American Canyon City Council
March 21, 2023

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The City, as lead agency under the California Environmental Quality Act1 (“CEQA”), prepared the Draft Environmental Impact Report (“DEIR”)2 and Final Environmental Impact Report (“FEIR”) for the Project. Napa/Solano Residents’ July 2022 comments on the DEIR (including expert technical comments)3 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 including wetlands, greenhouse gas (“GHG”) and transportation impacts, without which the public and decisionmakers were unable to adequately assess the Project’s significant impacts. Residents’ comments further explained that, 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 DEIR inadequate for purposes of compliance with CEQA.

The City released the FEIR in November 2022. The FEIR contains responses to Napa/Solano Residents’ DEIR comments and attempts to address some of the issues raised. As discussed in our November 17, 2022 letter to the Planning Commission4, however, the FEIR fails to meaningfully respond to many of Residents’ DEIR comments and fails to resolve or mitigate many of the Project’s potentially significant impacts. In particular, the FEIR fails to analyze or even mention the construction of a new road that runs directly through the Project’s proposed 45-acre open space/wetlands preserve, an area intended to serve as mitigation for the Project’s wetlands impacts. Moreover, the FEIR acknowledges, but fails to correct, significant errors in the mapping of the Project site’s existing wetland areas. The FEIR remains deficient as a matter of law and the Planning Commission’s recommendation for Council to certify the FEIR and approve the Project was not based on substantial evidence.

On December 2, 2022, we received a letter from American Canyon City Attorney William Ross, in which Mr. Ross advised that he and City staff “will recommend that the December 6, 2022 City Council Hearing on the Giovannoni 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 July 20, 2022 letter from Richard M. Franco to Brent Cooper and Nicolle Jones re Comments on the Draft Environmental Impact Report – Giovannoni Logistics Center Project proposed by Buzz Oates Construction, Inc.
4 November 17, 2022 letter from Richard M. Franco to City of American Canyon planning Commission re Jones re Comments on the Draft Environmental Impact Report – Giovannoni Logistics Center Project proposed by Buzz Oates Construction, Inc. 3164
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Logistics Center Project Final Environmental Impact Report, be continued to the February 21, 2023, City Council meeting.”5 We agree with the recommendation to continue the hearing on this Project to February or later, so that the City may revise and recirculate the EIR to address its numerous deficiencies and produce for public review any proposed development agreement for the Project. We reserve the right to supplement these comments at any later hearings and proceedings related to the Project.6

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 and would be directly affected by the Project’s environmental and health and safety 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.

II. THE CITY MUST REVISE AND RECIRCULATE THE EIR TO

ADDRESS SIGNIFICANT NEW INFORMATION INVOLVING
CHANGES TO THE PROJECT’S ENVIRONMENTAL SETTING.

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 5 Exhibit A, December 2, 2022 letter from William D. Ross to Richard M. Franco. 6 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.
7 Pub. Resources Code § 21092.1; 14 CCR § 15088.5.
8 14 CCR § 15088.5(a).
9 Id.
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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 A. There Is A Significant Change To The Project’s Environmental Setting.

In our comments to the Planning Commission, we explained that 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 gravel 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 road is a fundamental change in the baseline conditions at the Project site which affects the EIR’s underlying analysis of the Project’s wetland impacts and reduces the feasibility and efficacy of the EIR’s proposed wetland mitigation.

The approximate extent of the new road and associated earth disturbance is depicted in the following image provided by Ms. Corbin, in which the new road’s impacts are overlayed on an FEIR image showing the wetland mitigation plan.15 (A larger version of this image is attached hereto as Exhibit B.) 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. 13 See Cashen FEIR Comments (Exhibit B to 11/16/22 Franco letter), pg. 1. 14 Id. 15 See Corbin FEIR Comments (Exhibit A to 11/16/22 Franco letter), pg. 11; the original image is Exhibit 3.3-4 to the DEIR.
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Nowhere in the EIR is this new road disclosed. It was not identified in the DEIR’s Project description or environmental setting discussion, and was not addressed in the DEIR’s impacts analysis or mitigation discussion, nor did it appear in any of the aerial photos or diagrams in the DEIR. The public was therefore uninformed about the road during the DEIR’s public comment period. Nor has the City subsequently disclosed this information to the public or attempted to assess its impacts in the FEIR. It remains conspicuously absent from all of the FEIR’s 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.

As Mr. Cashen pointed 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, 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). 3167
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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.19 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.20 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.21 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.”22 Finally, heavy equipment used to construct the road compacted soils within the earth disturbance footprint, limiting root establishment and plan growth in the area.23 These disturbances will make it significantly more difficult to create wetlands on site and to replace the lost functions of the impacted wetlands.24 None of these impacts were 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 17 Cashen FEIR Comments, pg. 1.
18 Id.
19 The wetland preserve is proposed to be established pursuant to mitigation measures MM BIO-3a3d; see DEIR, pgs. 3.3-30—3.3-37. 20 Corbin FEIR Comments, pg. 11.
21 Id. 22 Id.
23 Id. 24 Id.
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impacts.25 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 could 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 wetland 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.

Even after all of the foregoing issues were raised at the November 17, 2022 Planning Commission hearing on this Project, the City has not addressed them.

The staff report to the Council for this hearing makes no effort to answer or even to acknowledge the serious questions raised with respect to the new road’s impacts.

The Council should instruct staff to revise and recirculate the EIR to address these matters.

B. It is Irrelevant Whether the New Gravel Road was Approved in Connection with a Different Project Because the City has Never Disclosed or Analyzed the Road’s Impacts on this
Project.

At the November 17 Planning Commission hearing, it was disclosed that the new gravel road was a maintenance road constructed in connection with new wastewater and recycled water pipelines constructed across the Giovannoni Project site pursuant to the approved EIR for the neighboring Napa Logistics Park Phase 2 project (“Napa Logistics Project”) immediately to the north.26 On November 18, Napa/Solano Residents sent a California Public Records Act (“PRA”) request to the City requesting, inter alia, immediate access to all documents relating to construction of parallel wastewater and recycled water pipelines and associated maintenance road constructed on the Project site in connection with the Napa Logistics Project.
25 14 CCR § 15125.
26 The Giovannoni Logistics Center Draft EIR (“DEIR”) mentions that these two pipelines were constructed across the Project site in Spring 2021, in connection with the Napa Logistics Project. (DEIR, pg. 2-1). Again, there is no mention of a gravel road in the DEIR or FEIR, nor is it depicted in any of the photos, drawings or diagrams of the Project site. 3169
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On November 22, November 29, December 1 and December 2, the City produced certain documents responsive to Napa/Solano Residents’ PRA request.

While it remains unclear whether all responsive documents have been produced, especially with respect to the new gravel maintenance road, the documents produced to date appear to confirm that the new pipelines were constructed in connection with the Napa Logistics Project. For example, the Napa Logistics Project EIR includes discussion of construction of new recycled water and wastewater pipelines that would be constructed as part of “off-site utility work,” and would run through north to south through the Giovannoni Project site to connect to a new sewer pump station at Green Island Road, near the Giovannoni property’s southern boundary.27 Notably, the Napa Logistics Project EIR includes mitigation measures to avoid impacts of pipeline construction on Giovannoni property wetlands, but does not discuss or analyze a gravel maintenance road.

The City’s PRA document production also included a January 30, 2020 Property Acquisition Agreement, pursuant to which the Giovannoni Project site property owners granted a number of easements to the City.28 One of the easements is a sewer easement that appears to correspond to the new pipelines constructed in connection with the Napa Logistics Project EIR. Neither the Agreement nor its exhibits refer to a gravel maintenance road alongside or atop the new pipelines.

The City also produced a series of approved technical drawings, dated June 11, 2021, that relate to the new Green Island Road Sewer Pump station.29 These drawings include depictions of the new sewer pipelines installed within the sewer easement, as well as a 17’ gravel sewer access road running through the Giovannoni Project site from north to south, also within the sewer easement.30 Finally, the City produced an October 10, 2022 engineering consultant report regarding the completed construction of the Green Island Road Sewer Pump station and the new pipelines running through the Giovannoni property.31 This report describes the project as including “construction of the new pump station and associated sanitary sewer line. A gravel access road was constructed on top of 27 Exhibit C, Excerpts from Napa Logistics Park Phase 2 DEIR, at pgs. 2-29, 2-30, 3.3-18, 3.3-34— 36, and Appendix J-3.
28 Exhibit D, January 30, 2020 Property Acquisition Agreement. 29 Exhibit E, June 11, 2021 Approved Technical Drawings. 30 See e.g., Exhibit E, Sheets C2.1 and C2.2.
31 Exhibit F, October 10, 2022 letter re Geotechnical Observation and Testing Services, Green Island Pump Station and Sanitary Sewer.
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majority of the sanitary sewer for maintenance access.”32 The report also notes that the construction included “access road subgrade and aggregate base compaction.”33 While the City’s document production sheds some light on the purpose of the construction of the new gravel road across the Property site, major legal and factual questions remain unanswered. The City was obviously aware that new pipelines and a maintenance road would be built through the Project site, but didn’t even attempt to analyze the impacts of those activities with respect to the Giovannoni Project, including the Project’s proposed wetlands preserve. The glaring CEQA deficiency raised at the Planning Commission remains: the FEIR fails to disclose critical information relating to the Project’s environmental setting and the feasibility of a proposed wetlands mitigation plan that ignores the construction of a road running through the area slated to be preserved as open space in perpetuity.

This is a major informational and evidentiary deficiency in the FEIR which requires recirculation.

The City or the Applicant may contend that no further CEQA review is required because the road was analyzed in another CEQA document, the Napa Logistics Project EIR. But prior CEQA review of the road is immaterial to the issue raised by Napa/Solano Residents. The issue is not whether the road was properly entitled before it was constructed. Even if the new gravel access road was properly approved and permitted in connection with another project, the issue remains that the road was never disclosed or analyzed in connection with this Project; such disclosure and analysis is essential because the existence of the road has a direct effect on the City’s wetland impact analysis and wetland mitigation measures proposed in the Giovannoni EIR. Regardless of whether the road was legally constructed, the fact remains that the EIR for the Giovannoni Project never disclosed that the road would be constructed across the property, including across the new proposed wetland preserve. The City’s entire wetlands mitigation plan is therefore in serious doubt, and for this reason alone the Council may not certify the FEIR.

C. The Project’s Wetlands Mitigation Plan has Additional Serious Flaws.

In our DEIR comments (including technical comments by wetlands biologist Sarah Corbin), we detailed at length the deficiencies in the DEIR’s wetlands impact analysis and the lack of evidence demonstrating that the proposed wetlands mitigation would be effective. The FEIR fails to adequately address those concerns, 32 Id., pg. 1.
33 Id.
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as we explained our FEIR comments to the Planning Commission. Those errors include the following.

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 FEIR acknowledged the wetland delineation errors pointed out by Ms. Corbin, but asserted that the errors “do not undermine the analysis or conclusions in the DEIR” because the DEIR had not relied on the City’s consultant’s delineation report.34 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.35 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.36 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).”37
The fact that the Corps carried the City’s consultant’s errors into its AJD doesn’t change the fact that the FEIR’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 FEIR. In order to certify the FEIR and approve the Project, the Council must certify that it has reviewed and considered the information in the FEIR, and that the FEIR reflects its “independent judgment and analysis.”38 The Council, as final decision maker for the lead agency, may not base its certification upon an admittedly erroneous wetlands delineation made by another agency. The City, as lead agency, owes a duty to the public under CEQA to release a proper EIR,39 and is ultimately responsible for the EIR’s contents. 34 FEIR, pg. 3-296—3-297.
35 Corbin FEIR comments, pg. 2.
36 Id.
37 Id.
38 14 CCR §15090(a)(2) and (3).
39 Mission Oaks Ranch, Ltd. V. County of Santa Barbara (1998) 65 Cal.App.4th 713,723. 3172
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Additional flaws in the DEIR’s wetlands analysis and mitigation were detailed at length in our prior comments and were not resolved in the FEIR. These include:
 The FEIR lacks a proper functional assessment of the Project site’s existing wetlands and therefore no functional impact analysis was performed. Without a formal functional assessment of the Project’s wetlands, the Project’s impacts simply cannot be accurately analyzed.  Without a full understanding and characterization of the Project site’s wetlands’ functions, those functions cannot be replaced through mitigation nor can appropriate mitigation be devised or evaluated.  The FEIR lacks a quantitative analysis of the sources of water for the Project site’s wetlands, which is essential to design proper on-site wetland mitigation. Without a pre- and 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.

These numerous deficiencies make clear that the FEIR’s analysis and mitigation of the Project’s significant impacts to wetlands do not comply with CEQA.

III. THE CITY MUST PRODUCE ANY PROPOSED DEVELOPMENT

AGREEMENT FOR PUBLIC REVIEW PRIOR TO APPROVING 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.40 Neither the DEIR nor the FEIR contain any mention of a development agreement. However, on the City’s Active Community Development Project list dated November 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.41 40 DEIR, pgs. 2-10 – 2-11.
41 https://www.cityofamericancanyon.org/home/showpublisheddocument/18493/637989446453530000 3173
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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.42 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.43 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.44 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.

Napa/Solano Residents’ November 18, 2022 PRA request included a request for any proposed development agreement for the Project, documents submitted in connection with any application for such agreement and related correspondence.

The City produced a small number of documents in response, including an application for a development agreement relating to the Project, but no agreement was produced. We requested clarification regarding whether any documents responsive to this request had been withheld on grounds of privilege or exemption.45 The City responded that no responsive documents had been withheld.46 If the City intends to enter a development agreement with respect to the Project, the proposed agreement must be disclosed to the public and analyzed in the EIR before the City can consider certification of the FEIR and approval of the Project. 42 Gov. Code §§ 65864-65869.5.
43 Id. 44 See Gov. Code § 65864; 14 CCR §§15352(a), (b), 15378; Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116.
45 Exhibit G, November 23, 2022 letter from Richard M. Franco to William D. Ross. 46 Exhibit H, November 29, 2022 letter from William D. Ross to Richard M. Franco. 3174
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IV. CONCLUSION
For the foregoing reasons, Residents supports a hearing continuance. The Council may not certify the FEIR, nor issue the Project’s other approvals, until the FEIR complies with CEQA. The Council 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
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EXHIBIT A
3176
William D. Ross
David Schwarz
Kypros G. Hostetter
Law Offices of
William D. Ross
400 Lambert Avenue
Palo Alto, California 94306
Telephone: (650) 843-8080
Facsimile: (650) 843-8093
www.lawross.com
Los Angeles Office:

P.O. Box 25532
Los Angeles, CA 90025
File No: 199/6.81
December 2, 2022

VIA E-MAIL
[email protected]
Richard M. Franco, Esq.

Adams Broadwell Joseph & Cardozo
601 Gateway Bvld., Suite 1000
South San Francisco, CA 94080-7037
Re: Request for Public Records Dated November 18, 2022; Documents Related to the Giovannoni Logistics Center Project; Fourth Response; Notice of Recommendation of Continuance of December 6, 2022 Hearing to February 21, 2023 Dear Mr. Franco:

On behalf of the City of American Canyon (“City”), this letter is the third communication responding to your request for immediate access to records made under the Public Records Act, Government Code Section 6250, et seq. (“PRA”) dated November 18, 2022 on behalf of the Napa/Solano Residents for Responsible Development regarding documents related to the Giovannoni Logistics Center Project, PL20-0042; PL20-0043 and SCH No. 2021010104 (“Project”) proposed by Buzz Oates Construction, Inc. (“Applicant”) (the “Request”). On November 22 we transmitted an initial response, and supplemented that response on November 29, 2022, and again on December 1, 2022.

Pursuant to the telephonic conversation had with this office and yours on December 1, 2022, and your follow up email of the same day, below are further responsive documents.

Responsive Documents
The following documents are being made available at the previous link sent in a subfolder entitled “12.2.22”:

1. CDFW Permit;

2. 2022.10.10_Napa Sewer Pump Station Close Out Letter;

3. 3257-60 City of American Canyon - Pipeline Crossing - American Canyon, CA;

4. Approved Devlin Road and Vine Trail Ext;

5. Approved GIR Pump Station_2021-06-10;
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December 2, 2022

6. Geotech Report Cornerstone 582-2-2 NLP Phase 2 GI & FI rpt072916;

7. GIR Pump Station and Sanitary Sewer CS Final Summary Letter 10102022;

8. Napa Logistics Park Phase II IP – Signed;

9. Napa Logistics Pump Station Basis of Design Report 06022021;

10. NLPS AsBuilt Certification SW;

11. UPRR Permit for Sewer Crossing; and

12. VV4297 Sewer Crossing Geotech Review.

The records may be accessed by clicking here.

If you have further information and/or authority which you believe requires disclosure of additional records under the PRA, we will review that information and/or authority.

Recommendation of Continuance of City Council Hearing
In addition, please be advised that City Staff, including this office, will recommend that the December 6, 2022 City Council Hearing on the Giovannoni Logistics Center Project Final Environmental Impact Report, be continued to the February 21, 2023, City Council meeting.

If upon review you have questions, please contact our office.

Very truly yours,
William D. Ross
City Attorney
WDR:KGH
cc: Taresa Geilfuss, City Clerk
Brent Cooper, Director of Community Development
Erica Smithies, Public Works Director
Cherri Walton, Deputy City Clerk
City of American Canyon
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EXHIBIT B
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November 2022 Markup Legend
Note: Extents of 'Earth Disturbance' and 'New Road' were digitized by Shannon & Wilson using Google Earth imagery dated June, 2022 and are approximate. Base map is georeferenced Exhibit 3.3-4 in the City of American Canyon- Giovannoni Logistics Center Project Draft EIR (FirstCarbon Solutions, 2022)
Earth Disturbance
New Road
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EXHIBIT C
Due to file size, this exhibit can be viewed via Dropbox link 3181

EXHIBIT D
Due to file size, this exhibit can be viewed via Dropbox link 3182

EXHIBIT E
Due to file size, this exhibit can be viewed via Dropbox link 3183

EXHIBIT F
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Date: October 10, 2022
Project No.: 582-2-14
Prepared For: Mr. Ernie Knodel

ORCHARD PARTNERS, LLC
3697 Mt. Diablo Boulevard, Suite 200
Lafayette, California, 94549
Re: Geotechnical Observation and Testing Services
Green Island Pump Station and Sanitary Sewer
Green Island Road
American Canyon, California
Introduction
In this letter we summarize the results of our geotechnical observation and testing services at the referenced development. We previously performed a geotechnical and fault investigation for the development and presented the results in our July 29, 2016 report titled, "Geotechnical and Geologic Fault Investigation, Napa Logistics Park – Phase 2 Devlin Road, American Canyon, California."
Project Description
The project included construction of the new pump station and associated sanitary sewer line.

A gravel access road was constructed on top of majority of the sanitary sewer for maintenance access. Also, new sections of water line, and electrical were also constructed for the pump station. New sections of sidewalk and driveway were also constructed at the pump station.

Other improvements necessary for site development were also constructed.

Scope of Services
Our geotechnical observation and testing services began June 24, 2021 and included utilities, road subgrade and aggregate base, and, flatwork subgrade and aggregate base and lasted until August 23, 2022, the date of our last requested site visit. The scope of our construction observation and testing services for geotechnical aspects of this project included a combination of part- and full-time observation and testing on an on-call basis as set forth in our agreement with you. A general list of construction work involving our geotechnical engineering services is presented below.

1. Placement and compaction of utility trench backfill.

2. Flatwork and pavement subgrade preparation and compaction.

3. Placement and compaction of flatwork and pavement aggregate base.

4. Access road subgrade and aggregate base compaction
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Project No.: 582-2-14 2 October 10, 2022
Services Performed
During construction, we provided geotechnical observation services along with periodic field density testing at various locations and elevations across the site. Our observations and field density test results were recorded in the Daily Field Reports (DFR), Nos. 132 through 245, for the period from June 24, 2021 through August 23, 2022. Laboratory testing consisted of 6 compaction curve tests. These tests were conducted for the various fill materials used at the site. Records of the field density tests and laboratory testing are kept in our files for a period of three years after completion of the project and are available for your review, if desired.

Meaning of “Observation”
"Observation", as used in this document, means that we observed the progress of the work on an intermittent basis, and performed tests on selected soil and rock materials. Our opinion about the general conformance of geotechnical aspects of construction to the project plans and specifications is based on these observations and test results.

Opinion
Based on our field observations and test results, it is our opinion that the geotechnical aspects of the construction for the project that we observed and tested have been performed in general conformance with the project plans and specifications.

Closure
Our geotechnical services, including our professional opinions and conclusions, are made for the sole use of Orchard Partners, LLC, in accordance with generally accepted soil and foundation engineering principles and practices in the San Francisco Bay Area at this time.

However, we do not undertake the guarantee of any aspects of the construction that we observed and tested, nor do we relieve the contractor of his primary responsibility to produce a completed project conforming to the project plans and specifications. No warranties are either expressed or implied.

Should you have any questions, or if we can be of further service, please contact us at your earliest convenience.

Sincerely,
Cornerstone Earth Group, Inc.

Nicholas S. Devlin, P.E.

Principal Engineer
NSS:SPM
Copies: Addressee (1 by email)
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EXHIBIT G
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5188-011j
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
T E L : ( 9 1 6 ) 4 4 4 - 6 2 0 1
F A X : ( 9 1 6 ) 4 4 4 - 6 2 0 9

ADAMS BROADWELL JOSEPH & CARDOZO

A PROFESSIONAL CORPORATION

A T T O RN E Y S A T L A W
6 0 1 G A T E W A Y B O U L E V A R D , S U I T E 1 0 0 0 S O U T H S A N F R A N C I S C O , C A 9 4 0 8 0 - 7 0 3 7 ___________
T E L : ( 6 5 0 ) 5 8 9 - 1 6 6 0
F A X : ( 6 5 0 ) 5 8 9 - 5 0 6 2
r f r a n c o @ a d a m s b r o a d w e l l . c o m
printed on recycled paper
November 23, 2022
Via Email
William D. Ross
Law Offices of William D. Ross
400 Lambert Avenue
Palo Alto, CA 94306
[email protected]
Re: Giovannoni Logistics Center Project proposed by Buzz Oates Construction, Inc. (PL20-0042, PL20-0043 and SCH #2021010104) Dear Mr. Ross:

Thank you for your November 22 letter responding to our November 18 immediate access Public Records Act (“PRA”) request.

With respect to the documents produced in response to our Request No. 1, please confirm whether that production includes all responsive documents, or whether responsive documents were withheld on privilege or PRA exemption grounds. If documents responsive to Request No. 1 were withheld, please identify the specific privilege or exemptions on which the City relies.

With respect to the timing of the City’s document production, if the City does not intend to schedule the Project for consideration by the City Council on December 6, your anticipated schedule of rolling production beginning no later than the middle of next week is acceptable, assuming that production will be complete at least two weeks prior to any scheduled City Council hearing for the Project. As you know, we requested immediate access to the records on November 18, which was more than two weeks prior to the next regularly scheduled City Council hearing date. The purpose of our request was to immediately access public records necessary to foster informed public participation and to enable the decision makers to consider the environmental factors necessary to make a reasoned decision on the Project, and to support that decision with substantial evidence. Documents responsive to our Request No. 2 (relating to the pipelines and maintenance road) relate to significant 3188
November 23, 2022

5188-011j
new information not disclosed or analyzed in the DEIR or FEIR. I also note that the Napa Logistics Park Phase II EIR and related documents, which discussion at the November 17 Planning Commission hearing disclosed as relevant to the pipeline and road issue for the Giovannoni Project, are unavailable on the City’s website. Therefore, your anticipated schedule of rolling production beginning no later than the middle of next week is acceptable so long as access to responsive records is provided at least two weeks prior to any hearing for the Project.

Please feel free to contact me to discuss.

Sincerely,
Richard M. Franco
cc: Brent Cooper
Community Development Director
[email protected]
Taresa Geilfuss
[email protected]
Cheri Walton
[email protected]
3189

EXHIBIT H
3190
William D. Ross
David Schwarz
Kypros G. Hostetter
Law Offices of
William D. Ross
400 Lambert Avenue
Palo Alto, California 94306
Telephone: (650) 843-8080
Facsimile: (650) 843-8093
Los Angeles Office:

P.O. Box 25532
Los Angeles, CA 90025
File No: 199/6.81
November 29, 2022

VIA E-MAIL
[email protected]
Richard M. Franco, Esq.

Adams Broadwell Joseph & Cardozo
601 Gateway Bvld., Suite 1000
South San Francisco, CA 94080-7037
Re: Request for Public Records Dated November 18, 2022; Documents Related to the Giovannoni Logistics Center Project; Second Response
Dear Mr. Franco:

On behalf of the City of American Canyon (“City”), thisletter is the second communication responding to your request for immediate access to records made under the Public Records Act, Government Code Section 6250, et seq.1 (“PRA”) dated November 18, 2022 on behalf of the Napa/Solano Residents for Responsible Development regarding documents related to the Giovannoni Logistics Center Project, PL20-0042; PL20-0043 and SCH No. 2021010104 (“Project”) proposed by Buzz Oates Construction, Inc. (“Applicant”) (the “Request”). On November 22 we transmitted an initial response, among other things, providing documents responsive to Request category 1 below.

The Request requested:

1. Any proposed Development Agreement for the Project, including the proposed Development Agreement referenced in the City of American Canyon's list of Active Community Development Projects dated September 20221, all documents submitted in connection with any application for Development Agreement, and all related correspondence;

2. All documents and correspondence, including any permits issued by the City of American Canyon or any other governmental entity, relating to the construction of parallel wastewater and recycled water pipelines and associated maintenance road constructed on the Project site in connection with the Napa Logistics Park Phase II project;
1 All section references will be to the Government Code, unless otherwise noted. 3191
November 29, 2022

3. Any permits, applications for permits and other documents and correspondence submitted to the United States Army Corps of Engineers with respect to the Project and/or Project site;

4. Any permits, applications for permits and other documents and correspondence submitted to the Regional Water Quality Control Board with respect to the Project and/or Project site.

Timing of Document Releases
Regarding the timing of the release of the requested records, please note that even requests for “immediate” access are subject to implied rules of reason to protect records against damage or theft, prevent interference with the orderly function of agency staff, and to allow an agency a reasonable opportunity to search for, collect, and if necessary, redact exempt information prior to the records being disclosed in an inspection. (Bruce v. Gregory (1967) 65 Cal.2d 666, 676; Rosenthal v. Hansen (1973) 34 Cal.App.3d 754, 761; 64 Ops.Cal.Atty.Gen. 317 (1981)).

Thus in addition to the responsive documents below, we continue to search City records in various departments for additional responsive records.

Responsive Documents and Clarification Needed
Given the contents of the DEIR and FEIR describing the Project environmental setting, further specification of your request is needed regarding Request Category 2. Notwithstanding the aforementioned clarification, records we believe may be responsive to Request Category 2 may be accessed by clicking https://app.box.com/s/5kvceoov8xq225l90v7usbpqkko3z41c.

Regarding Request Categories 3 and 4, given the contents of the DEIR and FEIR please further define your request with respect to the US Army Corps of Engineers and Regional Water Quality Control Board.

Pending the clarifications noted above, with respect to all Request Categories, we are actively searching City records for non-exempt responsive documents, which will be furnished to you as soon as possible, if any are found.

If you have further information and/or authority which you believe requires disclosure of additional records under the PRA, we will review that information and/or authority.

Law Governing PRA Exemptions
With respect to documents produced pursuant to this communication, although no documents have been withheld under applicable exemptions, it is noted that any further public records that may be located that are responsive to the Request may be withheld or redacted under any applicable privilege or exemption under the PRA or other applicable law as discussed further below and as may be further asserted after the search for responsive public records is complete. 3192
November 29, 2022

The City objects to releasing any City draft documents which may be exempt from disclosure as “preliminary drafts, notes or inter-agency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business. (Section 6254(a)).

Also, the PRA specifically exempts from disclosure:
“records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”
(Section 6254(k)).

The City will exempt records to the extent that the disclosure of such records is exempt or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege. (Gov Code Section 6254(k)). Information transmitted between a client and their attorney in confidence (including, but not limited to, legal opinions and advice) is privileged and is not required to be disclosed. Disclosure of such records may also be prohibited. (Evid. Code sections 950-962; Bus. & Prof. Code section 6068). This exemption protects from disclosure the entirety of confidential communications between attorney and client, including factual and other information not in itself privileged outside of attorney-client communication. (Costco Wholesale Corporation v. Superior Court (2009) 47 Cal.4th 725, 733; Fireman’s Fund Insurance Company v. Superior Court (2011) 196 Cal.App.4th 1263, 1272-75; Clark v. Superior Court (2011) 196 Cal.App.4th 37, 49-54.). Similarly, the PRA protects from disclosure under any circumstances, any “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories” and any other information that constitutes attorney work product under Civil Code of Procedure section 2018.030.

The Attorney Work Product Doctrine applies to:
(a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.
(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice. (Code Civ. Proc., § 2018.030)
Therefore, emails and communications sent by City staff and public officials to and from the City Attorney are protected by the attorney-client and attorney work-product privileges and will not be disclosed.

The City also objects to releasing any draft documents which may be exempt from 3193
November 29, 2022

disclosure as “preliminary drafts, notes or inter-agency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business. (Section 6254(a)).

Again, it is noted that no documents related to Request Category 1 disclosed in the initial City Request response nor any documents produced in this communication were withheld under applicable exemptions.

If upon review you have questions, please contact our office.

Very truly yours,
William D. Ross
City Attorney
WDR:KGH
cc: Taresa Geilfuss, City Clerk
Brent Cooper, Community Development Director
Cherri Walton, Deputy City Clerk
3194
City of American Canyon—Giovannoni Logistics Center Project Final EIR–Volume 2 Responses to Written Comments
FirstCarbon Solutions 3-171 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 Adams Broadwell (AB-DEC. 6)3
Note to Reader: Portions of this letter reiterate comments verbatim or nearly verbatim from the November 17, 2022 letter. In the interests of avoiding redundancy, identical comments are noted as such.

Response to AB-DEC. 6-1
This comment is nearly identical to Comment AB-NOV. 17-1. Refer to Response to AB-NOV. 17-1.

Response to AB-DEC. 6-2
This comment is nearly identical to Comment AB-NOV. 17-2. Refer to Response to AB-NOV. 17-2.

Response to AB-DEC. 6-3
This comment is nearly identical to Comment AB-NOV. 17-3. Refer to Response to AB-NOV. 17-3.

Response to AB-DEC. 6-4
This comment is nearly identical to Comment AB-NOV. 17-4. Refer to Response to AB-NOV. 17-4.

Response to AB-DEC. 6-5
This comment is nearly identical to Comment AB-NOV. 17-5. Refer to Response to AB-NOV. 17-5.

Response to AB-DEC. 6-6
The commenter asserted that it is irrelevant whether the new gravel road was approved in connection with a different project because the City did not disclose or analyze the roads impacts on the proposed project.

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

Response to AB-DEC. 6-7
The commenter claimed that the project’s wetlands mitigation plan has serious flaws.

Wetlands are addressed in Master Response C-Wetlands.

Response to AB-DEC. 6-8
This comment is nearly identical to Comment AB-NOV. 17-6. Refer to Response to AB-NOV. 17-6.

Response to AB-DEC. 6-9
The commenter provided closing remarks. No response is necessary.

Response to AB-DEC. 6-Attachments
The commenter provided copies of correspondence from the City Attorney and technical reports associated with the utility lines and unpaved road.

The utility lines and unpaved road are addressed in Master Response B. 3 The law firm of Adams Broadwell submitted comments on behalf of Napa/Solano Residents for Responsible Development. 3195

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1 Send all notices & correspondence to:

Friends of the Swainson’s Hawk
8867 Bluff Lane
Fair Oaks, CA 95628
916-769-2857
email: [email protected]
January 9, 2023
Brent Cooper
Director of Community Development
City of American Canyon
4381 Broadway, Suite 201
American Canyon, CA 94503
Via email [email protected]
Re: Giovannoni Logistics Center Project, Final Environmental Impact Report, SCH No. 2021010104, City of American Canyon, Napa County
Dear Mr. Cooper:

Friends of the Swainson's Hawk is a citizen advocacy group for conservation of the state listed Swainson hawk. Since 1994, we have monitored and commented on CEQA documents in the range of the California Swainson's hawk. There is more information about us at www.swainsonshawk.org. We learned of this project in December of 2022 and therefore were unable to comment on the Draft EIR.

We understand that you have extended comment on the FEIR for Giovannoni Logistics Center into February, 2023. This letter explains why we believe adoption of the FEIR and the project would be contrary to state law, and we urge you to correct the FEIR to conform to the requirements of the California Environmental Quality Act (CEQA).

Please send notices of any hearings and availability of documents to us as follows: Friends of the Swainson's Hawk, 8867 Bluff Lane, Fair Oaks, CA. 95628, [email protected].
3197
2 The project site is 208 acres, primarily grassland. Biological review documented the presence of northern harrier, Golden eagle and Swainson's hawk foraging on site in April, 2021. The biological review noted that these species are known to nest in Napa County.

We have reviewed the California Department of Fish and Wildlife's December 2, 2022 letter to you on the FEIR. The Department found that the City's environmental review was inadequate to address impacts of the Swainson's Hawk. City's finding in the FEIR that the impacts on Swainson's hawk, a state listed "threatened" species, are less than significant is not supported by substantial evidence and is contrary to applicable law.

