As a threshold matter, the unprecedented scope of the Project’s acknowledged significant impacts should give one pause when considering “why” it is proposed. The Project’s acknowledged significant and purported unavoidable impacts include:
• Degradation of Existing Views and Visual Quality
• Substantially Degrade Existing Visual Character or Quality • New Sources of Light
• Conversion of Farmland to Nonagricultural Uses
• Conflict with or Obstruct Implementation of an Applicable Air Quality Plan During Project Operation
• Long-term Operational Emissions of Criteria Air Pollutants and Precursors • Exposure of Existing Off-site Sensitive Receptors to Toxic Air Contaminants During Operation
• Exposure of Future On-site Sensitive Receptors to Toxic Air Contaminants During Operation
• Historical Resources
• Archaeological Resources
• Human Remains
• Increase in Traffic Noise at Existing Sensitive Receptors • Increase in Stationary Noise from Plan Components at Existing Receptors • Increase in Stationary Noise from Plan Components at Proposed Sensitive Receptors
• Induce Substantial Unplanned Population Growth
• Conflict with a Program, Plan, Ordinance or Policy Addressing the Circulation System
• Hazards Due to Design or Incompatible Uses
• Degradation of Existing Views and Visual Quality [cumulative] • Substantially Degrade Existing Visual Character or Quality [cumulative] • New Sources of Light [cumulative]
• Conversion of Farmland to Nonagricultural Uses [cumulative] • Long-term Operational Emissions of Criteria Air Pollutants and Precursors [cumulative]
• Exposure of Existing Sensitive Receptors to Toxic Air Contaminants [cumulative] • Exposure of Future Sensitive Receptors to Toxic Air Contaminants [cumulative] • Historical and Archaeological Resources, including Human Remains [cumulative] • Exceedance of Established Noise Standards – Traffic [cumulative] • Population Growth [cumulative]
• Program, Plan, Ordinance or Policy Addressing the Circulation System [cumulative]
• Hazards Due to Design or Incompatible Uses [cumulative] Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
The sheer breath of these significant and unavoidable impacts alone demonstrates that the Project is fundamentally misguided. This is precisely why the CEQA Guidelines advise, “Where there are impacts that cannot be alleviated without imposing an alternative design, their implications and the reasons why the project is being proposed, notwithstanding their effect, should be described.” (CEQA Guidelines, § 15126.2, subd. (c), emphasis added.) It is telling that the DEIR makes no attempt to “explain why the project is being proposed” notwithstanding the unprecedented significant and unavoidable impacts. As will be explained more fully below, the Project’s “why” is not to serve any legitimate land use goals – the record amply establishes that the Project is inconsistent with all land use planning in the area – but rather to maximize the financial return on the applicant’s speculation on 31 acres of agricultural land.
Moreover, conspicuously absent from the DEIR is any mention, much less analysis, of County General Plan Land Use Policy LU-127, which provides:
The County shall not expand the Urban Service Boundary unless:
• There is inadequate vacant land within the USB to accommodate the projected 25 year demand for urban uses; and
• The proposal calling for such expansion can satisfy the requirements of a master water plan as contained in the Conservation Element; and • The proposal calling for such expansion can satisfy the requirements of the Sacramento County Air Quality Attainment Plan; and
• The area of expansion does not incorporate open space areas for which previously secured open space easements would need to be relinquished; and
• The area of expansion does not include the development of important natural resource areas, aquifer recharge lands or prime agricultural lands;
• The area of expansion does not preclude implementation of a Sacramento County-adopted Habitat Conservation Plan;
OR
• The Board approves such expansion by a 4/5ths vote based upon on finding that the expansion would provide extraordinary environmental, social or economic benefits and opportunities to the County.
(Emphasis added.)
One of the Project’s defining characteristics is that it consists almost entirely of prime farmland located outside of the County’s urban service boundary (“USB”), and Sacramento County, Department of Community Development, Planning and Environmental Review Division
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therefore require expansion of the USB. LU-127 articulates, in clear prohibitory language, the County’s policy to prohibit expansion of the USB involving: (i) “development of important natural resource areas,” (ii) “aquifer recharge lands,” or (iii) “prime agricultural lands.” The Project would involve all three of these triggers for prohibiting USB expansion. Even the most cursory reference to LU-127 reveals why the Project is wholly fundamentally misguided—which begs the question why LU-127 was inexcusably omitted from any reference in the DEIR.
Applicants are free to seek land use entitlements for their proposed land development projects—no matter how fundamentally flawed and misguided. However, it is the legal and duty of the local land and CEQA lead agency, here the County, to perform an objective analysis of the Project’s impacts, mitigation measures, and project alternatives. As will be explained more fully below, the DEIR wholly fails to discharge the County’s legal duty to perform that objective analysis. Here, the DEIR is not a document of objective analysis and accountability, but rather a document of advocacy on behalf of the Project applicant.
The Project would destroy approximately 2,000 acres of productive important farmland2 that also serves as important habitat for sensitive species, will result in roadway safety hazards to existing and future residents (including families with their driveways on the Garden Highway), and even increased cancer risks to existing and future Natomas residents. Maximizing profit from the applicant’s purchase of 31 acres does not override these impacts, and any marginal benefit resulting from increased development in the unincorporated County areas can easily be achieved from alternative locations widely available within the USB.
I. PROJECT BACKGROUND
The DEIR purports to describe the “Project Background.” (DEIR, p. 2-11.) The DEIR unfortunately presents an incomplete and misleading background to the Project.
Further, the DEIR dismisses otherwise feasible alternative locations expressly because they are not “controlled” by the applicant. Thus, it is necessary to present a more complete and accurate background of the Project that also sets forth facts relevant to “control.”
The project applicant here is an entity named Upper Westside, LLC (“Upper Westside”). Upper Westside was formed on March 15, 2018 (Exhibit 4, Upper Westside
2 Expert comments from the Sacramento County Farm Bureau establish that the so- called “ag buffer” will not result in continued productive agricultural uses of that land.
Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
LLC articles.) Upper Westside owns a 31.64-acre parcel within the 2,066-acre Project site that it purchased on May 14, 2019, for a price of $909,500. (Exhibit 5, Property Details.) Upper Westside owns no other land within the 2,066-acre Project area.
Upper Westside is managed solely by Yolo County developer Steve Gidaro. (Exhibit 6, Upper Westside Statement of Information.) No other ownership or management of Upper Westside is disclosed. That said, Upper Westside has been delinquent in filing its updated statement of information since 2022, and so it is possible that Mr. Gidaro has transferred his interest in Upper Westside since that time without any public disclosure. (Exhibit 7, CA Secretary of State database entry.) )
In short, the applicant for the Project is an entity wholly controlled by a single person, who purchased merely 31.64 acres for $909,500 back in 2019, and now seeks to leverage that slim ownership (1.53 percent) in order to dictate urban development of 2,066 acres of important and productive farmland.
This DEIR conspicuously fails to disclose this information, instead suggesting that the Project’s “applicants” include a larger “ownership group” that owns “292 acres or 14 percent of the UWSP area.” This is false and misleading. The NOP plainly asserts that the “Applicant” is “Upper Westside, LLC.” This is repeated in the DEIR: “The project applicant is Upper Westside LLC.” (DEIR, p. 2-1.) These other parties are not “applicants,” but instead merely “participating properties.” (DEIR, Plate PD-4.) The DEIR asserts, “[T]he project applicant owns and/or controls 10 parcels totaling approximately 292 acres, or 14 percent of the plan area.” (DEIR, p. 2-2.) The DEIR provides no information demonstrating such “control” of these properties by Mr. Gidaro.
That said, whether Mr. Gidaro controls 1.53 percent or 14 percent of the Project site is of no matter; the vast majority of the Project site, either 86 or 98.47, is not controlled by Mr.
Gidaro. This is important because the DEIR relies on the absence of Mr. Gidaro’s “control” of alternative locations to dismiss them without any consideration.
Finally, the DEIR’s “Project Background” includes a discussion of the Natomas Joint Vision, which it describes as a “Master Plan process for a proposal to move the Urban Services Boundary (USB) and the Urban Policy Area (UPA).” The DEIR suggests that the Project is an outgrowth of the Natomas Joint Visions. Not so. As explained by the California Department of Fish and Wildlife (“CDFW”) in response to the NOP:
The Projects marks an apparent departure by the County from the principles detailed in its shared vision with the City. The County’s web page reads currently, for example, that the Joint Vision project has been withdrawn Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
and individual landowners are moving forward with their own projects, including this Project.
Indeed, CDFW is correct that the County’s webpage now asserts, “The Natomas Joint Vision project has been withdrawn and individual landowners have moved forward with their own projects.” (Exhibit 8, County website for the Natomas Vision.) As CDFW further explains, “The MOU, importantly, recognizes the City as the agent of development in the Sacramento portion of the basin and the County as the agent of permanent open space, habitat, and farmland/ranchland preservation.” (Emphasis added.) Thus, it is misleading for the DEIR to suggest that the Project is somehow an extension of the Natomas Joint Vision. As explained more fully below, the Project is inconsistent with the Joint Vision as well as decades of land use planning for the Natomas basin.
II. THE DEIR’S PROJECT DESCRIPTION AND ASSOCIATED CEQA
REVIEW STRATEGY ARE FUNDAMENTALLY FLAWED
The CEQA Guidelines explain, “The statement of objectives should include the underlying purpose of the project.” (CEQA Guidelines, § 15124, subd. (b).) The leading CEQA treatise advises, “To avoid claims the project objectives are too narrow, the statement of objectives should not simply repeat the EIR’s description of the proposed project, but instead should be based on the project’s underlying purpose.” (Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2024) § 12.13, p. 12-23 [“Kostka”].) Here, the EIR fails to comply with both recommendations: (i) the DEIR asserts a list of manipulated “objectives” that merely describes the nature of the Proposed Project, and (ii) the DEIR fails to identify the Project’s underlying purpose.
The Project’s background will reveal precisely why the DEIR conspicuously fails to identify an underlying purpose of the Project. This is unsurprising because the Project serves no underlying purpose other than to generate revenue for the project applicant.
This is demonstrated with clarity by reviewing the Project’s background.
A. Expansion of the USB and UPA Is Not Necessary to Accommodate the County’s Share of Future Regional Population Growth
While the Project does not have an underlying purpose (other than maximizing return for the applicant’s land speculation), the DEIR’s first objective asserts that “expanding the USB and UPA” is required to “accommodat[e] the County’s share of future regional population growth.” This Project Objective is not supported by substantial evidence. To put it bluntly, no planning documents by the County or the Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
Sacramento Area Council of Governments (“SACOG”) support the DEIR’s false assertion that expansion of the USB is necessary to accommodate the County’s share of future regional population growth. In fact, SACOG plainly stated in response to the Project’s NOP, “Throughout much of the Sacramento region, the capacity for growth in existing entitled lands far exceeds expected demand for new growth over the next twenty years.” SACOG’s conclusion is amply supported by the County’s Housing Element, which identifies a Regional Housing Needs Allocation (“RHNA”) allocation of 21,272 units and supply of 23,653 units. The identified supply number does not account for literally tens of thousands of additional residential units that are part of master plan and specific plan communities virtually identical to the Project. The Housing Element explains:
The Vineyard Springs Comprehensive Plan, North Vineyard Station Specific Plan, Florin Vineyard Comprehensive Plan, Glenborough at Easton and Easton Place are approved Master Plan with sites that may have been included in prior Housing Elements. The County has also recently approved two additional Master Plans with sites included in this inventory:
the Mather South Community Master Plan (Mather South) on January 28, 2020 and the NewBridge Specific Plan (NewBridge) on October 6, 2020.
(Housing Element, p. 134.)
