEPH
DANIEL L. CARDOZO

SACRAMENTO OFFICE
520 CAPITOL MALL, SUITE 350
SACRAMENTO, CA 95814-4721
TEL: (916) 444-6201
FAX: (916) 444-6209

ADAMS BROADWELL JOSEPH & CARDOZO A PROFESSIONAL CORPORATION

ATTORNEYS AT LAW
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SOUTH SAN FRANCISCO, CA 94080-7037
___________
TEL: (650) 589-1660
FAX: (650) 589-5062
[email protected]
printed on recycled paper

December 6, 2022
Via Email and Overnight Mail
Mayor Leon Garcia
Vice Mayor Mariam Aboudamous
Honorable Members of the City Council
City of American Canyon City Hall
4381 Broadway Street
American Canyon, CA 94503
Email: [email protected];
[email protected];
[email protected];
[email protected];
[email protected]
Brent Cooper, AICP
Community Development Director
William He, Associate Planner
Nicole Jones, Administrative
Technician
Community Development
Department
City of American Canyon
4381 Broadway Street, Suite 201
American Canyon, CA 94503
[email protected];
[email protected];
[email protected]
Re: Agenda Item 17 –December 6, 2022 City Council meeting--Comments on Giovannoni Logistics Center Project proposed by Buzz Oates Construction, Inc. (PL20-0042, PL20-0043 and SCH #2021010104) Dear Mayor Garcia, Vice Mayor Aboudamous, Honorable City Council Members, Mr. Cooper, Mr. He and Ms. Jones:

We are writing on behalf of Napa/Solano Residents for Responsible Development (“Napa/Solano Residents”) to provide comments on the Giovannoni Logistics Center Project, PL20-0042, PL20-0043 and SCH #2021010104, (“Project”) The Project appears as Item 17 on the agenda for the December 6, 2022 City of American Canyon (“City”) City Council (“Council”) hearing. The Council will consider adopting resolutions to (1) certify the Final Environmental Impact Report (“FEIR), adopt CEQA findings of fact, adopt a Statement of Overriding Considerations and adopt a Mitigation Monitoring and Reporting Program; (2) approve a design permit for Phase 1 of the Project; and (3) approve a Tentative Parcel Map for Phase 1 of the Project.
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