The California Department of Fish and Wildlife ("CDFW")performed a Status Review titled "SWAINSON’S HAWK (Buteo swainsoni) IN CALIFORNIA (Reported to California Fish and Game Commission) 2016 FIVE-YEAR STATUS REPORT (attached). That Report, at page 4, stated:
"the Department recommends retaining the Threatened classification for this species based on the following:
• On-going cumulative loss of foraging habitats throughout California • Significantly reduced abundance throughout much of the breeding range compared to historic estimates
• An overall reduction in the hawk’s breeding range in California " (CDFW, id, p. 4.) Central to the Department's review was the finding that "The primary threat to the Swainson’s hawk population in California continues to be habitat loss, especially the loss of suitable foraging habitat, but also nesting habitat in some portions of the species’ breeding range due to urban development and incompatible agriculture." (CDFW, id, p. 3.) The proposed project would remove 154.7 acres of Swainson's hawk foraging habitat without providing compensatory permanent conservation of like foraging habitat. CDFW has also identified a cumulative loss of habitat from similar projects in the vicinity for which the City has failed to require mitigation. The cumulative impact is significant to the loss of foraging habitat for the Swainson's hawks nesting in the vicinity of the proposed project, which is on the western edge of the Swainson's hawk range. Loss of these nestlings due to lack of prey availability could likely affect the range of the Swainson's hawk in California.

The City has stated in its response to comments in the Final EIR that "there is no potential for significant indirect or cumulative impacts associated with habitat for Swainson's hawk in the area and the proposed project would not add to any such impact." There is a lack of substantial evidence to support this conclusory statement. CDFW has identified cumulative loss of habitat to which this project contributes. (See attached CDFW letter.) 3198
3 There is a direct and cumulative impact on Swainson's hawk foraging habitat and the City is obligated to require mitigation to reduce that impact to less than significant. The Department has recommended that permanent conservation of at least 154.7 acres of like habitat would be necessary to reduce impacts to less than significant.

I. The Significance of CDFW Admonition re Failure to Mitigate for Removal Swainson's Hawk Foraging Habitat
“CEQA requires a mandatory finding of significance if a project’s impacts to threatened or endangered species are likely to occur (Sections 21001 [c], 21083, Guidelines Sections 15380, 15064, 15065). Impacts must be avoided or mitigated to less than significant levels unless the CEQA Lead Agency makes and supports Findings of Overriding Consideration.” (The Staff Report Regarding Mitigation for Impacts on Swainson’s Hawk in the Central Valley of California, California Department of Fish and Game, November 8, 1994, page 4) The City must take into account that the Department under state law is the Trustee Agency and Responsible Agency for listed species under the California Endangered Species Act. The Department advised the City, as it routinely has advised local governments throughout the range of the Swainson's hawk in California, to include Swainson's hawk foraging habitat mitigation as described in the Staff Report Regarding Mitigation for Impacts to Swainson's Hawks (CDFG, 1994) to reduce impacts to foraging habitat to less than significant. This guidance ensures that project throughout that range meet consistent standards for mitigation.

The FEIR states that the project area is foraging habitat for Swainson's hawk but claims that impacts of the project to Swainson's hawk are not significant because preserved foraging habitat exists in the area. The presence of preserved habitat in the area does not reduce the significance of the project's permanent removal of over 154 acres of foraging habitat currently available to nesting pairs in the region.

There is no authority for City's novel assertion that mitigation for loss of SWH foraging habitat is not required if preserves of foraging habitat exist in the area. Nor is there authority for the proposition that loss of SWH foraging habitat which is near habitat preserves is less than significant.

This finding directly contradicts the recommendations of the California Department of Fish and Wildlife in their Guidance (CDFG, 1994) and in their letter to the City on this project. The Department guidance does not depend on whether there is available land for foraging to determine appropriateness of mitigation for loss of foraging habitat to urban use. The Department's guidance is based on the project distance from known nesting sites.

II. Specific Requirements for Foraging Habitat Mitigation Measures The City must adopt a legally adequate mitigation monitoring or reporting program in compliance with CEQA. (CEQA Guidelines, § 15074, subd. (d).) To comply with CEQA “[t]he 3199
4 reporting or monitoring program shall be designed to ensure compliance during project implementation.” (Pub. Resources Code, § 21081.6, subd. (a)(1); CEQA Guidelines, §§ 15074, subd. (d), 15097, subd. (a).) The City may not simply rely on a “summary” that merely relists the various mitigation measures in the absence of a discussion of implementation or evidence that the measures will be enforced.

CEQA requires that mitigation measures be capable of enforcement. To ensure that mitigation achieves the less than significant impact threshold, both the location of the mitigation lands, the conservation easement and the conservation operator should be approved by the California Department of Fish and Wildlife. Mitigation for loss of foraging habitat requires that a conservation easement held by a credible conservation manager, including an endowment for the permanent enforcement and monitoring of the habitat mitigation easement, be recorded prior to the issuance of a development permit.

The CDFW has a model easement which can be utilized with willing agricultural land owners.

The Swainson's hawk foraging habitat easement differs from an agricultural land conservation easement primarily in the addition of restrictions against orchards and vineyards and other crop types that interfere with foraging for small rodents.

We recommend that the City or developer may want to contact California Farmland Trust for more information about how that nonprofit can provide conservation easement services to the developer and County. The contact information is:

Charlotte Mitchell, Executive Director
California Farmland Trust
P.O. Box 1960
Elk Grove, CA 95759
[email protected]
P: (916) 687-3178 | C: (916) 544-2712
There are other land management conservation operators who can provide services to ensure CEQA mitigation is provided for loss of foraging habitat. We also have a model conservation easement for Swainson's hawk foraging habitat that we can provide you.

III. CEQA Standards
A CEQA lead agency must approve mitigation measures sufficient to reduce potentially significant impacts “to a point where clearly no significant effects would occur.” (Cal. Code Regs. tit. 14 (“CEQA Guidelines”), § 15070, subd. (b)(1) (emphasis added).) This is assured by incorporation into a Mitigation Monitoring and Reporting Plan (“MMRP’). (CEQA, § 21081.6(a)(1).) “The purpose of these requirements is to ensure that feasible mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded.” (Federation of Hillside & Canyon v. City of Los Angeles (“Federation”) (2000) 83 Cal.App.4th 1252, 1261.)
3200
5 The City attempts to avoid this state imposed legal obligation by claiming that loss of foraging habitat for the Swainson's hawk is not significant. Yet the state, over the last forty years, has established repeatedly, with scientific evidence, that loss of foraging habitat of the Swainson's hawk can have significant impacts on the species.

Consider that CEQA Guideline 15065(a)(1) and (3) requires that: "A lead agency shall find that a project may have a significant effect on the environment and thereby require an EIR to be prepared for the project where there is substantial evidence, in light of the whole record, that any of the following conditions may occur:
"(1) The project has the potential to substantially degrade the quality of the environment; substantially reduce the habitat of a fish or wildlife species; cause a fish or wildlife population to drop below self-sustaining levels; threaten to eliminate a plant or animal community; substantially reduce the number or restrict the range of an endangered, rare or threatened species; or . . . ."
(2) . . .
"(3) The project has possible environmental effects that are individually limited but cumulatively considerable. “Cumulatively considerable” means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.

Substantial evidence which mandates the application of CEQA Guideline 15065(a)(1) and especially 15065(a)(3) is set forth in CDFW's "Five Year Status Review for Swainson's Hawk, 2016, ATTACHED, which found that "The primary threat to the Swainson's Hawk population in California continues to be habitat loss, especially the loss of suitable foraging habitat, but also nesting habitat in some portions of the species breeding range due to urban development and incompatible agriculture. This impact may have been the greatest factor in reducing Swainson's Hawk range and abundance in California over the last century." CDFW id p. 3. See also discussion at pages 4, 9, 10, 11,
The Department has advised the City that the loss of foraging habitat due to the project is significant and has advised the City that reduction of the impacts to less than significant requires at least 155 acres of suitable mitigation land permanently preserved.

In conclusion, the law requires that an EIR be prepared to ensure that all project impacts are assessed and mitigated to less than significant. If Swainson's Hawk foraging habitat will be lost to the species as a consequence of project approval by the City, the City is obligated under CEQA to include the mitigation recommended by the Department. 3201
6 Sincerely,
James P. Pachl Judith Lamare
C:
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Attachments:

California Department of Fish and Wildlife, December 2, 2022, letter to Mr. Cooper California Department of Fish and Wildlife, "SWAINSON’S HAWK (Buteo swainsoni) IN CALIFORNIA (Reported to California Fish and Game Commission) 2016 FIVE-YEAR STATUS REPORT
California Department of Fish and Wildlife, Staff Report regarding Mitigation for Impacts to Swainson's Hawks (Buteo swainsoni) in the Central Valley of California (1994) 3202
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CALIFORNIA DEPARTMENT OF

FISH AND WILDLIFE

WILDLIFE AND FISHERIES DIVISION

NONGAME WILDLIFE PROGRAM
1812 Ninth Street
Sacramento, California 95814
Status Review:

SWAINSON’S HAWK (Buteo swainsoni)

IN CALIFORNIA
Reported to:

California Fish and Game Commission
2016

FIVE-YEAR STATUS REPORT
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Status Review of Swainson’s Hawk in California
April 11, 2016
2 Table of Contents
I. COMMON NAME, SCEINTIFIC NAME AND CLASSIFICATION...............................3 II. RECOMMENDED ACTION ..............................................................................................3 III. SUMMARY OF REASONS FOR RECOMMENDED ACTION ......................................3 IV. SPECIES DESCRIPTION AND BIOLOGY ......................................................................4 V. HABITAT REQUIREMENTS ............................................................................................7 VI. NATURE AND DEGREE OF THREAT............................................................................9 Climate Change......................................................................................................................... 11 Renewable Energy Facilities..................................................................................................... 12 Disease ...................................................................................................................................... 12 Contaminants............................................................................................................................ 12 Other Direct Mortality Agents.................................................................................................. 13 Stochastic Events...................................................................................................................... 13 VII. HISTORICAL AND CURRENT DISTRIBUTION .........................................................13 Historical Distribution (pre-1980) ............................................................................................ 13 Current Distribution (post-1980) .............................................................................................. 14 VIII. HISTORICAL AND CURRENT ABUNDANCE ............................................................17 Historical Abundance................................................................................................................ 17 Current Abundance ................................................................................................................... 17 IX. POPULATION TREND ....................................................................................................18 X. EXISTING MANAGEMENT EFFORTS .........................................................................21 Regulations, Protections, and Conservation ............................................................................. 21 Conservation Plans.................................................................................................................... 22 XI. DATA GAPS .....................................................................................................................22 XII. INFORMATION SOURCES.............................................................................................23 3205
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April 11, 2016
3 I. COMMON NAME, SCEINTIFIC NAME AND CLASSIFICATION
Common Name: Swainson’s Hawk
Scientific Name: Buteo swainsoni
Current Classification: State Threatened
II. RECOMMENDED ACTION
The California Department of Fish and Wildlife (Department) recommends that Swainson’s Hawk retain threatened status under the California Endangered Species Act.

III. SUMMARY OF REASONS FOR RECOMMENDED ACTION
The Swainson’s Hawk was listed as a threatened species by the California Fish and Game Commission in 1983, pursuant to the California Endangered Species Act (CESA; Title 14, California Code of Regulations, §670.5(b)(5)(A)). The last status review was completed in 1993 (California Department of Fish and Game 1993). Timely 5-year status reviews have not been possible due to budget, staff, and workload priorities.

The primary threat to the Swainson’s Hawk population in California continues to be habitat loss, especially the loss of suitable foraging habitat, but also nesting habitat in some portions of the species’ breeding range due to urban development and incompatible agriculture. This impact may have been the greatest factor in reducing Swainson’s Hawk range and abundance in California over the last century (California Department of Fish and Game 1993, California Department of Conservation 2011).

Urban development continues to reduce Swainson’s Hawk foraging habitat in the Central Valley, particularly in the southern Sacramento Valley (California Department of Conservation 2011). Swainson’s Hawk densities are the greatest in this portion of their range, particularly in Sacramento, Yolo, and San Joaquin Counties (see Figure 2). While the Swainson’s Hawk is a focus of planning efforts, current General Plans within Sacramento and San Joaquin counties contain goals of converting large areas of natural and agricultural lands that contain suitable Swainson’s Hawk foraging habitat to urban features that do not provide foraging habitat (Sacramento County 2011, San Joaquin County 1992). San Joaquin County, however, does have in place an approved Habitat Conservation Plan under which Swainson’s Hawk preservation is a major emphasis. In Yolo County, one of the densest areas of hawk territories in the State, current policies focus on preserving both agriculture and Swainson’s Hawk foraging habitat. Current efforts under the developing Yolo County Natural Heritage Program (http://www.yolohabitatconservancy.org/) are aimed at maintaining this focus into the 3206
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April 11, 2016
4 future, thereby potentially lessening the long-term impacts to the species once the plan is approved and implemented.

Agricultural cropping patterns directly influence the distribution and abundance of the Swainson’s Hawk in the Central Valley (Estep 1989). Swainson’s Hawks can forage in natural grasslands, pasture, hay crops, and some irrigated crops but do not preferentially forage in other agricultural crops such as orchards and vineyards once these crops develop their typical canopy (Estep 2009, Swolgaard et al. 2008). This dependence on land use patterns poses a continuing vulnerability for a large percentage of the remaining population based on current trends toward cultivation of largely incompatible crop-types such as orchards and vineyards (California Department of Conservation Agricultural Land Mapping 2010). Compatible crop types do, however, provide a very important benefit to the species (Estep 2008). The lack of suitable nesting habitat throughout much of the San Joaquin Valley, due to conversion of riparian systems and woodland communities to agriculture, also limits the distribution and abundance of Swainson’s Hawks (California Department of Fish and Game 1993). The loss of historic sagesteppe/grassland foraging habitat may also be a significant factor in a continuing decline of Swainson’s Hawks in portions of the Great Basin and Mojave Desert regions of the state (California Department of Fish and Game 1993). Disturbances on the hawk’s Mexican and South American wintering grounds, or during migration, may also contribute to population declines (Goldstein et al. 1996, Sarasola et al. 2005).

At this time, the Department recommends retaining the Threatened classification for this species based on the following:
• On-going cumulative loss of foraging habitats throughout California • Significantly reduced abundance throughout much of the breeding range compared to historic estimates
• An overall reduction in the hawk’s breeding range in California IV. SPECIES DESCRIPTION AND BIOLOGY
The Swainson’s Hawk is a medium-sized raptor with relatively long, pointed wings that curve up while in flight (California Department of Fish and Game 1993). There are three main plumage morphological types: light, rufous, and dark, with several intermediates (Woodbridge 1985). Light morph adults have dark heads, a light chin, and a dark breast band, set off distinctively from the lighter colored belly. In dark morph adults, however, the entire body of the bird may be a drake brown to sooty black. The cere (the fleshy region at the base of the upper bill) is bright yellow and set off distinctively from the dark head. The throat is white or partially white in dark morph adults and the wings are bicolored underneath, with the wing linings generally lighter than the dark, and with gray flight feathers. The light colored leading edge of the wing is a diagnostic feature.

Juveniles have the same characteristic underwing markings; however there is more spotting and streaks on the breast and sides than adults (Bechard et al. 2010). Adults generally weigh from 550 to 1100 grams (19 to 39 oz); females, which range between 650 and 1100 grams (23 to 39 oz), are heavier than males, which range from 550 to 850 3207
Status Review of Swainson’s Hawk in California
April 11, 2016
5 grams (19 to 30 oz) (Anderson pers. comm. 2012, Bradbury pers. comm. 2012, Estep pers. comm. 2012). Butte Valley hawks in northeastern California seem to be slightly larger than in other areas of the state, with females from 880 to 1300 grams, and males from 620 to 970 grams (Briggs pers. comm. 2012).

The Swainson’s Hawk was historically a species adapted to open grasslands and prairies, but it has become increasingly dependent on agriculture as native plant communities have been converted to agricultural lands (California Department of Fish and Game 1993).

This bird also forages in large numbers in managed wetlands during the dry summer months when the vegetation in these wetlands is being mowed or disced (Feliz pers. comm. 2012). The diet of the Central Valley population is varied. The California vole (Microtus californicus) is the staple of the diet; however, a variety of other small mammals, birds, and insects are also taken (Estep 1989).

The Swainson’s Hawk breeds in the western United States, and Canada (California Department of Fish and Game 1993). Its winter range occurs in isolated areas of California, Mexico and Central America, through South America and as far south as Argentina (Bechard et al. 2010, Kochert et al. 2011). Generally the Swainson’s Hawk is found in wintering areas from early November through mid-March (England et al. 1997, Kochert et al. 2011, Bradbury pers. comm. 2012). In 1997, six Swainson’s Hawks from the Central Valley were fitted with satellite transmitters and tracked to determine routes of migration and the locations of wintering areas (Bechard et al. 2010). Central Valley birds were located wintering in a region north of Mexico City, Mexico, and near Bogota, Colombia (England et al. 1997), although a hawk from northeastern California was tracked to Argentina during the winter of 1996 (Feliz pers. comm. 2012). One unpublished telemetry study found that Central Valley hawks mostly winter in Central Mexico, but some also end up in central and northern South America (Anderson pers. comm. 2014). A current telemetry study on hawk in the Natomas area of California, has tracked several birds (N= 2 to 4) to Argentina, while the remaining birds went to northern South America, Central America, and Mexico (Anderson pers. comm. 2014). After their long migration north, Swainson’s Hawks arrive at their breeding sites in the Central Valley between March and April (Bechard et al. 2010).

Swainson’s Hawks are generally monogamous, with some undocumented cases of polyandry (Briggs pers. comm. 2012), and show a high degree of site fidelity by returning to the same territory year after year (England et al. 1997, Bechard et al. 2010).

Breeding pairs begin to build nests soon after they arrive at their territory, and lay eggs between late-March to early-April (England et al. 1997, Bradbury pers. comm. 2012).

Clutch size is between 1 and 4 eggs, but most often 2 or 3 eggs are laid (Bechard et al. 2010). The incubation period lasts 34-35 days (Bechard et al. 2010). The young typically fledge from the nest about 6 weeks after hatching, but may leave the nest as early as 5 weeks old and remain on nearby branches (Bradbury pers. comm. 2012). Craighead and Craighead (1956) reported fledging success of 0.6 young per pair. Studies conducted in the Sacramento Valley reported an average of 1.4 to 1.8 young per successful nest (Estep 2008). In the Butte Valley, Briggs (2007) found productivity to be at 2.01 fledged young per successful breeding attempt. Throughout California, most young have fledged by 3208
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6 mid- to late-August, at which point pre-migratory groups begin to form (Bechard et al. 2010). In the Central Valley most young fledge during the first part of July (Bradbury pers. comm. 2012). Migration back to the wintering grounds begins mid-August, and by October most hawks have left California (Kochert et al. 2011).

Several studies on breeding home range have been conducted on California’s Swainson’s Hawk population. In the Central Valley, home range size varies from 2760 to 4038 ha, with a relatively smaller home range size of 405 ha found in the Butte Valley (Table 1).

Home range size is thought to be related to quality of, and distance to foraging habitat (Estep 1989, Babcock 1995, Bechard et al. 2010).

Home Range Size (ha) Area Reference
2760.4 Central Valley Estep 1989
405 Butte Valley Woodbridge 1991
4038.4 Central Valley Babcock 1995
3265.4 Central Valley Sernke 1999
Table 1. Home range for the Swainson’s Hawk in California.

Swainson’s Hawks in the Central Valley often nest at the periphery of riparian forests or in riparian corridors where they have greater access to foraging areas, but virtually any suitable tree may be used (Estep 1989, England et al. 1995, Bechard et al. 2010). Hawks will also use lone trees in agricultural fields or pastures, and roadside trees when they are adjacent to suitable foraging habitat (Estep 1989, Anderson et al. 2007). Estep (1989) found Valley oak (Quercus lobata), Fremont cottonwood (Populus fremontii), walnut (Juglans sp.), and willow (Salix sp.) are the most commonly used nest-tree species, with an average height ranging from 12.6 to 25 m (41.3 to 82.0 ft), Similarly, Anderson et al. (2007) found Valley oak, cottonwood, willow and Eucalyptus spp. were more frequently used, with an average height between 14.8 to 16.2 m (48.6 to 53.1 ft).

In the Great Basin, Swainson’s Hawks occupy the juniper/sagebrush community typical of the area; however, much of the lowlands have been converted to agriculture (Bloom 1980, Woodbridge et al. 1995). Junipers (Juniperus occidentalis), with an average height of 4.6 m (15.0 ft), are most commonly used as nest trees in the Great Basin (California Department of Fish and Game 1993). The diet of the Great Basin population consists largely of montane meadow voles (Microtus montanus) and Belding’s ground squirrels (Spermophilus beldingi) (California Department of Fish and Game 1993).

Other areas in California inhabited by small populations of Swainson’s Hawk include the isolated desert areas in the Mojave National Preserve regions of the western Mojave Desert, the greater Antelope Valley near Lancaster, and in the Owen’s Valley along the eastern edge of the Sierra Nevada (see Figure 2). Joshua tree (Yucca brevifolia), ornamental trees, and lone trees along roadsides or on private property are commonly used as nest trees in these regions (Bloom 1980).
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7 V. HABITAT REQUIREMENTS
Large open areas of suitable foraging habitat with abundant and available prey base in association with suitable nesting habitat are basic requirements for the successful reproduction of Swainson’s Hawk (Estep 1989). Historically, the natural foraging habitat of the Swainson’s Hawk was primarily open stands of grass-dominated vegetation and relatively sparse shrublands (Bloom 1980, Bechard et al. 2010). However, much of the original foraging habitat in California has been converted to either urban landscapes or agricultural production. Consequently, the Swainson’s Hawk has shifted its foraging strategy to rely more heavily on agricultural crops (Bloom 1980, Estep 2009).

Today, suitable foraging habitat includes a variety of agriculture crops, grassland, and pasture. In the Central Valley, Swainson’s Hawks forage more often in mixed agricultural lands that support irrigated hay crops (e.g. alfalfa), as well as dryland pasture, grassy ruderal lots, and some irrigated crops, due to a higher accessibility and relative abundance of prey (Bloom 1980, Estep 1989, Babcock 1995, Smallwood 1995, Swolgaard et al. 2008, Anderson et al. 2011). Alfalfa fields are more routinely used by foraging Swainson’s Hawks than any other crop type (Bloom 1980, Woodbridge 1985, Estep 1989, Babcock 1995, Sernka 1999, Swolgaard et al. 2008, Anderson et al. 2011).

Anderson et al. (2011) reported that 63% of observed foraging occurred in alfalfa.

The ability of the hawk to use agricultural crops for foraging is dependent on a complex interaction of crop structure and the timing of agricultural practices (Bechard 1982, Schmutz 1987, Estep1989, Woodbridge 1991, Smallwood 1995, Sernka 1999, Estep 2009). Prey species may be displaced during irrigation, burning, and harvesting activities, which often allows for ample foraging opportunities for Swainson’s Hawks and other predators (Sernka 1999). The availability of prey is also largely dependent on the crop structure. Certain crops provide improved foraging opportunities for Swainson’s Hawks due to high prey numbers, low vegetation structure, and favorable farming practices (e.g. mowing, irrigating; Estep 1989, Babcock 1995, Sernka 1999, Swolgaard et al. 2008, Estep 2008, Estep 2009). Some crops and managed wetlands are useful in foraging for a period after harvest, but may remain relatively unavailable in other periods of crop growth; likewise, other crops are available early in the season when a less dense vegetative structure and shorter height allows for access to prey (England pers. comm. 2012, Feliz pers. comm. 2012).

In a report to the Yolo Natural Heritage Program, Estep (2009) described the relative value (low to high) of vegetative structure and accessibility of different agricultural crop types in Yolo County to foraging Swainson’s Hawk. Based on two main components, prey accessibility and prey availability, Estep (pers. comm. 2012) places high value on alfalfa, and on wheat, tomatoes, and beets during harvest; moderate value on irrigated and non-irrigated pasture, grasslands, and some other annually rotated crops; low value safflower, sunflower, corn and rice; and little to no value on orchards and vineyards.

The variety of habitats used for foraging by this hawk suggests that maintenance of large heterogeneous areas of agricultural habitats and grasslands, which include a high 3210
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8 percentage of alfalfa, should be a priority for conservation of the species (Swolgaard et al. 2008, Estep 2009, Anderson et al. 2011).

Unsuitable or low value foraging habitat includes any habitat which does not support adequate prey abundance, as well as any habitat in which prey are inaccessible to foraging hawks due to vegetation characteristics (e.g. vineyards, mature orchards, cotton fields, dense or tall vegetation). For example, orchards and vineyards in general are not suitable foraging habitat for Swainson’s Hawk due to the dense woody cover making prey unavailable (Estep 1989, Babcock 1995). In a study to ascertain the extent of vineyard use by Swainson’s Hawk in the Central Valley, Swolgaard et al. (2008) observed relatively low foraging levels in vineyards and stated that “large contiguous areas of vineyards are likely unsuitable for foraging by Swainson’s Hawk at a population level.”
Suitable nesting habitat includes trees within mature riparian forest or corridors, lone oak trees and oak groves, and mature roadside trees. It is thought that trees on the periphery of riparian habitat are preferred by Swainson’s Hawk (Estep 1989, England et al. 1995, Bechard et al. 2010). The majority of documented Swainson’s Hawk nest trees in the Central Valley have been found in riparian systems in Sacramento, Sutter, Yolo, and San Joaquin counties, making this habitat type critically important (Schlorff and Bloom 1983). This is likely the case for nesting hawks in the San Joaquin Valley as well; however the hawks that regularly nest here have not been extensively studied. A portion of the Swainson’s Hawk population also resides in the Great Basin of Northeastern California where hawks typically nest in juniper trees (Bloom 1980). Swainson’s Hawks have been observed in several studies to select nest sites in greater densities when near large tracts of agricultural lands than when adjacent to non-agricultural lands (e.g. urban, annual grassland, or even vernal pool landscapes; Bloom 1980; Estep 1989; Babcock 1995; Smallwood 1995; Swolgaard et al. 2008). Data collected during Department Swainson’s Hawk nest surveys in 2002 through 2009 indicated that nests were clumped at higher densities in mixed agricultural landscapes (Gifford et al. 2012). Nest sites are generally adjacent to, or within easy flying distance to suitable foraging habitat that provides available prey resources (England et al. 1995). The Swainson’s Hawk is also known to nest within urban environments, such as Davis, Stockton and Sacramento, California; however, what is known about these nesting pairs is largely anecdotal as there have been no focused studies on these hawks.

Wintering habitat in California is less critical for Swainson’s Hawk because only a small number of hawks have been documented to over winter in California (Herzog 1996; Anderson pers. comm. 2012; eBird 2012). In the Central Valley Delta region, overwintering hawks have been documented to roost in numbers of 10 to 30 individuals, mostly comprised of adults and some juveniles, in large cottonwoods or eucalyptus trees (Anderson pers. comm. 2012). During the day these hawks disperse on the nearby landscape to forage either individually or in groups with red-tailed hawks, Ferruginous hawks, rough-legged hawks, corvid species, and other raptors. It is unknown where these wintering birds originated (Anderson pers. comm. 2012). 3211
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9 During the breeding season and just prior to their annual fall migration period, Swainson’s Hawk in California often congregate in groups from 5 up to 100+ individuals (Anderson pers. comm. 2012). Foraging often occurs during congregation, but communal roosting may also take place. Congregations during the breeding season happen nearer nesting sites and groups will sometimes form during any portion of the nesting cycle (nest building to fledgling care). Late summer-fall congregations may occur during delayed migration periods lasting up to three months starting in early August through late October. These congregation areas can occur anywhere there is food available, but are typically associated with alfalfa, other hay crops, and various row crops (excluding orchards and vineyards) that have been recently mowed, disced, harvested or irrigated (Anderson pers. comm. 2012). Support for practices that provide for these critical breeding and pre-migration congregation areas is an important conservation need.

VI. NATURE AND DEGREE OF THREAT
Foraging Habitat Conversion to Urban and Non-Suitable Habitat Fragmentation of habitat has been observed to adversely affect long-term viability of animal populations, and can be defined as dissection of habitat into smaller portions that does not allow free movement of individuals (Fahrig 2003). Habitat fragmentation has two components, both of which contribute significantly to, and may even cause, extinctions for some species: (1) reduction in total habitat area, and (2) redistribution of the remaining area into disjunct fragments (Wilcove et al. 1986).

Significant loss of agricultural lands and foraging habitat has occurred in counties within the Sacramento and San Joaquin valleys due to urban development. According to the State of California’s 2008-2010 California Farmland Conversion Report (California Department of Conservation 2014), Southern California and San Joaquin Valley counties were included in the “top ten list” of California counties with the most acres converted from farmland to urban land. Irrigated farmland was the source of 25 percent of all new urban land statewide, with another 30 percent of new urban land derived from dryland farming and grazing uses, and 45 percent from natural vegetation or vacant lands. Direct conversion of irrigated farmland to urban land was 25 percent of total new urban growth for both the Sacramento and San Joaquin valleys. Land idling was the most prevalent in the southern San Joaquin Valley and counties in the Sacramento-San Joaquin Delta. If current trends in habitat conversion of compatible agriculture to urban development continue, the Swainson’s Hawk population will likely experience reduced foraging opportunities, which may result in a further reduction in the species’ range, distribution, and abundance.

Native foraging habitat in the lowland areas of the Great Basin also has been converted to agricultural land (Bloom 1980). The smaller Great Basin Swainson’s Hawk population, while not subject to the same urban development pressures as the Central Valley population, is becoming more dependent on the agricultural system of the region to provide suitable foraging habitat (California Department of Fish and Game 1993). As 3212
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10 agricultural conversion continues to replace native habitat, the suitability of crop-types could determine the level of Swainson’s Hawk foraging use. Ultimately the distribution of crops dictates the distribution and abundance of Swainson’s Hawks in the Great Basin as it does in the Central Valley (California Department of Fish and Game 1993).

There has been a steady decline in active Swainson’s Hawk territories occupying rangeland habitat in the Great Basin region of the state. Overgrazing and fire suppression have caused an increase in juniper forest and sagebrush communities (Miller and Rose 1999, Miller et al. 2001). The Swainson’s Hawk decline in this area may have been a result of the increase in juniper/sage habitat at the expense of sage-steppe/grassland communities. Replacement of sage-steppe/grassland with juniper/sage habitats results in a reduction of microtine rodents and ground squirrels, the principal prey of the Swainson’s Hawk in the Great Basin (California Department of Fish and Game 1993).

While Swainson’s Hawks have steadily declined in rangeland habitats of the Great Basin, there has been an apparent increase in breeding pairs utilizing agricultural foraging habitats such as alfalfa fields, largely due to greater prey densities and availability of prey in these areas (California Department of Fish and Game 1993).

Habitat Conversion to Vineyards and Orchards
Vineyards and orchards are considered low value foraging habitat for Swainson’s Hawk because of low prey density and vegetation structure which prevents hawks from stooping on prey (Estep 1989, Smallwood 1995). Statewide, wine grape acreage has approximately doubled since 1990 (California Department of Conservation Agricultural Land Mapping 2010). Conversion of undeveloped land to vineyards involves the clearing of native upland and riparian vegetation. This type of conversion has the potential to affect Swainson’s Hawk breeding and foraging habitat.

The 2008-2010 California Farmland Conversion Report (California Department of Conservation 2014) states that while urbanization is a leading component of agricultural land conversion throughout the state, economic and resource availability factors (i.e. water) also lead to conversion to more intensive agricultural uses, including orchards and vineyards. Conversion from grasslands to orchards, mainly almonds, was the most widespread form of conversion in 2010, with the Sacramento Valley having more conversions to high density olive orchards. Again, if conversion of compatible foraging habitat to non-habit continues, the Swainson’s Hawk population in California will likely be impacted.

Breeding Habitat Conversion
Swainson’s Hawks are not exclusively or predominately associated with nests in riparian areas, although a significant portion of the known nesting population in the Sacramento and San Joaquin Valleys occur in riparian areas (Bloom 1980, Estep 1989). Loss of suitable breeding habitat through conversion of riparian and woodland habitat to agriculture and unsuitable urban environments is a concern for breeding Swainson’s Hawks across California, particularly in the San Joaquin Valley where suitable nest trees 3213
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11 are in lower abundance. Loss of lone trees along roadsides to road maintenance and construction may also impact breeding Swainson’s Hawks as many of these trees are in proximity to suitable foraging habitat and are often used by Swainson’s Hawks.

Implementation of levee vegetation removal policies could result in significant impacts to Central Valley Swainson’s Hawk populations as a large portion of suitable nesting habitat may be removed. In April 2010, the Department’s Director and the Department of Water Resources wrote a letter to the U.S. Army Corps of Engineers (Corps; DWR and CDFW 2010) expressing concern over the Corps’ issuance and use of a new levee vegetation removal policy (USACE ETL 1110-2-571), and stating that “the proposed vegetation policy will likely have devastating environmental impacts, as the remnants of the once vast riparian forests and adjacent riverine ecosystems of the Central Valley are now concentrated on the banks and levees of its flood channels”.

Climate Change
Climate change adds unpredictability to the existing suitable breeding and foraging habitats and could cause additional stress on Swainson’s Hawk populations. These impacts, both to suitable habitats and to populations, can be generally anticipated based on current climate research. However, the level of these impacts is impossible to predict with accuracy or precision. Most climate projection studies agree that California will retain its typical Mediterranean climate (i.e. cool, wet winters and hot, dry summers), yet the degree of wetness/dryness will likely be amplified and vary by location across California (Pierce et al. 2011, Cayan et al. 2012,). Impacts may include increased winter runoff and flooding (with possible impacts to riparian nesting habitat) and sea level rise (with possible inundation of low-lying nesting or foraging habitat), more frequent extreme temperature events, and less snowpack (Pierce et al. 2011, Cayan et al. 2012).

Limited water availability in the summertime may significantly reduce the supply of water and therefore reduce prevalence of alfalfa and other high-quality foraging habitat.

In addition, drought conditions associated with long-term changes in precipitation may negatively impact prey abundance (CDFW 2016), and consequently impact breeding success and survival of Swainson’s Hawks.