More specifically, Mather South would provide 3,522 units, Newbridge would provide 3,075 units, Cordova Hills would provide 8,000 units, and Easton Place and Glenborough at Easton would provide 4,883. (Housing Element, pp. 134–148.)3
While it is true that the Housing Element identifies a deficit of 2,884 units of lower-income units, the Project is not providing lower-income housing. One of the Project’s requested entitlements is an “Affordable Housing Strategy that discusses the plan for the provision of moderate, low, and very‐low-income housing.” The applicant chose not to prepare that Affordable Housing Strategy along with the DEIR, which could have demonstrated a commitment to constructing. This is of no consequence, however, because the lack of any commitment by the applicant is revealed in the draft Specific
3 Several of these projects also provide “a balanced mix of uses, employment opportunities” through commercial and residential areas. (Ibid; compare Project Objective 3.) Contrary to the DEIR’s improper advocacy, there is nothing novel about including commercial and residential uses in a large specific plan. In particular, see the Cordova Hills and Easton Place land use maps. (Housing Element, pp. 144–146.) Sacramento County, Department of Community Development, Planning and Environmental Review Division
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Plan.4 Unlike other master and specific plan developers in the unincorporated County, the applicant here makes no commitment to constructing affordable housing—which is the one type of housing that is arguably needed in the County. (Compare Housing Element, p. 132 [“Nine sites are in locations where there is an adopted Master Plan, or Specific Plan that guarantees certain sites will be set aside for the construction of deed restricted affordable housing projects”].)
In short, substantial evidence does not support the DEIR’s first project objective that expansion of the USB and UPA are required to “accommodat[e] the County’s share of future regional population growth.” There is a surplus of entitled sites within the existing USB and UBA to accommodate the County’s share of regional population growth. To put the matter bluntly, the project serves no actual purpose other than increasing the project applicant’s profit from his $900,000 land speculation on a 30-acre parcel within 2,000 acres of important farmland.
B. The EIR’s Project Objectives are Not Supported by Substantial Evidence and Manipulated to Avoid Otherwise Feasible Project Alternatives
The Project’s background, described above, reveals why the DEIR conspicuously fails to identify an underlying purpose of the Project. This is unsurprising because no serious planning document that includes the Natomas basin—the County’s Land Use Element, the County’s Housing Element and SACOG’s Blueprint—find urban uses necessary or even appropriate for the Project site. Thus, the Project serves no underlying purpose other than to generate a return on investment for the applicant’s 31-acre land speculation.
Rather than identify a legitimate underlying purpose for the Project, the DEIR instead identifies several project “objectives” that are not supported by substantial evidence and are otherwise manipulated in order to exclude from consideration otherwise feasible project alternatives. The first project objective is addressed in detail immediately above. All of the DEIR’s project objectives are addressed in detail below.
1. Formulate a specific plan and related land use planning documents and regulatory approvals for the UWSP area as a means of expanding the USB and UPA in an orderly manner and accommodating the County’s share of future regional population growth.
4 The draft Specific Plan states that the Project would “allocate[] 4,007 residential units to high density residential uses (on both residential [791 VHDR] and mixed-use [3,216 CMU] designated lands) with planned densities of 30 du/ac or higher.” Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
• This object is both manipulated and unsupported by substantial evidence. First, formulating a specific plan and related land use planning documents “for the UWSP area” is a transparent attempt to exclude otherwise-feasible off-site project alternatives. Second, as explained above, “expanding the USB and UPA” is unsupported by substantial evidence. Further, expansion of the USB and UPA are themselves not legitimate objectives since General Plan policy is to prohibit expansion involving destruction of farmland, habitat for species, and areas of groundwater recharge.
2. Create a land use plan that satisfies County policies, regulations, and expectations, as defined in the General Plan, including Policies LU-114, LU-119, and LU-120. • This objective is transparently manipulated and not supported by substantial evidence. First, any development project will be required to meet County policies, regulations and expectations. Indeed, the DEIR here reveals that the Project fails to achieve consistency with County policies for growth. Finally, the objective is manipulated because it wholly ignores the most important County Land Use Policy, LU-127.
3. Provide a comprehensively planned, high quality, large-scale, residential-based community in northwestern Sacramento County, directly northwest of the City of Sacramento, with a balanced mix of uses, employment opportunities, a wide variety of housing types, park and open space, and supporting public and quasi-public uses. • Again, this objective is manipulated by requiring a community “in northwestern Sacramento County, directly northwest of the city of Sacramento.” Further, the balance of the project objective can be satisfied by developments at other locations. As explained by SACOG, “[T]he capacity for growth in existing entitled lands far exceeds expected demand over the next twenty years:
collectively, the region’s jurisdictions have entitled, or are in the process of entitling 2.5 times the region’s projected need for the next 20 years. More than half of that capacity—387,000 units—is in greenfield areas that are on the edge of existing development.”
4. Develop a master-planned community that can be efficiently served by existing infrastructure or proposed infrastructure that would encourage logical, orderly development and would discourage leapfrog or piecemeal development and sprawl. • This is arguably a legitimate objective, but one that is not met by this Project (including with particularity inadequate transportation infrastructure) and yet can be met by other locations throughout the County. Moreover, substantial evidence does not support this objective since it fails to explain “piecemeal development and sprawl.” The Project arguable represents “sprawl” by requiring expansion of Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
the USB and UPA to accommodate development that is not required in the County’s Land Use Element or Housing Element, or SACOG’s Blueprint. Indeed, the DEIR identifies as a significant and unavoidable impact the Project’s contribution to growth-inducement. As explained by SACOG, “[T]he capacity for growth in existing entitled lands far exceeds expected demand over the next twenty years: collectively, the region’s jurisdictions have entitled, or are in the process of entitling 2.5 times the region’s projected need for the next 20 years.
More than half of that capacity—387,000 units—is in greenfield areas that are on the edge of existing development.”
5. Provide residential housing within five miles of the existing job centers of downtown Sacramento and West Sacramento, as well as in close proximity to newly developing or proposed job centers.
