From: Jacob Patterson
To: O"Connor, Diane; Lemos, June
Cc: Smith, John; Spaur, David; sarah mccormick; Albin-Smith, Tess Subject: Raw Water Line MND Questions and Comments
Date: Thursday, May 19, 2022 11:25:25 AM
[June, please include this email as a public comment for item 7A even though it is not a typical public comment because it is primarily directed to the relevant staff rather than being written as a persuasive comment for the City Council.]
Diane & Company,
I just reviewed the agenda packet for Monday's meeting and have a few preview questions that I would like to ask you to consider prior to the actual public hearing. My hope is that these questions will help you prepare for the meeting on Monday and you might address these limited concerns in your staff presentation. As I said to you during the public review period, I think this is the best environmental document I have reviewed prepared by or on behalf of the City of Fort Bragg. I tend to strive for perfection and even be a little nitpicky so me not finding a lot to be concerned with in the draft MND is noteworthy. I appreciate the thorough work, which is part of why I didn't submit written comments during the formal review and comment period. (The other part is that since my quick read-through didn't raise any red flags, I didn't do my usual more thorough second review of the MND.) My questions and concerns actually relate to the comment letter received from CDFW, which I just read this morning for the first time. Specifically, I would like the City Council and public to understand how their comments were addressed through any changes to the MND.
The staff report is very brief and didn't address their comments but I found Appendix F at the end of the MND with a table of the City's written responses to the two comment letters. I am not sure anyone other than Tess will notice that critical component at the end of the MND so I think it makes sense to highlight it. In addition, the City Council may want to actually make some changes that are more in line with what CDFW recommends because the City's written responses are a little dismissive, IMO, and basically state that we are already doing something so we don't need to do anything more to specifically address CDFW's specific comments. I believe that is not an adequate response and undermines the purpose of responsible agency review and comments. In particular, were there any modifications to the mitigation measures and analysis to address any of their specific concerns? If so, what were they? The responses in Appendix F seem to suggest that we mostly left everything as is and didn't make substantive changes to anything. That is explicitly stated in the "conclusion" after the table, which is concerning to me. I have to object to the City not even making minor adjustments in the MND to address CDFW's particular concerns. I believe that is an error, which could be considered an abuse of discretion. Most draft documents aren't perfect and the purpose of a review and comment period is to identify issues that justify revisions. Instead, CDFW's letter is basically dismissed without even really responding to the substance of the particular concerns. In my opinion, the City's responses appear to be an attempt to deflect from the actual concern and address a superficially related but different topic so they aren't actually responses to the comment as written by CDFW--the Caltrans response is directly in point-and adequate, IMO.
In most cases, CDFW is calling for more specificity in the draft mitigation measures and the City has not made any such changes. Moreover, the City's responses to individual topics/comments do not actually address the alleged inadequacies in how the existing draft mitigation measures are written. A better (and legally-compliant) approach would be to revise the mitigation measures to explicitly include CDFW's points. For example, CDFW Comment #5 states that some portions of the proposed mitigation measures are not actually adequate or appropriate for Mendocino Cypress so the proper response would be to add that particular language to BIO-7 and BIO-8 (i.e., that pygmy Mendocino Cypress are not to be transplanted or that even if they are transplanted, additional/alternative mitigation methods for Mendocino Cypress is required for any pygmy Mendocino Cypress that is removed). An appropriate alternative mitigation appears to be the off-site mitigation bank of restoration and protection of Sholar's bog and the surrounding property discussed below.
CDFW's comment letter mentions Sholar's (aka Summer's Lane) Bog as an off-site mitigation option and I see that bog mentioned in BIO-8 and in the MMRP, albeit in a non-committal way that I don't actually think counts as a mitigation measure just an aspirational statement that isn't enforceable. Was that language in BIO-8 already in the MND to their comments or was it added to address their comment? The response is unclear. I think that portion of BIO-8 needs to be more specific and be binding and enforceable or it is effectively meaningless.
