From: [email protected]
To: Taresa Geilfuss; Cherri Walton; Nicolle Hall; Liz Lozano; Martha Banuelos Subject: [External] New eComment for City Council
Date: Tuesday, March 21, 2023 2:22:51 PM
SpeakUp
New eComment for City Council
T L Wong submitted a new eComment.
Meeting: City Council
Item: PUBLIC COMMENTS - ITEMS NOT ON CLOSED SESSION OR OPEN SESSION AGENDA
eComment: Hello Mayor and Council In the midst of this very wet day, I am again reminded how our everyday decisions contribute to the climate crisis we currently face. From extreme drought to atmospheric rivers, from wildfires and air pollution, that is the future we find ourselves in due in large part to our dependency on fossil fuels and how pervasively they are used. Given the Climate Emergency Resolution passed by Council, given that we are the second city within the entire state to modify our zoning to ban new fossil fuel stations, I just find it crazy that an out-oftown developer wants to build a restaurant with a drive-thru in our town. Our current zoning allows for this, and your Planning Commission will make this decision on Thursday. We already have more than our fair share of air pollution from hwy 29 traffic. Per California Department of Public Health: -- 22% of Napa County is diagnosed with asthma (2019-2020 data), versus average of 15% in California. -- Napa County ranks 10th highest for populations with asthma out of 58 county groups. Let's do more than just pass resolutions. Let's say no to the convenience of drive-thrus for restaurants. I encourage you to reach out to the Planning Commissioners, directly, prior to this Thursday’s planning commission meeting, to reiterate your support of American Canyon’s ban on new fossil fuel stations and that denying approval of new drive-thru permits is equally in alignment with American’s Canyon’s goal to achieve net zero climate pollutants on or before 2030. This would lay the groundwork to start a meaningful discussion about how engine idling (in all its various forms) impacts the air we breathe and the planet we leave behind for future generations. Thank you
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March 20, 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-Volume 2 (SCH # 2021010104)
Dear Mr. Cooper:
These comments are submitted on behalf of the Center for Biological Diversity (the “Center”) regarding the Giovannoni Logistics Center (“Project”) to expand on the issues we raised in our February 9, 2021, December 1, 2022, January 13, 2023, and February 21, 2023 comment letters.
The EIR for this project uses a GHG threshold that is inconsistent with BAAQMD guidance and California’s crucial climate goals and is not supported by substantial evidence, makes claims about Swainson’s hawk that are not supported by science, and assumes it may use water from Vallejo that American Canyon does not have the right to use, along with other deficiencies identified in our earlier letters. The Center urges the City Council to delay approval of the Project until the EIR can be revised and recirculated.
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.
I. THE GHG THRESHOLD REMAINS UNLAWFUL.
The City continues to rely on an unlawful threshold. The EIR purports to evaluate its GHG impact against the first of the CEQA Guidelines Appendix G thresholds, asking whether the project would “generate GHG emissions, either directly or indirectly, that may have a significant impact on the environment?” (DEIR at 3.6-50 [citing CEQA Guidelines Appendix G].) In applying the threshold, however, the DEIR substitutes an inapplicable significance threshold from BAAQMD, finding that the proposed Project’s GHG impacts are less-than-significant because the Project would reduce employee VMT by 15 percent. The EIR’s threshold is not supported by substantial evidence and is not consistent with California’s climate goals.
March 20, 2023
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).
In BAAQMD’s CEQA Thresholds Justification Report, BAAQMD explains the basis for its 2022 CEQA GHG thresholds. BAAQMD states that it developed these thresholds for “typical residential and commercial land use projects” and that these thresholds “may not be appropriate for projects that do not fit the mold of a typical residential or commercial project.” (BAAQMD at p. 1.) BAAQMD instructs lead agencies to rely upon other thresholds if the BAAQMD threshold “do[es] not reflect the particular circumstances of the project under review.” (BAAQMD at p. 2.) This Project is industrial. (DEIR at 3.6-54.) The City readily admits that BAAQMD’s guidance is “silent” on industrial projects. (Ibid.) Nevertheless, the City relies on the ill-suited BAAQMD threshold for commercial/office projects in its environmental analysis, foreclosing analysis of the Project’s GHG impacts from medium- and heavy-duty trucks.
The EIR justifies this threshold by claiming that there is “very little” guidance on evaluating GHG impacts for warehousing or industrial projects. (FEIR Volume II, 2-21.) As discussed in section I.B of our January 13 letter, there is applicable guidance on industrial land uses that the EIR overlooked. Moreover, the City is ignoring the direct and clear guidance from BAAQMD and the State that any VMT reduction must apply to all land-use types. According to BAAQMD, a project will only have less-than-significant impacts if it is consistent with meeting California’s goal of carbon neutrality by 2045. (BAAQMD at p. 1-2) BAAQMD has concluded that, to be consistent with the State’s goals and implement its “fair share” of the VMT needed reductions, a project must achieve VMT reductions for all vehicle types. (BAAQMD, pp. 18-19.) By using a GHG threshold that requires a 15% reduction in employee VMT only, the City has disregarded the very BAAQMD and State guidance it claims to have relied upon to formulate its threshold .(BAAQMD at pp. 9, 18 [“With respect to transportation, projects need to be designed to reduce project-generated VMT” for “all vehicles.”].)