• This objective is manipulated and not supported by substantial evidence. While providing residential housing within existing job centers if arguably valid, the same is not true for the undefined terms “newly development or proposed job centers.” If a “proposed job center[]” is not approved then what is the value of providing nearby housing? Also, the DEIR fails to explain what is meant by “newly developing” job centers. As explained by SACOG, “[T]he capacity for growth in existing entitled lands far exceeds expected demand over the next twenty years: collectively, the region’s jurisdictions have entitled, or are in the process of entitling 2.5 times the region’s projected need for the next 20 years.
More than half of that capacity—387,000 units—is in greenfield areas that are on the edge of existing development.”
6. Create a development that has an overall positive economic impact on Sacramento County and achieves a neutral to positive fiscal impact on the County’s finances and existing ratepayers.
• This finding is not based on any specific location for a “positive economic impact on Sacramento.” Further, if it is feasible for the Project to achieve this goal (based on “control” of only 1.53 or 14 percent), then it is feasible for alternative locations to achieve the goal.
7. Create a community that can be logically and efficiently phased to allow the orderly build-out of the community.
• This objective is arguably valid, but substantial evidence does not support a finding that the Project meets this objective. First, the record establishes that the Project only includes “preliminary” phasing that may be altered at any time without any review or approval by the County or any other public agency. Thus, the Project does not include phasing of any kind, local or otherwise. Second, the Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
Project’s “preliminary” project phasing is in no way local or orderly because it would first place high-density urban development in the middle of 2,000 acres of prime farmland. This is not logical or orderly; it is based instead on the project applicant’s incredibly small ownership of the specific plan area. The Project’s phasing is therefore the opposite of logical, efficient and orderly.
8. Provide a safe and efficient circulation system that interconnects land uses and promotes pedestrian and bicycle circulation and transit options that will encourage non- vehicular trips, thereby reducing vehicle miles traveled (“VMT”). • This is arguably a legitimate project objective, but one that is required by the County’s General Plan policies and so would be met by any development in the area. That said, as explained below and in the comments by Dan Smith, the Project does not provide a safe and efficient circulation system. As just one example, the Project would result in unsafe conditions for existing families living on the Garden Highway.
9. Incorporate parks and open space, including an urban farm-greenbelt and canal, into the project design in a manner that provides community connectivity and encourages walking and bicycle use.
• This is a manipulated project objective that does nothing more than “repeat the EIR’s description of the proposed project.” (Kostka, supra, § 12.13.)
10. Make efficient use of development opportunities as the project site is bordered on three sides by existing or planned urban development.
• First, this is a manipulated project objective that does nothing more than “repeat the EIR’s description of the proposed project.” (Kostka, supra, § 12.13.) Further, a development at any location would be able to “make efficient use of development opportunities” from nearby development. As explained by SACOG, “[T]he capacity for growth in existing entitled lands far exceeds expected demand over the next twenty years: collectively, the region’s jurisdictions have entitled, or are in the process of entitling 2.5 times the region’s projected need for the next 20 years. More than half of that capacity—387,000 units—is in greenfield areas that are on the edge of existing development.”
11. Plan for enough units to provide housing choices in varying densities to respond to a range of market segments, including opportunities for rental units and affordable housing, and significant commercial uses, consistent with the General Plan and Housing Element.
• While a potentially legitimate objective, this objective can be achieved by a development at any location. What is more, alternate locations—unlike the Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
Project—may actually be consistent with the County’s General Plan and Housing Element. Neither the County’s General Plan Land Use Element nor Housing Element call for any residential development at the Project site.
12. Design a land use plan where the development footprint avoids impacts to wetland resources to the extent feasible.
• This is not a legitimate project objective since it simply restates applicable law and can be achieved at any location.
13. Develop a specific plan that respects existing agricultural land uses and operations to the west of the proposed 1,532-acre Development Area. • This is a manipulated project objective that does nothing more than “repeat the EIR’s description of the proposed project.” (Kostka, supra, § 12.13.) Further, substantial evidence does not support that the Project satisfies this objective by directly destroying approximately 1,500 acres of prime farm land and indirectly destroying the rest by ill-conceived “ag buffer” that does not result in productive agricultural operations.
14. Provide for development that meets the seven identified SACOG Blueprint principles, including provision of transportation choice, compact development, mixed use development, housing choice and diversity, use of existing assets, natural resource conservation, and quality design.
• This is a manipulated project objective that does nothing more than “repeat the EIR’s description of the proposed project.” (Kostka, supra, § 12.13.) A legitimate project objective would be for a development that is consistent with SACOG’s Blueprint. As SACOG explains, “The Upper West Side project and the project area itself are not anticipated for development in either the MTP/SCS or the Blueprint.” Further, substantial evidence does not support a finding that the Project is consistent with Blueprint principles. The Project is far from “compact,” and is in no conserves natural resources by destroying prime farmland that provides important habitat for numerous special-status species.
15. Develop the project and any associated on- and/or off-site mitigation to complement the Natomas Basin Habitat Conservation Plan (“NBHCP”) and the Metro Airpark Habitat Conservation Plan.
• This is a manipulated project objective that does nothing more than “repeat the EIR’s description of the proposed project.”
16. Designate open space preserves along the south side of Fisherman’s Lake Slough or along the West Drainage Canal (Witter Canal) that provide natural buffer to these Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
features, and along the westerly edge of the proposed 1,532-acre Development Area to provide a transition between residential and agricultural designations to the west, which will provide a regional benefit for habitat, resources, and open space amenities. • This is a manipulated project objective that does nothing more than “repeat the EIR’s description of the proposed project.”
17. Balance development with resource protection in an inter-connected, permanent open space.
• This is a legitimate project objective that can be accomplished at any location.
Indeed, other locations that do not include 2,000 acres of prime farmland and habitat for special-status species are far better at striking an appropriate balance.
18. Create multi-functional habitat within open space corridors that provide on-site habitat and contribute to water quality.