Considering something and looking for partners doesn't accomplish anything nor does it provide any actual mitigation if it isn't pursued. It should be revised to literally require the City to perform specific off-site mitigation measures on its own (or with whatever partners it might be able to locate in the future) but something concrete has to be required now or BIO-8 becomes an illusory mitigation measure that doesn't address this particular concern. Since we can only impose mitigation measures that are necessary to actually address a real projected impact that would be significant without implementing the particular mitigation measure(s), a potential but non-binding future effort is not adequate and this impact area would need to be identified as remaining potentially significant. What that means is that this would need to be an EIR not an MND or we need a concrete and enforceable mitigation measure that we have analyzed within the revised MND to demonstrate precisely how it will be expected to reduce the identified impact area to less than significant. We don't have that now based on CDFW's comment letter and based on my read of the MND concerning this particular impact area. To summarize, the City's "conclusion" in Appendix F is not supported by any meaningful analysis in the table of responses to individual comments within CDFW's letter or in the conclusion itself. I think Appendix F and the MND itself require some targeted revisions to address CDFW's specific concerns.
My focus is on the mitigation measures because those are the only part of the MND that have a practical effect on the project and our local environment going forward. The way I read the City's responses, we didn't really address their concerns with additional analysis or modified mitigation measures, which just seems like we are effectively ignoring the points they raise.
That doesn't seem sufficient, IMO, and I would have liked to see concrete revisions that at least try to address the issues CDFW highlighted rather than just referring back to the existing MND as if they didn't notice the content the first time. For example, in CDFW comment #1, they ask for more analysis of the project's impacts concerning the loss of Mendocino Cypress trees, which I interpret to mean they want us to better analyze the effectiveness of the mitigation measures at reducing the impacts to less than significant but we are simply restating what the document already says rather than providing that additional analysis. I think that is an error and the issue is in vagueness and ambiguity in the wording of the mitigation measure paired with a lack of an actual threshold of significance in this impact area. The analysis in the MND is incomplete and not detailed enough, which is CDFW's concern, because the MND doesn't establish a threshold of significance for what level of loss of Mendocino Cypress habitat or what level of disturbance would be considered significant and then it doesn't specifically evaluate how the proposed mitigation measures will reduce those impacts to a level that is less than significant. Instead, we just calculate replanting ratios without establishing how those replanting ratios help with the losses that will occur because of the project. It is implied or just assumed that those replacement ratios will satisfy whatever unwritten and undisclosed standard should apply to this study impact area, in part because that is what we did for a similar project in the past. The CEQa document probably wasn't adequate in the past for the Summer's Lane reservoir project if it didn't include more detailed analysis and an explicit threshold of significance so we can't just rely on carrying a past approach forward to this project without explaining how the required analysis was accomplished and doing comparable and complementary analysis in this MND for this project.
Moving on to a few topics not addressed by CDFW or Caltrans, you (Diane) likely have the best understanding of anyone on what this project entails so you are probably the best person to work on minor modifications of the wording to any of the mitigation measures. Of course, if the City changes the mitigation measures, you might need to recirculate the MND for an additional 20-day period. (Of course, that depends on how conservative of an interpretation of the legal/procedural requirements one takes; I personally think the City can make minor adjustments to clarify the language in an existing mitigation measure and not necessarily have to recirculate the MND but I also think it is important enough to get them as buttoned down as is possible to avoid project-related implementation issues concerning the contractors who may just ignore the requirements or take a very lax interpretation so it might be worth it to revise and recirculate if the City Attorney advises that is the appropriate procedure.) For example, the draft MND doesn't define "newer" versus "older" equipment in NOI-1 so that mitigation measure doesn't really have any meaning to me and I am not sure it will do anything to address the identified noise impacts. I am confident the contractors will likely use whatever equipment they have regardless of its relative age--relative to what?. Using a relative term without setting measurable criteria for implementation/enforcement is ill-advised and results in what I like to call an "illusory mitigation measure" because it just looks like one but doesn't have any meaningful substance. Can we add a model year requirement for equipment or something that actually informs the contractors what age equipment they will have to use or can we at least make that requirement subject to oversight by you or the City's project manager and include some level of discretionary authority for enforcement purposes? It is never advisable to delegate enforcement or monitoring to the contractors themselves because I can attest that those "restrictions" often don't end up being self-enforced and thus mitigation measures like this one are further "illusory" because they end up having no practical benefit.
