August 3, 2023
San Bernardino County Board of Supervisors
Supervisor Dawn Rowe, Chair
385 N. Arrowhead Avenue
San Bernardino CA 92415
Subject: Building Industry Association Southern California opposition to the Regional Conservation Investment Strategy (RCIS)
Dear Honorable Chair Rowe and fellow Board of Supervisors:
The Building Industry Association of Southern California (BIA) appreciates and supports the goals set forth by the Countywide Vision. Indeed we have worked closely with the County of San Bernardino (County) to advance the Vision Statement adopted in 2012, which reads in part of envisioning, “ a complete county that capitalizes on the diversity of its people, its geography, and its economy to create a broad range of choices for its residents in how they live, work, and play.” The BIA has remain engaged in various County Vision Elements including the Environmental Element working group as we believe the goal of addressing our housing crisis and serving as good stewards of the environment are not mutually exclusive. It is with this history of collaboration in mind that we are writing to express our dire concerns and opposition regarding the proposed Regional Investment Conservation Strategy (RCIS).
As you know, the BIA has been involved in the RCIS Working Group since its inception. We were originally told that the RCIS would help to more easily p rocess, and provide increased certainty concerning, California Department of Fish & Wildlife (CDFW) Section 1600 Streambed Alteration Agreements, and that the RCIS would balance housing and conservation. This has not proven to be the case.
We have compiled a list of our ongoing technical concerns about certain text that remains in the draft RCIS and have submitted these comments to the California Department of Fish & Wildlife during the RCIS public comment period. Please see our cover letter and Attachment 1 for a copy of these comments.
We have worked with the San Bernardino County Transportation Authority (SBCTA), and are appreciative that they both added some information to the latest RCIS draft concerning the Regional Housing Needs Assessment(RHNA) and confirmed that the RCIS will not constitute a plan that would require acknowledgement in CEQA Appendix G biological resources analyses. Additionally, text changes were made to confirm that any forthcoming mitigation credit agreements (MCAs) will not conflict with existing, approved mitigation banks.
Even so, we remain very concerned that SBCTA and the County intend to submit the revised RCIS once it is finalized to the California Department of Fish and Wildlife (CDFW) for its formal approval. W e are informed that the SBCTA feels compelled to do so because it accepted grants specifically to fund the RCIS’s study and development. Our most basic concern is that, once the RCIS is submitted to and approved by CDFW , opponents of land use will attempt to use the RCIS as a tool to hinder and stop reasonable development and homebuilding activities in the RCIS area, particularly in the high desert. We therefore respectfully request that the County take certain careful, additional steps, which we explain below, when reviewing the RCIS prior to final submittal to CDFW.
Specifically, prior to the final submission of the RCIS to CDFW, we urge the County and SBCTA to take the following actions : (i) by way of resolution, confirm that the intent of RCIS is not to operate to interfere with the jurisdiction’s respective housing elements, (ii) remove those habitats that the local land use agencies do not currently require be mitigated under CEQA from the RCIS conservation goals and (iii) in coordination with SBCTA contact the Council Members and City Managers for each of the aforementioned jurisdictions to determine the number of residential units from each of their respective housing element RHNA site inventories that are located in the RCIS conservation boundaries.
In our view, the fundamental flaw of the entire RCIS concept is that it casts a “cloud” over a vast amount of potentially developable land, notwithstanding that key constituents in the County have little knowledge of the RCIS’s contents. In particular, the affected cities within the County cannot begin to consider what Regional Housing Needs Assessment (RHNA) implications the RCIS might hold in store for future land use planning within their respective jurisdictions since there is no overlay map available to distinguish land zoned by cities for residential development in compliance with their respective Regional Housing Needs Assessment (RHNA) obligations and the arbitrary conservation goals proposed in the RCIS.
That said, even though an RCIS is characterized as innocuous, “voluntary,” and “non-regulatory,” once it is finalized and approved by CDFW , the RCIS at hand will potentially affect all of the land that it spatially implicates.
Additionally, the draft RCIS is problematic in that it was derived by first identifying an extremely large portion of San Bernardino County, which was then considered only at a “landscape scale.” Once the spatial boundaries were delineated, then essential ly arbitrary percentages of the vast, identified land areas were deemed to merit being forever conserved, including over a half a million acres collectively of non-native grasses, chaparral and desert scrub that typically do not require mitigation under CE QA.
Importantly, all of this was undertaken without any reference to the local city RHNA implications (total units) of actual residential zoning of any specific land areas that may be either (i) developed or (ii) committed to conservation.
To illustrate, the present draft RCIS sets forth as a “conservation goal” the preservation of 54% of the privately held lands in the high desert area of the County within the RCIS’s spatial scope. Throughout the extensive area within the RCIS’s set boundaries, the RCIS aims to conserve 972 square miles (621,818 acres) of privately held land located within the limits of the cities of Adelanto, Apple Valley, Barstow, Big Bear Lake, Chino Hills, Colton, Fontana, Hesperia, Ontario, Rancho Cucamonga, Redlands, Victo rville, Yucaipa, Yucca Valley and in unincorporated county areas. Consistent with property owners’ constitutional rights, such private lands cannot be simply confiscated for conservation purposes.