• This is a manipulated project objective that does nothing more than “repeat the EIR’s description of the proposed project.” Further, it is nonsensical. Urban development should be located as far away as possible from habitat and open space corridors. The need to “create multi-functional habitat within open space corridors” arises precisely because urban development is proposed for areas that will have a negative impact on existing habitat. The legitimate objective would be therefore to locate urban uses in areas that avoid existing habitat and so there is no need to create habitat.
In sum, the DEIR’s project objectives are clearly manipulated in order to justify finding that any alternative other than the Project is infeasible.
C. The DEIR Purports to Analyze the Project Based on a “Phasing Plan” that is Both Arbitrary and Not Enforceable.
An “accurate and stable project description” is a bedrock requirement of CEQA— the sine qua non (that without which there is nothing) of an adequate CEQA document:
Only through an accurate view of the project may affected outsiders and public decision-makers balance the proposal’s benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal (i.e., the “no project” alternative) and weigh other alternatives in the balance. An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.
(Inyo v. Los Angeles (1977) 71 Cal.App.3d 185, 192–93 [Inyo].) Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
The courts have consistently held that the ability of informed citizens to participate in environmental review is a key component of CEQA. (Washoe Meadows v. Dept. of Parks and Rec. (2017) 17 Cal.App.5th 277, 285 [“Informed public participation is essential to environmental review under CEQA.”]; Inyo, supra, 71 Cal.App.3d at 192 [“The EIR process facilitates CEQA’s policy of supplying citizen input.”].) An interrelated bedrock CEQA principle of informed public participation is that all aspects of a proposed project, i.e., the “whole of the action,” must be analyzed in an EIR. (See CEQA Guidelines, § 15378, subd. (a) [a project is the “whole of an action” which may result in direct or indirect physical changes to the environment].) This requires an EIR to include analysis of “all phases of a project” and all “reasonably foreseeable consequences” of a project. (CEQA Guidelines, § 15126 [EIR’s impact analysis must consider all phases of a project]; Laurel Height Improvement Assn. v. Regents of the Univ. of Cal. (1988) 47 Cal.3d 376 [Laurel Heights I] [EIR must analyze “reasonably foreseeable consequence” of a project].)
The DEIR violates these principles with respect to its so-called “phasing plan.” The DEIR repeatedly asserts that the Project would be developed in “phases,” beginning with “Phase I,” and followed by Phases 2 through 4. A careful review of the DEIR, however, reveals this project description to be inaccurate:
A preliminary phasing plan is illustrated in Plate PD-22 but would be subject to change as development occurs in response to market demand over time. Changes to the sequencing of individual development phases are permitted without an amendment to the proposed UWSP, provided that the improvements in each phase adequately support the associated development. This includes the ability for the Town Center to commence construction in an earlier phase than is identified on the preliminary phasing plan exhibit. Ultimate development phasing would be coordinated with and approved by County staff with processing of subsequent improvement plans for construction of public facilities.
The above-quoted language rebuts the DEIR’s express assumption that “phase 1” will be constructed first, and the EIR’s resulting methodology to analyze “Phase I” at a greater level of detail than future phases.5 Since phases 2 through 4 may ultimately be
5 As just one example, the EIR’s analysis of biological resources includes biological surveys for only 586.7 acres of the Project’s 2,066 total acres. What is more, the majority of this limited survey area includes the so-called “ag buffer” area that would not be Sacramento County, Department of Community Development, Planning and Environmental Review Division
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constructed before Phase 1 “without amendment to the proposed UWSP” and corresponding CEQA review, then the EIR must analyze all phases of the Project at the same level of detail.
The informational defects associated with the Project’s sham “phasing” are wide ranging. The DEIR repeatedly justifies its perfunctory and inadequate environmental analysis by claiming more detailed review will occur in future “phases.” As just one example, the DEIR asserts with respect with Impact BR-1:
Because the proposed UWSP is anticipated to be built out in phases by different applicants over an estimated 20 years, different suites of mitigation measures may be required specific to the potential biological resources associated with phases of the build-out. In addition, land cover, land use, and consequently, plant and wildlife habitat may change during the intervening years relative to what is documented in this EIR. To identify whether, when, and where each measure applies, Mitigation Measure BR-1 is provided below, which requires that a pre-construction baseline biological resources report be prepared for each phase of development.
(DEIR, p. 7-40, emphasis added.)
The EIR makes similar representations regarding weed control and greenhouse gas (“GHG”) emissions. (DEIR, p. 7-41 [“Prior to the issuance of a grading permit, the applicant for each phase of the UWSP area development shall prepare a weed control plan for review and approval by the Environmental Coordinator.”], p. 8-29 [“As required by Mitigation Measure CC-1b, the applicant would be required to reduce GHG emissions associated with each phase of the proposed UWSP”].) Contrary to the promises of future CEQA review for these “phases,” the Project does not identify any County approvals associated with Project “phases.” (Draft Specific Plan, pp. 8–6 [Preliminary Development Phasing], 8–15 [Subsequent Entitlements].) Nor is there any identifiable CEQA review associated with these non-existent future Project “phases.” (Ibid.) In other words, the EIR’s claim of future review associated with future Project “phases” is unsupported by the record. There is no County review and approval of “phases,” and certainly no identifiable CEQA review associated with such “phases.” Accordingly, the EIR may not defer this analysis.
subject to development. (DEIR, p.7-45 [Plate BR-3].) The vast majority of the Project area, primarily “phases” 2 through 4, has not been surveyed for biological resources.
Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
In short, a careful review of the DEIR and draft Specific Plan reveals that any claimed Project “phasing” and associated future CEQA review is misleading to say the least. The “preliminary phasing plan” is expressly subject to revision at any time without any amendment to the Specific Plan, which also does not provide for actual project “phases” triggering preparation of the deferred environmental analysis that is offered by the EIR to justify the present inadequate review. The EIR’s project description and strategy of deferred CEQA review based on that claimed phasing are therefore contrary to CEQA’s mandates.