The 2006 Executive Order S-06-06 calls for the increased production and use of bioenergy, including ethanol and biodiesel fuels made from renewable resources, largely comprised of corn. The market price for energy crops could result in farmers shifting to those crops that do not provide high value habitat to the Swainson’s Hawk. For example, one study looking at agriculture impacts of climate change in Yolo County predicts that crops with high water utilization, such as alfalfa, are likely to become more scarce on the landscape in the future if water availability declines, and crops with a higher cash value per unit of water, such as vegetables, fruits and nuts will become more common (Jackson et al. 2009). Other potential indirect impacts may come from practices aimed at mitigating climate change. The future agricultural landscape could change from the existing mosaic of crops to grasses that can be used for carbon sequestration. Changing crop types to those less frequently irrigated and harvested, or those that would store 3214
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12 carbon for a longer time period could still provide habitat, but research is needed to understand the potential scale of the changes and how that could affect the range and reproductive success of the Swainson’s Hawk (Bradbury 2009).

Renewable Energy Facilities
Wind energy project areas contribute to direct mortality of Swainson’s Hawk through turbine strikes, particularly where wind resource areas overlap with hawk foraging areas.

Swainson’s Hawk mortality from wind turbines has been documented by Kingsley and Whittam (2001). The Solano County Wind Resource Area, which overlaps with the range of Central Valley Swainson’s Hawks, has one of the highest raptor abundances of California’s wind resource areas and initial studies show substantial numbers of bird and bat mortalities related to wind development. Birds most susceptible to this source of mortality are those that fly at or below the maximum blade height of wind turbines, particularly while hunting (Orloff and Flannery 1992), as is the case with Swainson’s Hawks.

Disease
There have been some documented cases of Swainson’s Hawk having experienced West Nile Virus (WNV) mortality. One Swainson’s Hawk has been reported to test positive for WNV in California (reported in South Lake Tahoe area, but thought to have been brought from Mono County; Center for Disease Control and Prevention database), and another was confirmed positive by the Department’s Wildlife Investigation Laboratory in 2015 from Contra Costa County (Rogers pers. comm. 2015). Eleven Swainson’s Hawks were found dead with WNV infection in the USA from 1999 to 2004 (Nemeth et al. 2006).

However, the extent of vulnerability WNV presents to the Swainson’s Hawk is unknown at this time. Increased levels of WNV in California populations could exacerbate the effects of other threats on this species.

Contaminants
Insecticides are responsible for high mortality rates in hawks that migrate to Argentina.

Prior to northerly migration, when flocks feed on insects in nearby harvested agriculture fields, several large-scale mortality events of Swainson’s Hawks (>1000’s found dead) were reported in Argentina due to applications of organophosphate and carbamate insecticides in agricultural fields (Goldstein et al. 1996). However, many of the birds that breed in California winter in Mexico, where the timing of pesticide applications poses less of a threat. Therefore, the importance of this factor for California’s breeding hawks is unclear.

Application of anticoagulant rodenticide (AR) is a known threat to raptors due to ingestion of poisoned prey. Numerous field monitoring studies on raptor species indicate lethal and sublethal impacts of AR exposure (Stone et al. 2003, Murray 2011, Thomas et al. 2011, Christensen et al. 2012). Pesticide use throughout the Swainson’s Hawk’s range, specifically targeting ground squirrels, may also impact Swainson’s Hawks and cause 3215
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13 secondary poisoning. In 2015, the Department’s Wildlife Investigation Laboratory confirmed two AR exposures for Swainson’s Hawks, both from Contra Costa County, with the cause of death in one due to AR toxicosis (Rogers pers. comm. 2015). Although the evidence indicates raptors are negatively affected by pesticide use, further research is needed to determine what extent Swainson’s Hawks also incur these same impacts.

Other Direct Mortality Agents
Swainson’s Hawk mortality is reported occasionally in California. Direct mortality of birds can be due to several actions as also described elsewhere in this document, including trimming of nest trees (typically due to construction or utility maintenance activities), shooting, vehicle collisions, electrocution, or pesticides. Biologists have only occasionally found shot or electrocuted Swainson’s Hawks.

Stochastic Events
A mass mortality event of wintering Swainson’s Hawk was observed in Argentina during November of 2003 when 113 Swainson’s Hawks were found dead as a result of a single hailstorm (Sarasola et al. 2005). In addition, 14 hawks with severe injuries were recovered alive, but only 10 of these survived. Another 45 dead birds of 11 species were collected in the area. Interviews with local landowners conducted in other areas of these wintering grounds provided further evidence of past hailstorm-related mortality involving the hawk, suggesting that such events commonly occur in the Argentine Pampas. This potential cause of mass mortality of Swainson’s Hawk wintering in agricultural areas of Argentina may be significant when added to the increased mortality associated with poisoning events during the last decade. Even though California’s Central Valley Swainson’s Hawk population is known to largely over-winter in Mexico, the Central Valley population may experience similar events.

VII. HISTORICAL AND CURRENT DISTRIBUTION
Historical Distribution (pre-1980)
Information gathered through an extensive search of the literature and museum records allowed Bloom (1980) to estimate the historic range of the Swainson’s Hawk in California (Figure 1). From this analysis, Swainson’s Hawks were found throughout the state except in the Sierra Nevada, North Coast Ranges and Klamath Mountains (Bloom 1980). Historically, the species was found in large, open grassland valleys with scattered trees or groups of trees. Swainson’s Hawks also established breeding territories in foothill and canyon habitat. The valleys and deserts of southern California and the coastal valleys from the Santa Rosa Valley south to the Mexican border supported significant populations of Swainson’s Hawks.
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14 Figure 1. This figure was taken from Bloom 1980 and shows the historic (a) and current (b) range of Swainson’s Hawk in California, as understood at that time.

In 1979, Bloom surveyed much of the state to determine the current distribution of Swainson’s Hawks (Bloom 1980). In his report he depicted eight major geographic regions in California where Swainson’s Hawk were found. The greatest number of nesting Swainson’s Hawks were located in the Central Valley and also in the Great Basin of northeastern California from Butte Valley east to Nevada, south-central Modoc County and eastern Lassen County (Bloom 1980). In addition, Swainson’s Hawks were also located in the Shasta and Owens valleys, and the Mojave Desert (Bloom 1980). Bloom’s description of Swainson’s Hawk distribution remains consistent with current knowledge and more recent data do not contradict Bloom’s estimate of distribution as explained below.

Current Distribution (post-1980)
In 1988, the Department surveyed the entire Central Valley, coastal valleys, and parts of Southern California, and was provided with information from cooperators in the Great Basin region of the state. In addition, information on Swainson’s Hawk activity was gathered by the Department from 1979 to 1993 throughout the state (California Department of Fish and Game 1993). These data revealed no change in the distribution of the Swainson’s Hawk in California since Bloom’s 1980 report (California Department of Fish and Game 1993).

In 2005 and 2006 another statewide survey of Swainson’s Hawk breeding pairs was conducted using a stratified random sample design (Anderson et al. in prep). The results of these survey findings roughly duplicate Bloom’s (1980) earlier findings, with the majority of Swainson’s Hawk records located in the Central Valley, and with the next large population center in the Great Basin. However, this survey was only focused within the current known distribution and did not cover areas of the state where Swainson’s Hawk had historically nested and the species was presumed extirpated (Anderson et al. in prep). For example, additional areas not included in the 2005 and 2006 survey include some areas in Sonoma and Napa counties. Recently, 3 to 4 Swainson’s Hawk nests have 3217
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15 been detected in upland habitat at the north end of San Francisco baylands near Highway 37 (Fish pers. comm. 2012). These nests have been monitored as part of the Golden Gate Raptor Observatory’s Bay Area Raptor Nesting Survey over the last few years.

The Department’s California Natural Diversity Database (CNDDB) records contain 2,394 Swainson’s Hawk occurrence records, ranging from 1894 to present (California Natural Diversity Database; December 1, 2015). Eighty-five percent (2029/2394) of the CNDDB records occur within the Central Valley, and 59% (1407/2394) occur within Sacramento, Yolo, Solano, and San Joaquin counties. CNDDB records largely corroborate Bloom (1980) and Anderson et al. (in prep) results in that the majority of the records occur within the Central Valley (Figure 2). A majority of records (n=2140) are from 1990 on.

Of equal importance, in areas of the state where Bloom reported that the Swainson’s Hawk had been extirpated, CNDDB similarly contained no Swainson’s Hawk records.

There are no CNDDB records in the Sierra Nevada, North Coast Ranges, and Klamath Mountains, and with the exception of a handful of new records in Napa County, Sonoma County, and two records in San Luis Obispo County. CNDDB provides no indication that the species has reoccupied historical range in coastal valleys from Santa Rosa south.

EBird (http://ebird.org) is a citizen science database that houses bird observation data.

To supplement CNDDB data, we extracted likely breeding records (e.g. observations with noted breeding activity, nest location, eggs or young) for Swainson’s Hawks in California from 1995 during the breeding season (April through August). We found 716 breeding records in eBird, some of which may duplicate CNDDB occurrences (see Figure 2). Some caution should be used when interpreting eBird data for breeding activity.

EBird is an observational database not meant to track breeding status of any one species, and designation of breeding status from extracted data in this case was largely gleaned from the notes a submitter entered. Therefore, some breeding observations may have been missed, while others misclassified. Although the incoming data to eBird receives some level of scrutiny via automated filters and volunteer reviewers, there is still some margin of error. Alternately, incoming records for CNDDB receive a much higher level of verification before it is added and viewable.

The data for Swainson’s Hawk recorded in the CNDDB and eBird is not collected in a systematic fashion and for this reason its use as the principle measure for describing the species’ distribution and range is open to criticism. Nevertheless, the accumulation of over 2,300 Swainson’s Hawk observational records in CNDDB and over 700 in eBird can be used, in conjunction with other records, to form a better understanding of the species’ current distribution and range.
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16 Figure 2. CNDDB and eBird data for Swainson’s Hawk in California (extracted from CNDDB 12/1/2015 and eBird in 12/15/2016). The majority of the Central Valley’s Swainson’s Hawk population lies within an area that includes Sacramento, Yolo, Solano, and San Joaquin counties.

As previously mentioned, Bloom (1980), Gifford et al. (2012), Anderson et.al. (in prep.), CNDDB occurrence records, and eBird breeding records all indicate that the majority of Swainson’s Hawk nests are located in the Central Valley and that the nesting density in the Central Valley is unevenly distributed. Approximately 70 to 80% of the Central Valley population is located in the southern Sacramento-northern San Joaquin Valley, a 3219
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17 region composed of four counties: Yolo, Solano, Sacramento, and San Joaquin (Bloom 1980, Anderson et.al. in prep., Gifford et al. 2012). These four counties are located in the Central Valley, where suitable irrigated farmland is the primary land-use (Estep 1989).

Numbers of breeding pairs decreased both to the north and south of this four county region, and no significant foothill breeding populations have been documented. Another important Swainson’s Hawk population center is in the Great Basin.

The distribution of the Swainson’s Hawk has changed little since Bloom (1980) originally described the species distribution. With few exceptions, areas within the historical range, particularly along the Central Coast and southern regions, have not been reoccupied, and the Central Valley and Great Basin continue to provide the species its core habitat in California. However, the Antelope Valley is considered reoccupied by some, probably as a result of irrigated agriculture, as well as some inner coastal valleys, portions of the Sierra foothills, and some portions of the San Joaquin Valley (Estep pers. comm. 2012).

VIII. HISTORICAL AND CURRENT ABUNDANCE
Historical Abundance
Historically, the Swainson’s Hawk was considered one of California’s most common nesting buteos (Sharp 1902), but the population declined dramatically around 1900, concurrent with a contraction of the species’ range, particularly along the central and southern coastal areas of California. Bloom (1980) estimated as many as 17,136 pairs of Swainson’s Hawks historically nested in California (includes data from 1880-1969). This estimated 90% decline in the population and the loss of a significant portion of its range prompted the hawk’s listing by the State of California as a Threatened species in 1983 by the California Fish and Game Commission pursuant to CESA. (See Cal. Code Regs., tit. 14, §670.5(b)(5)(A).

Current Abundance
In a 1979 survey, Bloom (1980) estimated that there were only 375 (+50) breeding pairs of Swainson’s Hawks remaining in California. Since this estimate was made and the hawk was listed in 1983, interest in the Swainson’s Hawk has grown considerably. Thus there has been an increased survey effort throughout the state. This increase in data collection efforts may be one reason we see higher breeding densities reported from certain areas within the state. A 1988 estimate of the Central Valley population was obtained using nest density information contained in the study by Estep (1989), where an area estimate of the habitat was multiplied by a breeding density of 0.16 pairs/sq km (0.42/sq mi) (the lowest breeding density of Estep’s four study areas in the Central Valley, totaling an area of 374.4 sq km). The results indicated an estimate of 430 pairs in the Central Valley. This estimate was further subdivided into three main regions of the Central Valley: 80 pairs were estimated south of and including the Merced River, 35 pairs north of Sutter Buttes in Sutter County, and 315 pairs between these areas. Using 3220
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18 survey data and population estimates derived by biologists working in the Great Basin region, the population for that area was estimated to be 110 pairs (Estep 1989). In addition, five pairs were estimated for the Owens Valley area, and five for the Mojave Desert area (Estep 1989). The species was assumed to be extirpated from Southern California and coastal valleys. The individual estimates were combined to form a total statewide estimate of 550 breeding pairs in 1988 (Estep 1989). Neither Bloom 1980 nor Estep 1989 methods to estimate the population of hawks was sufficient to provide a statistically rigorous estimate.

More recently, Anderson et al. (in prep) completed a survey of the statewide breeding Swainson’s Hawk population in 2005 and of the Central Valley breeding population 2006, and estimated the number of breeding pairs statewide at 1,893 (95% CI, 1462- 2325) in 2005 and an estimated the number of breeding pairs in the Central Valley at 2,251 (95% CI, 1811-2690) in 2006. Another recent survey of nesting Swainson’s Hawk was conducted in a portion of the Central Valley (Butte to San Joaquin counties) during the period 2002 to 2009 (Gifford et al. 2012). The latter survey yielded yearly estimates for numbers of breeding pairs of Swainson’s Hawks in the Central Valley north of the Stanislaus River and south of Red Bluff: in 2002 the estimate was 593 (388-798) breeding pairs; in 2003 the estimate was 1,008 (720-1,296) breeding pairs; and in 2009 the estimate was 941 (692-1,190) breeding pairs (Gifford et al. 2012). Both Anderson et al. (in prep) and Gifford et al. (2012) methods employed to estimate the population of hawks were sufficient to provide a statistically rigorous population estimate, and are designed to be repeatable in order to accurately detect changes in the breeding population of Swainsons’s Hawks within each of their study areas.

Compared to historical distribution and abundance, current surveys have indicated a smaller population occupying a restricted range that includes the core habitat areas of the Central Valley and Great Basin. Surveys subsequent to Bloom’s 1979 inventory (Bloom 1980) have resulted in higher population estimates within these core areas, but it is unknown if this was due to an increase in survey effort or an actual increase in the population. Recent surveys employing repeatable survey designs hold promise for future comparative analysis.

IX. POPULATION TREND
Raptors may experience year-to-year changes or fluctuations in their population numbers due to a variety of factors including changes in prey abundance, habitat, and weather. In order to detect long-term changes over time (i.e. trends) in California’s Swainson’s Hawk population, it is necessary to collect data over a sufficient number of years to span any short-term population fluctuations or cycles (Hatfield et al. 1996; Newton 1998; Lewis and Gould 2000).

Historical statewide population estimates were based on a limited number of annual surveys and were not designed to be repeated (Bloom 1980, Estep 1989). Anderson et al. (in prep.) used repeatable survey efforts statewide with a repeatable survey design over 3221
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19 two years to estimate the number of nesting hawks. Gifford’s et al. (2012) also used repeatable survey efforts and covers a seven year interval; however, the study area is limited to the northern portion of the Central Valley and again, and the time period is insufficient to span population fluctuations or cycles (Hatfield et al. 1996; Newton 1998; Lewis and Gould 2000). Due to differences between the two studies in survey design, duration and scope, neither of these surveys can currently be used to accurately estimate a statewide trend for Swainson’s Hawk.

The Breeding Bird Survey (BBS) is a dataset that spans a sufficient length of time to be useful in detecting trends in the Swainson’s Hawk populations. The BBS is a long-term, large scale avian monitoring program initiated in 1966 (1968 in California) to track the status and trend of North American bird populations. Each year during the height of the avian breeding season, participants skilled in avian identification collect bird population data along randomly selected roadside survey routes. The raw data for survey routes in California are accessible on the BBS website, http://www.pwrc.usgs.gov/BBS/. In addition to collecting and storing raw data the website also provides tools for trend analysis.

The BBS data has been used in over 450 publications and is often the only long-term data set available for avian trend analysis. However, use of BBS data is controversial because of a number of possible sources of error. These include missing data, observer bias, alternating observers, biases due to road-only surveys, and BBS’s index method for population abundance (rather than a true estimate of the population). The BBS data on Swainson’s Hawk for California are marked as “data with an important deficiency” (USGS 2012). Data may be so marked because:

1. The regional abundance is less than 0.1 birds/route (very low abundance),

2. The sample is based on less than 5 routes for the long-term (very small samples), or

3. The results are so imprecise that a 5% per year would not be detected over the long-term.

Cautious of the potential for errors in interpretation, the BBS appears to be useful for analyzing population trends for Swainson’s Hawk populations in California. More than 30 routes monitored over the last 40 years have recorded the occurrence of Swainson’s Hawk (Sauer et al. 2011; USGS 2012). The roadside surveys are conducted in peak breeding season while Swainson’s Hawk are active, visible and easily identified as they rear young. Therefore, the data collected by BBS presents a potentially valuable resource for trend analyses.

The trend analysis presented in Figure 3 for Swainson’s Hawk populations is taken from the BBS website and is based on the current BBS hierarchical model for population change (Sauer and Link 2011, Sauer et al 2011). The analysis tools used were from the Species Group Summaries Results where the species group is Neotropic Migrant, the Period is 1968-2009, and the Region is California. This tool gives a Swainson’s Hawk trend index of 3.6 at (P<0.05, N=38), which translates into an increasing trend of 3.6% 3222
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20 per year. The index value is a measure of percent change per year, and in this case is listed as “significant.” The P value is the likelihood that the result is attributable to chance alone, and in this case the P value is significant. Figure 3 suggests that a low initial value for Swainson’s Hawk detected followed by a slow rate of increase thru the 1990s, followed by a faster rate of increase in 2000’s.

Figure 3. Breeding Bird Survey trend (with 95% confidence intervals shown) for the Swainson’s Hawk from 38 survey routes in California from 1966 to 2013. The x axis is year and the y axis is the relative abundance estimates for all years, estimated as yearly predicted abundances from the hierarchical model analysis (see Sauer and Link 2011).

As mentioned earlier there are only three statewide estimates for breeding pairs of Swainson’s Hawk ranging from 1980 to 2007 (Bloom 1980; Estep 1989; Anderson et al. in prep). The 1979 and 1988 surveys yielded comparable population estimates: 375 (±50) and 550 breeding pairs respectively (Bloom 1980; Estep 1989). The 1988 survey effort was designed to be repeatable and consisted of several years of surveys. The 2005 statewide survey yielded a higher population estimate (1,893 pairs; Anderson et al. in prep.). This more recent effort was a stratified random sample that involved numerous 3223
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21 biologists throughout the state; a level of effort substantially greater than previous efforts which undoubtedly influenced its greater population estimate.

Based on the results of the three statewide surveys occurring in California, it is possible to conclude that the population is increasing over time. However, this perception is tempered by the differences in effort, design, technique and time frame of data collection of the three studies. The latest population estimate (Anderson et al. in prep) is still below the historical population estimate, and there is little evidence to indicate that this hawk has reoccupied much of its former range in the central and south coast valley and Southern California. Although the three statewide estimates are not sufficient to form a trend line, cautious speculation that the Swainson’s Hawk population has experienced a modest increase within the Central Valley may be warranted .

X. EXISTING MANAGEMENT EFFORTS
Regulations, Protections, and Conservation
California Endangered Species Act (CESA; Fish and G. Code, § 2050 et seq.). The Swainson’s Hawk was listed as a threatened species in 1983 by the California Fish and Game Commission pursuant to CESA, (Cal. Code Regs., tit. 14, § 670.5(b)(5)(A).)
Under CESA it is unlawful to take (Fish & G. Code, §86) a species listed as “threatened” of “endangered” (or a candidate) by the State of California unless 1) the take is incidental to an otherwise lawful activity, 2) the impacts of the lawful take are fully minimized and mitigated, 3) the take is consistent with Fish and Game Code sections 2112 and 2114, and 4) adequate funding to implement the permitted take’s mitigation and monitoring measures is ensured.

Section 2053 of the Fish and Game Code states, in part, "it is the policy of the state that state agencies should not approve projects as proposed which would jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat essential to the continued existence of those species, if there are reasonable and prudent alternatives available consistent with conserving the species and or its habitat which would prevent jeopardy." Section 2054 states "The Legislature further finds and declares that, in the event specific economic, social, and or other conditions make infeasible such alternatives, individual projects may be approved if appropriate mitigation and enhancement measures are provided."
Loss or alteration of foraging habitat or nest site disturbance which results in:
(1) nest abandonment; (2) loss of young; (3) reduced health and vigor of eggs and/or nestlings (resulting in reduced survival rates), may ultimately result in the take of nestling or fledgling Swainson’s Hawks incidental to otherwise lawful activities. The taking of Swainson’s Hawks in this manner can be a violation of CESA. This interpretation of take has been judicially affirmed by the 1992 landmark appellate 3224
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22 court decision, Department of Fish and Game v. Anderson-Cottonwood Irrigation District (8 Cal.App. 4th, 1568), which emphasized that the intent and purpose of CESA applies to all activities that take or kill endangered or threatened species, even when the taking is incidental to otherwise legal activities.

California Environmental Quality Act (CEQA, Pub. Resources Code, § 21000 et seq.). CEQA requires adoption of mandatory findings of significance if a project's impacts to threatened or endangered species are likely to occur (§21001 (c), §21083, Guidelines §15380, §15064, and §15065). Impacts must be avoided or mitigated to less than significant levels unless the CEQA Lead Agency makes and supports findings of Overriding Consideration. Mitigation for impacts to Swainson’s Hawk foraging habitat varies among CEQA lead agencies, but essentially does not occur at a rate greater than 1:1 habitat lost to habitat protected.

Fish and Game Code §§ 3503, 3503.5, and 3800. These Fish and Game Code sections prohibit the take, possession, or destruction of birds, their nests or eggs.

Migratory Bird Treaty Act (MBTA). Swainson’s Hawks are protected under the federal MBTA of 1918 (16 U.S.C. 703 711). The MBTA makes it unlawful to take, possess, buy, sell, purchase, or barter any migratory bird listed in §50 of the Code of Federal Regulations (C.F.R.) Part 10, including feathers or other parts, nests, eggs or products, except as allowed by implementing regulations (50 C.F.R. 21).

Conservation Plans
Regional conservation planning efforts take a comprehensive approach to ecosystem conservation while allowing land use authorities the ability to manage anticipated growth and development. A few regional conservation plans currently being administered are designed to provide conservation of nesting and foraging Swainson’s Hawk habitat within the bird’s nesting range, including: the San Joaquin County Multi-species Habitat Conservation and Open Space Plan, the Natomas Basin Habitat Conservation Plan, the Metro Air Park Habitat Conservation Plan, and the East Contra Costa County Habitat Conservation Plan and Natural Community Conservation Plan. Each of these plans has a unique strategy for providing conservation value for the Swainson’s Hawk; however none of these provide habitat at a rate greater than 1:1 habitat lost to habitat protected. In addition to the plans described above, there are several jurisdictions with conservation plans in the development stage which aim to provide good conservation value to the Swainson’s Hawk, including: Butte County, Yolo County, Solano County, Sacramento County, Yuba and Sutter Counties, and Placer County.

XI. DATA GAPS
The Swainson’s Hawk has been listed under the California Endangered Species Act since 1983, and yet there is still much to learn about the species. Several surveys have been conducted throughout the state, but the purposes and methodologies have been independent for each. Some long-term studies have been or are being conducted in Yolo 3225
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23 County and Butte Valley; however, these studies provide information at a regional scale rather than statewide (Estep pers. comm. 2012).

A long-term repeatable statewide breeding/nest survey, possibly using a stratified random sampling survey design, is needed to assess the population’s trend, distribution and range, temporal variation, and abundance. Surveys outside of the known range should be included to determine if range expansions are occurring and at what level.

Additional research is needed to inform managers who are responsible for conserving the species. Research topics of need include: assessing survival, recruitment levels, breeding success, characteristics of migration, disease and parasites, and contaminant studies, specifically how contaminants may affect egg shells.

XII. INFORMATION SOURCES
Anderson, D. 2012. Personal Communication.
_____. 2014. Personal Communication.

Anderson, D. R. Anderson, J. Dinsdale, and R. Schlorff. 2007. California Swainson’s Hawk Inventory: 2005–2007. Final report. Department of Fish and Game Resource Assessment Program, California Department of Fish and Game. Sacramento, CA, U.S.A.

Anderson, R., J. Dinsdale, C. Chun, K. Fien and R. Schlorff. 2011. Foraging value of crops/habitats for Swainson’s hawks of California’s Central Valley- Final Progress Report. Final report. Department of Fish and Game Resource Assessment Program, California Department of Fish and Game. Sacramento, CA, U.S.A.

Anderson, R.L., J.L. Dinsdale, C.L. Battistone, K.M. Cripe, C. Chun, R.W. Schlorff, M.A. Bradbury, J.A. Estep, S.G. Torres. In Preparation. Population inventory of Swainson’s hawk in California: A statewide sampling framework for population monitoring.

Babcock, K. 1995. Home range and habitat use of breeding Swainson’s hawks in the Sacramento Valley of California. Journal of Raptor Research 29(3):193–197.

Bechard, M. 1982. Effect of vegetative cover on foraging site selection by Swainson’s hawk. Condor 84:153-159.

Bechard, M. J., C. S. Houston, J. H. Sarasola and A. S. England. 2010. “Swainson's Hawk (Buteo swainsoni).” The Birds of North America Online (A. Poole, Ed.). Ithaca:

Cornell Lab of Ornithology; Retrieved from the Birds of North America Online:
http://bna.birds.cornell.edu/bna/species/265.
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24 Bloom, P. 1980. The status of the Swainson's hawk in California, 1979. Federal aid in wildlife restoration, Project W-54-R-12, Nongame Wildl. Invest. Job Final Report 11-8.0. 24p. + appendix.

Bradbury, M. 2012. Personal Communication.

Bradbury, M. 2009. Friends of the Swainson’s hawk Conservation Strategy for Swainson’s hawks in California. 32pp.

Briggs, C. 2012. Personal Communication.

Briggs, C. 2007. Survival and nesting ecology of the Swainson’s hawk in Butte Valley California. MS Thesis. Department of Natural Resources and Environmental Science, Program in Ecology, University of Nevada, Reno, 202 Ross Hall, Reno, NV 89512 USA.

California Department of Fish and Game (CDFG). 1993. 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. _____. December 1, 2015. California Natural Diversity Database. http://www.dfg.ca.gov/biogeodata/cnddb/mapsanddata.asp
California Department of Fish and Wildlife (CDFW). 2016. A Rapid Assessment of the Vulnerability of Sensitive Wildlife to Extreme Drought. Wildlife Branch, Nongame Wildlife Program
California Department of Conservation Agricultural Land Mapping. 2010. http://www.conservation.ca.gov/dlrp/Pages/qh_maps.aspx
California Department of Conservation. 2014. California Farmland Conversion Report 2008-2010. http://www.conservation.ca.gov/dlrp/fmmp/Documents/fmmp/pubs/2008- 2010/fcr/FCR%200810%20complete.pdf
Cayan, D., M. Tyree, D. Pierce, T. Das. 2012. Climate change and sea level rise scenarios for California vulnerability and adaptation assessment. California Energy Commission.

Publication number: CEC‐500‐2012‐008.

Christensen T.K., P. Lassen, and M. Elmeros. 2012. High exposure rates of anticoagulant rodenticides in predatory bird species in intensively managed landscapes in Denmark.

Archives of Environmental Contamination and Toxicology 63:437-444 Craighead, J. and F. Craighead, Jr. 1956. Hawks, owls and wildlife. Stackpole Books, Harrisburg, PA. 443pp.

Department of Water Resources and the California Department of Fish and Wildlife.

Letter to: U.S. Army Corps of Engineers. 2010 Apr 15.
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25 Detrich, P. 1986. Status of the Swainson's hawk (Buteo swainsoni) in the upper Sacramento Valley - Shasta and Tehama counties, California. Dept. Biol. Sciences. Calif.

State Univ., Chico.
eBird. 2012. eBird: An online database of bird distribution and abundance [web application]. eBird, Ithaca, New York. Available: http://www.ebird.org.

England, A. 2012. Personal Communication.

England, A., J. Estep, and W. Holt. 1995. Nest-site selection and reproductive performance of urban-nesting Swainson’s hawks in the Central Valley of California. J.

Raptor Res. 29:179-186.

Estep, J. 2012. Personal Communication.
_____. 1989. Biology, movements and habitat relationships of the Swainson’s hawk in the Central Valley of California, 1986-87. Report for the Calif. Dept. Fish and Game, Nongame Bird and Mammal Sec. Rep.
_____. 2008. The Distribution, abundance and habitat associations of Swainson’s hawk (Buteo swainsoni) in Yolo County. Prepared for the Yolo Natural Heritage Program, Woodland, CA.
_____. 2009. The Influence of vegetation structure on Swainson’s hawk (Buteo swainsoni) foraging habitat suitability in Yolo County, California. Prepared for the Yolo Natural Heritage Program, Woodland, CA.
http://www.yoloconservationplan.org/yolo_pdfs/reports/veg-struc-swains-hawkfeb2009.pdf Fahrig, L. 2003. Effects of habitat fragmentation on biodiversity. Annual Review of Ecology, Evolution and Systematics. 487-515.

Feliz, D. 2012. Personal Communication.

Fish, A. 2012. Personal Communication.

Gifford D., P. Hofmann, A. Truex, and D. Wright. 2012. Monitoring Swainson’s hawk nest density in the Sacramento Valley, California. California Department of Fish and Game, North Central Region, 1701 Nimbus Road, Rancho Cordova, CA 95670.

Goldstein, M., B. Woodbridge, M. Zaccagnini, and S. Canavelli. 1996. An assessment of mortality of Swainson’s hawks on wintering grounds in Argentina. J. Raptor Res. 30:106- 107.
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26 Hatfield, J., W. Gould IV., B. Hoover, M. Fuller and E. Lindquist. 1996. Detecting trends in raptor counts. Wildlife Soc. Bull. 24: (3): 505-515.:
http://fresc.usgs.gov/products/papers/479_Hatfield.pdf
Herzog, S. 1996. Wintering Swainson’s hawks in California’s Sacramento-San Joaquin River delta. Condor 98:876-879.

Jackson, L.E., F. Santos-Martin, A. D. Hollander, W. R. Horwath, R. E. Howitt, J. B.

Kramer, A. T. O’Geen, B. S. Orlove, J. W. Six, S. K. Sokolow, D. A. Sumner, T. P.

Tomich, and S. M. Wheeler. 2009. Potential for Adaptation to Climate Change in an Agricultural Landscape in the Central Valley of California. California Energy Commission Report, Climate Change Center,
http://www.energy.ca.gov/publications/displayOneReport.php?pubNum=CEC-500-2009- 044-F
Kingsley, A. and B. Whittam. 2001. Potential impacts of wind turbines on birds at North Cape, Prince Edward Island. Unpublished report for the PEI Energy Corp. Available online: http://www.bsc-eoc.org/peiwind.html
Kochert, M.N., M.R. Fuller, L.S. Schueck, L. Bond, M.J. Bechard, B. Woodbridge, G.L.

Holroyd, M.S. Martell, and U. Banasch. 2011. Migration patterns, use of stopover areas, and austral summer movements of Swainson's Hawks. Condor 113:89-106 Lewis, S., and W. Gould. 2000. Survey effort effects on power to detect trends in raptor migration counts. Wildlife Soc. Bull. 28 (2): 317-329. Allen Press http://www.jstor.org/stable/3783687
Miller, R.F., and J.A. Rose. 1999. Fire history and western juniper encroachment in sage-brush steppe. Journal of Range Management 52: 550-559 Miller, R., C, Baisan, J. Rose, and D. Pacioretty. 2001. Pre- and post-settlement fire regimes in mountain big sagebrush steppe and aspen: the Northwestern Great Basin.

Final Report to the National Interagency Fire Center.

Murray M. 2011. Anticoagulant rodenticide exposure and toxicosis in four species of birds of prey presented to a wildlife clinic in Massachusetts, 2006-2010. Journal of Zoo and Wildlife Medicine 42(1):88-97.

Nemeth, N., D. Gould, R. Bowen, and N. Komar. 2006. Natural and experimental West Nile Virus infection in five raptor species. Journal of Wildlife Disease 42(1):1-13 Newton, I. 1998. Population limitation in birds. Academic Press Limited:
http://books.google.com/books?hl=en&lr=&id=gU7snBvdd8C&oi=fnd&pg=PP1&dq=wildlife+population+cycles+in+birds&ots=KG7LsiC Ebp&sig=X8pfXRJcEIPqbKI79TZnO6_XXkY#
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27 Orloff, S., and A. Flannery. 1992. Wind turbine effects on avian activity, habitat use and mortality in Altamont Pass and Solano County Wind Resource Areas. Report to the Planning Departments of Alameda, Contra Costa, and Solano counties and the California Energy Commission. Grant Number 990-89-003. BioSystems Analysis, Tiburon, California, USA.