In fact, my main concern about this MND is that it doesn't consistently meet the requirement of fully evaluating the effectiveness of the mitigation measures at reducing the impacts to less than significant. (Not just for the areas identified by CDFW but for other measures and related impac areas as well.) We are required to do so and I didn't see sufficient analysis of exactly how these mitigation measures can be expected to reduce the potentially significant impacts to less than significant. There are also a few areas where the MND doesn't incorporate actual thresholds of significance, which is a common problem, although that doesn't apply to the "Noise" impacts.
I also noticed that some of the biological mitigation measures are limited to certain project segments, like BIO-9. I think that is an error in particular concerning the presence of many of these same species within Phase II, which is not included in BIO-9 even though there is an unnamed creek and pond within Phase II, albeit smaller than those found in Hare Creek or Covington Creek. (Perhaps I am not interpreting BIO-9's intent correctly, which might only apply to salmonids, not broader wildlife like the amphibians.) I have extensive personal experience in that area of Phase II because it runs behind my family's property on Lyta Way and there are a lot of protected species in that area as well. For example, Pacific Giant Salamanders are all over the project area and live in redwood duff along the forest floor, including along the overgrown road bed where the pipe segments are going to be installed.
That area might have been disturbed in the past but it doesn't mean the old road bed within the project's work area doesn't provide wildlife habitat or even examples of protected plants because it has experienced significant plant growth and the return of wildlife to previouslydistrubed areas. I have documented numerous instances of Giant Pacific Salamanders near the drainage ditches and creek in the Phase II area so BIO-9 might need to be extended to include the Phase II project segment, not just Hare Creek and Covington Creek in another phase of the project. BIO-1, which applies to the whole project, is listed in BIO-9 but it is less specific and less protective than BIO-9. BIO-1 is limited to "aquatic habitats" but some of the protected amphibians don't just live within the aquatic areas but also nest in redwood duff. Pacific Giant Salamanders in particular are all over Phase II of the project area and are very easy to kill if they are crushed whilst tramping through the woods. (Our family dogs have even killed a few on walks through our property and the adjacent property where the project work will proceed so I know how easy it is to harm these protected animals.) I would like BIO-1 to include preconstruction surveys of all the project area in Phase II, not just the aquatic habitat areas that are primarily outside the easements and overgrown road bed. To summarize, even if BIO-9 is appropriately limited to Hare creek and Covington creek, BIO-1 should be revised to require the preconstruction surveys in all areas not just aquatic habitats.
BIO-1 also mentions the "Project Biologist'' who is to be notified when any amphibians are discovered during the project. I believe BIO-1 should be revised to also require active monitoring of all project activities directly by the Project Biologist. In fact, the Project Biologist could even be a temporary City employee for the duration of this project or an independent contractor as long as they remain independent from the any of the contractors performing the constriction work. This is such a sensitive project and work area that the Project Biologist should be required to serve as an on-site construction monitor for the duration of the project to ensure compliance with these restrictions, not just when notified by the project contractor who has a strong incentive to not actually enforce the stop work upon discovery requirement in BIO-1. Without that kind of oversight, BIO-1 and the other related mitigation emasures are likely to not actually be effective in preventing the harms they are intended to prevent or reduce. The Project Biologist should be employed or contracted directly by the City and not through the project contractor to ensure a lack of bias or conflict as well.
Ideally, BIO-1 should be revised to incorporate those additional details/requirements. "Project Biologist" is capitalized as if it is a defined term but it isn't defined or described except for within BIO-1 without any explanation other than that they will perform certain tasks. The requirement for a Project Biologist and the extent of their monitoring and compliance issues should be expanded within BIO-1 (and other relevant mitigation measures) to ensure that these impacts and restrictions are actually implemented.