The DEIR makes a second attempt at justifying its threshold by reasoning that “the State’s overarching GHG reduction strategy for the transportation sector for medium and heavy- duty trucks focuses on making trucks more fuel- efficient and expediting truck turnover rather than reducing VMT from trucks.” (DEIR at 3.6-56-57.) In other words, a land use project under CEQA need not analyze the VMT impacts of medium- and heavy-duty trucks because the State has other regulations to address fleet turnover. This again ignores CARB and BAAQMD’s clear conclusion that, for a project to be consistent with California’s climate goals (and have a less-than-significant climate impact), VMT must be reduced for all vehicle types. (BAAQMD at 16-19 [relying on CARB’s calculations that, given current baseline per-capita VMT levels, the reductions needed to achieve the 2050 goal are approximately 15 percent for “all vehicle types combined”].) The City’s final attempt to justify its threshold is through the EIR’s supplemental study, which found that, even if the EIR had studied the Project’s heavy-duty truck VMT, because Napa County’s heavy-duty truck VMT is 15 percent less than the regional average, the Project allegedly meets the spirit of BAAQMD’s new thresholds. (FEIR, Appendix J.) For one, the City uses the supplemental study as a comparative tool, not as a significance baseline, which means that Appendix March 20, 2023
J cannot correct the core deficiencies in the City’s GHG significance threshold and impact analysis. (Communities For A Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th at pp. 320–322.) Furthermore, the record discloses no substantial evidence that the current Napa County heavy-duty truck VMT, even if less than the regional average, is consistent with achieving the statewide goal. (Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 225.) Rather, the analysis assumes that any heavy-duty truck use in Napa County is patently less-than-significant because other jurisdictions are worse. Such logic fails to analyze the project-specific impacts, as required by CEQA.
California will not be able to achieve carbon-neutrality by 2045 without significant reductions to VMT per capita. (BAAQMD at p. 16) The California Air Resource Board determined that we need to reduce VMT by 16.8 percent for light-duty vehicles and by 14.3 percent for all vehicle types combined—explicitly including heavy-duty vehicles. (Id. at p. 17) Therefore, a 15% reduction in VMT is only consistent with the 2045 carbon neutrality goals—and thus, a valid threshold of significance—if it is a 15% reduction in VMT for all vehicle types combined, including heavy-duty vehicles. BAAQMD makes clear that, “[i]f a project is not designed and built to ensure that it can be carbon neutral by 2045, then it will impede California’s ability to achieve its long-term climate goals and should be treated as making a cumulatively considerable contribution to global climate change.” (BAAQMD at p. 9.) By choosing a threshold that does not hold the Project accountable for its fair-share of GHG reductions, this EIR violates CEQA, fails to demonstrate that the Project will not have a cumulatively considerable contribution to climate change, and impedes California’s ability to meet the carbon-neutrality goal that is essential for avoiding the most catastrophic effects of climate change. The EIR should be revised to include an adequate threshold of significance that does not obscure the Project’s GHG impacts.
II. THE WETLAND PRESERVE IS INADEQUATE MITIGATION FOR THE LOSS OF SWAINSON’S HAWK FORAGING HABITAT BECAUSE THE HAWK
FORAGES IN GRASSLANDS.
In the Center’s February 21, 2023 comments, we raised that the City could not support its conclusion that a manufactured wetland would mitigate to less-than-significant levels the loss of suitable Swainson’s hawk foraging habitat. The Center here provides additional comments regarding the City’s misplaced statement that the value of the 45-acre Wetland Preserve for Swainson’s hawk would be “nearly equivalent” to the existing 154.7 acres of foraging habitat, which the Project would permanently destroy. (FEIR at 2-3.)
Swainson’s hawk is well known as a grassland-adapted species. (Babcock 1995; Woodbridge 1998; CDFW 2016; Shaffer et al. 2019). It relies on grassland and in California some types of croplands for foraging. (Ibid.) As California Department of Fish and Wildlife’s (CDFW 2016) most recent Five-year Review states:
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).
March 20, 2023
Due primarily to the “on-going cumulative loss of foraging habitats throughout California,” to which this Project contributes, CDFW found that Swainson’s hawks’ threatened classification under CESA must be maintained. (CDFW 2016.)These findings identify that the loss of foraging habitat continues to impact Swainson’s hawks in California, reducing the abundance and range of the species within the state.