Pierce D.W., T. Das, D.R. Cayan, E.P. Maurer, N.L. Miller, Y. Bao, M. Kanamitsu, K.

Yoshimura, M.A. Snyder, L.C. Sloan, G. Franco and M. Tyree. 2011. Probabilistic estimates of future changes in California temperature and precipitation using statistical and dynamical downscaling. [Internet] Springer-Verlags [cited 2015 Jun 8] Available from (doi:10.1007/s00382-012-1337-9)
Rogers, Krysta. 2015. Personal Communication.

Sacramento County, California. 2011. Sacramento County 2030 General Plan.

San Joaquin County, California. 1992. San Joaquin County General Plan 2010.

Sarasola, J., J. Negrol, V. Salvador, and J. Maceda. 2005. Hailstorms as a Cause of Mass Mortality of Swainson’s hawks in their wintering grounds. Journal of Wildlife Diseases. vol. 41 no. 3 643-646.

Sauer, J., J. Hines, J. Fallon, K. Pardieck, D. Ziolkowski, Jr., and W. Link. 2011. The North American breeding bird survey, results and analysis 1966 - 2009. Version

3.23.2011.USGS Patuxent Wildlife Research Center, Laurel, MD. http://www.mbr-pwrc.usgs.gov/bbs/bbs.html
Sauer, J. and W. Link. 2011. Analysis of the North American breeding bird survey using hierarchical models. Vol. 128(1): 87-98.

Schlorff, R., and P. Bloom. 1983. Importance of riparian systems to nesting Swainson's hawks in the Central Valley of California. pp. 612- 618. In: R.E. Warner and K.M.

Hendrix (Eds.). California. Riparian Systems (University of Ca. Davis, Sept. 17-19, 1981). University of California Press, Berkeley.

Schmutz, J. 1987. The effect of agricultural practices on ferruginous and Swainson's hawks. J. Range Manage. 40:438-440.

Sernka, K. 1999. A biogeographical analysis of Swainson’s hawks breeding in the Central Valley of California. MS Thesis. Department of Biological Sciences, California State University Chico, Chico, California.

Sharp, C. 1902. Nesting of Swainson's hawk. Condor 4:116-118.

Smallwood, S. 1995. Scaling Swainson’s hawk population density for assessing habitat use across and agricultural landscape. J. Raptor Res. 29: 172-178. 3230
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28 Stone, W.B., J.C. Okoniewski, J.R. Stedelin. 2003. Anticoagulant rodenticides and raptors: recent findings from New York, 1998-2001. Bulletin of Environmental Contamination and Toxicology. 70:34-40
Swolgaard, C., K. Reeves, and D. Bell. 2008. Foraging by Swainson’s hawks in a vineyard-dominated landscape. J. Raptor Res 42(3):188-196. http://www.bioone.org/doi/abs/10.3356/JRR-07-15.1
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_____. 1991. Habitat selection by nesting Swainson's hawks: a hierarchical approach.

M.S. Thesis, Oregon State Univ., Corvallis, Oregon.

XIII. REPORT PREPARED BY:

Carie Battistone
California Department of Fish and Wildlife
Nongame Wildlife Program
Wildlife and Fisheries Division
Jenny Marr, Todd Gardner and Dan Gifford (retired)
California Department of Fish and Wildlife
Region 2
April 11, 2016
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29 XIV. CONTACT FOR FURTHER INFORMATION:

Carie Battistone, [email protected]
XV. JUNE 6, 2012 DRAFT REVIEWED BY:

Allen Fish, Golden Gate Raptor Observatory
Brian Ehler, California Department of Fish and Wildlife Region 1 Chrissy Sousa, California Department of Fish and Wildlife Region 4 Christopher Briggs, Golden Gate Raptor Observatory
Cristen Langner, California Department of Fish and Wildlife Region 4 Dave Feliz, California Department of Fish and Wildlife Region 4 David Wright, California Department of Fish and Wildlife Region 2 Debra Hawk, California Department of Fish and Wildlife Region 6 Erin Tennant, California Department of Fish and Wildlife Region 4 Jim Estep, SWHA Researcher
Kent Smith, California Department of Fish and Wildlife Nongame Program Lara Sparks, California Department of Fish and Wildlife Region 4 Michael Bradbury, Department of Water Resources
Neil Clipperton, California Department of Fish and Wildlife Nongame Branch Paul Hoffman, California Department of Fish and Wildlife Region 2 Sid England, University of California, Davis
Terry Palmisano, California Department of Fish and Wildlife Region 4 Note: Reviewer comments and the Department’s response to each can be provided upon request.
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Staff Report regarding Mitigation
for Impacts to Swainson's Hawks (Buteo swainsoni)
in the Central Valley of California

INTRODUCTION
The Legislature and the Fish and Game Commission have developed the policies, standards and regulatory mandates which, if implemented, are intended to help stabilize and reverse dramatic population declines of threatened and endangered species. In order to determine how the Department of Fish and Game (Department) could judge the adequacy of mitigation measures designed to offset impacts to Swainson's hawks in the Central Valley, Staff (WMD, ESD and Regions) has prepared this report. To ensure compliance with legislative and Commission policy, mitigation requirements which are consistent with this report should be incorporated into:
(1) Department comments to Lead Agencies and project sponsors pursuant to the California Environmental Quality Act (CEQA); (2) Fish and Game Code Section 2081 Management Authorizations (Management Authorizations); and (3) Fish and Game Code Section 2090 Consultations with State CEQA Lead Agencies.

The report is designed to provide the Department (including regional offices and divisions), CEQA Lead Agencies and project proponents the context in which the Environmental Services Division (ESD) will review proposed project specific mitigation measures. This report also includes "model" mitigation measures which have been judged to be consistent with policies, standards and legal mandates of the Legislature and Fish and Game Commission. Alternative mitigation measures, tailored to specific projects, may be developed if consistent with this report.

Implementation of mitigation measures consistent with this report are intended to help achieve the conservation goals for the Swainson's hawk and should complement multi-species habitat conservation planning efforts currently underway.

The Department is preparing a recovery plan for the species and it is anticipated that this report will be revised to incorporate recovery plan goals. It is anticipated that the recovery plan will be completed by the end of 1995. The Swainson's hawk recovery plan will establish criteria for species recovery through preservation of existing habitat, population expansion into former habitat, recruitment of young into the population, and other specific recovery efforts.

During project review the Department should consider whether a proposed project will adversely affect suitable foraging habitat within a ten (10) mile radius of an active (used during one or more of the last 5 years) Swainson's hawk nest(s). Suitable Swainson's hawk foraging habitat will be those habitats and crops identified in Bechard (1983), Bloom (1980), and Estep (1989).

The following vegetation types/agricultural crops are considered small mammal and insect foraging habitat for Swainson's hawks:
· alfalfa
· fallow fields
· beet, tomato, and other low-growing row or field crops · dry-land and irrigated pasture
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· rice land (when not flooded)
· cereal grain crops (including corn after harvest)
The ten mile radius standard is the flight distance between active (and successful) nest sites and suitable foraging habitats, as documented in telemetry studies (Estep 1989, Babcock 1993).

Based on the ten mile radius, new development projects which adversely modify nesting and/or foraging habitat should mitigate the project's impacts to the species. The ten mile foraging radius recognizes a need to strike a balance between the biological needs of reproducing pairs (including eggs and nestlings) and the economic benefit of developments) consistent with Fish and Game Code Section 2053.

Since over 95% of Swainson's hawk nests occur on private land, the Department's mitigation program should include incentives that preserve agricultural lands used for the production of crops, which are compatible with Swainson's hawk foraging needs, while providing an opportunity for urban development and other changes in land use adjacent to existing urban areas.

LEGAL STATUS
Federal
The Swainson's hawk is a migratory bird species protected under the Migratory Bird Treaty Act (MBTA) of 1918 (16 U.S.C. 703-711). The MBTA makes it unlawful to take, possess, buy, sell, purchase, or barter any migratory bird listed in Section 50 of the Code of Federal Regulations (C.F.R.) Part 10, including feathers or other parts, nests, eggs or products, except as allowed by implementing regulations (50 C.F.R. 21).

State
The Swainson's hawk has been listed as a threatened species by the California Fish and Game Commission pursuant to the California Endangered Species Act (CESA), see Title 14, California Code of Regulations, Section 670.5(b)(5)(A).
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LEGISLATIVE AND COMMISSION POLICIES,

LEGAL MANDATES AND STANDARDS
The FGC policy for threatened species is, in part, to: "Protect and preserve all native species ... and their habitats....” This policy also directs the Department to work with all interested persons to protect and preserve sensitive resources and their habitats. Consistent with this policy and direction, the Department is enjoined to implement measures that assure protection for the Swainson's hawk.

The California State Legislature, when enacting the provisions of CESA, made the following findings and declarations in Fish and Game Code Section 2051:
a) "Certain species of fish, wildlife, and plants have been rendered extinct as a consequence of man's activities, untempered by adequate concern and conservation"; b) "Other species of fish, wildlife, and plants are in danger of, or threatened with, extinction because their habitats are threatened with destruction, adverse modification, or severe curtailment because of overexploitation, disease, predation, or other factors (emphasis added)";and
c) "These species of fish, wildlife, and plants are of ecological, educational, historical, recreational, esthetic, economic, and scientific value to the people of this state, and the conservation, protection, and enhancement of these species and their habitat is of statewide concern" (emphasis added).

The Legislature also proclaimed that it "is the policy of the state to conserve, protect, restore, and enhance any endangered or threatened species and its habitat and that it is the intent of the Legislature, consistent with conserving the species, to acquire lands for habitat for these species" (emphasis added).

Section 2053 of the Fish and Game Code states, in part, "it is the policy of the state that state agencies should not approve projects as proposed which would jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat essential to the continued existence of those species, if there are reasonable and prudent alternatives available consistent with conserving the species and or its habitat which would prevent jeopardy" (emphasis added).

Section 2054 states "The Legislature further finds and declares that, in the event specific economic, social, and or other conditions make infeasible such alternatives, individual projects may be approved if appropriate mitigation and enhancement measures are provided" (emphasis added).

Loss or alteration of foraging habitat or nest site disturbance which results in:
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(1) nest abandonment; (2) loss of young; (3) reduced health and vigor of eggs and/or nestlings (resulting in reduced survival rates), may ultimately result in the take (killing) of nestling or fledgling Swainson's hawks incidental to otherwise lawful activities. The taking of Swainson's hawks in this manner can be, a violation of Section 2080 of the Fish and Game Code. This interpretation of take has been judicially affirmed by the landmark appellate court decision pertaining to CESA (DFG v. ACID, 8 CA App.4, 41554). The essence of the decision emphasized that the intent and purpose of CESA applies to all activities that take or kill endangered or threatened species, even when the taking is incidental to otherwise legal activities.

To avoid potential violations of Fish and Game Code Section 2080, the Department recommends and encourages project sponsors to obtain 2081 Management Authorizations for their projects.

Although this report has been prepared to assist the Department in working with the development community, the prohibition against take (Fish and Game Code Section 2080) applies to all persons, including those engaged in agricultural activities and routine maintenance of facilities. In addition, sections 3503, 3503.5, and 3800 of the Fish and Game Code prohibit the take, possession, or destruction of birds, their nests or eggs.

To avoid potential violation of Fish and Game Code Section 2080 (i.e. killing of a listed species), project-related disturbance at active Swainson's hawk nesting sites should be reduced or eliminated during critical phases of the nesting cycle (March 1 - September 15 annually).

Delineation of specific activities which could cause nest abandonment (take) of Swainson's hawk during the nesting period should be done on a case-by-case basis.

CEQA requires a mandatory findings of significance if a project's impacts to threatened or endangered species are likely to occur (Sections 21001 (c), 21083, Guidelines Sections 15380, 15064, 15065). Impacts must be avoided or mitigated to less than significant levels unless the CEQA Lead Agency makes and supports findings of Overriding Consideration. The CEQA Lead Agency's Findings of Overriding Consideration does not eliminate the project sponsor's obligation to comply with Fish and Game Code Section 2080.

NATURAL HISTORY
The Swainson's hawk (Buteo swainsoni) is a large, broad winged buteo which frequents open country. They are about the same size as a red-tailed hawk (Buteo jatnaicensis), but trimmer, weighing approximately 800-1100 grams (1.75 - 2 lbs). They have about a 125 cm. (4+foot) wingspan. The basic body plumage may be highly variable and is characterized by several color morphs - light, dark, and rufous. In dark phase birds, the entire body of the bird may be sooty black. Adult birds generally have dark backs. The ventral or underneath sections may be light with a characteristic dark, wide "bib" from the lower throat down to the upper breast, light colored wing linings and pointed wing tips. The tail is gray ventrally with a subterminal dusky band, and narrow, less conspicuous barring proximally. The sexes are similar in appearance; females however, are slightly larger and heavier than males, as is the case in most sexually dimorphic raptors. There are no recognized subspecies (Palmer 1988). 3237
The Swainson's hawk is a long distance migrator. The nesting grounds occur in northwestern Canada, the western U.S., and Mexico and most populations migrate to wintering grounds in the open pampas and agricultural areas of South America (Argentina, Uruguay, southern Brazil).

The species is included among the group of birds known as "neotropical migrants". Some individuals or small groups (20-30 birds) may winter in the U.S., including California (Delta Islands). This round trip journey may exceed 14,000 miles. The birds return to the nesting grounds and establish nesting territories in early March.

Swainson's hawks are monogamous and remain so until the loss of a mate (Palmer 1988). Nest construction and courtship continues through April. The clutch (commonly 3-4 eggs) is generally laid in early April to early May, but may occur later. Incubation lasts 34-35 days, with both parents participating in the brooding of eggs and young. The young fledge (leave the nest) approximately 42-44 days after hatching and remain with their parents until they depart in the fall. Large groups (up to 100+ birds) may congregate in holding areas in the fall and may exhibit a delayed migration depending upon forage availability. The specific purpose of these congregation areas is as yet unknown, but is likely related to: increasing energy reserves for migration; the timing of migration; aggregation into larger migratory groups (including assisting the young in learning migration routes); and providing a pairing and courtship opportunity for unattached adults.

Foraging Requirements
Swainson's hawk nests in the Central Valley of California are generally found in scattered trees or along riparian systems adjacent to agricultural fields or pastures. These open fields and pastures are the primary foraging areas. Major prey items for Central Valley birds include:

California voles (Microtus californicus), valley pocket gophers (Thomomys bottae), deer mice (Peromyscus maniculatus), California ground squirrels (Spermophilus beecheyi), mourning doves (Zenaida macroura), ring-necked pheasants (Phasianus colchicus), meadowlarks (Sturnella neglecta), other passerines, grasshoppers (Conocephalinae sp.), crickets (Gryllidae sp.), and beetles (Estep 1989). Swainson's hawks generally search for prey by soaring in open country and agricultural fields similar to northern hariers (Circus cyaneus) and ferruginous hawks (Buteo regalis). Often several hawks may be seen foraging together following tractors or other farm equipment capturing prey escaping from farming operations. During the breeding season, Swainson's hawks eat mainly vertebrates (small rodents and reptiles), whereas during migration vast numbers of insects are consumed (Palmer 1988).

Department funded research has documented the importance of suitable foraging habitats (e.g., annual grasslands, pasture lands, alfalfa and other hay crops, and combinations of hay, grain and row crops) within an energetically efficient flight distance from active Swainson's hawk nests (Estep pers. comm.). Recent telemetry studies to determine foraging requirements have shown that birds may use in excess of 15,000 acres of habitat or range up to 18.0 miles from the nest in search of prey (Estep 1989, Babcock 1993). The prey base (availability and abundance) for the species is highly variable from year to year, with major prey population (small mammals and insects) fluctuations occurring based on rainfall patterns, natural cycles and agricultural cropping and harvesting patterns. Based on these variables, significant acreages of potential foraging habitat (primarily agricultural lands) should be preserved per nesting pair (or aggregation of 3238
nesting pairs) to avoid jeopardizing existing populations. Preserved foraging areas should be adequate to allow additional Swainson's hawk nesting pairs to successfully breed and use the foraging habitat during good prey production years.

Suitable foraging habitat is necessary to provide an adequate energy source for breeding adults, including support of nestlings and fledglings. Adults must achieve an energy balance between the needs of themselves and the demands of nestlings and fledglings, or the health and survival of both may be jeopardized. If prey resources are not sufficient, or if adults must hunt long distances from the nest site, the energetics of the foraging effort may result in reduced nestling vigor with an increased likelihood of disease and/or starvation. In more extreme cases, the breeding pair, in an effort to assure their own existence, may even abandon the nest and young (Woodbridge 1985).

Prey abundance and availability is determined by land and farming patterns including crop types, agricultural practices and harvesting regimes. Estep (1989) found that 73.4% of observed prey captures were in fields being harvested, disced, mowed, or irrigated. Preferred foraging habitats for Swainson's hawks include:
· alfalfa;
· fallow fields;
· beet, tomato, and other low-growing row or field crops; · dry-land and irrigated pasture;
· rice land (during the non-flooded period); and
· cereal grain crops (including corn after harvest).

Unsuitable foraging habitat types include crops where prey species (even if present) are not available due to vegetation characteristics (e.g. vineyards, mature orchards, and cotton fields, dense vegetation).
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Nesting Requirements
Although the Swainson's hawk's current nesting habitat is fragmented and unevenly distributed, Swainson's hawks nest throughout most of the Central Valley floor. More than 85% of the known nests in the Central Valley are within riparian systems in Sacramento, Sutter, Yolo, and San Joaquin counties. Much of the potential nesting habitat remaining in this area is in riparian forests, although isolated and roadside trees are also used. Nest sites are generally adjacent to or within easy flying distance to alfalfa or hay fields or other habitats or agricultural crops which provide an abundant and available prey source. Department research has shown that valley oaks (Quercus lobata), Fremont's cottonwood (Populus fremontii), willows (Salix spp.), sycamores (Platanus spp.), and walnuts (juglans spp.) are the preferred nest trees for Swainson's hawks (Bloom 1980, Schlorff and Bloom 1983, Estep 1989).

Fall and Winter Migration Habitats
During their annual fall and winter migration periods, Swainson's hawks may congregate in large groups (up to 100+ birds). Some of these sites may be used during delayed migration periods lasting up to three months. Such sites have been identified in Yolo, Tulare, Kern and San Joaquin counties and protection is needed for these critical foraging areas which support birds during their long migration.

Historical and Current Population Status
The Swainson's hawk was historically regarded as one of the most common and numerous raptor species in the state, so much so that they were often not given special mention in field notes.

The breeding population has declined by an estimated 91% in California since the turn of the century (Bloom 1980). The historical Swainson's hawk population estimates are based on current densities and extrapolated based on the historical amount of available habitat. The historical population estimate is 4,284-17,136 pairs (Bloom 1980). In 1979, approximately 375 (± 50) breeding pairs of Swainson's hawks were estimated in California, and 280 (75%) of those pairs were estimated to be in the Central Valley (Bloom 1980). In 1988, 241 active breeding pairs were found in the Central Valley, with an additional 78 active pairs known in northeastern California. The 1989 population estimate was 430 pairs for the Central Valley and 550 pairs statewide (Estep, 1989). This difference in population estimates is probably a result of increased survey effort rather than an actual population increase.

Reasons for decline
The dramatic Swainson's hawk population decline has been attributed to loss of native nesting and foraging habitat, and more recently to the loss of suitable nesting trees and the conversion of agricultural lands. Agricultural lands have been converted to urban land uses and incompatible crops. In addition, pesticides, shooting, disturbance at the nest site, and impacts on wintering areas may have contributed to their decline. Although losses on the wintering areas in South America may occur, they are not considered significant since breeding populations outside of California are stable. The loss of nesting habitat within riparian areas has been accelerated by flood control practices and bank stabilization programs. Smith (1977) estimated that in 1850 3240
over 770,000 acres of riparian habitat were present in the Sacramento Valley. By the mid-1980s, Warner and Hendrix (1984) estimated that there was only 120,000 acres of riparian habitat remaining in the Central Valley (Sacramento and San Joaquin Valleys combined). Based on Warner and Hendrix's estimates approximately 93% of the San Joaquin Valley and 73% of the Sacramento Valley riparian habitat has been eliminated since 1850.

MANAGEMENT STRATEGIES
Management and mitigation strategies for the Central Valley population of the Swainson's hawk should ensure that:
· suitable nesting habitat continues to be available (this can be accomplished by protecting existing nesting habitat from destruction or disturbance and by increasing the number of suitable nest trees); and
· foraging habitat is available during the period of the year when Swainson's hawks are present in the Central Valley (this should be accomplished by maintaining or creating adequate and suitable foraging habitat in areas of existing and potential nest sites and along migratory routes within the state).

A key to the ultimate success in meeting the Legislature's goal of maintaining habitat sufficient to preserve this species is the implementation of these management strategies in cooperation with project sponsors and local, state and federal agencies.

DEPARTMENT'S ROLES AND RESPONSIBILITIES IN

PROJECT CONSULTATION AND ADMINISTRATION

OF CEQA AND THE FISH AND GAME CODE
The Department, through its administration of the Fish and Game Code and its trust responsibilities, should continue its efforts to minimize further habitat destruction and should seek mitigation to offset unavoidable losses by (1) including the mitigation measures in this document in CEQA comment letters and/or as management conditions in Department issued Management Authorizations or (2) by developing project specific mitigation measures (consistent with the Commission's and the Legislature's mandates) and including them in CEQA comment letters and/or as management conditions in Fish and Game Code Section 2081 Management Authorizations issued by the Department and/or in Fish and Game Code Section 2090 Biological Opinions.

The Department should submit comments to CEQA Lead Agencies on all projects which adversely affect Swainson's hawks. CEQA requires a mandatory findings of significance if a project's impacts to threatened or endangered species are likely to occur (Sections 21001 fc), 21083. Guidelines 15380, 15064, 15065). Impacts must be: (1) avoided; or (2) appropriate mitigation must be provided to reduce impacts to less than significant levels; or (3) the lead agency must make and support findings of overriding consideration. If the CEQA Lead Agency makes a Finding of Overriding Consideration, it does not eliminate the project sponsor's obligation to comply with the take prohibitions of Fish and Game Code Section 2080. Activities 3241
which result in (1) nest abandonment; (2) starvation of young; and/or (3) reduced health and vigor of eggs and nestlings may result in the take (killing) of Swainson's hawks incidental to otherwise lawful activities (urban development, recreational activities, agricultural practices, levee maintenance and similar activities. The taking of Swainson's hawk in this manner may be a violation of Section 2080 of the Fish and Game Code. To avoid potential violations of Fish and Game Code Section 2080, the Department should recommend and encourage project sponsors to obtain 2081 Management Authorizations.

In aggregate, the mitigation measures incorporated into CEQA comment letters and/or 2081 Management Authorizations for a project should be consistent with Section 2053 and 2054 of the Fish and Game Code. Section 2053 states, in part, "it is the policy of the state that state agencies should not approve projects as proposed which would jeopardize the continued existence of'any endangered or threatened species or result in the destruction or adverse modification of habitat essential to the continued existence of those species, if there are reasonable and prudent alternatives available consistent with conserving the species and or its habitat which would prevent jeopardy" - Section 2054 states: "The Legislature further finds and declares that, in the event specific economic, social, and or other conditions make infeasible such alternatives, individual projects may be approved if appropriate mitigation and enhancement measures are provided."
State lead agencies are required to consult with the Department pursuant to Fish and Game Code Section 2090 to ensure that any action authorized, funded, or carried out by that state agency will not jeopardize the continued existence of any threatened or endangered species. Comment letters to State Lead Agencies should also include a reminder that the State Lead Agency has the responsibility to consult with the Department pursuant to Fish and Game Code Section 2090 and obtain a written findings (Biological Opinion). Mitigation measures included in Biological Opinions issued to State Lead Agencies must be consistent with Fish and Game Code Sections 2051-2054 and 2091-2092.

NEST SITE AND HABITAT LOCATION

INFORMATION SOURCES
The Department's Natural Diversity Data Base (NDDB) is a continually updated, computerized inventory of location information on the State's rarest plants, animals, and natural communities.

Department personnel should encourage project proponents and CEQA Lead Agencies, either directly or through CEQA comment letters, to purchase NDDB products for information on the locations of Swainson's hawk nesting areas as well as other sensitive species. The Department's Nongame Bird and Mammal Program also maintains information on Swainson's hawk nesting areas and may be contacted for additional information on the species.

Project applicants and CEQA Lead Agencies may also need to conduct site specific surveys (conducted by qualified biologists at the appropriate time of the year using approved protocols) to determine the status (location of nest sites, foraging areas, etc.) of listed species as part of the CEQA and 2081 Management Authorization process. Since these studies may require multiple years to complete, the Department shall identify any needed studies at the earliest possible time in the project review process. To facilitate project review and reduce the potential for costly 3242
project delays, the Department should make it a standard practice to advise developers or others planning projects that may impact one or more Swainson's hawk nesting or foraging areas to initiate communication with the Department as early as possible .

MANAGEMENT CONDITIONS
Staff believes the following mitigation measures (nos. 1-4) are adequate to meet the Commission's and Legislature's policy regarding listed species and are considered as preapproved for incorporation into any Management Authorizations for the Swainson's hawk issued by the Department. The incorporation of measures 1-4 into a CEQA document should reduce a project's impact to a Swainson's hawk(s) to less than significant levels. Since these measures are Staff recommendations, a project sponsor or CEQA Lead agency may choose to negotiate project specific mitigation measures which differ. In such cases, the negotiated Management Conditions must be consistent with Commission and Legislative policy and be submitted to the ESD for review and approval prior to reaching agreement with the project sponsor or CEQA Lead Agency.

Staff recommended Management Conditions are:

1. No intensive new disturbances (e.g. heavy equipment operation associated with construction, use of cranes or draglines, new rock crushing activities) or other project related activities which may cause nest abandonment or forced fledging, should be initiated within 1/4 mile (buffer zone) of an active nest between March 1 - September 15 or until August 15 if a Management Authorization or Biological Opinion is obtained for the project. The buffer zone should be increased to ½ mile in nesting areas away from urban development (i.e. in areas where disturbance [e.g. heavy equipment operation associated with construction, use of cranes or draglines, new rock crushing activities] is not a normal occurrence during the nesting season). Nest trees should not be removed unless there is no feasible way of avoiding it. If a nest tree must be removed, a Management Authorization (including conditions to off-set the loss of the nest tree) must be obtained with the tree removal period specified in the Management Authorization, generally between October 1- February 1. If construction or other project related activities which may cause nest abandonment or forced fledging are necessary within the buffer zone, monitoring of the nest site (funded by the project sponsor) by a qualified biologist (to determine if the nest is abandoned) should be required . If it is abandoned and if the nestlings are still alive, the project sponsor shall fund the recovery and hacking (controlled release of captive reared young) of the nestling(s). Routine disturbances such as agricultural activities, commuter traffic, and routine facility maintenance activities within 1/4 mile of an active nest should not be prohibited.

2. Hacking as a substitute for avoidance of impacts during the nesting period may be used in unusual circumstances after review and approval of a hacking plan by ESD and WMD. Proponents who propose using hacking will be required to fund the full costs of the effort, including any telemetry work specified by the 3243
Department.

3. To mitigate for the loss of foraging habitat (as specified in this document), the Management Authorization holder/project sponsor shall provide Habitat Management (HM) lands to the Department based on the following ratios:
(a) Projects within I mile of an active nest tree shall provide:
· one acre of HM land (at least 10% of the HM land requirements shall be met by fee title acquisition or a conservation easement allowing for the active management of the habitat, with the remaining 90% of the HM lands protected by a conservation easement [acceptable to the Department] on agricultural lands or other suitable habitats which provide foraging habitat for Swainson's hawk) for each acre of development authorized (1:1 ratio); or
· One-half acre of HM land (all of the HM land requirements shall be met by fee title acquisition or a conservation easement [acceptable to the Department) which allows for the active management of the habitat for prey production on-the HM lands) for each acre of development authorized (0.5:1 ratio).
(b) Projects within 5 miles of an active nest tree but greater than 1 mile from the nest tree shall plovide 0.75 acres of HM land for each acre of urban development authorized (0-75:1 ratio). All HM lands protected under this requirement may be protected through fee title acquisition or conservation easement (acceptable to the Department) on agricultural lands or other suitable habitats which provide foraging habitat for Swainson's hawk.
(c) Projects within 10 miles of an active nest tree but gleater than 5 miles from an active nest tree shall provide 0.5 acres of HM land for each acre of urban development authorized (0.5:1 ratio). All HM lands- protected under this requirement may be protected through fee title acquisition or a conservation easement (acceptable to the Department) on agricultural lands or other suitable habitats which provide foraging habitat for Swainson's hawk.

4. Management Authorization holders/project sponsors shall provide for the long-term management of the HM lands by funding a management endowment (the interest on which shall be used for managing the HM lands) at the rate of $400 per HM land acre (adjusted annually for inflation and varying interest rates).

Some project sponsors may desire to provide funds to the Department for HM land protection.

This option is acceptable to the extent the proposal is consistent with Department policy regarding acceptance of funds for land acquisition. All HM lands should be located in areas which are consistent with a multi-species habitat conservation focus. Management 3244
Authorization holders/project sponsors who are willing to establish a significant mitigation bank (> 900 acres) should be given special consideration such as 1.1 acres of mitigation credit for each acre preserved.

PROJECT SPECIFIC MITIGATION MEASURES
Although this report includes recommended Management Measures, the Department should encourage project proponents to propose alternative mitigation strategies that provide equal or greater protection of the species and which also expedite project environmental review or issuance of a CESA Management Authorization. The Department and sponsor may choose to conduct cooperative, multi-year field studies to assess the site's habitat value and determine its use by nesting and foraging Swainson's hawk. Study plans should include clearly defined criteria for judging the project's impacts on Swainson's hawks and the methodologies (days of monitoring, foraging effort/efficiency, etc.) that will be used.

The study plans should be submitted to the Wildlife Management Division and ESD for review.

Mitigation measures developed as a result of the study.must be reviewed by ESD (for consistency with the policies of the Legislature and Fish and Game Commission) and approved by the Director.

EXCEPTIONS
Cities, counties and project sponsors should be encouraged to focus development on open lands within already urbanized areas. Since small disjunct parcels of habitat seldom provide foraging habitat needed to sustain the reproductive effort of a Swainson's hawk pair, Staff does not recommend requiring mitigation pursuant to CEQA nor a Management Authorization by the Department for infill (within an already urbanized area) projects in areas which have less than 5 acres of foraging habitat and are surrounded by existing urban development, unless the project area is within 1/4 mile of an active nest tree.

REVIEW
Staff should revise this report at least annually to determine if the proposed mitigation strategies should be retained, modified or if additional mitigation strategies should be included as a result of new scientific information.
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LITERATURE CITED
Babcock, K.W. 1993. Home range and habitat analysis of Swainson's hawks in West Sacramento. Michael Brandman Associates report prepared for the Southport Property Owner's Group, City of West Sacramento, CA. 21pp.

Bechard, M.J. 1983. Food supply and the occurrence of brood reduction in Swainson's Hawk.

Wilson Bull. 95(2):233-242.

Bloom, P.H. 1980. The status of the Swainson's Hawk in California, 1979. Federal Aid in Wildlife Restoration, Project W-54-R-12, Nongame Wildl. Invest. job Final Report 11-8-0. 24p + appendix.

Estep, J.A. 1989. Biology, movements, and habitat relationships of the Swainson's Hawk in the Central Valley of California, 1986-87. Calif. Dept. Fish and Game, Nongame Bird and Mammal Section Report, 53pp.

Palmer, R.S. 1988a. Handbook of North American birds. Vol. 4: diurnal raptors (part 1). Yale Univ. Press, New Haven, CT.

Palmer, R.S. 1988b. Handbook of North American birds. Vol. 5: diurnal raptors (part 2). Yale Univ. Press, New Haven, CT.

Schlorff, R.W. and P.H. Bloom. 1983. Importance of riparian systems to nesting Swainson's Hawks in the Central Valley of California. pp 612-618. In: R.E Warner and K.M. Hendrix, (Eds.). 1984. California Riparian Systems. University of California Press, Berkeley.

Smith, F. 1977. Short review of the status of riparian forests in California. In: Stet, A. (Ed.).

Riparian forests in California: Their ecology and conservation. Inst. of Ecology Pubi. 15. Univ. of Calif., Davis.

Warner, R.E. and K. M. Hendrix, Eds. 1984. California riparian systems; ecology, conservation, and productive management. University of California Press, Berkeley.

Woodbridge, B. 1985. Biology and management of Swainson's Hawk in Butte Valley, California. U.S. Forest Service Report, 19pp.
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City of American Canyon—Giovannoni Logistics Center Project Final EIR–Volume 2 Responses to Written Comments
FirstCarbon Solutions 3-223 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 Friends of the Swainson’s Hawk (FRIENDS)
Note to Reader: The Friends of the Swainson’s Hawk letter included three attachments, one of which was the December 2, 2022 CDFW letter. Because that letter was addressed previously in this section, it has been omitted from this response in the interest of avoiding redundancy. The other two attachments are addressed in this response.

Response to FRIENDS-1
The commenter reiterated CDFW’s comments from the December 2, 2022 comment letter regarding the Swainson’s hawk.

The Swainson’s hawk is addressed in Master Response A-Swainson’s Hawk and Other Raptors.

Response to FRIENDS-Attachments
The attachments consist of a 2016 CDFW Five-Year Review of the Swainson’s Hawk and a 1994 CDFW report concerning mitigating the loss of Swainson’s hawk in the Central Valley.