Regards,
--Jacob
From: Jacob Patterson
To: O"Connor, Diane; Lemos, June
Cc: Smith, John; Spaur, David; sarah mccormick; Albin-Smith, Tess Subject: Re: Raw Water Line MND Questions and Comments
Date: Thursday, May 19, 2022 12:09:38 PM
I wrote too soon. Regarding mitigation measure NOI-1, the MND doesn't really analyze or explain how any aspect of the proposed mitigation measure can be expected to reduce the projected significant impacts (noise exposure exceeding the relevant thresholds) to less than significant. I also think the analysis leaves off a critical component because it only calculates the noise exposure for the residential structures but thenoise regulations for the City and County also include exposure to outside noise on different types of property, which also appear to exceed the applicable thresholds of significance concerning outside rather than just indoor noise exposure. What about residential users on their own property using/occupying the woods in the gully behind the portions of their property where their residential structures are located? Exposure to noise thresholds that exceed the outdoor exposure of residents is important and many of the residents take regular hikes through their own woods right next to this project work area and some even camp in tents on occasion in these same woods within the noise exposure radius shown on Figure 4-15. The noise impact area appears to remain potentially significant because the MND doesn't include any actual analysis concerning how the proposed mitigation measures would be expected to reduce the noise exposure to less than significant (i.e., below the applicable noise exposure thresholds for indoor or outdoor residential uses). The Noise section of the MND requires revision to actually demonstrate how the projected significant noise exposure is actually reduced. Until then, the conclusion that is is reduced to less than significant with mitigation incorporated is not justified and presents a reversible error, IMO.
On Thu, May 19, 2022 at 11:24 AM Jacob Patterson <[email protected]> wrote:
[June, please include this email as a public comment for item 7A even though it is not a typical public comment because it is primarily directed to the relevant staff rather than being written as a persuasive comment for the City Council.]
Diane & Company,
I just reviewed the agenda packet for Monday's meeting and have a few preview questions that I would like to ask you to consider prior to the actual public hearing. My hope is that these questions will help you prepare for the meeting on Monday and you might address these limited concerns in your staff presentation. As I said to you during the public review period, I think this is the best environmental document I have reviewed prepared by or on behalf of the City of Fort Bragg. I tend to strive for perfection and even be a little nitpicky so me not finding a lot to be concerned with in the draft MND is noteworthy. I appreciate the thorough work, which is part of why I didn't submit written comments during the formal review and comment period. (The other part is that since my quick read-through didn't raise any red flags, I didn't do my usual more thorough second review of the MND.) My questions and concerns actually relate to the comment letter received from CDFW, which I just read this morning for the first time. Specifically, I would like the City Council and public to understand how their comments were addressed through any changes to the MND. The staff report is very brief and didn't address their comments but I found Appendix F at the end of the MND with a table of the City's written responses to the two comment letters. I am not sure anyone other than Tess will notice that critical component at the end of the MND so I think it makes sense to highlight it. In addition, the City Council may want to actually make some changes that are more in line with what CDFW recommends because the City's written responses are a little dismissive, IMO, and basically state that we are already doing something so we don't need to do anything more to specifically address CDFW's specific comments. I believe that is not an adequate response and undermines the purpose of responsible agency review and comments. In particular, were there any modifications to the mitigation measures and analysis to address any of their specific concerns? If so, what were they? The responses in Appendix F seem to suggest that we mostly left everything as is and didn't make substantive changes to anything. That is explicitly stated in the "conclusion" after the table, which is concerning to me. I have to object to the City not even making minor adjustments in the MND to address CDFW's particular concerns. I believe that is an error, which could be considered an abuse of discretion. Most draft documents aren't perfect and the purpose of a review and comment period is to identify issues that justify revisions. Instead, CDFW's letter is basically dismissed without even really responding to the substance of the particular concerns. In my opinion, the City's responses appear to be an attempt to deflect from the actual concern and address a superficially related but different topic so they aren't actually responses to the comment as written by CDFW--the Caltrans response is directly in point-and adequate, IMO.
In most cases, CDFW is calling for more specificity in the draft mitigation measures and the City has not made any such changes. Moreover, the City's responses to individual topics/comments do not actually address the alleged inadequacies in how the existing draft mitigation measures are written. A better (and legally-compliant) approach would be to revise the mitigation measures to explicitly include CDFW's points. For example, CDFW Comment #5 states that some portions of the proposed mitigation measures are not actually adequate or appropriate for Mendocino Cypress so the proper response would be to add that particular language to BIO-7 and BIO-8 (i.e., that pygmy Mendocino Cypress are not to be transplanted or that even if they are transplanted, additional/alternative mitigation methods for Mendocino Cypress is required for any pygmy Mendocino Cypress that is removed). An appropriate alternative mitigation appears to be the off-site mitigation bank of restoration and protection of Sholar's bog and the surrounding property discussed below.