Moreover, the RCIS is touted as being “voluntary,” “non -regulatory,” non-binding, and the like; and we recognize that, once an RCIS is formally adopted, it might thereafter be followed by the creation of MCAs that will themselves need to be negotiated and thoughtfully structured. On the other hand, CDFW also touts every RCIS as a “publicly available,” “comprehensive guidance document” which “can be used by anyone to help identify conservation or mitigation projects.” In light of such ambiguity, unless the RCIS is coupled with clear statements of both the intent of the County and SBCTA concerning limitations on its use or misuse, the RCIS will be foreseeably (i) invoked by land use detractors (as officially sanctioned numerical objectives for land conservation throughout its spatial limits), and (ii) used uncriti cally and prematurely to argue for the exaction of mitigation funding from projects and plans. As such, we urge the County and SBCTA to take steps now to make sure that the RCIS will not be weaponized under the California Environmental Quality Act (CEQA) in the future following its formal adoption.
For example, the draft RCIS includes a relatively novel focus on non-native grasslands (i.e., land on which is growing invasive grass) and other types of fl ora (e.g. desert scrub and chapparal) that generally have not required conservation or mitigation. Such habitat types have historically not given rise to conservation and mitigation obligations. The RCIS, however, will newly label these habitats as well - deserving of large-scale conservation and mitigation – expressed in terms of significant overall acreages throughout the RCIS area. This type of habitat conservation on a landscape scale or project level would significantly financially impact all property owners, driving up the costs of housing even further and hampering the County and Cities’ ability to meet housing needs. We respectfully request your support to remove those habitats that the local land use agencies do not currently require be mitigated under CEQA from the RCIS conservation goals.
Finally, prior to the final submission of the RCIS to CDFW we urge the County Board of Supervisors and SBCTA to adopt a resolution that will (i) clearly state what the RCIS is intended to do and not intended to do, and (ii) appropriately circumscribe the potential use of the RCIS in connection with local land use decision-making.
Specifically, we urge the County and SBCTA to adopt a resolution that sets forth, in sum and substance, all of the following:
1. COUNTY supports the finalization and formal submission to CDFW of the RCIS in ongoing reliance of the promise that the RCIS, once finalized, shall constitute voluntary, non - binding and non-regulatory guidance only and is not intended to and shall not be used in any CEQA context; and
2. COUNTY recognizes that the RCIS includes specific numeric targets that are based on landscape scale planning and are therefore not appropriate to utilize in the analysis of individual projects, master plans or large scale future development planning; and
3. COUNTY will not use the RCIS as a tool to require additional mitigation for projects; and
4. In supporting the finalization and submission of the RCIS, the COUNTY intends that the RCIS shall not be recognized as a tool to stop or limit development; andCounty recognizes the important societal goal of approving new housing projects, updating housing elements, and facilitating the production of housing (and the infrastructure/public facilities needed to support such new housing), all consistent with the State’ s RHNA law and general plans, shall be prioritized over and above the conservation goals that are reflected in the RCIS.
Please see the sample resolution (Attachment 2).
In conclusion, as noted in the Countywide Vision Housing Element statement,
“The affordability of our housing has long been a moving factor in the attraction of new residents to San Bernardino County. It is key that we continue to expand our housing choices through new construction and preservation of our existing residential buildings in order to provide all our residents an opportunity to find their homes.”
Unfortunately, the current draft RCIS undermines this Element Statement and would at worst exacerbate the housing shortage by those who may pursue litigation and weaponize the co nservation goals therein and at best casts a “cloud” over a vast amount of potentially developable land, creating more uncertainty in the land acquisition and entitlement process. Likewise, our prior support was predicated on the assurance that the RCIS would help to more easily process, and provide increased certainty concerning,
California Department of Fish & Wildlife (CDFW) Section 1600 Streambed Alteration Agreements, and that the RCIS would balance housing and conservation. The RCIS fails to provide any of these benefits.
We hope and trust that we will be permitted to continue to work with SBCTA and the County of San Bernardino to achieve balanced environmental policy. It is critical that all decisions made today reflect the future growth of the County decades into the future. Please do not hesitate to contact us with any questions on the attached comments. Thank you for your consideration.
Sincerely,
Carlos Rodriguez, Chief Policy Officer, BIA
Cc: Leonard Hernandez, San Bernardino County CEO
San Bernardino County Transportation Authority Board of Directors Dr. Raymond Wolfe, SBCTA Executive Director
City of Adelanto
Town of Apple Valley
City of Barstow
City of Big Bear Lake
City of Chino Hills
City of Colton
City of Fontana
City of Hesperia
City of Ontario
City of Rancho Cucamonga
City of Redlands
City of Victorville
City of Yucaipa
City of Yucca Valley