III. THE DEIR FAILS TO ADEQUATELY ANALYSIS THE PROJECT’S
IMPACTS TO AGRICULTURAL RESOURCES
A. The DEIR Fails to Analyze Countywide Impacts Resulting from General Plan Text Amendments
The DEIR fails to analyze the Project’s impacts that extend well beyond the Project’s boundaries. Specifically, the Project includes a General Plan text amendment to eliminate County requirement that replacement agricultural land must be within the County. (General Plan Policies AG-1, AG-5). Nothing limits the scope of these text amendments to the Project. Accordingly, the County has a duty under CEQA to analyze all impacts associated with text amendments that would apply to all remaining agricultural lands throughout the County. The DEIR does not even recognize the broad scope of these text amendments, much less provide a good faith analysis of their countywide impacts. The DEIR simply ignores that these General Plan text amendments would apply countywide and makes no attempt to analyze the impact of the countywide effects on the remaining agricultural lands in the County.
B. The DEIR Fails to Disclose and Analyze General Plan Land Use Policy LU-127 that Prohibits the Project in Order to Protect Prime Farmland
The DEIR further fails as an informational document by conspicuously ignoring the County General Plan land use policy directly related to conserving agricultural resources, LU-127, which provides, “The County shall not expand the Urban Service Boundary unless . . . The area of expansion does not include the development of important natural resource areas, aquifer recharge lands or prime agricultural lands.” (Emphasis added.) The impact of LU-127 is unmistakable, and not subject to dispute.
County policy is to prohibit expansion of the USB unless proposed development “does not include the development of . . . prime agricultural lands.” Here, the DEIR acknowledges that the Project includes 1,207 acres of prime farmland, which represents approximately 1.4 percent of all prime farmland within the County. General Plan policy Sacramento County, Department of Community Development, Planning and Environmental Review Division
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is clear that this is disqualifying. The County’s wholesale failure to disclose LU-127, much less address it, renders the DEIR deficient as an informational document. 6
Finally, the informational deficiency resulting from the DEIR’s wholesale failure to mention LU-127 is not limited to agricultural impacts. On its face, LU-127 is intended to protect agricultural production as well as biological resources that rely on agricultural lands for habit and water quality since agricultural lands also facilitate groundwater recharge. Thus, the DEIR’s failure to address LU-127 results in informational deficiencies running throughout the DEIR including at minimum, the project description, agricultural impacts, biological impacts, hydrology and water quality, land use and project alternatives.
C. The “Ag Buffer” Is Inadequate to Minimize and Mitigate Significant Impacts Associated with the Loss of Agricultural Production
The DEIR asserts that the so-called “ag buffer” will “allow or the continuation of existing agricultural, ag-residential, and mitigation uses.” (DEIR, p. 2-27.) Accordingly, the DEIR relies on the “ag buffer” to dismiss, minimize and mitigate significant impacts.
A few non-exclusive examples include agricultural impacts (DEIR, p. 5-19), biological impacts (DEIR, pp. 7-80-82) and growth inducement (DEIR, p. 23-2.) However, the Sacramento County Farm Bureau letter provides expert testimony that the so-called “ag buffer” is inadequate due to its size and location to allow for ongoing agricultural operations. Accordingly, the “ag buffer” is not effective mitigation for impacts, and may not be relied upon to dismiss, minimize and mitigate significant impacts.
IV. THE DEIR FAILS AS AN INFORMATIONAL DOCUMENT WITH
RESPECT TO BIOLOGICAL RESOURCE IMPACTS
Other commenters, including expert comments by Shawn Smallwood (Exhibit 1) have explained in detail the DEIR’s failure to analyze in good faith the Project’s impacts
6 The DEIR’s omission of any reference to LU-127 strongly suggests an intent to mislead since LU-127 was expressly referenced by County staff when the County approved the commencement of master planning for the area: “While Policy LU-119 addresses Master Plan initiation, there are other policies such as LU-120, LU-127 and LU-15 which will be utilized by County staff, later in the Master Plan process, to determine whether or not the Master Plan could be recommended for approval. Initiation of the Master Plan process is only the first step and is not a guarantee of approval. The County strongly cautions that the applicants proceed at their own risk.” (Emphasis added.)
Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
on biological resources, including species and habitat addressed by the NBHCP. Those comments do not need to be repeated here. Rather, this comment focuses on the informational deficiency resulting from the DEIR’s failure to disclose—and even affirmative misrepresentations regarding—the NBHCP’s relevance to this Project.
As part of its analysis of impacts, an EIR must disclose related environmental review and consultation requirements of other jurisdictions and integrate these related requirements into CEQA review. (CEQA Guidelines, § 15124, subd. (d)(1)(C); see Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, 936 [Banning Ranch].) Thus, agencies are encouraged to consult with responsible agencies before and during preparation of an EIR so that the document will meet the needs of all the agencies which will rely on it. (CEQA Guidelines, § 15006, subd. (g); Banning Ranch, supra, 2 Cal.5th at 936.) Such information is not only necessary for analysis of environmental impacts, but also project alternatives and mitigation measures. (Banning Ranch, supra, 2 Cal.5th at 937.) Failing to discuss other regulatory and permitting regimes with authority over the project violates the information disclosure requirements of CEQA and is a prejudicial error depriving the public of a full understanding of a project. (Banning Ranch, supra, 2 Cal.5th at 942.) The coordination between lead agencies and other permitting authorities “serves the laudable purpose of minimizing the chance the [lead agency] will approve the Project, only to have later permits for the project denied . . . .” (Cal. Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 642.)