CDFW's comment letter mentions Sholar's (aka Summer's Lane) Bog as an offsite mitigation option and I see that bog mentioned in BIO-8 and in the MMRP, albeit in a non-committal way that I don't actually think counts as a mitigation measure just an aspirational statement that isn't enforceable. Was that language in BIO-8 already in the MND to their comments or was it added to address their comment? The response is unclear.
I think that portion of BIO-8 needs to be more specific and be binding and enforceable or it is effectively meaningless. Considering something and looking for partners doesn't accomplish anything nor does it provide any actual mitigation if it isn't pursued. It should be revised to literally require the City to perform specific off-site mitigation measures on its own (or with whatever partners it might be able to locate in the future) but something concrete has to be required now or BIO-8 becomes an illusory mitigation measure that doesn't address this particular concern. Since we can only impose mitigation measures that are necessary to actually address a real projected impact that would be significant without implementing the particular mitigation measure(s), a potential but non-binding future effort is not adequate and this impact area would need to be identified as remaining potentially significant. What that means is that this would need to be an EIR not an MND or we need a concrete and enforceable mitigation measure that we have analyzed within the revised MND to demonstrate precisely how it will be expected to reduce the identified impact area to less than significant. We don't have that now based on CDFW's comment letter and based on my read of the MND concerning this particular impact area. To summarize, the City's "conclusion" in Appendix F is not supported by any meaningful analysis in the table of responses to individual comments within CDFW's letter or in the conclusion itself. I think Appendix F and the MND itself require some targeted revisions to address CDFW's specific concerns.
My focus is on the mitigation measures because those are the only part of the MND that have a practical effect on the project and our local environment going forward. The way I read the City's responses, we didn't really address their concerns with additional analysis or modified mitigation measures, which just seems like we are effectively ignoring the points they raise. That doesn't seem sufficient, IMO, and I would have liked to see concrete revisions that at least try to address the issues CDFW highlighted rather than just referring back to the existing MND as if they didn't notice the content the first time. For example, in CDFW comment #1, they ask for more analysis of the project's impacts concerning the loss of Mendocino Cypress trees, which I interpret to mean they want us to better analyze the effectiveness of the mitigation measures at reducing the impacts to less than significant but we are simply restating what the document already says rather than providing that additional analysis. I think that is an error and the issue is in vagueness and ambiguity in the wording of the mitigation measure paired with a lack of an actual threshold of significance in this impact area. The analysis in the MND is incomplete and not detailed enough, which is CDFW's concern, because the MND doesn't establish a threshold of significance for what level of loss of Mendocino Cypress habitat or what level of disturbance would be considered significant and then it doesn't specifically evaluate how the proposed mitigation measures will reduce those impacts to a level that is less than significant. Instead, we just calculate replanting ratios without establishing how those replanting ratios help with the losses that will occur because of the project. It is implied or just assumed that those replacement ratios will satisfy whatever unwritten and undisclosed standard should apply to this study impact area, in part because that is what we did for a similar project in the past. The CEQa document probably wasn't adequate in the past for the Summer's Lane reservoir project if it didn't include more detailed analysis and an explicit threshold of significance so we can't just rely on carrying a past approach forward to this project without explaining how the required analysis was accomplished and doing comparable and complementary analysis in this MND for this project.
Moving on to a few topics not addressed by CDFW or Caltrans, you (Diane) likely have the best understanding of anyone on what this project entails so you are probably the best person to work on minor modifications of the wording to any of the mitigation measures. Of course, if the City changes the mitigation measures, you might need to recirculate the MND for an additional 20-day period. (Of course, that depends on how conservative of an interpretation of the legal/procedural requirements one takes; I personally think the City can make minor adjustments to clarify the language in an existing mitigation measure and not necessarily have to recirculate the MND but I also think it is important enough to get them as buttoned down as is possible to avoid project-related implementation issues concerning the contractors who may just ignore the requirements or take a very lax interpretation so it might be worth it to revise and recirculate if the City Attorney advises that is the appropriate procedure.) For example, the draft MND doesn't define "newer" versus "older" equipment in NOI-1 so that mitigation measure doesn't really have any meaning to me and I am not sure it will do anything to address the identified noise impacts. I am confident the contractors will likely use whatever equipment they have regardless of its relative age--relative to what?.