The Swainson’s hawk is addressed in Master Response A-Swainson’s Hawk and Other Raptors. 3247

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1 January 10, 2023
Mr. Brent Cooper
Director of Community Development
City of American Canyon
4381 Broadway, Suite 201
American Canyon, CA 94503
Via email: [email protected]
Re: Giovannoni Logistics Center Project; Final Environmental Impact Report, SCH No. 2021010104, City of American Canyon, Napa County
Dear Mr. Cooper:

Raptors Are The Solution is a fiscally-sponsored project of Earth Island Institute, based in Berkeley, California. Our mission is to educate people about the ecological role of birds of prey, and work to eliminate toxic rodenticides to prevent further poisonings of wildlife, children, and pets. We work through public education, legislation, and litigation when necessary.

Our organization is also very concerned about the status of raptor populations in the state of California, including the Swainson’s hawk, which is listed as threatened, under the California Endangered Species Act. As you are likely aware, raptors in general are quite vulnerable to the numerous environmental challenges presented by the ever-growing human population: only about 40 percent make it through their first year. Habitat loss is one of those challenges and an important factor leading to raptor declines.

We echo the concerns raised in the very thorough letter of January 9, 2023 submitted to you by Friends of the Swainson’s Hawk (FOSH) and agree with their concerns about the inadequacy of the FEIR.

Like FOSH, we have reviewed the California Department of Fish and Wildlife’s (CDFW) December 2, 2022 letter to you on the FEIR, which found that the city’s environmental review 3249
2 was inadequate to address impacts to the Swainson’s hawk from the Giovannoni Logistics Center Project. This project destroys at least 154.7 acres of important foraging habitat for northern harriers, golden eagles, and Swainson’s hawks, and CDFW has identified a cumulative loss of habitat from similar projects in the vicinity, in violation of the California Environmental Quality Act. We ask that you deny this project due to its unacceptable, irreversible impacts to raptors, including the threatened Swainson’s hawk, and we agree with CDFW that your environmental review is inadequate to address impacts to this important raptor. Surely you can find less damaging locations in which to build this logistics center. We ask to be notified of future hearings and documents via [email protected] Sincerely,
Lisa Owens Viani
Director
Cc: [email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
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City of American Canyon—Giovannoni Logistics Center Project Final EIR–Volume 2 Responses to Written Comments
FirstCarbon Solutions 3-227 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 Raptors Are The Solution (RATS)
Response to RATS-1
The commenter reiterated the comments of Friends of the Swainson’s Hawk.

The Swainson’s hawk is addressed in Master Response A-Swainson’s Hawk and Other Raptors. 3251

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Napa-Solano Audubon Society
P.O. Box 10006
Napa, CA 94581
www.napasolanoaudubon.com
[email protected]
707-246-2795

January 10, 2023,
Brent Cooper
Community Development Director
4381 Broadway Street, Suite 201
American Canyon, CA 94503
[email protected]
Subject: Giovannoni Logistics Center Project, Final Impact Report SCH No. 2021010104, City of American Canyon, Napa County Dear Mr. Cooper,
On behalf of our 1000 member Napa-Solano Audubon Society Chapter, I would like to second the concern regarding the Giovannoni Project written to you by Erin Chappell, Regional Manager of the California State Fish and Wildlife Department, dated December 2, 2022. Although surrounded by other development, the Giovannoni Project is located in prime grassland foraging habitat of the Swainson’s Hawk (Buteo swainsoni), a California “Threatened” species, which we believe has had 2-3 active nests in the near vicinity, and within 1 - 2 miles of this development site. This hawk is a rare species in Napa County and this project, with the loss of more grassland habitat, will certainly impact their breeding success. Since other development projects in this area have previously encroached on Swainson’s Hawk’s nesting and feeding habitat without the proper mitigation of similar grassland acreage, this project will further severely impact them. We believe it is essential that this project mitigate an equal or greater grassland acreage which is suitable for foraging Swainson’s Hawks. We are aware that it is common practice to mitigate similar habitat acreage by as much as a 3:1 ratio. As pointed out by Erin Chappell, this project would eliminate over 150 acres of prime foraging habitat, therefore we are requesting that the City of American Canyon permanently set aside a minimum of 450 acres of suitable Swainson’s Hawk foraging land to protect this species in our County or nearby lands.

In addition, these grasslands are occupied by wintering Burrowing Owls (Athene cunicularia), a “Species of Concern” that is rapidly declining in population in our state, and especially in the Bay Area, due to loss of habitat. Burrowing Owls migrate to our area in winter and use ground squirrel burrows in grasslands for protection and hunt for small prey nearby. Grasslands in our county are a critical wintering habitat to protect this species.

In an effort to protect these two, threatened and declining species, we hope the City of American Canyon will honor this request to mitigate substantial land to alleviate the loss of habitat by the Giovannoni Project and adjacent American Canyon and Napa County development projects. We would like to send representatives to any future meeting where this topic is open for public comment.

Please include our organization on the notification list for this project and any future development projects in American Canyon.

Sincerely,
Mark Stephenson, President
Napa-Solano Audubon Society
Email: [email protected]
Phone: 707-246-2795
napasolanoaudubon.com
Napa Solano Audubon is a 501(c)(3) NonproLit organization. • California tax ID: 94-2375760 • Federal tax ID (EIN): 237325783 3253

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City of American Canyon—Giovannoni Logistics Center Project Final EIR–Volume 2 Responses to Written Comments
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Response to NSAS-1
The commenter reiterated CDFW’s comments from the December 2, 2022 comment letter regarding the Swainson’s hawk.

The Swainson’s hawk is addressed in Master Response A-Swainson’s Hawk and Other Raptors. 3255

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January 13, 2023
Sent via email
Brent Cooper
City of American Canyon
4381 Broadway Street, Suite 201
American Canyon, CA 94503
[email protected]
Re: Giovannoni Logistics Center Project Final Environmental Impact Report (SCH # 2021010104)
Dear Mr. Cooper:

Please accept these comments submitted on behalf of the Center for Biological Diversity (the “Center”) regarding the Final Environmental Impact Report (EIR) for the Giovannoni Logistics Center Project (“Project”) (State Clearinghouse No. 2021010104).

The Center is a non-profit, public interest environmental organization dedicated to the protection of native species and their habitats through science, policy, and environmental law.

The Center has over 1.7 million members and online activists throughout California and the United States. The Center has worked for many years to protect imperiled plants and wildlife, open space, air and water quality, and overall quality of life for people in Napa County.

As a threshold matter, the Center is concerned about the City’s failure to follow CEQA’s notice requirements for the Project’s environmental review process. Despite the Center’s repeated requests, the City failed to notify the Center regarding its publication of the environmental documents for the Project and its public hearings to consider the Project. This was a violation of CEQA’s notice requirements. (Pub. Resources Code, § 21092, subd. (b)(3); CEQA Guidelines § 15087, subd. (a).) Only after the Center submitted a formal letter to the City did the City acknowledge that it had had some issues with the e-mail server. 1 To remedy the violation,
the City agreed to extend the comment period until January 16th, and to respond in writing to comments received by the Center before that deadline. The City to date has not confirmed that no other interested parties failed to receive notice. The City also appears to have failed to post notice of the public review period for the draft EIR in the Napa Valley Register, the newspaper 1 Telephone call
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of general circulation for the area.
2 Publication in the affected area’s newspaper of general circulation is “a form [of notice] calculated to come to the attention of members of the public,” and the City’s failure to do this is in line with a general disregard for public notice. (California Aviation Council v. County of Amador (1988) 200 Cal.App.3d 337, 344.) In line with the City’s general disregard for the notice requirements, it also failed to post the final EIR on CEQAnet.

The courts have repeatedly stated that public participation is a fundamental purpose of the CEQA process. (Laurel Heights Improvement Ass'n v Regents of Univ. of Cal. (1988) 47 Cal. 3d 376, 404; County of Inyo v Yorty (1973) 32 Cal.App.3d 795, 810; California Bldg. Indus. Ass'n v Bay Area Air Quality Mgmt. Dist. (2015) 62 Cal. 4th 369, 383.) The City’s actions here do not achieve that fundamental purpose. To remedy this violation, the City must confirm with evidence that no other interested parties failed to receive notice and should recirculate the EIR for comment with full public notice.

The Project would worsen the greenhouse gas emissions, air quality, and traffic in the City of American Canyon and Napa County, and harm important biological resources. To address these concerns and comply with the California Environmental Quality Act (CEQA), the City must fully disclose all impacts and consider and incorporate enforceable, evidence-backed mitigation measures for GHG emissions, air quality, transportation, and biological resources.

I. The EIR Failed to Properly Analyze or Adequately Mitigate Greenhouse Gas Emissions.

A. Climate Change Is a Catastrophic and Pressing Threat to California.

A strong, international scientific consensus has established that human-caused climate change is causing widespread harms to human society and natural systems, and that climate change threats are becoming increasingly dangerous. The Intergovernmental Panel on Climate Change (IPCC), the leading international scientific body for the assessment of climate change, concluded in its 2014 Fifth Assessment Report that: “[w]arming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, and sea level has risen,” and further that “[r]ecent climate changes have had widespread impacts on human and natural systems.” (IPCC 2014.) These findings were echoed in the United States’ own 2014 Third National Climate Assessment and 2017 Climate Science Special Report, prepared by scientific experts and reviewed by the National Academy of Sciences and multiple federal agencies. The Third National Climate Assessment concluded that “[m]ultiple lines of independent evidence confirm that human activities are the primary cause of the global warming of the past 50 years” and “[i]impacts related to climate change are already evident in many regions and are expected to become increasingly disruptive across the nation throughout this century and beyond.” (Melillo 2014.) The 2017 Climate Science Special Report similarly concluded:
2 The Center received word that the City published notice in the Vallejo Times-Herald but has not found any record of notice on the Times-Herald’s website. Nevertheless, the City of Vallejo is a separate jurisdiction from the City and would not reach City or County residents affected by the Project. 3258

[B]ased on extensive evidence, it is extremely likely that human activities, especially emissions of greenhouse gases, are the dominant cause of the observed warming since the mid-20th century. For the warming over the last century, there is no convincing alternative explanation supported by the extent of the observational evidence.

The U.S. National Research Council concluded that “[c]limate change is occurring, is caused largely by human activities, and poses significant risks for—and in many cases is already affecting—a broad range of human and natural systems.” (NRC 2010.) Based on observed and expected harms from climate change, in 2009 the U.S. Environmental Protection Agency found that greenhouse gas pollution endangers the health and welfare of current and future generations. (74 Fed. Reg. 66496 (Dec. 15, 2009) [U.S. EPA, Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act; Final Rule].) These authoritative climate assessments decisively recognize the dominant role of greenhouse gases in driving climate change. As stated by the Third National Climate Assessment: “observations unequivocally show that climate is changing and that the warming of the past 50 years is primarily due to human-induced emissions of heat-trapping gases.” (Mellilo 2014.) The Assessment makes clear that “reduc[ing] the risks of some of the worst impacts of climate change” will require “aggressive and sustained greenhouse gas emission reductions” over the course of this century. (Melillo 2014 at 13, 14, and 649.) The impacts of climate change will be felt by humans and wildlife. Climate change is increasing stress on species and ecosystems—causing changes in distribution, phenology, physiology, vital rates, genetics, ecosystem structure and processes—in addition to increasing species extinction risk. (Warren 2008.) Climate-change-related local extinctions are already widespread and have occurred in hundreds of species. (Wiens 2016.) Catastrophic levels of species extinctions are projected during this century if climate change continues unabated. (Thomas 2004; Maclean 2011; Urban 2015.) In California, climate change will transform our climate, resulting in such impacts as increased temperatures and wildfires, and a reduction in snowpack and precipitation levels and water availability.

Therefore, immediate and aggressive greenhouse gas emissions reductions are necessary to keep warming well below 2°C above pre-industrial levels. The IPCC Fifth Assessment Report and other expert assessments have established global carbon budgets, or the total amount of carbon that can be burned while maintaining some probability of staying below a given temperature target. According to the IPCC, total cumulative anthropogenic emissions of CO2 must remain below about 1,000 GtCO2 from 2011 onward for a 66 percent probability of limiting warming to 2°C above pre-industrial levels, and to 400 GtCO2 from 2011 onward for a 66 percent probability of limiting warming to 1.5°C. (IPCC 2013 at 25; IPCC 2014 at 63-64 & Table 2.) These carbon budgets have been reduced to 850 GtCO2 and 240 GtCO2, respectively, from 2015 onward. (Rogelj 2016 at Table 2.) As of 2022, climate policies by the world’s countries would lead to an estimated 2.7°C of warming, and possibly up to 3.6°C of warming, well above the level needed to avoid the worst dangers of climate change. (Climate Action Tracker 2021.)
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The United States has contributed more to climate change than any other country. The U.S. is the world’s biggest cumulative emitter of greenhouse gas pollution, responsible for 27 percent of cumulative global CO2 emissions since 1850, and the U.S. is currently the world’s second highest emitter on an annual and per capita basis. (World Resources Institute 2020.) Nonetheless, U.S. climate policy is wholly inadequate to meet the international climate target to hold global average temperature rise to well below 2°C above pre-industrial levels to avoid the worst dangers of climate change. Current U.S. climate policy has been ranked as “insufficient” by an international team of climate policy experts and climate scientists which concluded that “the US’ climate policies and action in 2030 need substantial improvements.” (Climate Action Tracker 2022.)
In its 2018 Special Report on Global Warming of 1.5°C, the IPCC—the leading international scientific body for the assessment of climate change—described the devastating harms that would occur at 2°C warming. The report highlights the necessity of limiting warming to 1.5°C to avoid catastrophic impacts to people and life on Earth. (IPCC 2018.) The report also provides overwhelming evidence that climate hazards are more urgent and more severe than previously thought, and that aggressive reductions in emissions within the next decade are essential to avoid the most devastating climate change harms.

In response to inadequate action on the national level, California has taken steps through legislation and regulation to fight climate change and reduce statewide GHG emissions.

Enforcement and compliance with these steps are essential to help stabilize the climate and avoid catastrophic impacts to our environment. California has a mandate under AB 32 to reach 1990 levels of GHG emissions by the year 2020, equivalent to approximately a 15 percent reduction from a business-as-usual projection. (Health & Saf. Code, § 38550.) Based on the warning of the Intergovernmental panel on Climate Change and leading climate scientists, Governor Brown issued an executive order in April 2015 requiring GHG emission reduction 40 percent below 1990 levels by 2030. (Executive Order B-30-15 (2015).) The Executive Order is line with a previous Executive Order mandating the state reduce emission levels to 80 percent below 1990 levels by 2050 in order to minimize significant climate change impacts. (Executive Order S-3-05 (2005).) In enacting SB 375, the state has also recognized the critical role that land use planning plays in achieving greenhouse gas emission reductions in California.

The state Legislature has found that failure to achieve greenhouse gas reduction would be “detrimental” to the state’s economy. (Health & Saf. Code § 38501(b).) In his 2015 Inaugural Address, Governor Brown reiterated his commitment to reduce greenhouse gas emissions with three new goals for the next fifteen years:
• Increase electricity derived from renewable sources to 50 percent; • Reduce today’s petroleum use in cars and trucks by 50 percent; • Double the efficiency of existing buildings and make heating fuels cleaner. (Brown 2015 Address.)
Although some sources of GHG emissions may seem insignificant, climate change is a problem with cumulative impacts and effects. (Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin. (9th Cir. 2008) 538 F.3d 1172, 1217 (“the impact of greenhouse gas 3260

emissions on climate change is precisely the kind of cumulative impacts analysis” that agencies must conduct).) One source or one small project may not appear to have a significant effect on climate change, but the combined impacts of many sources can drastically damage California’s climate as a whole. Therefore, project-specific GHG emission disclosure, analysis and mitigation is vital to California meeting its climate goals and maintaining our climate.

The impacts of climate change are already being felt by humans and wildlife. Humaninduced climate change, including more frequent and intense extreme events, has caused widespread adverse impacts and related losses and damages to nature and people. (IPCC 2022.) This rise in weather and climate extremes has led to some irreversible impacts, as natural and human systems are pushed beyond their ability to adapt. (IPCC 2022.) Thousands of studies conducted by researchers around the world have documented changes in surface, atmospheric, and oceanic temperatures; melting glaciers; diminishing snow cover; shrinking sea ice; rising sea levels; ocean acidification; and increasing atmospheric water vapor. (USGCRP 2017.) In California, climate change will result in impacts including, but not limited to, increased temperatures and wildfires and a reduction in snowpack, precipitation levels, and water availability.

In the IPCC’s most recent report, entitled Climate Change 2022: Impacts, Adaptation and Vulnerability, it found that warming is proceeding even faster than anticipated, and the best-case scenario for climate change is slipping out of reach. (IPCC 2022.) The report now estimates that, over the next 20 years, the world will cross the global warming threshold of 1.5°C. And unless there are immediate, rapid and large-scale reductions in greenhouse gas emissions, limiting warming to close to 1.5°C—or even 2°C—will be beyond reach. The United Nations Secretary General described the forecasts in this report as an “atlas of human suffering.” (Borenstein 2022.)
Given the increasingly urgent need for drastic action to reduce GHG emissions, the FEIR’s failure to fully disclose, analyze, mitigate, or consider alternatives to reduce the Project’s significant climate change effects is all the more alarming.

B. The EIR’s Threshold of Significance Forecloses Consideration of Foreseeable GHG Impacts and Is Not Supported by Substantial Evidence.

The EIR estimates the Project’s GHG emissions to be approximately 21,360 MTCO2e annually during the life of the Project. (DEIR at 3.6-53.) The EIR then purports to evaluate this enormous emissions impact against the Bay Area Air Quality Management District’s (BAAQMD) new 2022 significance thresholds for office projects, limiting its review of climate impacts to a 15 percent reduction in employee VMT. (DEIR at 3.6-44, 45.) In applying the threshold, however, the EIR omits consideration of the VMT from truck trips, the main driver of GHG emissions for this project, and finds that the Project’s GHG impacts are less-thansignificant. (DEIR at 3.6-59.) 3261

A lead agency’s selection of a threshold of significance must be supported with substantial evidence. Moreover, a determination that an environmental impact complies with a particular threshold of significance does not relieve a lead agency of its obligation to consider evidence that indicates the impact may be significant despite compliance with the threshold. (CEQA Guidelines § 15064(b)(2).) If evidence shows that an environmental impact might be significant despite the significance standard used in the EIR, the agency must address that evidence. (Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1111.)
BAAQMD recently updated its thresholds of significance for climate land use impacts.

The new thresholds require that projects meet a VMT target, depending on whether the project consists of office, retail, or residential uses. (BAAQMD 2022.) The BAAQMD guidelines did not adopt a significance threshold for industrial land uses. The EIR’s use of BAAQMD’s significance threshold for office projects is not supported by substantial evidence and drastically downplays the Project’s significant GHG emissions impacts.

The EIR selected the threshold for office projects, which sets a target of reducing projectgenerated VMT to 15% below the existing VMT per employee. (DEIR at 3.6-45.) From there, the EIR concludes that the Project will not have a significant impact on GHG emissions because employee commutes will be 15% below existing VMT. (DEIR at 3.6-56.) This threshold omits consideration of the VMT from truck trips, the main driver of GHG emissions for this project. (DEIR at 3.6-53.) The EIR’s choice to omit analysis of the greenhouse gas impacts of heavy trucks is inexcusable. Substantial evidence demonstrates that the Project will generate hundreds of truck trips each day, which emit greenhouse gases. The EIR acknowledges that truck trips to transport goods are a main driver of vehicle trips generated by industrial land uses (DEIR at 3.6-45) and estimates that 528 trucks will access the project site each day (DEIR, Appendix H at 19). However, the EIR maintains that these truck trips, no matter their possible number, cannot possibly cause GHG impacts.

The EIR argues that omitting truck trips from the significance threshold is appropriate because the GHG emissions of truck trips are addressed by statewide standards, not by land use decisions. (DEIR at 3.6-45.) This argument ignores what CEQA is meant to do – namely, ensure that a lead agency fully evaluates, discloses, and mitigates wherever feasible a project’s significant environmental effects. (Pub. Resources Code, §§ 21000, et seq.) The EIR may consider what mitigation is within the City’s jurisdiction when analyzing feasible mitigation measures, but these statewide standards do not absolve the EIR of CEQA’s requirement that it disclose and analyze all potentially significant impacts associated with a project. Significance thresholds must not foreclose consideration of any potentially significant environmental effect, or the CEQA analysis is deficient. (Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1109 [“A threshold of significance cannot be applied in a 3262

way that would foreclose the consideration of other substantial evidence tending to show the environmental effect to which the threshold relates might be significant.”].) The GHG analysis here is similar to the one that failed in Friends of Oroville v. City of Oroville (2013) 219 Cal.App.4th 832, 842. In that case, the Court held that the City of Oroville had failed to adequately assess the impact of a project’s greenhouse gas emission because it had improperly applied the threshold for determining the significance of project greenhouse gas emissions. (Ibid.) There, the EIR used the “Scoping Plan Measures” from the Assembly Bill 32 Scoping Plan to create a significance threshold. (Id. at 843.) However, it concluded that the plan’s transportation measures need not be applied to the project because they were meant to be implemented at a state-wide level. (Ibid.) The court found that the City had made a “meaningless” comparison of the proposed store’s emissions to statewide emissions and had failed to calculate the project’s emissions. (Ibid.) The court said that by choosing a framework that excluded consideration of transportation impacts, the EIR “ignore[ed] the elephant in the room,” since 68% of the Project’s GHG emissions came from transportation impacts. (Ibid.) By relying on an inapplicable state-wide plan to disclaim responsibility to fully analyze and disclose impacts, that EIR – and this one, too – are deficient.

The EIR makes a second attempt at justifying its astounding threshold by attributing its choice to “a lack of guidance on this subject from expert regulatory agencies.” (EIR at 3.6-45.) There is ample guidance available to craft a relevant threshold. In the BAAQMD 2017 guidelines, the significance threshold for industrial land uses was 1,100 MT per year, 4.6 MT per person (employees and residents) per year, or compliance with a qualified GHG Reduction Strategy. (BAAQMD 2017.) South Coast Air Quality Management District (SCAQMD) has established a 10,000 MTCO2e CEQA threshold of significance for industrial facilities. (SCAQMD 2019.) Indeed, because the 2022 update to the guidance did not include a threshold that applied to industrial projects, the 2017 threshold is still the most recent guideline that the BAAQMD has given for industrial projects. The 2022 update did not repeal the 2017 guidance.

Therefore, the 2017 threshold still represents the last time that BAAQMD considered and formally adopted a threshold for industrial uses, and the City offers no explanation for refusing to consider that threshold. Finally, warehouse projects, as a matter of course, disclose and study the impact of truck trips in their greenhouse gas impacts analysis, in part because truck trips are the greatest source of GHG emissions.3 The California Attorney General, in its Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act for Warehouse Projects, also highlights the necessity of fully analyzing impacts from truck trips. (AGO 2021.)
The City provides no reasonable factual or policy basis for inventing a modified version of the 2022 BAAQMD threshold to apply to industrial uses. 3 See Renaissance Ranch DEIR at 4.8-23-24; Speedway Commerce Center II Specific Plan DEIR at 4.8-16-17; Hesperia Commerce Center II DEIR at 4.6-26-27; Beaumont Summit Station Specific Plan DEIR at 4.7-24-25. The Center does not here comment on the adequacy of the GHG analysis in any of these EIRs beyond noting that they did not choose significance thresholds that foreclosed consideration of GHG emissions from trucks. 3263

C. Evidence Shows that the Project Will Have Significant GHG Impacts Under any accepted threshold of significance for industrial projects, there is ample evidence to suggest that the Project would have significant GHG impacts. By any measure, 21,360 MTCO2e per year is a significant level of emissions. (DEIR at 3.6-53.) The Project’s GHG emissions significantly exceed the 2017 BAAQMD threshold in every aspect. The Project’s emissions are more than 20 times higher than the 1,100 MY per year total emissions threshold, and its per person emissions are 5.8 MT, meaning the Project exceeds the 4.6 MT per person threshold by more than a metric ton per person. The Project is not consistent with a qualified GHG reduction plan, as the EIR acknowledges. (DEIR at 3.6-54.) The Project also exceeds SCAQMD’s 10,000 MTCO2e CEQA threshold of significance for industrial facilities. This again shows the overwhelming significance of the Project’s GHG emissions, and highlights that the threshold the City selected obscures impacts that would are otherwise significant.

Both the 2017 BAAQMD thresholds and the current SCAQMD thresholds were formally adopted by those agencies after long consideration and a formal notice and comment rulemaking process and are supported by substantial evidence. Under either of these thresholds—or any threshold supported by substantial evidence—the Project’s anticipated annual GHG emissions of over 20,000 MTCO2e annually is profoundly significant.

C. The EIR Underestimates GHG Emissions the Project Will Generate.

The DEIR here grossly underestimates the vehicle trips associated with the Project, the main driver of the Project’s air quality and greenhouse gas impacts. (DEIR at 3.6-53.) It estimates that the Project will generate 528 daily truck trips, which it calculated using the Institute of Transportation Engineers (ITE) Common Trip Generation Rates. (DEIR at 3.12-12.) The ITE estimates trip generations based on the type of facility and square footage of the facility. (ITE 2017.) The DEIR uses the rate for “High-Cube Transload and Short-term Storage Warehouse,” which has a generation rate of .1 trips per unit. (DEIR, Appendix H at 13.) Other types of warehouse projects identified by ITE, such as High-Cube Fulfillment Center Warehouses and High-Cube Parcel Hub Warehouses, have significantly higher vehicle trip estimates, 1.37 and .64 trips per unit, respectively. (ITE 2017.) The DEIR provides no information or evidence justifying its selection of high-cube shortterm storage and warehousing when other types of high cube warehouse centers result in truck trip estimates orders of magnitude higher. The DEIR describes the Project generally as a “highcube warehouse” and as a “logistics center.” (DEIR at 2-4.) The DEIR lacks additional detail about the type of warehouse facility it anticipates constructing. It does not place limits on the type of e-commerce facility that could operate on the site. It says that, given the “lack of information regarding potential future tenants,” it is possible that the warehouse could be used 3264

for cold storage but does not account for that possibility in the trip generation analysis.4 Absent additional information, it appears that any tenant could operate a high-cube fulfillment center warehouse, a high-cube parcel hub warehouse, or high-cube cold storage warehouse on the site, which would generate significantly more truck trips than the DEIR disclosed, analyzed, or mitigated. The DEIR’s approach violates CEQA’s requirement that an EIR fully analyze and attempt to mitigate all significant direct and indirect impacts of a project. (CEQA Guidelines, § 15126.2; Pub. Resources Code, § 21002.)
The FEIR defends the choice of the high-cube transload and short-term storage warehouse rate (“transload rate”) on the grounds that that rate was based on over 100 site surveys, while rates for the other types of warehousing were based on fewer data points. (FEIR at 3-319.) Even if the rate chosen was based on a larger data set, that has no bearing on whether it was the appropriate estimate for this Project. The transload rate might be average of more data points, but those additional data points represent a wider range of warehousing types and are therefore less representative of the high-cube, potentially cold storage warehouse proposed here.

The EIR has not offered evidence that the transload rate is reflective of the future uses, and future trip generation, of this warehouse type.

The City must support its choice to rely upon the lowest estimate or select an estimate that more conservatively and accurately accounts for the Project’s potential to generate truck trips. Should the City ultimately rely on these lower estimates, the City must condition any project approval on a lease provision that guarantees a Project tenant could not operate a highcube fulfillment center, a parcel hub warehouse, or a cold-storage warehouse on the site, absent additional environmental review and mitigation.

Further, the number of generated passenger car trips is contradicted by the number of people that the EIR claims the Project will employ at full build-out. It estimates 3,643 employees, but only 2,832 passenger car trips per day. (DEIR Appendix H at 13.) Even if only 75% of the employees commuted to the site on a given day, their commutes alone would be 5,464 trips, already almost double the total estimated daily trips. The EIR must standardize these conflicting numbers by either admitting the Project will not have the level of employment, and therefore the level of local economic benefit, that Project advocates claim, or that it will have much higher car trip generation.

Finally, the DEIR omits one of the key sources of GHG emissions that will result from the Project: vegetation removal. (DEIR at 3.6-53.) The Project anticipates grading at least 163 acres of land currently covered in a variety of different vegetation, including wetlands and 4 In fact, the EIR includes a cold storage scenario in its GHG analysis but uses the same number for estimated emissions from trucks in both the cold storage and dry storage scenarios. (DEIR at 3.6-53.) However, the ITE estimates that cold storage warehouses will generate 0.12 trips per unit, not 0.10. (ITE 2017.) By using the lowest possible trip generation estimate even when explicitly analyzing a different kind of warehouse, the EIR again misleads the public about the Project’s GHG emissions.
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grassland. (DEIR at 2-4.) The DEIR nowhere estimates the anticipated loss of sequestered carbon.

The removal and degradation of ecosystems have been found to result in the loss of both above- and below-ground carbon storage (e.g., Austreng 2012.) California’s wetland and grassland ecosystems are significant carbon sinks. (Bohlman et al., 2018; Dass et al., 2018; Janzen, 2004; Luo et al., 2007; Wohlfahrt et al., 2008.) With much of the stored carbon located in their roots and soils, there is potential for long-term storage that is more resilient to changing environmental conditions (Aranjuelo et al., 2011; Booker et al., 2013; Evans et al., 2014; Vicente-Serrano et al., 2013.)
CalEEMod, the land use emissions model used in the DEIR, has a module to estimate the changes in carbon sequestration capacity resulting from changes in vegetation on-site. (CalEEMod 2021.) The DEIR thus has no excuse for its failure to estimate the emissions associated with the loss of at almost 200 acres of vegetation, topsoil, and overburden, all of which sequester carbon. The DEIR must make a good faith effort to estimate these emissions and include them in the Project’s overall estimated GHG footprint.

D. The EIR’s New VMT Study Fails to Provide Evidence that the Project’s GHG Impacts Are Less Than Significant.

In response to the many comments identifying the above deficiencies in the VMT analysis, the EIR added a new study that purports to show that even if the EIR had considered heavy duty truck trips, which it did not, the Project’s VMT would still be 15% below the regional average. (FEIR, Appendix J at 3.) The study’s conclusion is faulty, and its findings are not supported by substantial evidence. Accordingly, the study does not correct the EIR’s clear failure to incorporate heavy truck emissions into its GHG significance threshold.

The new study collected and summarized many data points, to little effect. First, it estimated warehouse trip generation per thousand feet of warehouse space by monitoring warehouses in San Joaquin County. (FEIR, Appendix J at 5.) It found a trip generation rate similar to the estimate from the ITE Trip Generation Manual used in the DEIR. Then, it tracked all heavy-duty truck trips starting or ending at eight industrial warehousing sites in Napa County and 15 sites in other parts of the Bay Area. (Id. at 7-8.) The average truck trip length for all sites was 58.2 miles, and the average for Napa County sites was 35.6 miles. (Ibid.) The study hypothesized that, assuming the Project site ultimately generates the same number of trips as whatever unknown number of trips is average for other Bay Area sites, and those trips are an average of 35.6 miles long, then the Project’s heavy-truck VMT would be lower than the regional average. (Id. at 14) However, the study offers no evidence for these assumptions.

First, the study fails to account for the number of truck trips generated by the project.

Even if, as the study claims, warehouses in Napa County are intended to serve a more local area than warehouses elsewhere (without disclosing the region this Project is intended to serve), those 3266

warehouses may generate more truck trips as their trucks make shorter, more frequent circuits to their local destinations. (FEIR, Appendix J at 12.)
Further, the study offers no evidence that the Project will have an average truck trip length of 35.6 miles. Four of the eight warehouse sites that were used to develop the Napa County average are specifically wine warehouses. (FEIR, Appendix J at 11.) Since these sites are presumably serving local wine producers, it is logical that their trips would be shorter. There is no indication that the Project would have mostly tenants in the wine industry, so there is no evidence that the average applies.

The EIR cannot rely on a regional average absent evidence that the Project would be in line with the regional average. Otherwise, all warehouse projects in Napa County, regardless of the size or intensity of use or number of truck trips generated, could conclude that their heavyduty truck VMT is within the threshold of significance, simply because the County average is below the regional average. CEQA requires that an EIR contain substantial evidence supporting its factual conclusions, and the regional average contains no support regarding the project’s individual impacts.

E. Because the EIR Improperly Found that the Project’s GHG Emissions Were Less Than Significant, It Failed to Consider, Much Less Adopt, Feasible Mitigation Measures to Reduce or Avoid the Project’s GHG Impacts.

The EIR fails to meet the City’s obligation to adopt all feasible mitigation to reduce the Project’s significant GHG impacts, such as the basic mitigation measures that have become standard for new warehouse development. Examples of such measures include those listed in the Fontana Ordinance No. 1891, which were specifically formulated to mitigate impacts from warehouse development and protect residents and the air basin from cumulative environmental impacts. (City of Fontana 2022.) The California Office of the Attorney General also has published a document entitled “Warehouse Projects: Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act” to help lead agencies comply with these requirements. (AGO 2021.) Nearly all of the example mitigation measures in this document have been adopted in a warehouse project in California, demonstrating their feasibility.

Whether a mitigation measure is economically unfeasible “is not measured by increased cost or lost profit, but upon whether the effect of the proposed mitigation is such that the project is rendered impractical.” (Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 600, internal citation omitted.) The City must adopt additional mitigation unless it can demonstrate with substantial evidence and analysis that this alternative is infeasible. (Los Angeles Unified Sch. Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1029.) The EIR does not fulfill this obligation.