Banning Ranch is instructive. There, the lead agency failed to identify potential environmentally sensitive habitat areas (“ESHA”) and analyze the impacts of the project on those areas, which are governed by the Coastal Commission under the Coastal Act. (Banning Ranch, supra, 2 Cal.5th at 935–936.) Doing so undermined the EIR as an informational document. (Id. at 941–942.) The County’s informational deficiency here is significantly worse than in Banning Ranch. When the County initially agreed to conduct planning for development in this area, staff explained:
Development in the Natomas Basin has been met with challenges from environmental groups due to the presence of numerous threatened, endangered or special status species. Two of the species of greatest concern are the giant garter snake and the Swainson’s hawk. There have been several lawsuits filed over past environmental approvals associated with the NBHCP and the MAPHCP. A final ruling by United States District Judge David F. Levi on September 7, 2005 (Attachment 8) declared the HCPs valid and cleared the way for development. . . . [W]ith respect to Sacramento County, Department of Community Development, Planning and Environmental Review Division
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the issues of potential future growth in Sacramento County, Judge Levi ruled the following:
The NBHCP and BiOp [Biological Opinion (BiOp) utilized
by the Secretary of the Interior and United States Fish and Wildlife Service] do assume that development in the basin will be limited to the 17,500 acres [15,517 acres under the NBHCP and 1,983 acres from the previously approved
MAPHCP to total 17,500 acres cumulatively] in the permit areas and relies on that assumption in concluding that
sufficient habitat will remain for the covered species. This assumption is based on the current land use plans of
Sacramento County. The NBHCP, BiOp, and EIR/EIS also
conclude that because any future development in the Basin not covered by the HCP and ITPs [Incidental Take Permit allowing for “take” of an endangered species] would likely result in injury to listed species, any future development in the Basin would require new federal approvals. Any such approvals would in turn require a new HCP and ITP for the particular project, and could also lead to revision of the existing NBHCP, were the additional development to exceed assumed limits.
Judge Levi went on to say,
The NBHCP anticipates that development by the City and
Sutter will be limited to 15,517 acres – 8,050 acres within the City [of Sacramento] and 7,467 acres in Sutter County – and provides that approval of any development beyond this limit – whether by the City and Sutter or by other entities – will trigger reevaluation and possible amendment of the plan, and could result in suspension or revocation of the City and Sutter permits.
With regard to the City/County Natomas Joint Vision, which plaintiffs claimed would fatally undermine the NBHCP, Judge Levi ruled the following:
The Service, and the court, are entitled to assume at this point that future development will not be permitted if sufficient Sacramento County, Department of Community Development, Planning and Environmental Review Division
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mitigation land is unavailable and the development will result in jeopardy.
The Judge footnoted the above sentence with the following:
The court notes, however, that the Service and those seeking an ITP in the future will face an uphill battle if they attempt to argue that additional development in the Basin beyond 17,500 acres will not result in jeopardy. The NBHCP, BiOp, EIR/EIS, and Findings and Recommendations are all
predicated on the assumption that development in the Basin will be limited to 17,500 acres and that the remaining lands will remain in agricultural use.
Staff recognizes that any new development in the Natomas Basin above the 17,500 acres already approved and permitted by the Natomas Basin and Metro Air Park HCPs will require careful coordination and consideration of existing approved developments, their mitigation strategies, and the regional conservation context.
(Exhibit 9, 2019 County Staff Report, emphasis added.)
Following County staff’s express acknowledgement of the “uphill battle” that will require “careful coordination and consideration,” the DEIR is now conspicuously silent regarding this history and, critically, the detrimental impact that the Project may have on the existing habitat conservations plans. The DEIR fails as an informational document by not addressing these critical interrelationships—as County staff previously promised to do at the beginning of this process.
V. THE DEIR’S TWO TRANSPORTATION ANALYSES VIOLATE CEQA
AND REVEAL VIOLATIONS OF GENERAL PLAN POLICIES
REQUIRING PROJECT DENIAL
A. The DEIR Violates CEQA by Not Adequately Analyzing the Project’s VMT and Transportation Safety Impacts
Transportation Engineer Dan Smith reviewed the DEIR’s technical transportation studies and prepared comments identifying numerous deficiencies. (Exhibit 2.) These comments are incorporated by refence and do not require repetition here.
Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
B. The Local Transportation Analysis Reveals Violations of the County’s General Plan LOS Standards
The local transportation analysis reveals that the Project would be inconsistent with the County’s General Plan. Specifically, Table 12 discloses that the Project would individually result in unacceptable level of service (“LOS” F) conditions at no fewer than 13 different intersections.
The DEIR dismisses this violation of General Plan standards by asserting:
Consistent with Policy CI-9, the proposed roadway system included in the proposed UWSP would be designed in a manner that meets level of service operating standards with just a few exceptions. In instances where operating standards are not met, physical improvements to increase capacity (e.g., widening El Centro Road to an eight-lane cross section) have been deemed by Sacramento County to be either infeasible or would be inconsistent with the proposed UWSP’s goal of creating an environment conducive to walking and bicycling.
(DEIR, p. 18-19, emphasis added.)
The problem is that the Project’s “just a few exceptions” to the County’s LOS E standard for urban roadways means that the Project is not “consistent” with General Plan Policy CI-9. While it is true that Policy CI-9 allows for deviation from these standards when “it is infeasible to implement project alternatives or improvements that would achieve” the LOS standards, the DEIR does not support its assertion that specific physical improvements necessary to provide an adequate LOS for the Project already “have been deemed by Sacramento County to be either infeasible or would be inconsistent with the UWSP’s goal of creating an environment conducive to walking and bicycling.” The DEIR does not disclose when the County previously made this determination regarding the Project’s circulation plan, much less any information documenting the feasibility determination. Further, it is unclear whether any such determination of feasibility is properly made before project approval and even release of the DEIR.
What is more, the language of CI-9 does not support violating the County’s LOS standards on the basis that physical improvements “would be inconsistent with the proposed USWSP’s goal of creating an environment conducive to walking and bicycling.” Even if this is a proper basis for violating the County’s LOS standards (the plain language of CI-9 contradicts this), the DEIR fails to provide any analysis identifying the proposed physical improvements or how they are inconsistent with the stated goal.
Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
Finally, even if the County can credibly explain how physical improvements to existing intersections are not feasible (perhaps due to right-of-way constraints), it strains logic to suggest that the same is true regarding intersections not presently in existence. (See Table 12, intersections 61, 63, 68, 69.) The DEIR fails to explain how it is infeasible to design new intersections at a minimum LOS E.