Using a relative term without setting measurable criteria for implementation/enforcement is ill-advised and results in what I like to call an "illusory mitigation measure" because it just looks like one but doesn't have any meaningful substance. Can we add a model year requirement for equipment or something that actually informs the contractors what age equipment they will have to use or can we at least make that requirement subject to oversight by you or the City's project manager and include some level of discretionary authority for enforcement purposes? It is never advisable to delegate enforcement or monitoring to the contractors themselves because I can attest that those "restrictions" often don't end up being self-enforced and thus mitigation measures like this one are further "illusory" because they end up having no practical benefit.
In fact, my main concern about this MND is that it doesn't consistently meet the requirement of fully evaluating the effectiveness of the mitigation measures at reducing the impacts to less than significant. (Not just for the areas identified by CDFW but for other measures and related impac areas as well.) We are required to do so and I didn't see sufficient analysis of exactly how these mitigation measures can be expected to reduce the potentially significant impacts to less than significant. There are also a few areas where the MND doesn't incorporate actual thresholds of significance, which is a common problem, although that doesn't apply to the "Noise" impacts.
I also noticed that some of the biological mitigation measures are limited to certain project segments, like BIO-9. I think that is an error in particular concerning the presence of many of these same species within Phase II, which is not included in BIO-9 even though there is an unnamed creek and pond within Phase II, albeit smaller than those found in Hare Creek or Covington Creek. (Perhaps I am not interpreting BIO-9's intent correctly, which might only apply to salmonids, not broader wildlife like the amphibians.) I have extensive personal experience in that area of Phase II because it runs behind my family's property on Lyta Way and there are a lot of protected species in that area as well. For example, Pacific Giant Salamanders are all over the project area and live in redwood duff along the forest floor, including along the overgrown road bed where the pipe segments are going to be installed.
That area might have been disturbed in the past but it doesn't mean the old road bed within the project's work area doesn't provide wildlife habitat or even examples of protected plants because it has experienced significant plant growth and the return of wildlife to previouslydistrubed areas. I have documented numerous instances of Giant Pacific Salamanders near the drainage ditches and creek in the Phase II area so BIO-9 might need to be extended to include the Phase II project segment, not just Hare Creek and Covington Creek in another phase of the project. BIO-1, which applies to the whole project, is listed in BIO-9 but it is less specific and less protective than BIO-9. BIO-1 is limited to "aquatic habitats" but some of the protected amphibians don't just live within the aquatic areas but also nest in redwood duff. Pacific Giant Salamanders in particular are all over Phase II of the project area and are very easy to kill if they are crushed whilst tramping through the woods. (Our family dogs have even killed a few on walks through our property and the adjacent property where the project work will proceed so I know how easy it is to harm these protected animals.) I would like BIO-1 to include preconstruction surveys of all the project area in Phase II, not just the aquatic habitat areas that are primarily outside the easements and overgrown road bed. To summarize, even if BIO-9 is appropriately limited to Hare creek and Covington creek, BIO-1 should be revised to require the preconstruction surveys in all areas not just aquatic habitats.
BIO-1 also mentions the "Project Biologist'' who is to be notified when any amphibians are discovered during the project. I believe BIO-1 should be revised to also require active monitoring of all project activities directly by the Project Biologist. In fact, the Project Biologist could even be a temporary City employee for the duration of this project or an independent contractor as long as they remain independent from the any of the contractors performing the constriction work. This is such a sensitive project and work area that the Project Biologist should be required to serve as an on-site construction monitor for the duration of the project to ensure compliance with these restrictions, not just when notified by the project contractor who has a strong incentive to not actually enforce the stop work upon discovery requirement in BIO-1. Without that kind of oversight, BIO-1 and the other related mitigation emasures are likely to not actually be effective in preventing the harms they are intended to prevent or reduce. The Project Biologist should be employed or contracted directly by the City and not through the project contractor to ensure a lack of bias or conflict as well. Ideally, BIO-1 should be revised to incorporate those additional details/requirements. "Project Biologist" is capitalized as if it is a defined term but it isn't defined or described except for within BIO-1 without any explanation other than that they will perform certain tasks. The requirement for a Project Biologist and the extent of their monitoring and compliance issues should be expanded within BIO-1 (and other relevant mitigation measures) to ensure that these impacts and restrictions are actually implemented.
Regards,
--Jacob