Specifically, the EIR fails to require the project to use all electrical equipment on site, and the EIR does not show with substantial evidence that is infeasible. 3267

Requiring Electrical Equipment on Site
During construction, exhaust emissions from heavy-duty construction equipment will be the biggest source of on-site GHG emissions. (DEIR at 3.6-40-41). During operation, warehouses require cargo handling equipment, like forklifts and pallet jacks, that also produce considerable GHG emissions if they run on diesel. (CARB 2020.) However, the EIR claims that requiring electrical equipment on-site would not be feasible for two reasons. (FEIR at 3-100.) First, because the project end users are not known, the requirement would be “speculative.” It is not speculative to require something of tenants before knowing who the tenants are, and other statements in the EIR contradict this statement. In fact, the EIR does put requirements on unknown end users, as warehouse EIRs commonly do. For example, the MM-AIR-2f requires end users to establish a rideshare program with financial incentives. (FEIR at 3-102.) In this case, it is reasonable to assume that some of the tenants will almost certainly use on-site equipment like forklifts, and therefore that they can use zero emissions equipment.

Second, the EIR claims the requirement could put the project at a competitive disadvantage and might be technologically infeasible depending on the performance needs of the end user. (FEIR at 3-100.) However, zero emissions equipment requirements are becoming more and more common because the technology is available now. The City of Fontana Warehouse Ordinance requires that all on-site motorized equipment be zero emission. (City of Fontana at 9-

73.1). The Speedway Commerce Center II Project in San Bernadino County and the Beaumont Summit Station Project in Riverside County both require that all outdoor cargo handling equipment is zero-emission and powered by electricity (Speedway Commerce Center DEIR at 1- 16; Beaumont Summit Station DEIR at 4.2-22). Additionally, the California Air Resources Board (“CARB”) recommended that warehouses require that all service equipment (like yard hostlers, yard equipment, forklifts, and pallet jacks) that tenants use on-site to be zero emission in 2019. CARB said that the equipment was “widely available” in 2020. (CARB 2020). Further, CARB provides incentive funding to purchase zero emissions equipment through the Clean OffRoad Equipment Voucher Incentive. The Funding Finder website for the Voucher Incentive lists 51 programs that are available to buyers in Napa County. (California CORE Funding Finder Tool.) The California Attorney General also recommends that warehouses use all on-site electrical equipment. (AGO 2021.) The EIR did not provide substantial evidence that this measure is infeasible. In fact, the evidence shows that it is feasible and common.

II. Although the Project Will Have Significant Impacts on Air Quality, the EIR Fails to Adopt all Feasible Mitigation Measures.

The Project will have significant air quality impacts because it will result in exceedances of the regional emissions thresholds for VOC and NOx, for which the region is already in nonattainment. (DEIR at 3.2-45.) VOC and NOx are precursors to ozone, for which the region is already in nonattainment. (DEIR at 4-4.) Ozone (commonly referred to as smog) is created by the atmospheric mixing of chemicals released from fossil fuel combustion – such as VOC and NOx – and sunlight. Ozone poses one of the greatest health risks, prompting the EPA to strengthen its National Ambient Air Quality Standard for Ozone in 2015. (ALA 2022.) It has been linked to an increased incidence and risk of cancer, birth defects, low birth weights and premature death, in addition to a variety of cardiac and lung diseases such as asthma, COPD, stroke, and heart attack. (Laurent 2016; ALA 2020.)
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Air quality is a significant environmental and public health concern in California.

Unhealthy, polluted air contributes to and exacerbates many diseases and increases mortality rates. The U.S. government has estimated that between 10 to 12 percent of total health costs can be attributed to air pollution. (VCAPCD 2003.) Air pollution and its impacts are felt most heavily by young children, the elderly, pregnant women and people with existing heart and lung disease. People living in poverty are also more susceptible to air pollution as they are less able to relocate to less polluted areas, and their homes and places of work are more likely to be located near sources of pollution, such as freeways or ports, as these areas are more affordable. (ALA 2022.) Warehouse projects are well-documented sources of air quality degradation that can create serious, negative health outcomes for surrounding communities. (Betancourt 2012, pp. 4-

5.)
Even despite undercounting impacts from mobile sources (ante section I.C), the EIR still recognizes that the Project will have a significant impact on air quality. However, the EIR fails to adopt commonsense, available mitigation measures, or explain why adopting such measures would be infeasible.

By proposing inadequate mitigation and then concluding that the Project’s air quality impacts are significant and unavoidable, the City has fallen short of CEQA’s requirement that lead agencies consider all feasible mitigation to reduce or avoid the Project’s significant impacts. (See Pub. Resources Code, § 21002 [It is the “policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures which will avoid or substantially lessen the significant environmental effects of such projects.”], CEQA Guidelines, §§ 15092(b), 15043, 15126.4, subd. (a)(1).) Here, the EIR adopts inadequate mitigation measures that fall far short of recommended best practices.

VOC Emissions
The EIR admits that VOC emissions during operations will exceed the thresholds adopted by BAAQMD. (DEIR at 3.2-45.) Because the impact is significant, the EIR has an obligation to adopt all feasible mitigation measures. However, the EIR adopts a mitigation measure that allows the use of architectural coating products with levels of VOC up to five times higher than the California Attorney General’s recommendation of a 10 g/L limit. (Id. at ES-7; AGO 2021.) By falling so far short of the Attorney General’s best practices, the EIR fails to properly mitigate a significant impact. The Project must revise MM-AIR-2c to require the use of low-VOC products with less than 10 g/L.

In comments on the DEIR, the SWAPE comment letter suggested that the EIR should adopt a VOC limit of 10 g/L for paints and coatings used on the Project, consistent with the Attorney General’s guidance. (FEIR at 82.) The FEIR responded that it is not necessary to modify MM AIR-2b (the measure that applies to coatings used during construction) to include a 10 g/L limit because VOC emissions during construction are already less than significant and so do not need to be mitigated. (Id. at 120.) That response is incomplete. Because architectural coatings are periodically reapplied during project operation (and the EIR says that these reapplications are the “principal” source of VOC emissions under control of the project (DEIR at 3269

3.2-44)), MM AIR-2c applies the 50 g/L limit to coatings used during operation. (Id. at 3.2-58.) The FEIR does not address why the limit in MM AIR-2c cannot be modified to 10 g/L to more effectively mitigate VOC emissions during operation, which are significant and do need to be mitigated.

Idling times
The EIR admits that NOx emissions during operations will exceed the thresholds adopted by BAAQMD. (DEIR at 3.2-45.) Because the impact is significant, the EIR has an obligation to adopt all feasible mitigation measures. However, the EIR adopts a so-called mitigation measure that allows trucks to idle for up to five minutes—more than twice as long as the California Attorney General’s recommendation of a two-minute limit. (DEIR at 3.2-58, AGO 2021.) Further, a five-minute idling restriction is required by the California Airborne Toxics Control Measure. Therefore, it is not truly mitigation measure, it is a promise to follow the law. As the California Attorney General notes, compliance with regulations is a baseline expectation and should not be labeled a mitigation measure. (AGO 2021.) Again the EIR replaces a recommended, feasible mitigation measure with a much weaker substitute that does not properly mitigate a significant impact. The Project must revise MM-AIR-2a to require idling times to be kept under two minutes.

The FEIR does not provide substantial evidence that limiting idling to two minutes is not feasible. Since state law limits idling to five minutes, the FEIR claims that a lower limit on idling would be “very difficult to enforce and would create confusion between local and State” idling restrictions. (FEIR at 3-101.) These claims are flawed. First, since the state law limiting idling to five minutes is enforced, it is not clear why two minutes would be any more difficult to enforce.

Second, mitigation measures, by their very nature, are meant to establish higher standards than applicable law. As the California Attorney General has said, a requirement that is already a part of an applicable law should not be called a mitigation measure.

Reduce Impacts to Sensitive Receptors
The Project is likely to have significant impacts on sensitive receptors because it will generate a number of car and truck trips that are not correctly analyzed in the EIR. The EIR concludes that the Project will not expose sensitive receptors to substantial pollutant concentrations based on a Health Risk Assessment that uses unsupported estimates of trip generation. (DEIR at 3.2-59-61; Ante section I.C.) There is a residential neighborhood within half a mile of the project site, a school within one mile, and numerous other sensitive receptors all along SR 29. The Project will increase the traffic that passes by these sensitive receptors by an amount that is likely to be higher than the EIR estimates, by up to an order of magnitude. (Ante section I.C.)
Despite this, the Project will not adopt any of the mitigation measures that the California Attorney General recommends to protect sensitive receptors from trucking impacts. These include:
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• Creating physical, structural, and/or vegetative buffers that adequately prevent or substantially reduce pollutant dispersal between warehouses and any areas where sensitive receptors are likely to be present, such as homes, schools, daycare centers, hospitals, community centers, and parks.
• Providing adequate areas for on-site parking, on-site queuing, and truck check-in that prevent trucks and other vehicles from parking or idling on public streets • Locating warehouse dock doors and other onsite areas with significant truck traffic and noise away from sensitive receptors, e.g., placing these dock doors on the north side of the facility if sensitive receptors are adjacent to the south side of the facility. • Screening dock doors and onsite areas with significant truck traffic with physical, structural, and/or vegetative barriers that adequately prevent or substantially reduce pollutant dispersal from the facility towards sensitive receptors (AGO 2021)
III. The EIR Fails to Properly Analyze or Mitigate Transportation Impacts.

Completion of the Project will bring substantial additional traffic to the area. (EIR at

3.12-11; Betancourt et al. at 4.) Trucks serving facilities often idle on public streets and clog local roads when warehouses are at capacity, creating traffic congestion and hazards to local drivers who depend on these roads. (Betancourt et al. at 4.) Per CalEnviroScreen 4.0, this region is already heavily burdened, with traffic burdens falling in the 83rd highest percentile. (CalEnviroScreen 2022.) The addition of a major hub for trucks requires further analysis of the Project’s impacts on transportation, including analysis of trucking impacts.

Almost all the project generated trips will travel on SR 29 because it is the only highway that connects to the site.
5 SR 29 is already overloaded with traffic and often has long queues and delays during peak hours. (City of American Canyon General Plan at 9-10.) The road passes within 500 feet of numerous sensitive receptors, including a park, a preschool and elementary school, two daycares, and four churches.

Because the EIR’s analysis omits construction-related transportation and undercounts trip generation, it ignores the significant impacts that increased traffic on SR 29 will have. More traffic on an already-overburdened road will increase delays and truck idling, which in turn will impact all of the sensitive receptors along it.
a. The EIR Does Not Disclose the Transportation Impacts of Construction.

The FEIR fails to disclose the impact on VMT that the Project will have during construction when trucks, equipment, employees, and building materials will constantly come in and out of the Project site. (DEIR Section 3.12 generally.) To construct 2.4 million total square feet of warehouse (DEIR at ES-1) will require substantial labor, equipment, and staff that will need to be transported to the Project site. The EIR must carefully and completely assess the 5 If a significant number of trucks do not use SR 29, that would be a violation of American Canyon’s Guiding Policy

1.3, which is to “discourage regional traffic from bypassing SR 29 and impacting City streets.” (City of American Canyon General Plan at 16.)
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impacts that construction traffic will have on traffic and transportation in the local community.

This is a major environmental impact of the Project that the DEIR ignores, in violation of CEQA.

The Transportation section of the DEIR must be revised and expanded analysis to include all CEQA-required analysis.
b. The EIR’s Analysis of Transportation Impacts During Operation Relies on the Same Inadequate Analysis that Ignores Truck Trips and Significantly Underestimates Trip Generation.

The EIR repeats the same failed analysis that ignores truck trip generation to conclude that the impact on VMT is not significant. The EIR concludes that it is appropriate to omit heavy-truck VMTs from the significance calculation because “local and state governments have little or no control over interstate trucking.” (DEIR at 3.12-17.) Again, the limits of the City’s jurisdiction have no bearing on the Project’s significant environmental effects. Further, the EIR’s conclusion that transportation impacts will not be significant is also based on the same incorrect, unsupported trip generation estimate. (DEIR at 3.12-11.) In sum, the EIR’s conclusion that the Project will not have a significant impact on transportation is not supported by substantial evidence. (Ante section I.C; section I.B.)
c. The EIR Makes no Attempt to Mitigate Transportation Impacts.

The EIR does not adopt one single measure to mitigate the impacts of increased trips along SR 29. It must adopt the recommended measure below or explain why it is not feasible.

Public Transit
The EIR fails to adopt common-sense measures to mitigate employee VMT. The California Attorney General recommends that developers consult with local public transit agencies and construct new transit stops to improve public transit access around warehouses. (AGO 2021.) The City of American Canyon General Plan includes a policy that development plans will link employment centers to transit. (DEIR at 3.2-27.) The #11 Napa-Vallejo Connector bus route runs right past the project site, but it only stops 1.6 miles before the site and then again

2.9 miles after. (Vine Transit.) That is not walking distance, and the EIR admits that the site is not assessable via public transit unless an employee chooses to load their bike on the bus and then bike along a major highway. (DEIR at 3.12-15.)
The EIR must either require the applicant to fund the creation of a new bus stop that would make it possible for employees to get to work via public transit or explain why a bus that passes right by a warehouse where 3,643 people will work cannot feasibly stop there.

IV. The EIR Inadequately Analyzes and Mitigates the Project’s Significant Impacts on Biological Resources.

Napa County is a biodiversity hotspot both within California and globally. It is located within the California Floristic Province, one of five Mediterranean biomes around the world known for high levels of plant diversity and endemism (Cowling et al., 1996; Rundel et al., 3272

2016). Due to its dynamic topography, which ranges in elevation from 0 to 4,200 feet above mean sea level, and its varying microclimates, Napa County boasts a unique and diverse assemblage of habitats that host numerous plants and wildlife. (Napa County 2005.) These ecosystems are the backbone of Napa’s idyllic scenery, and they provide important ecosystem services vital to the County’s prosperity and way of life, such as erosion control, water quality protection, groundwater recharge, flood protection, resiliency to climate change, and more. It’s therefore vital that development in American Canyon protect the area’s significant biological resources.
a. Impacts to Wetlands Were Incorrectly Analyzed and Inadequately Mitigated.

The wetlands in and near the Project area provide important live-in habitat as well as local, regional, and global connectivity for the area’s rich biodiversity. The Project – with its construction, buildings, roads, and associated activity —will permanently alter the form and function of these sensitive habitats. The EIR admits this. The EIR also admits that the wetland delineation conducted for the EIR contains errors (FEIR at 3-296-97), which suggests that there is more wetland area in the Project area that is not included in the analysis. Therefore, the EIR does not adequately describe the baseline conditions and cannot provide an in-depth analysis of or adequate mitigation for the Project’s impacts to wetlands and the special-status species that rely on the wetlands. The EIR fails to comply with CEQA. i. The Wetland Analysis Fails Because the EIR’s Baseline is Improper.

To meaningfully assess a project’s environmental effects, it’s critical that the EIR accurately describes existing environmental conditions in and in the vicinity of the proposed project. (CEQA Guidelines §15125; Communities for a Better Env't v South Coast Air Quality Mgmt. Dist. (2010) 48 Cal. 4th 310, 320; Save Our Peninsula Comm. v Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 119.) That description serves as the “baseline” for measuring the project’s impacts to the environment and whether those impacts are significant. (CEQA Guidelines §§15125, 15126.2(a).)
The Project site is currently undeveloped, containing both wetlands and grasslands. The Project will pave over at least four acres of wetland habitat. (DEIR, Appendix C at 47-48.) The EIR uses a wetland determination done by Monk and Associates (“Monk report”) to identify what areas of the Project site are wetland. (DEIR, Appendix C at 109.) Sarah Corbin, a senior biologist and Certified Professional Wetland Scientist, conducted a wetland analysis that found mistakes in the Monk report that make the results inconsistent with the current guidance from the U.S. Army Corps of Engineers. (FEIR, Corbin Report at 79.) Among other mistakes, the report incorrectly used an outdated plant list that identified Helminthotheca echioides as an upland species instead of as a wetland indicator species. (Ibid.) According to the Army Corps, Helminthotheca echioides is a wetland indicator. (Ibid.) Therefore, the areas on the Project site where Helminthotheca echioides was found are wetland but are not identified as such. The Corbin report identifies at least four locations on the project site where a correct analysis would 3273

change the determination from upland to wetland. (Ibid.) Moreover, two of those misidentified locations are places where the Project plans to create wetland to mitigate project impacts. (Ibid.) This is a significant mistake that invalidates the EIR’s analysis of wetland impacts. It is not possible to understand the extent of impacts to wetlands without knowing how much wetland is on the site and where it is. By basing the analysis on an incorrect delineation, all of the EIR’s wetland analysis—including the determination of how much wetland will be destroyed by the project, how much will be protected in the preserve, the role that existing wetland plays in the ecosystem, and the environmental impact of losing whatever amount will be lost—are all incorrect.

The City compounded this error by providing the faulty Monk Report to the U.S. Army Corps of Engineers (Corps). The Corps relied upon the Monk Report in issuing its Approved Jurisdictional Determination (“AJD”). (Adams Broadwell Letter, Exhibit A at 28.) The City recognized its error, acknowledging that the Monk Report failed to disclose or identify existing wetlands on site. (FEIR at 3-296-97). In response to comments, the City attempted to dispel any such error by claiming that the EIR analysis is based on the AJD instead of on the Monk report directly. (Ibid.) This only confirms that the City’s analysis is based on an incorrect wetlands determination and remains inadequate.

In addition, the EIR fails to disclose that the Project area is immediately adjacent to and connected via No Name Creek and its associated wetlands with a Napa River core vernal pool recovery area, as designated in the Recovery Plan for Vernal Pool Ecosystems of California and Southern Oregon (“Recovery Plan,” USFWS 2005). Any impacts to the No Name Creek and its associated wetlands could therefore impact the identified core vernal pool recovery area. Such impacts were not adequately disclosed, assessed, or mitigated. ii. The City Failed to Adopt all Feasible Mitigation for the Project’s Impacts to Wetlands.

An EIR must describe mitigation measures to minimize the significant environmental effects identified in the EIR. (Pub Res C §§21002.1(a), 21061, 21100(b)(3); CEQA Guidelines §15126.4(a)(1)). Mitigation measures must be feasible and enforceable. (Pub Res C §21081.6(b); CEQA Guidelines §15126.4(a)(1-2).) Mitigation measures must be sufficiently detailed that it is possible to gauge their effectiveness, and the EIR must show by substantial evidence that the measure will be effective. (See, e.g. Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 281 [plan for active habitat management did not describe anticipated management actions or include standards or guidelines for actions that might be taken]; Sacramento Old City Ass’n v City Council (1991) 229 Cal.App.3d 1011, 1027.) When comments suggest additional mitigation and are supported by expert opinion or technical evidence, the EIR must provide a detailed evidence-based response. (Covington v. Great Basin Unified Air Pollution Control Dist. (2019) 43 Cal.App.5th 867, 879.) The Project plans to offset Phase 1 impacts to seasonal wetland with constructed wetlands in a 2:1 ratio; and Phase 2 impacts to season wetlands and vernal pools in a 1:1 ratio. (DEIR at 3.3-28-29.) These ratios are too low and not effective. 3274

Mitigation must prioritize avoiding impacts to sensitive habitats like vernal pools and seasonal wetlands and other sensitive natural communities. If impacts are unavoidable, only then should preservation and enhancement/creation be considered. It is much more challenging to repair functionality to degraded ecosystems. In-kind mitigation should be undertaken at a minimum of 3:1 given that these habitats support numerous special-status species and high levels of biodiversity, can be important for wildlife connectivity and climate change resilience, and so much of these habitats have already been lost. Mitigation that consists of restored or created habitat should be provided at a minimum 5:1 mitigation ratio and should include long-term monitoring, adaptive management strategies, and well-defined measurable success criteria, to be funded in perpetuity.

Multiple scientific studies specifically address the need for higher mitigation ratios (along with long-term monitoring, identified and measurable success criteria, and adaptive management strategies) to improve chances of adequately mitigating impacts to habitats and species (Matthews & Endress, 2008; Mitsch & Wilson, 1996; Moilanen et al., 2009; Stein et al., 2018; Sudol & Ambrose, 2002; Windmiller & Calhoun, 2007; Zedler & Callaway, 1999). Moilanen et al. (2009) found that “very high offset ratios may be needed to guarantee a robustly fair exchange” and that “considerations of uncertainty, correlated success/failure, and time discounting should be included in the determination of the offset ratio to avoid a significant risk that the exchange is unfavorable for conservation in the long run.” The preservation of highquality wetland habitat in and near the Project area should be prioritized, the minimum acreage of wetland habitat mitigation should be greater if habitat is being restored or created, and mitigation should be planned in a way that is protective from edge effects and fragmentation to improve the probability of ecologically functional mitigation. Created and restored habitat mitigation ratios should be much higher than preservation mitigation ratios, and they should be coupled with extended years of effective monitoring and adaptive management strategies. (Ambrose et al., 2006; Moilanen et al., 2009; Sudol & Ambrose, 2002). Scientists recommend 15-20 years or more of monitoring and adaptive management to determine the success, or lack thereof, of enhanced, restored, or created habitat. (Mitsch & Wilson, 1996; Zedler & Callaway, 1999). The City is required to consider all feasible mitigation. (Pub Res C §§21002, 21002.1 (b), 21081(a).). The City has not demonstrated that it considered higher ratios, nor why higher ratios are infeasible. If higher mitigation ratios are not feasible, the DEIR must provide evidence and analysis supporting that conclusion.

The City’s mitigation plan and analysis suffers from other serious problems. First, the discussion of wetland mitigation fails to mention that the project site will be specifically designed to discourage wildlife use by intentionally removing any features that would attract large flocks of birds or other wildlife. (DEIR at 3.9-52; FEIR Appendix L at 4.) The Project will evaluate the emergent wetlands and “other potential wildlife attractant features” in the Wetland Preserve to make sure they are managed such that they do not attract wildlife that might be a safety hazard for the nearby Napa County Airport. (FEIR Appendix L at 4.) This management might include draining ponded water, or unspecified “vegetation.” (Ibid.) The FEIR concludes that, because the development of the site will cause wildlife disturbances from lighting, human presence, and noise, and the wetland will be mitigated at a 1:1 ratio, the wildlife activity on the property would remain “at or below current levels.” (Id. at 6.) The EIR is working at cross3275

purposes by claiming that the Wetland Preserve will be such effective habitat that it completely mitigates the impact of losing 163 acres of established habitat, but also that the Preserve will not attract significant wildlife. The resulting claim—that one acre of removed wetland can be effectively mitigated with one acre of created wetland that is managed to remove “wildlife attractants”—is not supported by substantial evidence and must be corrected.

Second, the EIR fails to disclose that a gravel road has already been constructed through the area to be set aside as wetlands preserve. (Recording of American Canyon Planning Commission Meeting (Nov. 17, 2022).) The City must disclose and analyze the new road’s direct and indirect effects on the function of the preserve in order to provide substantial evidence that the preserve will be effective. Third, the inaccurate wetland delineation raises serious questions about whether the mitigation plan is mitigating the correct acreage of existing wetland, and whether any of the areas where wetland will be created are, in fact, already wetland. In fact, the EIR shows that the EIR plans to “create” wetland on at least two locations that a correct wetland delineation would have identified as already containing wetland. (FEIR, Corbin Report at 79.) The City cannot possibly provide substantial evidence that the preserve will be effective until it provides a corrected wetland delineation.
b. The EIR Does not Adequately Analyze or Mitigate the Project’s Impact to Wildlife Connectivity.

The EIR acknowledges that No Name Creek is a “major wildlife corridor” (DEIR at 3.3- 38) and that a number of wildlife species were observed on the site, but maintains that the project will not result in significant impacts to the movement of wildlife (Id. at 3.3-38). This conclusion is not supported by substantial evidence. It ignores the likelihood that development adjacent to the creek will affect its function as a wildlife corridor, even if the creek itself is not directly paved over. Negative edge effects from human activity, such as traffic, lighting, noise, domestic pets, pollutants, invasive weeds, and increased fire frequency, have been found to be biologically significant up to 300 meters (~1000 feet) away from anthropogenic features in terrestrial systems (Environmental Law Institute, 2003). Edge effects will be particularly acute in this case, where the adjacent development will be designed specifically to repel wildlife.

The EIR does not account for the impact of the existing Devlin Road and the newly constructed gravel road on the ability of wildlife to safely use the Wetland Preserve, or the possible impacts of the roads and increased traffic on those roads on the health of the Creek and associated wetlands. The EIR must include an analysis of how connectivity between wetlands and upland habitat and No Name Creek’s function as a wildlife corridor will be affected by being further hemmed in by development, and must adequately mitigate the Project’s impacts.

In addition, the EIR does not take into account the need for connectivity between aquatic resources and sufficient upland habitat within the Wetland Preserve. Exhibit 3.3-3 shows the Project Level Site Plan and the Potential Future Phase 2 Area would come very close to aquatic features in the Wetland Preserve, which could have negative effects on the functionality of the existing and created wetlands the preserve is supposed to protect. The EIR fails to provide any setbacks or buffers from riparian and wetland habitats. Connectivity between riparian and other wetland habitats and upland terrestrial habitat is important for wildlife that rely on these habitats. 3276

A literature review found that recommended buffers around aquatic resources for wildlife often far exceeded 100 meters (~325 feet) (Robins, 2002). For example, Kilgo et al. (1998) recommend more than 1,600 feet of riparian buffer to sustain bird diversity. In addition, amphibians, which are considered environmental health indicators, have been found to migrate over 1,000 feet between aquatic and terrestrial habitats through multiple life stages (Cushman, 2006; Fellers & Kleeman, 2007; Semlitsch & Bodie, 2003; Trenham & Shaffer, 2005). For example, California red-legged frogs have been found to migrate about 600 feet between breeding ponds and non-breeding upland habitat and streams, with some individuals roaming over 4,500 feet from the water (Fellers & Kleeman, 2007). Western pond turtle nests have been found up to 1,919 feet from aquatic habitats and individuals have been documented to move regularly between aquatic habitats with long-distance movements of up to 2,018 feet (Sloan, 2012). Therefore, any wetland preserve should have designated setbacks or buffers appropriate for the species that are known to occur or have the potential to occur in or near the Project area.

As detailed in a 2021 Center Report (Yap et al., 2021), roads and development create barriers that lead to habitat loss and fragmentation, which harms native wildlife, plants, and people. Limiting movement and dispersal can affect species’ ability to find food, shelter, mates, and refugia after disturbances like fires or floods. Individuals can die off, populations can become isolated, sensitive species can become locally extinct, and important ecological processes like plant pollination and nutrient cycling can be lost. As barriers to wildlife movement, poorly-planned development and roads can affect an animal’s behavior, movement patterns, reproductive success, and physiological state, which can lead to significant impacts on individual wildlife, populations, communities, landscapes, and ecosystem function (Brehme et al., 2013; Ceia-Hasse et al., 2018; Haddad et al., 2015; Marsh & Jaeger, 2015; Mitsch & Wilson, 1996; Trombulak & Frissell, 2000; van der Ree et al., 2011). For example, habitat fragmentation has also been found to increase local extinction risk in amphibians and reptiles (Brehme et al., 2018; Cushman, 2006; Delaney et al., 2021), cause high levels of avoidance behavior and mortality in birds and insects (Benítez-López et al., 2010; Kantola et al., 2019; Loss et al., 2014), and alter pollinator behavior and degrade habitats (Aguilar et al., 2008; Goverde et al., 2002; Trombulak & Frissell, 2000).

The EIR failed to disclose impacts to wildlife connectivity by relying on conclusory assertions that the Wetland Preserve will fully mitigate all impacts. This conclusion is not supported by substantial evidence because it does not acknowledge the scientific evidence on the harms of edge effects or habitat fragmentation. Further, it relies on the Wetland Preserve consisting of existing and created wetlands with no guarantee of success (see above discussion) to mitigate impacts, without admitting that the Preserve itself will be fragmented by the existing Devlin Road as well as a newly constructed road. The EIR must be amended to properly analyze these impacts and develop effective mitigation to preserve habitat connectivity.

The preservation of No Name Creek and its associated wetlands and upland habitat as a functional wildlife corridor is important because these habitats support high levels of biodiversity and are connected to a California Audubon-designated Important Bird Area (“IBA”) (see below 3277

for more details on the IBA).6 The riparian area also likely serves as an important movement corridor for wide-ranging species that need regional connectivity, like mountain lions, bobcats, deer, and badgers, as well as less mobile species that require more localized connectivity between aquatic and upland habitat, like western pond turtles and California red-legged frogs.

Riparian ecosystems have long been recognized as biodiversity hotspots performing important ecological functions in a transition zone between freshwater systems and upland habitats. Many species that rely on these aquatic habitats also rely on the adjacent upland habitats (e.g., riparian areas along streams, and grassland habitat adjacent to wetlands). In fact, 60% of amphibian species, 16% of reptiles, 34% of birds and 12% of mammals in the Pacific Coast ecoregion depend on riparian-stream systems for survival. (Kelsey and West 1998.) Loss of biodiversity due to habitat removal, degradation, and fragmentation contributes to ecosystem degradation, which will diminish a multitude of ecosystem services in the long-term.

It is estimated that 90-95% of historic riparian habitat in the state has been lost (Bowler, 1989; Riparian Habitat Joint Venture, 2009). Using 2002 land cover data from CalFire, the Riparian Habitat Joint Venture estimated that riparian vegetation makes up less than 0.5% of California’s total land area at about 360,000 acres (Riparian Habitat Joint Venture, 2004). This is alarming because riparian habitats perform a number of biological and physical functions that benefit wildlife, plants, and humans, and loss of what little is left will have severe, harmful impacts on special-status species, overall biodiversity, wildlife connectivity, and ecosystem function. California cannot afford to lose more riparian corridors. c. The EIR Does not Properly Analyze or Mitigate the Project’s Impacts to Swainson’s Hawk.

The EIR admits that the project site provides suitable foraging habitat for the Swainson’s hawk and that Swainson’s hawks have been observed foraging there. (DEIR at 3.3-24) As the California Department of Fish and Wildlife commented, loss of foraging habitat is the primary threat to Swainson’s hawk populations in California. (FEIR at 31.) Yet the EIR claims that the loss of 163 acres of Swainson’s hawk foraging habitat will have no significant impact to its foraging habitat, either directly, indirectly, or cumulatively without providing substantial evidence to support such claims. (DEIR at 3.9-51, 3.3-24.) The California Department of Fish and Wildlife (CDFW) determined that the Project EIR is “inadequate to address impacts to Swainson’s hawk.” (CDFW 2022.) In its letter reviewing the Final EIR, CDFW noted that the Project would remove an amount of habitat that is equal to 7% of the preserved foraging habitat that is available near the Project, which is a “significant proportion.” (Ibid.) Further, the EIR does not propose mitigation for the loss of foraging habitat. (Ibid.) CDFW concludes that the Project would contribute a “significant cumulative impact to a state threatened species” and strongly recommends that the Project mitigate for foraging habitat. (Ibid.)
6 Audubon Important Bird Areas of California, available at https://www.audubon.org/important-birdareas/state/california?field_iba_status=1&priority=2 (Accessed January 3, 2023). 3278

Swainson’s hawk is a raptor species native to California that is a threatened species under the California Endangered Species Act. (CDFW 2016.) Historically, Swainson’s hawk was common throughout most of California. Currently, there are estimated to be under 2,000 breeding pairs anywhere in the state—a 80% decrease from historic levels. (Ibid.) The primary threat to the hawk is habitat loss, which may have been the greatest factor in reducing its range and abundance in California over the last century. (Ibid.) Swainson’s hawk need natural grasslands, pasture, or hay crops to forage, which makes them dependent on land use patterns and vulnerable to development of incompatible land uses and to habitat fragmentation. (Ibid.) Therefore, maintaining large heterogenous areas of grasslands is a priority for protecting the species. (Ibid.) Swainson’s hawk is vulnerable to impacts from urban development, reduction in grasslands, and orchard and vineyard cultivation, all of which are occurring at significant levels in Napa County. (CDFW 2022.)
The EIR claims that the 45-acre preserve will completely mitigate the impact to the Swainson’s hawk foraging habitat. The EIR’s only other mitigation measures for Swainson’s hawk focus on buffer areas around observed nests, which do not address the area’s primary use to the hawk as foraging habitat. The City provides no evidence to support its conclusion that 45 acres of wildlife preserve will effectively mitigate for the loss of 163 acres of foraging habitat, especially because the analysis does not acknowledge or analyze the limited functionality of a small island of existing and created wetlands that is surrounded by wildlife-repellant development and has roads running through it. Moreover, Swainson’s hawk is not typically associated with wetlands. (CDFW 2022.) The Project would remove the majority of the grasslands on the property, without mitigation. (Ibid.) The City has offered no evidence that the hawk will be able to make use of this wetland area in place of grasslands. The EIR also asserts that the total 2,000 acres of habitat available within five miles of the Project site will be sufficient foraging habitat. (DEIR at 3.3-24.) To calculate this number, it totals up various small pieces of land available in a patchwork around and between intensive development. Claiming that the hawk can use any nearby piece of mostly undeveloped space, no matter how hemmed in or degraded, again ignores scientific evidence on the effects of development on the habitat value of areas. Further, the presence of preserved habitat elsewhere does not mean that that the permanent removal of these 163 acres can’t be significant. There is no evidence for the assertion that mitigation for loss of habitat is not required as long as habitat remains somewhere else.

Edge effects from the light and noise that will be generated by Project construction and operation have documented effects on bird species. (Environmental Law Institute, 2003.) For example, field observations and controlled laboratory experiments have shown that traffic noise can significantly degrade habitat value for migrating songbirds (Ware et al., 2015). Subjects exposed to 55 and 61 dBA (simulated traffic noise) exhibited decreased feeding behavior and duration, as well as increased vigilance behavior. (Ibid.) Such behavioral shifts increase the risk of starvation, thus decreasing survival rates. In particular, this evidence of traffic effects calls for careful consideration of the roads through the preserve, one of which was not acknowledged in the EIR.
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In addition, the use of anticoagulant rodenticides in the Project area should be prohibited.