The most recent scientific analysis for Swainson’s hawk from the U.S. Geologic Survey confirms the plight of the Swainson’s hawk and similarly stresses the importance of grassland habitats:
The key to Swainson’s Hawk (Buteo swainsoni) management is providing open grasslands that contain patches of trees for nesting and perching, sometimes near cultivated areas.” (Shaffer et al. 2019)
Mitigation for impacts to the State-threatened Swainson’s hawks from the proposed development cannot rely solely on the creation of riparian habitat. The primary threat to Swainson’s hawks in California remains the loss of suitable habitat, especially foraging habitat. (CDFW 2016).Swainson’s hawks have fidelity to their nesting sites and territories and return to them each year. (Ibid.) While Swainson’s hawks do require large trees for nest sites, as the City notes, the trees only need be located near high-quality foraging habitat. (Woodbridge 1998). Based on the needs of Swainson’s hawks described above, any mitigation – especially mitigation sufficient to mitigate a potential impact to less-than-significant levels – must also include conservation of foraging habitat (either grasslands, croplands or farmlands that sustain prey for Swainson’s hawks) adjacent to nesting (riparian) habitat.
III.THE EIR’S ANALYSIS OF WATER SUPPLY IS DEFICIENT BECAUSE IT RELIES ON WATER RIGHTS THAT ARE DISPUTED.
At the February 21st City Council meeting, Randy Risner, a Vallejo City Attorney, raised serious concerns about the EIR’s analysis of the Project’s water supply. Namely, the EIR ignored the Place of Use Restrictions associated with the water that Vallejo provides to American Canyon; relied on one interpretation of a water rights agreement between Vallejo and American Canyon that is the subject of current litigation; and did not consider Vallejo’s concerns about American Canyon’s 2020 Urban Water Management Plan. (Malone Letter; Schoenberger and Carothers Letter) Further, the City of Vallejo had not been informed of the Project, much less consulted about its plan to use Vallejo water—continuing a pattern of inadequate notice to interested parties that has been a problem throughout the environmental review process for this project.
This Project cannot be approved based on an EIR that relies on Vallejo water that American Canyon does not have the right to use. The EIR must be revised with a full and accurate analysis of what water will actually be available for the Project, and recirculated so the public, and particularly residents of American Canyon and Vallejo, can understand where the water will come from and evaluate the impacts of supplying that increasingly-scarce water to another warehouse. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 434 [“The ultimate question under CEQA, moreover, is not whether an EIR establishes a likely source of water, but whether it adequately addresses the reasonably foreseeable impacts of supplying water to the project.”].)
March 20, 2023
IV. CONCLUSION
Thank you for the opportunity to submit comments on the Revised Final Environmental Impact Report for the Giovannoni Logistics Project. Because of the serious deficiencies in the document, we urge the City Council to delay approval so that the EIR can be revised and recirculated.
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 would like to remind the City of its statutory duty to maintain and preserve all documents and communications that 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 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]
March 20, 2023
References
Babcock, Keith W. 1995. “Home Range and Habitat Use of Breeding Swainson’s Hawks in the Sacramento.” J. Raptor Res 29 (3): 193–97.
Bay Area Air Quality Management District (“BAAQMD”). (April 2022). CEQA Thresholds for Evaluating the Significance of Climate Impacts From Land Use Projects and Plans. Available at: https://www.baaqmd.gov/~/media/files/planning-and-research/ceqa/ceqa-thresholds2022/justification-report-pdf.pdf?la=en.
CDFW. 2016. “Status Review: Swainson’s Hawk (Buteo Swainsoni) in California.” California Department of Fish and Wildlife.
Letter from Vallejo City Manager Mike Malone ("Malone Letter"). (February 21, 2023.) Re: City of Vallejo Comments in Opposition to City of American Canyon’s Proposed Approvals and Certification of the Final Environmental Impact Report Regarding the Giovannoni Logistics Center Project.
Letter from Beth Schoenberger and Kent Carothers ("Schoenberger and Carothers Letter"). (April 6, 2022.) Re: City of Vallejo Comments on City of American Canyon’s Draft 2020 Urban Water Management Plan.
Shaffer, J.A., L.D. Igl, D.H. Johnson, M.F. Dinkins, C.M. Goldade, T.L. Wooten, and B.R. Euliss. 2019. “The Effects of Management Practices on Grassland Birds—Swainson’s Hawk (Buteo Swainsoni ), Chap. M of Johnson, D.H., Igl, L.D., Shaffer, J.A., and DeLong, J.P., Eds., The Effects of Management Practices on Grassland Birds: U.S. Geological Survey Professional Paper 1842, 9 p., Https://Doi.Org/10.3133/Pp1842M.” Chap. M of Johnson, D.H., Igl, L.D., Shaffer, J.A., and DeLong, J.P., Eds., The Effects of Management Practices on Grassland Birds. USGS.
Woodbridge, Brian. 1998. “Swainson’s Hawk (Buteo Swainsoni).” California Partners in Flight - Riparian Bird Conservation Plan. Point Reyes Bird Observatory.
http://www.prbo.org/calpif/htmldocs/species/riparian/swainsons_hawk.htm.