Secondary poisoning has been documented in many non-target animals, especially predators, including mountain lions (Department of Pesticide Regulation, 2018), coyotes (Riley et al., 2003), bobcats (Riley et al., 2007; Serieys et al., 2015, 2021), San Joaquin kit fox (McMillin et al., 2008), California fishers (Gabriel et al., 2012), raptors (Lima & Salmon, 2010), and many more. Special-status species, including Swainson’s hawk, golden eagles, northern harriers, and others that are known to occur or have the potential to occur in the Project are vulnerable to poisoning. The poisons can also leach into the water and soils, harming other animals and plants across the landscape. Instead, alternatives to the use of harmful rodenticides, such as promoting the presence of natural predators, should be considered. A 2017 study conducted in the Ventura County Watershed Protection District found that attracting raptors to flood control facilities by installing raptor perches and nesting facilities (e.g., barn owl boxes, hawk nesting platforms) nearby was 50% more effective at preventing new rodent burrows compared to rodenticides (Ventura County Public Works Agency, 2017). The authors estimated that this technique could result in savings of about $7,500 annually. Not only is this method cost-effective, but it would also avoid exposing a multitude of non-target species to harmful rodenticides.

In sum, the proposed Project would increase human activity and traffic around the project site, which could have significant impacts to Swainson’s hawk. Simply conducting preconstruction nesting bird surveys and making available fragmented pieces of significantly degraded habitat does not reduce the Project’s impacts on special-status birds to less than significant.
d. The EIR Does not Properly Analyze or Mitigate the Project’s Impacts to Other Special-Status Bird Species.

The golden eagle is a fully protected species that is highly sensitive to human disturbance. (Steenhof et al. 2014, Spaul and Heath 2016, Spaul and Heath 2017). A golden eagle was observed foraging at the Project Site during a wildlife survey. (DEIR at 3.3-25). The Project will result in the net loss of more than 160 acres of potential foraging habitat. (DEIR at

3.9-51). Habitat loss and fragmentation from development is a serious threat to golden eagle populations, which are declining in California. (Phillips, 1986; Weins, 2022). However, the EIR concludes that the loss of this habitat is not significant and does not mitigate it. Therefore, potentially significant impacts to the golden eagle remain unmitigated.

The northern harrier is California Species of Special Concern. Northern harriers were also observed foraging at the Project site. (DEIR at 3.3-25). The loss and degradation of foraging habitat is a primary threat to the northern harrier. (Shuford, 2008). The EIR again does not address the potential loss of foraging and breeding habitat. Further, the proposed Wetland Preserve will not provide functional habitat for the norther harrier, because the species requires large, undisturbed habitats. (Ibid.) The EIR must acknowledge and mitigate these impacts.

The EIR fails to adequately disclose, assess, and mitigate impacts to resident and migratory birds, including but not limited to golden eagles, northern harriers, tri-colored blackbirds, and burrowing owls. In fact, the EIR fails to mention that the Project area is adjacent to a California Audubon-designated IBA of global priority for resident and migratory birds 3280

within the Pacific Flyway, a north-south migratory corridor the extends from Alaska to Patagonia.7 Not only is the San Pablo Bay Wetlands IBA just west of the Project area, but the No Name Creek in the northwest corner of the Project site is connected to that IBA and likely feeds into it. IBAs are critical for regional, state, and global connectivity particularly for migratory birds that require habitat along their migratory path to find food, shelter, and nesting habitat.

Therefore, the Project area’s wetlands and grasslands are an extension of the IBA and provide important habitat and connectivity for birds that rely on the area for food and shelter.

As mentioned above, edge effects from Project construction and operation will have impacts on the IBA and special-status birds. Negative edge effects from human activity, traffic, lighting, noise, domestic pets, pollutants, and invasive weeds have been found to be biologically significant up to 300 meters (~1000 feet) away from anthropogenic features in terrestrial systems (Environmental Law Institute, 2003). This is important to consider when open space like designated IBAs are adjacent to the Project area, as birds and other wildlife have been found to be sensitive to edge effects. For example, field observations and controlled laboratory experiments have shown that traffic noise can significantly degrade habitat value for migrating songbirds (Ware et al., 2015). Subjects exposed to 55 and 61 dBA (simulated traffic noise) exhibited decreased feeding behavior and duration, as well as increased vigilance behavior (Ware et al. 2015). Such behavioral shifts increase the risk of starvation, thus decreasing survival rates. Another study found a 28% decrease in bird abundance in areas when traffic noise was present compared to when there was no traffic noise (McClure et al., 2013). The EIR failed to disclose and adequately analyze and mitigate the Project’s impacts to special-status birds.

V. The City Must Revise and Recirculate the EIR to Address Significant New Information Provided in the FEIR and at the Planning Commission Meeting. “Public participation is an essential part of the CEQA process.” (CEQA Guidelines § 15201.) To that end, CEQA requires lead agencies to make the Draft EIR available for public review and comment, and then to respond to those comments. (Pub. Res. Code § 21092, CEQA Guidelines § 15088(a).) The information in a draft EIR must provide the public with “a meaningful opportunity to comment” on a project’s impacts. (Spring Valley Lake Assn. v. City of Victorville (2016) 248 Cal.App.4th 91, 108 [recirculation was required where draft EIR omitted air quality information].) Given the public’s vital role in the CEQA process, a lead agency must recirculate an EIR for additional of public review and comment when, after the close of the comment period, “new significant information” shows that the draft EIR’s analysis was fundamentally inadequate and conclusory in nature such that that meaningful public review and comment were precluded. (CEQA Guidelines § 15088.5(a)(4).) New information is significant where the EIR is changed in a way that “deprives the public of a meaningful opportunity to comment” on a substantial adverse effect or feasible (but unimplemented) mitigation measures or alternatives. (CEQA Guidelines § 15088.5(a) [emphasis added].) Where new information demonstrates the inadequacy of the draft EIR’s analysis, recirculation is required “so that the public is not denied an ‘opportunity to test, assess, and evaluate the data and make an informed judgment as to the validity of the conclusions to be drawn therefrom.’” (Save Our Peninsula 7 Audubon Important Bird Areas of California, available at https://www.audubon.org/important-birdareas/state/california?field_iba_status=1&priority=2 (Accessed January 3, 2023). 3281

Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 131 [emphasis added].)
A revised EIR is required here for two reasons. First, as disclosed at the Planning Commission meeting and more fully discussed in the November 17th letter submitted to the Commission by Richard M. Franco on behalf of Napa/Solano Residents for Responsible Development, a new gravel road was recently built through the proposed wetlands preserve. (Adams Broadwell Letter.) The EIR repeatedly relies on the 45-acre wetland preserve on the site to mitigate impacts to wetlands, wildlife connectivity, and sensitive species. (DEIR at ES-11-14, 2-6.) For impacts to riparian habitats, the wetlands preserve is the only mitigation measure offered. (Id. at 11.) The preserve is a central part of the mitigation scheme. Nowhere does the EIR mention that a road has been built through it, and the road is absent from all maps and diagrams of the site. The fact that the preserve is not a completely protected area is significant new information that requires a new analysis of its ability to mitigate impacts to biological resources.

Second, in an eleventh-hour attempt to address the EIR’s glaring deficiencies, the City issued a new study that purports to show the Project’s VMT will be more than 15% below the regional average. New information cannot remedy a DEIR’s inadequate analysis of a project’s impacts in the first instance. (Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256, 266-67.) Further, this new information substantially changes the claims made in the DEIR. Instead of claiming that truck VMTs should be foreclosed from the GHG significance analysis, the City is now claiming in the alternative that truck VMTs will be below the significance threshold, based on a new data of average truck trip lengths for warehouses in Napa County. As discussed above, this claim amounts to saying that warehouses in Napa County can never produce significant GHG emissions from truck trips, because the impacts of truck trips generated by any Napa warehouse can be analyzed and pronounced insignificant via reference to the lower average trip lengths of other Napa County warehouses. This is a startling claim that the public certainly deserves a chance to assess.

By offering significant new information in the FEIR and at the Planning Commission meeting, the City’s environmental review process has deprived the public of a meaningful opportunity to comment. The City will therefore need to recirculate a revised EIR for public review and comment prior to approving the Project.

VI. Conclusion
Thank you for the opportunity to submit comments on the Final EIR for the Giovannoni Project. Due to the shortcomings described above, the City should make corrections to the EIR and Project—including properly analyzing and mitigating for the Project’s significant impacts to GHG emissions, air quality, transportation, and biological impacts—and recirculate a revised and legally adequate EIR for public review and comment.

Given the possibility that the Center will be required to pursue legal remedies in order to ensure that the City complies with its legal obligations including those arising under CEQA, we note the City’s statutory duty to maintain and preserve all documents and communications that 3282

may constitute part of the “administrative record” of this proceeding. (§ 21167.6(e); Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733.) The administrative record encompasses any and all documents and communications that relate to any and all actions taken by the City with respect to the Project, and includes “pretty much everything that ever came near a proposed [project] or [] the agency’s compliance with CEQA . . . .” (County of Orange v.

Superior Court (2003) 113 Cal.App.4th 1, 8.) The administrative record further includes all correspondence, emails, and text messages sent to or received by the City’s representatives or employees that relate to the Project, including any correspondence, emails, and text messages sent between the City’s representatives or employees and the Project applicant’s representatives or employees. Maintenance and preservation of the administrative record requires that, inter alia, the City (1) suspend all data destruction policies; and (2) preserve all relevant hardware unless an exact replica of each file is made.

Please do not hesitate to contact the Center with any questions at the number or email listed below.

Sincerely,
Frances Tinney
Legal Fellow
Center for Biological Diversity
1212 Broadway, Suite #800
Oakland, CA 94612
Tel: (509) 432-9256
[email protected]
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Response to CBD-1
The commenter provided introductory remarks and noted that the City failed to provide notice of Draft EIR availability to CBD. The commenter requested that the City of American Canyon confirm that every party that requested notice received notice. The commenter alleged that it appeared that the City did not publish notice of the Draft EIR review period in the Napa Valley Register.

The City acknowledges that the commenter’s organization was omitted from the original Draft EIR notification in May 2022 and corrected that error by providing the commenter with an additional 45- day review period that began December 2, 2022. Although the commenter participated in and provided comments at the November 17, 2022 Planning Commission Meeting, the commenter did not mention to the City the earlier lack of adequate notice of the availability of the Draft EIR until December 1, 2022, five days prior to City Council meeting at which the project was scheduled to be considered for approval. Shortly after the issue was raised, the City agreed to allow the commenter a full 45-day period in which to submit formal comments on the Draft EIR. This opportunity was not extended to others; however, as the City had provided adequate legal notice with respect to all other interested persons and parties, as reflected in the City’s standard mailing list for development projects (from which CBD had inadvertently been omitted) and in the publication of the Notice of Availability of the Draft EIR in the Vallejo Times Herald (Appendix P: Public Notices).

Response to CBD-2
The commenter provided general comments about climate change posing a catastrophic and pressing threat to California. The City does not deny the significance of climate change, as is evidenced through the discussion included in the introductory portions of the greenhouse gas (GHG) chapter in the EIR.

Response to CBD-3
The commenter notes that the Draft EIR used a significance threshold to evaluate the potential impacts from GHG emissions that was based on employee VMT. The commenter states that this threshold omits VMT from truck trips and, thus, understates the project’s GHG impacts.

Furthermore, the commenter states that the updated thresholds of significance for climate land use impacts established by the Bay Area Air Quality Management District (BAAQMD) in 2022 did not adopt a significance threshold for industrial land use, and that the Draft EIR’s use of the BAAQMD updated significance threshold is not supported by substantial evidence and downplays the proposed project’s GHG emissions impacts.

VMT is addressed in Master Response D.

The updated BAAQMD threshold of significance for GHG emissions impacts is based on the fair share concept as authorized by the Center for Biological Diversity v. Department of Fish & Wildlife case (2015) (62 Cal.4th 204, 223) as discussed in the Draft EIR, pp. 3.6-41–3.6-44. Under this approach, not every source of emissions needs to be considered in a local agency's threshold, especially since the State of California, independent of the local agency, is addressing numerous emission sources through Statewide policies (such as, here, ARB's Sustainable Freight Strategy, which is discussed in the Draft EIR on pages 3.6-28, 3.6-31-3.6-32, 3.6-45, 3.6-57, 3.6-62, and 3.6-67). As included in the 3293
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Because industrial projects more closely resemble office projects than residential projects, and because the BAAQMD approach for office projects is more conservative than the approach for retail projects, the City has conservatively determined that it should use the BAAQMD’ s proposed approach used for office projects: 15 percent below the existing VMT per employee.

BAAQMD’s silence on the issue of how to address VMT with respect to industrial projects is not the only example of a lack of guidance on this subject from expert regulatory agencies.

Neither CEQA Guidelines Section 15064.3 nor the 2018 Technical Advisory on Evaluating Transportation Impact in CEQA published by the Governor’ s Office of Planning and Research (OPR) provides specific guidance related to industrial land uses. As with the proposed BAAQMD thresholds, OPR’s Technical Advisory provides guidance relative to VMT significance criteria for residential, office, and retail uses but does not address industrial land uses.

The majority of trips generated by industrial land uses are typically attributed to employees and heavy- duty vehicles used to transport commercial goods. CEQA Guidelines Section 15064.3(a) states that VMT refers to the amount and distance of automobile travel attributable to a project (italics added). The OPR Technical Advisory states that the term “automobile,” as used in Section 15064.3(a), refers to on-road passenger vehicles, specifically cars and light trucks; heavy vehicles are not included in the definition.

The legislature’s stated intent in abandoning level of service as a metric for transportationrelated impacts, as set forth in Public Resources Code Section 21099(b)(1), was to promote 3294
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The City stands by this reasoning, but notes that, as explained in Master Response D, the Final EIR includes a technical study by transportation Fehr and Peers that addresses whether VMT impacts would be significant if truck trips were added into the analysis. For reasons explained in detail in the Master Response, the conclusion was in the negative. Thus, the Final EIR, in effect, renders moot the commenter’s criticism of the approach to VMT analysis set forth in the Draft EIR.

It is worth noting, however, that the Draft EIR does account for GHG emissions associated with truck traffic. (See Draft EIR, pp. 3.6-48 [“truck travel distances utilized in emission estimates contained in this analysis were assumed to be 32.8 miles per trip”], 3.6-53 [Table 3.6-4 (Operational GHG Emissions) show GHG emissions from trucks as 13,175 MT CO2e/year].) The document therefore fully discloses these emissions. As explained above, though, the BAAQMD threshold, as refined by the City to address VMT from industrial land uses, treats those emissions as less than significant where an industrial project’s VMT is 15 percent or more below the regional average. As explained in Master Response D, the project’s truck trips came in at roughly 39 percent below the regional (Bay Area) average.

The commenter further states that the GHG analysis included in the Draft EIR is similar to the analysis included in Friends of Oroville v. City of Oroville (2013) 219 Cal.App.4th 832, 842. In that case, the court held that the City of Oroville as lead agency had failed to adequately assess the impact of a project’s greenhouse gas emissions. The court criticized the lead agency for giving too much weight to the project’s supposed consistency with the original California Air Resources Board (ARB) Scoping Plan, which did not address transportation sources and thus did not address the majority of the project’s GHG emissions. However, in the preparation of the Draft EIR for this proposed project, the City of American Canyon relied on an actual significance threshold adopted by BAAQMD, an expert agency. The BAAQMD’s inclusion of VMT considerations into its updated adopted threshold expressly accounts for transportation emissions. In more recent cases, the court has encouraged local agencies to follow thresholds developed by BAAQMD and other expert agencies. The California Supreme Court did so in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 223). Notably, Friends of Oroville was issued before that Supreme Court decision, and recommends the use of the so-called “business-as-usual” methodology that the Supreme Court found to be problematic. (Compare Friends of Oroville v. City of Oroville (2013) 219 3295
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As the lead agency for the project, the City has discretion to consider the 2022 BAAQMD threshold and to tailor it to address industrial uses, particularly insofar as the City was very conservative in how it did so, especially when it added in truck trips in the Final EIR. The City considered the 2017 industrial threshold, previously established by BAAQMD, to be out of date and was not bound to use it. " A lead agency enjoys substantial discretion in its choice of methodology." (Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th at p. 228.). Per BAAQMD guidance, the expert air quality scientist staff that prepared the air quality and GHG sections of the Draft EIR consulted with the BAAQMD and received guidance that the updated BAAQMD threshold was appropriate to apply to a warehousing and logistics project, such as the proposed project. 4 This
guidance from the BAAQMD, as an agency with expertise in the evaluation and reduction of GHG emissions impacts, supported the City in the selection of the 2022 BAAQMD climate change land use project design thresholds as appropriate thresholds to evaluate the potential impacts of the proposed project.

Response to CBD-4
The commenter alleged that evidence shows that the project will have significant GHG impacts based on comparison to the formerly recommended 2017 BAAQMD GHG emissions thresholds of significance for industrial projects.

As previously discussed, the City as lead agency has discretion to select the thresholds of significance used to evaluate the potential impacts of a project. For the proposed project, the City provided a detailed rationale for selecting the recently updated 2022 BAAQMD climate change land use thresholds of significance to evaluate the potential GHG emissions impacts of the proposed project, and selected this updated threshold based, in part, upon guidance received from the BAAQMD upon consultation between BAAQMD staff and the air quality scientist staff that evaluated the potential impacts of the proposed project.
5 BAAQMD staff has furthermore provided guidance to air quality scientist staff that the 2017 BAAQMD GHG thresholds of significance are outdated, since these thresholds were designed to show that projects were consistent with the State’s attainment of the emission reductions required under AB 32 and the 2020 emission reduction targets included therein, and do not include the 2030 emission reduction goals included in SB 32.6 Under the updated recommended threshold of significance, which are based on the “fair share” concept for evaluating the cumulative nature of GHG emissions impacts, the proposed project has a less than significant impact for GHG emissions.

Furthermore, the proposed project is arguably an example of a sustainability showcase project, as detailed in the submitted December 2, 2022, letter from Joe Livaich at Buzz Oates Construction to Mr. Brent Cooper (and provided in Appendix N). The proposed project will be powered by 100 4 Young, A., personal communication, May 5, 2022. 5 Ibid. 6 Young, A. Question about GHG Thresholds for CEQA document in Unincorporated Contra Costa County. Email message to Jessica Coria, air quality scientist staff involved with preparation of the Air Quality and GHG Impact Analysis sections. 3296
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3.6-57, 3.6-62, and 3.6-67. For these reasons, per BAAQMD guidelines, the potential GHG emissions impacts of the proposed project are less than significant.

Response to CBD-5
The commenter alleged that the EIR underestimated project-generated GHG emissions, due to underestimating the vehicle trips associated with the proposed project. The commenter states that the Institute of Transportation Engineers (ITE) Common Trip Generation Rate for a “High-Cube Transload and Short-term Storage Warehouse,” which was used in the Draft EIR to evaluate the truck trips that would be associated with the proposed project (Draft EIR 2.12-12), was inappropriately selected, and that the ITE trip generation for other types of warehouses, including fulfillment centers and parcel hub warehouses, are higher and should have been selected instead. The commenter states that the number of generated passenger car trips is contradicted by the number of people that the EIR claims the project will employ at full buildout, and states that the Draft EIR estimates 3,643 employees, but only includes 2,832 passenger car trips per day in the GHG impact analysis.

The selection of the ITE trip generation rate for a “High-Cube Transload and Short-term Storage Warehouse” is based on the professional experience of the air quality and GHG emissions experts who prepared the GHG analysis for the proposed project. The proposed use of the project site is for a warehouse and logistics center, which is envisioned to support the winery industry prevalent in the region surrounding the project site. The warehousing, storage, and distribution of wine-related products is accurately represented by the ITE trip generation rate selected for the proposed project.

Furthermore, the selection of a trip generation rate recommended by the commenter, such as those for fulfillment centers or parcel hub warehouses, would overestimate the potential trips associated with the envisioned end use of the proposed project. These trip generation rates are commonly used to evaluate the trips associated with fulfillment centers, such as Amazon warehouses, which is not consistent with the proposed end use of the proposed project. This is detailed in the Draft EIR at pages 2-4 and 3.12-12. Additionally, the trip lengths included in the GHG impact analysis modeling software, CalEEMod, were extended from the default trip length to a length of 32.8 miles. This trip length conservatively represents the distance between the project site and the Port of Oakland.

Because many of the truck trips associated with the proposed project would be expected to occur more locally, this trip length potentially over-estimates the transportation-related GHG emissions associated with the proposed project and helps to ensure that the GHG emissions estimate included in the GHG impact analysis is conservative. As included in Appendix B (please see emission summary tables beginning on pgs. 34 and 42), trucking associated with the operation of the proposed project is estimated to contribute to GHG emissions of approximately 13,500 metric tons CO2e per year 3297
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Regarding the number of passenger car trips included in the GHG emissions analysis, the commenting agency alleges that the number of passenger car trips is erroneously evaluated at 2,832 passenger car trips per day in the GHG impact analysis, where the Draft EIR had estimated 3,643 employees to be associated with the proposed project. In fact, as described in the Draft EIR at page 2-8, there are 3,643 employees estimated to be associated with commerce, both directly and indirectly, around the proposed project site. Only approximately 2,400 employees are expected to be employed on-site at the proposed project, so the GHG impact analysis trip generation rate for passenger cars, with an estimated 2,832 passenger cars per day, is a conservative estimate that accurately represents the potential daily passenger car trips that could be associated with the proposed project. The figure for an eventual 3,643 employees engaged in commerce associated with the proposed project reflects future employees working for businesses located outside the project site. This economic information was included in the EIR in order to make the point that the project may well indirectly spawn additional economic growth in the region (i.e., have a “multiplier effect”).

If and when new development that complements the land uses associated with the project is proposed, such new development will be subject to rules and regulations addressing the GHG emissions of new structures and operations.

Finally, the commenter states that a source of GHG emissions, vegetation removal, was incorrectly omitted from the Draft EIR GHG impact analysis. The 2022 BAAQMD thresholds of significance for evaluating the potential climate change impacts of land use project does not discuss evaluating the potential loss of sequestered carbon as a part of proposed projects, and CEQA does not require the consideration of loss of sequestration as a part of project impact analysis, as further discussed below.

CEQA Guidelines Section 15064.4, which identifies agencies’ obligations to consider GHG-related impacts, requires a singular focus on the effects of project emissions. This section is entitled, “Determining the Significance of Impacts from Greenhouse Gas Emissions,” and the directives in the section are consistent with that limited focus. This same exclusive focus on emissions (as opposed to lost sequestration) is also evident from the two questions relating to climate change posed in the sample Initial Study checklist found in Appendix G to the CEQA Guidelines. Those questions ask whether a proposed project would either “[g]enerate greenhouse gas emissions, either directly or indirectly, that may have a significant impact on the environment” or “[c]onflict with an applicable plan, policy or regulation adopted for the purpose of reducing the emissions of greenhouse gases.” The limited focus on emissions is a result of the original 2007 legislative directive by which the Governor’s Office of Planning and Research (OPR) and the California Natural Resource Agency (CNRA) developed and promulgated the subsequent CEQA Guidelines dealing with GHG emissions.

This statute, Public Resources Code Section 21083.05, was amended again in 2012, but its focus on emissions is still unmistakable:
“The Office of Planning and Research shall periodically update the guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions 3298
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The exclusive focus on emissions associated with transportation and energy consumption, and the failure to require analysis of issues such as climate change adaptation or the loss of carbon sequestration, was the product of political compromise embodied in Senate Bill (SB) 97 of 2007 (Stats. 2007, ch. 185). That legislation was caught up in the fraught budget negotiations of that year:

For two months this summer, Republican lawmakers blocked adoption of the state budget in part because of concerns about whether and how global warming should be considered an issue for CEQA purposes. Manufacturing, development, petroleum and other interests urged lawmakers to keep global warming issues out of environmental reviews for land use plans, transportation plans, development projects and anything else that could be a “project” under CEQA. Their concerns stemmed from recent litigation over the lack of global warming considerations in environmental impact reports, including a suit (since settled) that Attorney General Jerry Brown filed over San Bernardino County's updated general plan (see CP&DR, July 2007; In Brief, September 2007). As part of the budget settlement, the Legislature approved SB 97 (Dutton), which exempts transportation and flood control projects funded by the 2006 state bonds from global warming considerations.

However, the bill concedes to environmentalists on the primary point: global warming is a CEQA issue. The bill directs OPR to prepare “guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions.” The bill gives OPR a July 1, 2009, deadline, and mandates that the Resources Agency adopt the Guidelines by January 1, 2010. The legislation further requires OPR to update the Guidelines periodically based on State Air Resources Board (ARB) information and criteria.
(Greenhouse Gas Guidelines May Get Political From Outset, California, Climate change, Environment Watch, Paul Shigley, California Planning and Development Report, Vol. 22 No. 10 Oct 2007 [Sep 24, 2007].)7
After the Legislature, in 2006, had enacted the Global Warming Solutions Act of 2006 (commonly known as AB 32), some legislators were concerned that, through pending litigation filed by thenAttorney General Jerry Brown and others, the courts might conclude that then-extant CEQA documents for major projects might be set aside for failure to address GHG-related impacts. Through SB 97, these documents were immunized against legal arguments to the effect that that they were inadequate for failing to address GHG-related impacts. The Legislature also chose to delay the 7 The quoted article may be viewed online at: Website: https://www.cp-dr.com/articles/node-1794. 3299
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These requirements and limitations were set forth in former Section 21097 of the Public Resources Code, which expired by its own terms in 2010:
a) The failure to analyze adequately the effects of greenhouse gas emissions otherwise required to be reduced pursuant to regulations adopted by the State Air Resources Board under Division 25.5 (commencing with Section 38500) of the Health and Safety Code in an environmental impact report, negative declaration, mitigated negative declaration, or other document required pursuant to this division for either a transportation project funded under the Highway Safety, Traffic Reduction, Air Quality, and Port Security Bond Act of 2006 (Chapter 12.49 (commencing with Section 8879.20) of Division 1 of Title 2 of the Government Code), or a project funded under the Disaster Preparedness and Flood Prevention Bond Act of 2006 (Chapter 1.699 (commencing with Section 5096.800) of Division 5), does not create a cause of action for a violation of this division. b) Nothing in this section shall be construed as a limitation to comply with any other requirement of this division or any other provision of law. c) This section shall apply retroactively to an environmental impact report, negative declaration, mitigated negative declaration, or other document required pursuant to this division that has not become final.
d) This section shall remain in effect only until January 1, 2010, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2010, deletes or extends that date.

As this language makes clear, SB 97 was no ordinary CEQA bill. It did not unleash OPR and CNRA to promulgate whatever CEQA Guidelines provisions they saw fit on the broad subject of climate change. Rather, the direction given was very precise: the exclusive focus was to be on the effects of GHG emissions, with emphasis on emissions from transportation sources and energy consumption.

Section 15064.4 and Appendix G reflect this precise direction. One legal commentator described the political climate that led to SB 97 as follows:

There was a significant debate in 2007 whether legislation should be enacted to protect EIRs against legal challenges based on AB 32. After substantial debate, the Legislature adopted only a limited provision to protect certain bonded infrastructure projects against such challenges. For all other projects, the Legislature directed the Office of Planning and Research (OPR) to prepare guidelines for mitigating the effects of GHG emissions by July 1, 2009, and directed the Resources Agency to adopt these guidelines by Jan. 1, 2010.
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In short, it is clear that CEQA does not require analysis of the extent to which a project, by removing existing vegetation from a project site, could contribute to a loss of carbon sequestration.

The GHG impact analysis included in the Draft EIR correctly evaluates the potential GHG emissions of the proposed project, and under CEQA does not need to include the emissions associated with the potential loss of carbon sequestration through changes to vegetation on the project site.

Response to CBD-6
The commenter alleged that the Final EIR Volume 1 new VMT study failed to provide evidence that project GHG impacts are less than significant, and that the conclusion of the study is faulty and not supported by substantial evidence. The commenter stated that the VMT study failed to account for the number of truck trips generated by the project.

VMT is addressed in Master Response D. See also Response to CBD-3.

Response to CBD-7
The commenter alleged the EIR improperly found the project’s GHG emissions were less than significant and thus failed to consider feasible mitigation measures to reduce or avoid the project’s GHG Emissions.

Considerations of feasibility only come into play where a significant effect exists. As previously discussed, in the preparation of the GHG impact analysis for the proposed project, the City relied on thresholds of significance for the GHG impact analysis as established by an expert agency on the evaluation of GHG impacts, the BAAQMD. As compared to the project design thresholds recommended by BAAQMD to evaluate the impact of the proposed project, and through the evaluation of the proposed project per the CEQA Guidelines Appendix G checklist questions, the EIR found that the potential GHG emissions impacts of the proposed project are less than significant. It should be noted that, despite having less than significant GHG effects, the proposed project incorporates many control measures and project design features that will reduce the potential GHG emissions from the construction and operation of the proposed project.

As detailed under the response to SWAPE-2e and the response to CLARK-7, and in the submitted December 2, 2022, letter from Joe Livaich at Buzz Oates Construction to Mr. Brent Cooper (provided in Appendix N), the proposed project will be powered by 100 percent on-site solar energy, will not include the use of any natural gas, will utilize recycled water sources, will provide electric infrastructure to support future needs of “clean fleet readiness,” and will support the use of EVs through provided enhanced charging, beyond code requirements. As further detailed in the Transportation section of the Draft EIR, the proposed project would implement a TDM Plan and will contribute significant financial support to improve Level of Service (LOS) and to reduce congestion, 8 This document can be viewed at: Website: https://www.hklaw.com/-/media/files/insights/publications/2009/03/legal-perspectiveson-recent-california-climate-ch/files/legal-perspectives-on-recent-california-climate-ch/fileattachment/maclean319.pdf. 3301
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The commenter states that the California Office of the Attorney General also has published a document entitled “Warehouse projects: Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act” (2021) to help lead agencies comply with these requirements.

Many of the best practices recommended in this guidance are already included in the project design, as discussed above, and the feasibility of further measures to reduce emissions was detailed in the response to SWAPE-2e and response to CLARK-7. In the absence of a significant GHG impact, further mitigation measures to reduce such an impact are not necessary or required under CEQA.

Response to CBD-8
The commenter alleged that the EIR failed to adopt all feasible mitigation measures for the proposed project’s significant unavoidable air quality impact.

The comment reiterated previous comments regarding feasible mitigation measures for air quality impacts that were included in Golden State Environmental Justice Alliance letter and the NapaSolano Residents for Responsible Growth letter dated July 20, 2022. These comments were addressed in the Final EIR in Response to SWAPE-2e and Response to CLARK-7. Note that three additional air quality mitigation measures were added in the Final EIR Errata in Volume 1 of the Final EIR (see pages 5-1–5-2) in response to this and other similar comments. An additional change to the Air Quality MM AIR-2c is made in Response to Comment CBD-8:

MM AIR-2c Prior to issuing any certificate of occupancy for the proposed project, the project applicant shall provide the City with documentation demonstrating the use of “LowVOC” architectural coatings and electric landscaping equipment during the operation of the proposed project. “Low-VOC” architectural coatings used during project operation construction shall not exceed 10 50 grams of reactive organic gases (ROG) or volatile organic compounds (VOC) per liter of product. Landscaping equipment referred to in this requirement shall include lawnmowers, leaf blowers, and chainsaws.

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. As noted above, the City has adopted one such suggestion (adopt a VOC limit of 10 g/L for paints and coatings used during project operations).9 In response to this comment, 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 9 No parallel change is required for MM AIR-2a and MM AIR-2b, which address construction-related emissions, as constructionrelated emissions can be mitigated to less than significant levels without such a change. (See Draft EIR, p. 3.2-49.) 3302
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Mr. Livaich’s letter is provided in Appendix N.

Response to CBD-9
The commenter alleged the EIR failed to properly analyze or mitigate transportation impacts. The commenter asserted that the EIR did not evaluate trucking impacts and understates impacts to State Route (SR) 29. The commenter stated that the project will contribute to additional congestion on SR29, which will increase truck idling and, in turn, increase exposure of sensitive receptors to pollutants.

The Draft EIR analysis evaluated all of the topics on the CEQA Guidelines Appendix G checklist that pertain to transportation; refer to Draft EIR page 3.12-13. This list of topics includes conflicts with circulation system plans or programs, VMT, roadway safety, and emergency access. Truck trips were accounted for in all of these analyses. For example, trucks were specifically accounted for in the project trip generation table; refer to Table 3.12-5 on page 3.12-12 of the Draft EIR. The roadway safety analysis specifically evaluated how trucks would access the proposed project; refer to Draft EIR, page 3.12-18.

Regarding impacts to SR-29, the intersection of SR-29/South Kelly Road was studied in Impact TRANS-1 and the proposed project would not have a significant impact on this intersection. Thus, it can be inferred that the proposed project would not cause vehicles (including trucks) to excessively idle at this location.

Furthermore, it should be noted that the trip distribution table (Table 3.12-6 on page 3.12-12) assumes that 50 percent of project-related trips would come from the north in the AM peak-hour and 55 percent would come from the same direction in the PM peak-hour. Most of these trips would use Devlin Road since it provides the most direct route to SR-29/South Kelly Road. Furthermore, trips destined for I-80 would continue on South Kelly Road to SR-12; they would not travel on SR-29.

These northbound trips also avoid residential areas and, thus, would not expose sensitive receptors to pollution.

As for southbound trips, Table 3-1 summarizes truck traffic volumes on SR-29 within American Canyon. As shown in the table, SR-29 within American Canyon carries a substantial number of existing diesel trucks on a daily basis. Five-axle trucks (i.e., heavy-duty tractor trailers) represent the single largest category of trucks. Hence, sensitive receptors along this corridor are already exposed to pollution under existing conditions.
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Location
Total Daily
Vehicle Trips
Total Daily
Truck Trips
Truck
Percentage
2-Axle
Trucks
3-Axle
Trucks
4-Axle
Trucks
5-Axle
Trucks
Napa/Solano
County Line
40,000 2,768 6.92 1,236 350 74 1,591
SR-12/SR-29
Junction
36,500 2,537 6.95 980 266 78 1,213
Source: California Department of Transportation (Caltrans). 2022. Traffic Census Program. Website:
https://dot.ca.gov/programs/traffic-operations/census.

The ARB defines “high-volume roadways” as ones that carry in excess of 50,000 vehicles per day in a rural area or 100,000 vehicles per day in an urban area. The ARB recommends strategies to reduce air pollution exposure along high volume roadways. As shown in Table 3-1, SR-29 carries roughly 40,000 daily vehicle trips at the Napa/Solano County line and only 36,500 daily vehicle trips at its junction with SR-12. Thus, SR-29 within American Canyon would not be classified as a “high-volume roadway” pursuant to ARB guidance and, thus, strategies to reduce air pollution exposure along this roadway would not apply.

In sum, the addition of the proposed project’s 26410 daily truck trips (or 1,944 total trips) to the segment of SR-29 south of the project site would not result in a substantial increase in pollution exposure along this roadway because it does not meet CARB guidance as a “high-volume roadway.” Response to CBD-10
The commenter alleged that the EIR did not disclose construction-related VMT impacts.

Construction VMT was provided in the CalEEMod modeling output in Draft EIR Appendix B. This value was factored into the construction criteria pollutant and GHG emissions analysis.

There is no guidance for construction-related VMT impacts in the context of transportation, much less any thresholds of significance. This is because VMT is recognized as a long-term, ongoing concern in the context of regional mobility, as opposed to a short-term concern. Thus, evaluating short-term construction-related VMT would provide no material insight into the issue of long-term regional mobility. Furthermore, evaluating construction VMT would constitute “double counting” because these trips are operational in nature for construction workers and vendors and, thus, are already accounted for in local, regional, and Statewide operational VMT numbers. For these reasons, there was no legal requirement to evaluate construction VMT in the EIR. 10 The proposed project would generate 528 truck trips, with 50 percent assumed to travel south on SR-29; refer to Table 3.12-5 and Table 3.12-6. Hence, 264 trucks would travel south on SR-29. 3304
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The commenter alleged that the EIR’s analysis of transportation impacts during operation relies on the same inadequate analysis that ignores truck trips and significantly underestimates trip generation.

Truck trips were specifically accounted for in the project trip generation table; refer to Table 3.12-5 on page 3.12-12. As previously discussed, these trips were accounted for in the circulation system analysis in Impact TRANS-1.

Master Response D addresses how truck trips were accounted for in the VMT analysis. See also Response to CBD-3.

Response to CBD-12
The commenter alleged that the EIR makes no attempt to mitigate transportation impacts and stated that the EIR must impose a mitigation measure to fund the construction of a new bus stop on the project frontage.

As discussed in the Draft EIR page 3.12-6, no fixed route bus service occurs on either Green Island Road or Devlin Road. Furthermore, the Draft EIR concluded that all transit impacts were less than significant and did not require mitigation. Thus, there is no legal basis under CEQA to require a mitigation measure for the development of a bus stop that would serve a nonexistent bus route.

The Final EIR set forth a new air quality mitigation measure for the implementation of a TDM Plan for each new building as the development proceeds (MM AIR-2f). TDM strategies may include rideshare, vanpools, employee lockers, and secure bicycle parking. These are all considered more effective strategies to reduce emissions associated with single-occupant vehicle trips than constructing a bus stop in an area unserved by bus service.

Response to CBD-13
The commenter alleged the EIR inadequately analyzed and mitigated the project’s significant impacts on biological resources.

This comment provides a general discussion of biological conditions in Napa County. No EIR-specific comments were provided and no further response is necessary.

Response to CBD-14
The commenter alleges that impacts to wetlands were incorrectly analyzed and inadequately mitigated. The commenter also states that the EIR admits that the wetland delineation conducted for the EIR contains errors (Final EIR at 3-296-97), and suggests that there is more wetland area on the project site than the EIR recognizes. The commenter thus concludes that the EIR does not adequately describe the baseline conditions and cannot provide an in-depth analysis of, or provide adequate mitigation for, the proposed project’s impacts to wetlands and the special-status species that rely on the wetlands.

Wetlands are addressed in Master Response C. The specific comments mentioned are also similar to those addressed in Response S&W.NOV. 16-3. Although the City acknowledges that the 2016 M&A 3305
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Response to CBD-15
In this comment, the author alleges, in points similar to those made in comment CDB-14, that the baseline data in the EIR pertaining to the wetlands present on the project site is incorrect as the EIR includes mistakes from the M&A wetland delineation report, and that the USACE improperly relied on this report in issuing its AJD. The commenter further alleges the City compounded the error by providing the M&A wetland delineation report to the USACE. The commenter additionally states that the EIR fails to disclose that the project area is immediately adjacent to and connected via No Name Creek and its associations with the Napa River core vernal pool recovery area, and claims that any impact to No Name Creek and its associated wetlands could, therefore, impact the Napa River core vernal pool recovery area.

The City is not the party that provided the 2016 M&A wetland delineation report to the USACE.

Rather, M&A provided the 2016 M&A wetland delineation report to the USACE in a letter dated August 29, 2016 on behalf of the Albert D. Giovannoni Trust.

The Draft EIR does disclose and discuss the fact that the project site is near two core areas referred to as the “Napa River Core Area.” The Draft EIR discloses that one core area is located approximately

2.5 miles northeast of the project site at the SR-12 /SR-121 interchange, and that the second one is adjacent to the project site near the northwest boundary of the Wetland Preserve area. The Draft EIR also discloses that the project site itself is not within a core area.

The Wetland Preserve supports the seasonal wetland segment of what is referenced as No Name Creek. The Wetland Preserve maintains the hydrological connectivity of No Name Creek within the Wetland Preserve, and with the preserved and proposed established/created mitigation wetlands (which includes a vernal pool) to the segment of No Name Creek connected to the Napa River core vernal pool recovery area. Existing wildlife corridors to and from the Wetland Preserve and Napa River core vernal pool recovery area adjacent to the project site will be maintained, and vegetated bioretention basins will provide an approximately 25- to 150-foot buffer between the hardscaped areas (i.e., parking, traffic, buildings etc.) and the Wetland Preserve, and the Phase 2 development would very likely have similar bioretention basins positioned between the Wetland Preserve and hardscaped areas of Phase 2. Based on the fact that the Draft EIR did disclose and discuss the Napa River core vernal pool recovery area, and given the Wetland Preserve will maintain the hydrological connectivity and existing wildlife corridors to the Napa River core vernal pool recovery area, and given the vegetated buffers the bioretention basins will provide buffering the Wetland Preserve from light, noise, and sound generated from the project, the Phase 1 and Phase 2 projects will have less than a significant effect on the Napa River core vernal pool recovery area. As a result, mitigation measures are not, and need not be, proposed.

Wetlands are further addressed in Master Response C.
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The commenter alleges that the wetland impact evaluation in the EIR did not prioritize avoidance of wetlands, recommended wetland mitigation ratios that were too low, and did not include sufficient periods of success monitoring. The commenter also argues that the Wetland Preserve is compromised by the need to limit wildlife populations that may be a safety hazard at the Napa County Airport and by the presence of a gravel road constructed through the area. In a point similar one raised in Comment Cashen-14 (responded to in Volume 1 of the Final EIR), the commenter notes that the Wetland Preserve would be managed to ensure the wetlands are not an attractant to wildlife that could pose a safety hazard to the Napa Airport. The commenter then alleges that the EIR is working at cross-purposes by claiming that the Wetland Preserve will be such effective habitat it will completely mitigate the loss of 163 acres of established habitat, but also not attract wildlife species. The commenter then states that the EIR failed to disclose a gravel road that has been constructed through the areas set aside for the Wetland Preserve and that the impacts of the road were not analyzed.

The commenter next suggests that wetland mitigation ratios were too low, that a ratio of 3:1 for inkind mitigation and 5:1 for restored or created habitat is more appropriate, and that the mitigation plan should include long-term monitoring, adaptive management strategies, and well-defined measurable success criteria, to be funded in perpetuity. The commenter then goes on to state her opinion that the City has not demonstrated that it considered higher ratios or why higher ratios are infeasible.

It is unclear how the commenter defines “in-kind” compared to “restored or created habitat.” The City, in this response, assumes “in-kind” means restoring, establishing, or creating wetlands of the same type, meaning that if a project impacts vernal pools, for example, the project proponent should restore, establish, or create vernal pools (as opposed to some other kind of wetland). In contrast, an example of “out-of-kind mitigation” would occur where a development impacts vernal pools but, as mitigation, restores, establishes, or creates a different type of wetland such as a seasonal wetlands. Typically, the RWQCB (under the Porter-Cologne Water Quality Control Act) and USACE (under the CWA) require a higher mitigation ratio for out-of-kind mitigation.

The City considered in-kind wetland mitigation and ratios that would offset impacts to wetlands and the functions the wetlands provide to less than significant. The proposed mitigation ratio of 2:1, inkind, wetland establishment, for Phase 1, and 1:1, in-kind, wetland establishment for Phase 2 meets the federal and State “no-net-loss” of wetland area policy, and would reduce impacts to wetlands and their functions to less than significant. The City recognizes, for the similar reasons referenced by the commenter, that typically the USACE and RWQCB will require a mitigation ratio greater than 1:1 if wetland mitigation is implemented after or concurrent with the start of project construction and/or if there is a low level of confidence that a selected site can support wetlands.

Notably, the avoidance of any “net loss of wetland area,” as required by MM BIO-3a, at least arguably goes beyond what CEQA requires insofar as this performance standard seeks to avoid any net harm to existing environmental conditions. In general, “[t]he goal of mitigation measures is not to net out the impact of a proposed project, but to reduce the impact to insignificant levels.” (Save Panoche Valley v. San Benito County (2013) 217 Cal.App.4th 503, 529.) To the extent that the higher 3307
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For the reasons discussed above, and given the functional assessments conducted to determine plant and animal communities, wetland hydrology and hydric soil attributes, plant communities and vegetation stratum attributes, the City has a high level of confidence the Wetland Preserve can support the establishment of vernal pools and seasonal wetlands and they will be functioning within 1 year (e.g., providing flood storage, avian and terrestrial habitat, provide habitat suitable for vernal pool plants, etc.) similar to the seasonal wetlands that would be impacted by Phase 1 and seasonal wetlands and vernal pools that would be impacted by Phase 2.

Refer to Master Response A for a discussion on the rationale for not requiring additional mitigation beyond the 45-acre Wetland Preserve to offset impacts to foraging habitat for a number of raptors.

Refer to Master Response C for additional information related to the functional assessment, performance standards, hydrology and water budget analysis, vegetated buffers, and wildlife corridors in support of the wetland ratios and the City’s level of confidence that the mitigation will be successful.

A Wildlife Hazard Assessment (WHA) was prepared in accordance with MM LU-3 after the release of the Draft EIR. The WHA demonstrates that the construction of the proposed project (Phase 1 and 2 and the Wetland Preserve) would not cause an increase above the existing level of activity of birds or other wildlife, and would not present a hazard to Napa County Airport flight operations. The WHA 3308
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Therefore, there is no need, as the commenter suggests, for an additional requirement that the Wetland Preserve be actively managed so as to avoid creating wildlife attractants such as ponded water or particular types of vegetation.

The EIR did not claim or imply the 45-acre Wetland Preserve would offset all the habitat for all of the species that currently use the 163-acre site (e.g., as foraging habitat for a number of raptor species).

Rather, the goal of the preserve is to avoid a net loss of wetland acreage. Some net loss of other habitat types will occur (though not “substantial” losses). As described in Master Response A— Swainson’s Hawk and Other Raptors, the 45-acre Wetland Preserve along with vacant parcels, both publicly and privately owned within the region, as being available as foraging areas for Swainson’s hawk and other raptors. Accordingly, for the same reasons the proposed project would not result in an indirect or cumulative loss of Swainson’s hawk foraging habitat, it would also not result in a significant indirect or cumulative loss of foraging habitat for other raptors. At the same time, the proposed project should not increase, over existing levels, the number of birds that use the property in its undeveloped state.

Wetlands are further addressed in Master Response C. The utility lines and access road are addressed in Master Response B.

Response to CBD-17
The commenter alleges that the EIR did not analyze or mitigate the project’s impacts to No Name Creek, which serves as a wildlife corridor through the project site, or account for connectivity between aquatic resources and upland habitat with the Wetland Preserve, and with buffers around the aquatic resources. The commenter references several studies, which included descriptions of the movement of California red-legged frog and western pond turtles, and recommends the Wetland Preserve should have designated setbacks appropriate for the species known to occur on the site.

The commenter indicates that the project must address impacts to wildlife connectivity from the “negative edge effects” from human activity such as traffic, lighting, noise, domestic pets, pollution, invasive weeds, and increased fire frequency.

The Draft EIR evaluated impacts on fish and wildlife movement corridors on pages 3.3-37 through

3.3-39. The analysis found that the proposed project’s 45-acre Wetland Preserve would protect the most biologically sensitive portions of the site and would also be connected to the adjoining Napa Logistics Park Wetland Preserve. The Draft EIR also determined that the project site does not provide suitable habitat for the California red-legged frog (CLRF) or the western pond turtle (refer to page

3.3-23). With respect to CLRF, this conclusion was supported by the Habitat Assessment for California red-legged frog conducted by species expert and herpetologist Mark Jennings of Rana Resources, which is included as Attachment 3 of the Draft EIR. Thus, there is no basis to evaluate wildlife movement impacts with these two species. For a more detailed discussion of the buffers and wildlife corridors provided by the Wetland Preserve, please refer, for additional details, to the Vegetated Buffers to Protect Wetlands and Wildlife Corridor section of the Master Response C— Wetlands.
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3-286 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 project site is surrounded on four sides by urban development and infrastructure and, thus, traffic, lighting, and noise are currently present. That being said, Phase 1 and 2 development will bring these disturbances closer to the southern boundary of the Wetland Preserve. These impacts have been addressed in Responses to S&W.NOV. 16-5 and 16-11. With respect to invasive species, please refer to Response to CASHEN.NOV. 15-12. See also changes to MM BIO-3d performance standards discussed in Response to CASHEN.NOV. 15-12 and shown in the Errata portion of (this) Volume 2 of the Final EIR.

The Devlin Road extension is a baseline condition and recognized and considered in the EIR; refer to pages 2-1 through 2-3 of the Draft EIR. The exhibits showing the Wetland Preserve and the location and extent of the established wetlands clearly delineate the location of the new Devlin Road extension. Wetland mitigation proposed in the Wetland Preserve considered the location of the Devlin Road extension and the culvert connecting the east and west side of the Wetland Preserve.

With respect to environmental impacts associated with the Devlin Road extension, those impacts were disclosed and evaluated in the Devlin Road and Napa Valley Vine Trail Extension Project Mitigated Negative Declaration adopted by the City in 2018.

The City agrees with the commenter regarding the importance of riparian zones and the use of these riparian corridors, or protected open space areas in general, as wildlife corridors. The 45-acre Wetland Preserve, which includes the No Name Creek seasonal wetland swale but no riparian areas, will provide an important wildlife corridor for the species that currently use or occupy the project site. Terrestrial animals will be able to move through the Wetland Preserve and to adjacent open space areas or preserves such as the Napa Logistics Wetland Preserve. For a more detailed discussion regarding the buffers and wildlife corridors provided by the Wetland Preserve, please refer, for additional details, to the section of the Master Response C—Wetlands dealing with the Vegetated Buffers to Protect Wetlands and Wildlife Corridor.

The Draft EIR determined that the project site does not provide suitable habitat for the California red-legged frog or the western pond turtle; refer to page 3.3-23 of that document. Thus, there is no basis to evaluate wildlife movement impacts with these species.

The utility lines and access road are addressed in Master Response B.

Response to CBD-18
The commenter alleged that the EIR did not properly analyze or mitigate the project’s impacts related to the potential loss of foraging habitat for Swainson’s hawk. The commenter cites data alleging that there are only 2,000 breeding pairs in California. Additional comments pertain to the viability of the Wetland Preserve to serve as suitable foraging habitat for Swainson’s hawk, stating that the Wetland Preserve is a small island of existing and created wetlands that is surrounded by wildlife-repellant development and has roads running through it, with wetlands of limited value as a foraging area, and edge effects from light and noise.

The potential loss of foraging habitat for Swainson’s hawk is addressed in Master Response A. 3310
City of American Canyon—Giovannoni Logistics Center Project Final EIR–Volume 2 Responses to Written Comments
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The commenter argues that, because Swainson’s hawk does not use wetlands as foraging areas, the Wetland Preserve provides limited value for this purpose. As pointed out in the Draft EIR, however, suitable foraging areas for Swainson’s hawk include grasslands, pastures, alfalfa and other hay crops, and certain grain and row croplands. And while Swainson’s hawk will generally avoid permanently-inundated emergent wetlands as foraging areas, many extensive foraging habitats for Swainson’s hawk throughout the Central Valley are in vernal pool landscapes that offer a mix of both upland grasslands and seasonal wetlands. Not only do Swainson’s hawks commonly forage in vernal pool landscapes, but they currently forage over the site of the proposed project, which is a combination of grasslands and seasonal wetlands. The value of the Wetland Preserve (with upland grasslands along with both pre-existing and created seasonal wetlands) as a raptor foraging habitat would be nearly equivalent to that of the project site in its current condition. In addition, the wetlands that currently exist on the project site and that either exist or are to be created within the Wetland Preserve are seasonal wetlands that are filled with water during the winter months (given sufficient rainfall), dry out in the spring, and remain dry throughout the summer. Swainson’s hawk seldom winters in California and would only be expected to occur in the project area during the spring and summer months when seasonal wetlands are dry and would provide optimal conditions for foraging. In other words, the newly created wetlands will only be wet when the Swainson’s hawk is not present; they will provide good foraging habitat during the dry parts of the years when the species is present.

Additional comments also pertain to the viability of the Wetland Preserve to serve as suitable foraging habitat for Swainson’s hawk. A similar comment suggesting that the Wetland Preserve will be a small island of existing and created wetlands was addressed in Volume 1 of Final EIR in the Response to Comments CASHEN-6 and AB Comment 8, and in this document (Volume 2) in Response to Comment Cashen.NOV. 15-7. Note that the Wetland Preserve is hydrologically connected to the Napa Logistics Park Wetland Preserve to the north and would 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. The effects of noise, light, and traffic within the Wetland Preserve were addressed in Volume 1 of the Final in the Response to Comment S&W-11 and in this Volume (2) of the Final EIR in the Response to Comment S&W.NOV. 16-11. For a more detailed discussion of the buffers and wildlife corridors provided by the Wetland Preserve, please refer, for additional details, to the section of the Master Response C addressing Vegetated Buffers to Protect Wetlands and Wildlife Corridor. HBC 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. Habitat fragmentation issues associated with Devlin Road and the gravel road are addressed in Master Response B. 3311
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The commenter alleged that the EIR did not properly analyze or mitigate the project’s impacts on other special-status bird species, including the golden eagle, northern harrier, tricolored blackbird, and burrowing owl.

Golden Eagle: Potential loss of foraging habitat for golden eagle is addressed in Master Response A.

The status of golden eagle as a nesting species at the project site and the general vicinity is discussed in this Volume (2) of the Final EIR in Response to CASHEN.NOV. 15-8 and in Response to CASHEN.NOV. 15-9. Potential impacts to nesting golden eagle and an updated MM BIO-1b for preconstruction surveys and establishment of protective buffer zones around any discovered active nests during construction activities are discussed in Response to CASHEN.NOV.15-14.

Northern Harrier: See Response to CASHEN.NOV. 15-10 earlier in this Volume (2) of the Final EIR.

Because of anticipated impacts of the proposed project, the EIR requires MM BIO-2c to conduct preconstruction surveys for northern harrier and establish appropriate buffer zones of no disturbance to protect any nesting pairs encountered. The extensive discussion of the reasons why the loss of foraging habitat for Swainson’s hawk is not significant contained within Master Response A applies to loss of potential foraging habitat within the project site for northern harrier as well.

Tricolored Blackbird: See discussion in the Draft EIR on pages 3.3-6 and 3.3-26. Because no habitat for a tricolored blackbird nesting colony was found on the project site, no impacts to nesting tricolored blackbird are expected. Note that MM BIO-4 (as modified in the Errata portions of both Volume 1 and Volume 2 of the Final EIR) provides that, if pre-construction bird nesting surveys were to actually encounter nesting tricolored blackbirds, the colony would be protected with a 500 foot no disturbance buffer zone during construction.

Burrowing Owl: See discussion of the status of burrowing owl on the project site, potential impacts and required mitigation in Response to CASHEN.NOV.15-11, as set forth earlier in this Volume (2) of the Final EIR.

Issues relating to raptors are further addressed in Master Response A.

Response to CBD-20
The commenter stated that the City must revise and recirculate the EIR to address significant new information provided in the Final EIR Volume 1 and the November 17, 2022 Planning Commission meeting concerning the utility alignment that crosses the western portion of the project site.

The utility alignment is addressed in Master Response B, which explains why new information in Volume 2 of the Final EIR does not require recirculation of any portion of the Draft EIR. 3312
54600001 • 02/2023 | D_Suitable_Foraging_Habit
at.cdr CITY OF AMERICAN CANYON

GIOVANNONI LOGISTICS CENTER PROJECT
Exhibit D
Suitable Foraging Habitat
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The following are additional revisions to the Draft EIR for the Giovannoni Logistics Center Project, above and beyond the revisions already shown in Section 5 of Volume 1 of the Final EIR (as released on October 31, 2022).
1 These additional revisions are minor modifications and clarifications to the document, and do not change the significance of any of the environmental issue conclusions within the Draft EIR. The revisions are listed by page number. All additions to the text are underlined (underlined) and all deletions from the text are stricken (stricken).

4.1 - Changes in Response to Specific Comments
Section ES, Executive Summary
Page ES-7, MM AIR-2c
MM AIR-2c has been amended to reduce the Volatile Organic Compound (VOC) content of architectural coatings to 10 grams/liter. (Note that Reactive Organic Gases and VOCs are the same thing).

MM AIR-2c Prior to issuing any certificate of occupancy for the proposed project, the project applicant shall provide the City with documentation demonstrating the use of “LowVOC” architectural coatings and electric landscaping equipment during the operation of the proposed project. “Low-VOC” architectural coatings used during project operation construction shall not exceed 10 50 grams of reactive organic gases (ROG) or volatile organic compounds (VOC) per liter of product. Landscaping equipment referred to in this requirement shall include lawnmowers, leaf blowers, and chainsaws.

Pages ES-8 and ES-9, MM BIO-1a
MM BIO-1a has been amended to include additional buffering measures for the Swainson’s Hawk and minimum credential for biologists conducting surveys.

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 second 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 1 For a discussion of the relationship between the two volumes of the Final EIR, see the discussion on pages 1-1 and 1-2 of this volume (Volume 2) of the Final EIR (February 3, 2023).
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If no nesting Swainson’s hawks 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 (April 5–April 20 June 10 to July 30) Swainson’s hawks 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 hawks are found to be nesting within 1,000 feet 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 1,000 feet 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 occur within the established buffer zone until it is determined by a qualified Raptor Biologist that the young have fledged or that the nesting cycle is complete based on monitoring of the active nest by a qualified Biologist.

Pages ES-9 and ES-10, MM BIO-1b
MM BIO-1b has been amended to include additional buffering measures for the Golden Eagle and minimum credential for biologists conducting surveys.

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 Raptor Biologist. The qualified Raptor Biologist shall have a minimum of a 4- year college degree in wildlife biology or related environmental science, at least 2 years conducting wildlife surveys, and a familiarity with golden eagle and its local ecology. at least 2 years of experience surveying for and detecting nesting golden eagles. 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 0.5- mile radius around all project activities. If active golden eagle nests are identified within any trees within the survey areas a 1 0.5-mile radius of the project site, a qualified Raptor Biologist shall establish a protection buffer at a minimum of approximately 1 mile 1,000 feet that is adequate to ensure noise or activity from the proposed project would not cause nest disturbance of or young or adult bird 3316
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Page ES-11, MM BIO-2
MM BIO-2 has been amended to include additional buffering measures for wetlands developed near the utility pipeline alignment.

MM BIO-2 To offset the loss of the 0.496 acre of seasonal wetland impacts from Phase 1, and

2.57 acres of seasonal wetlands and 1.13 acres of vernal pools from Phase 2, and to ensure there is no-net loss of wetland area, the applicant shall establish/create

0.992 acre of palustrine emergent wetlands (2:1 ratio) for Phase 1 concurrent with project construction, and 2.57 acres of seasonal wetlands (1:1 ratio) and 1.13 acres of vernal pool wetlands (1:1 ratio) for Phase 2 at least 1 year prior to the start of Phase 2 construction, on the 45-acre Wetland Preserve. The established/created wetlands will be constructed a minimum of 20 feet from the Napa Logistics Park sewer and recycled water pipeline easement or unpaved access road associated with the easement. The established/created wetlands shall be monitored for a minimum of 5 years to ensure the wetlands meet the USACE’s and RWQCB’s definition of a wetland.

Page ES-15, Performance Standards
The performance standards for MM BIO 3d have been added to the Executive Summary matrix.

Performance Standards
Performance Standards shall include at a minimum the following:

Years 1, 2, 3, 4 and 5 Performance Standards for Wetland Hydrology Each year wetland hydrology shall be measured during the winter when surface and/or subsurface hydrology would be observable. A minimum of 1 data point shall be taken in each of the established/created wetlands. In addition, wetland hydrologic indicators shall be recorded each spring during the vegetation monitoring period.

Year 1:

Performance standard would be met for Year 1-5 if:
• The created wetlands remain inundated to a minimum depth of 0.5 inch or greater for at least 7 days and/or saturated for at least 14 days and/or at least one primary or two 3317
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Contingency Measures:

If the annual performance standard is not being met for any given monitoring year the Permittee shall prepare an analysis of the cause(s) of failure and, if determined necessary, implement remedial action. If the Plan Area has not met the performance standard, the Permittee’s maintenance and monitoring obligations shall continue until the RWQCB and USACE give final project confirmation.

Remedial action may include re-grading to achieve wetland hydrology, which would improve hydric soil formation.

Years 1, 2, 3, 4, and 5 Performance Standards for Increase in Colonization of Wetland Vegetation
Each year during the spring or early summer wetland vegetation cover shall be measured by conducting a site visit and recording absolute cover and dominant plant species observed within the wetland buffer area. A minimum of 1 data point shall be taken in each of the established/created wetlands. The colonization of wetland vegetation shall be measured by determining overall absolute plant cover values each year. This shall be accomplished by measuring absolute cover values within a 5-foot radius sample plot every 50 feet along a transect through each established/created wetland. In addition, to monitor for invasive plant species within the uplands which are not detected in the baseline survey, 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.

During Year 4 and 5 the managed landscaped areas within the development will be visually surveyed for evidence of invasive plant species. Performance Standards for each monitoring year are listed below.

Year 1:

Performance standard would be metfor Year 1 if:
• At least one hydrophytic plantspecies colonizesthe established/created seasonal wetlands and vernal pools; and
• The average absolute cover of wetland vegetation within an established/created seasonal wetlands and vernal pools is 5 percent or greater.

Year 2:

Performance standard would be metfor Year 2 if:
• At least one hydrophytic plantspecies colonizesthe established/created seasonal wetlands and vernal pools; and
• The average absolute cover of wetland vegetation within an established/created seasonal wetlands and vernal pools is 10 percent or greater.
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Performance standard would be metfor Year 3 if:
• Atleast two hydrophytic plantspecies colonizesthe established/created seasonal wetlands;
• At least two native hydrophytic plantspecies colonizes the established/created vernal pools and at least one is a vernal pool habitat indicator species; and • The average absolute cover of wetland vegetation within an established/created seasonal wetlands and vernal pools is 20 percent or greater and comprised of native and naturalized species.

Year 4:

Performance standard would be metfor Year 4 if:
• Atleast two hydrophytic plantspecies colonize the established/created seasonal wetlands.
• At least two native hydrophytic plantspecies colonizes the established/created vernal pools and at least one is a vernal pool habitat indicator species. • The average absolute cover of wetland vegetation within an established/created seasonal wetland and vernal pool is 30 percent or greater.
• To meet the wetland performance standard invasive plantspecies within the wetlands shall not comprise greater than 5 percent of the total absolute cover. To meet the upland performance standard, invasive plant species, which currently are not supported in the uplands within the Wetland Preserve, shall not comprise greater than 5 percent of the total absolute cover. Invasive plants shall be defined as species rated as “High” by California Invasive Plant Council (Cal-IPC) and species on the ”Alert” or “Watch” list with a High rating.
• The managed landscaped areas within the development will be visually surveyed for evidence of invasive plant species. To meet the managed landscape performance standard, invasive plant species, which currently are not supported in the uplands within the Wetland Preserve, shall not comprise greater than 5 percent of the total absolute cover. Invasive plants shall be defined as species rated as “High” by California Invasive Plant Council (Cal-IPC) and species on the ”Alert” or “Watch” list with a High rating.

Year 5:

Performance standard would be metfor Year 5 if:
• At least two hydrophytic plantspecies documented during the CRAM assessment for the palustrine emergent wetlands impacted on the Phase 1 project site colonize the established/created seasonal wetlands.
• At least two native vernal pool habitat indicator species documented during the CRAM assessment for the vernal pool on the Phase 2 project site colonizes the established/created vernal pools.
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• The managed landscaped areas within the development will be visually surveyed for evidence of invasive plant species. To meet the managed landscape performance standard, invasive plant species, which currently are not supported in the uplands within the Wetland Preserve, shall not comprise greater than 5 percent of the total absolute cover. Invasive plants shall be defined as species rated as “High” by California Invasive Plant Council (Cal-IPC) and species on the ”Alert” or “Watch” list with a High rating.

Contingency Measures:

If the annual performance standard is not being met for any given monitoring year the Permittee shall prepare an analysis of the cause(s) of failure and, if determined necessary, implement remedial action. Remedial action may include hydroseeding with native species, or addition of supplemental topsoil or mulch to promote growth, control of invasive using mechanical equipment, grazing animals.

Year 5 No-Net-Loss Performance Standard for Phase 1 Impacts Performance standard would be met for Year 5 when;
• A wetland delineation is performed and verified by the USACE and confirms a minimum of 0.992 acre of wetlands have been established/created within the Wetland Preserve.

Year 5 No-Net-Loss Performance Standard for Phase 2 Impacts The Phase 2 no-net-loss performance standard would be measured when an application for the Phase 2 project is submitted to the RWQCB and USACE, and the Phase 2 project is approved. Once Phase 2 has been approved by the RWQCB and USACE, this performance standard may be modified depending on the level of wetland impacts authorized by the RWQCB and USACE, meaning this performance standard may decrease if the wetlands impacted for Phase 1 are less than 3.7 acres.

Performance standard would be met for Year 5 when;
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Year 5 Long-Term Protection and Long-Term Funding
Performance standard would be met for Year 5 once:
• The Wetland Preserve has been placed under a conservation easement; and • A long-term financing mechanism (e.g., non-wasting endowment, trusts, contractual arrangement etc.) to fund implementation of the long-term management of the Wetland Preserve has been secured.

Page ES-15, MM BIO-4
MM BIO-4 has been amended to include additional buffering measures for nesting birds.

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 1,000 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 for large raptors such as buteos, 250 feet for small raptors such as accipiters, and 100 feet for passerines (songbirds) and other bird species. For special status species, a 0.25-mile At a minimum a 1,000-foot buffer shall be established for nesting Swainson’s hawk; 1 mile for and golden eagle; and a 500-foot buffer for nesting tricolored blackbirds, northern harriers and other non-listed raptors; 250-foot buffer for nesting accipiters; and minimum 50-foot buffers shall be established for nesting passerines and all other non-raptor or passerine nesting birds. If an active nest is located outside of the project site, the buffer shall be extended onto the project site and demarcated where it intersects the project site. Buffer zones shall be maintained until it can be documented that either the nest has failed, or the young have fledged.
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Pages 3.2-58 and 3.2-59, MM AIR-2c
MM AIR-2c has been amended to reduce the Volatile Organic Compound (VOC) content of architectural coatings to 10 grams/liter. (Note that Reactive Organic Gases and VOCs are the same thing).

MM AIR-2c Prior to issuing any certificate of occupancy for the proposed project, the project applicant shall provide the City with documentation demonstrating the use of “LowVOC” architectural coatings and electric landscaping equipment during the operation of the proposed project. “Low-VOC” architectural coatings used during project operation construction shall not exceed 10 50 grams of reactive organic gases (ROG) or volatile organic compounds (VOC) per liter of product. Landscaping equipment referred to in this requirement shall include lawnmowers, leaf blowers, and chainsaws.

Section 3.3, Biological Resources
Pages 3.3-26 and 3.3-27, MM BIO-1a
MM BIO-1a has been amended to include additional buffering measures for the Swainson’s Hawk and minimum credential for biologists conducting surveys.

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 second 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 hawks 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 (April 5–April 20 June 10 to July 30) Swainson’s hawks 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 hawks are found to be nesting within 1,000 feet 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 1,000 feet from the nest site. The CDFW shall be consulted regarding the adequacy of the buffer established 3322
City of American Canyon—Giovannoni Logistics Center Project Final EIR–Volume 2 Errata
FirstCarbon Solutions 4-9 https://adecinnovations.sharepoint.com/sites/PublicationsSite/Shared Documents/Publications/Client (PN-JN)/5460/54600001/EIR/4 - Final EIR - Vol II/54600001 Sec04-00 Errata.docx 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 occur within the established buffer zone until it is determined by a qualified Raptor Biologist that the young have fledged or that the nesting cycle is complete based on monitoring of the active nest by a qualified Biologist.