In summary, the Project’s roadway system patently violates the County’s General Plan LOS standards, and the County fails to explain how it is infeasible to construct a system that meets the minimum LOS E standards. The Project’s General Plan inconsistencies will increase cut-through traffic on other roadways such as along Garden Highway thereby further increasing undisclosed congestion and roadway hazards to existing residents.
C. The EIR Fails as an Informational Document Regarding the Project’s Proposed Transit System, Impacts and Mitigation
The DEIR claims that the Project employs “smart growth” principles that include “Transportation Choices – Development should encourage people to walk, bike, use public transit, or carpool to their destination.” Nothing could be further from the truth.
In fact, the EIR fails as an informational document with respect to the Project’s impact and mitigation regarding transit impacts.
As a threshold matter, buried in the DEIR’s appendix is the revelation that “[U]se of transit for travel to external destinations is estimated at two percent for the purposed project.” The DEIR fails to explain how this abysmal transit mode share is consistent to its claim that the Project is somehow “encouraging” transit use.7 In fact, the Project fails to provide adequate transit facilities, and the DEIR fails to adequately disclose this to the public and decision-makers.
The DEIR notes that the Project would result in a significant transportation impact if it “[s]ubstantially increase[s] transit demand and fail[s] to provide adequate transit service.” (DEIR, p. 18–16.) Although the transit mode split of 2.0 – 2.3 percent is well below the split for an infill or “smart growth” project, the mode split would still result in 3,576 daily transit trips. The DEIR fails to set forth enforceable mitigation to address this transit demand. The DEIR acknowledges this failure:
7 The DEIR’s transportation appendix indicates that its assumed transit trip generation is more than the “base” rate assumed for a “suburban” development but fails to identity the assumed “base” transit trip generation number.
Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
[T]he proposed UWSP would substantially increase transit ridership demand that may not be fully accommodated by the proposed transit service as described in the transit plan that has been prepared for the Specific Plan. Specifically, severe congestion along El Centro Road between West El Camino Avenue and Farm Road would cause substantial delays to bus service that would operate along this route as part of the UWSP. Additionally, the lack of planned fixed-route bus service may lead to an unmet demand for transit service.
The DEIR fails to describe the Project’s transportation network. The DEIR asserts, “Plate TR-5 shows the proposed transit system included in the proposed UWSP, which would include an on-site shuttle that would operate along key roadways during peak periods.” Plate TR-5, however, fails to reveal the on-site shuttle, much less provide any information regarding its operation.
Setting aside its failure to describe the proposed transit network, the DEIR proposes to mitigate the Project’s failure to provide for the Project’s transit demand with mitigation measure TR-1b, which requires the Project applicant to “coordinate with the County and SacRT” to provide the transit “assumed” in the DEIR’s transportation analysis “or a cost-effective equivalent.” However, the EIR fails to identify with any specificity the specific transit infrastructure that would be required to handle 3,576 daily external transit trips. Compounding this informational failure, funding for this uncertain transit plan would be by “annexation to County Service Area 10, formation of a transportation services district, or other secured funding mechanism.”
An EIR may not simply label an impact significant without describing the severity of the significant impact and identifying all feasible mitigation measures to reduce it to less than significant. The DEIR’s failure to adequately describe the transit plan, coupled with the uncertainty regarding its funding, renders the DEIR defective as an informational document with respect to transit impacts. Moreover, the DEIR’s analysis and mitigation for transit impacts, including its vague transit plan, fails to support a finding that the Project “promotes . . . transit options that will encourage non-vehicular trips.”
VI. THE DEIR FAILS TO INCLUDE A LAWFUL WATER SUPPLY
ASSESSMENT FOR THE PROJECT
The project requires a water supply assessment (“WSA”) pursuant to SB 610. No such WSA appears to have been prepared for the Project, much less attached to the EIR Sacramento County, Department of Community Development, Planning and Environmental Review Division
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as required by law. (Wat. Code, 10911, subd. (b).) Rather than the legally mandated WSA for the Project, the EIR includes a “water supply analysis” form prepared by the applicant’s legal counsel. This form fails to provide the information required for a legally-adequate WSA set forth in Water Code section 10910, subdivisions (d), (e), (f), and (g). Indeed, the only information in the “water supply analysis” prepared by the applicant’s counsel is information about the Project’s proposed water demand. This falls well short of the information required for a WSA. As a result, the EIR fails as an informational document regarding whether an adequate water supply is available to support the Project.
While a WSA may incorporate information from a water supplier’s urban water management plan (“UWMP”) into a project’s WSA, that was not done here. The “water supply analysis” makes no attempt to set forth information required by subdivisions (d), (e), (f) and (g), much less reference where that information is provided in the City’s UWMP.
Moreover, a WSA may incorporate a water supplier’s UWMP “[i]f the projected water demand associated with the proposed project was accounted for in the most recently adopted urban water management plan.” (Wat. Code, §10910, subd. (c)(2).) The applicant’s legal counsel checked a box asserting that the City’s UWMP accounted for the Project’s water demand. This representation is demonstrably false. Nothing in the City’s UWMP indicates that the Project’s demand was accounted for in the City’s UWMP. (See Exhibit 10, chapters 3 and 4 of the City’s UWMP.) Indeed, all evidence points to the opposite conclusion. The City’s UWMP determines its demand projections based upon a combination of its retail and wholesale demands. (Exhibit 10, pp. 3-11–3- 18; 4-3–4-10.) The Project site is located outside the City’s retail service area, and so it is not a retail customer of the City. (Exhibit 10, Figure 3-1.) Moreover, the Project site is presently served by Natomas Central Mutual Water Company, which is not a wholesale customer of the City. (Exhibit 10, p. 3-18.) Since the Project site is neither a retail nor wholesale customer of the City, nothing from the City’s UWMP demonstrates that it accounted for any water demand from the Project site, much less the 4,242 AFY set forth in the applicant’s “water supply analysis.”
Implicitly acknowledging that the Project’s water demand is not “accounted for,” the City’s approval of the applicant’s “water supply analysis” engages in obfuscation, asserting, “The area addressed in this WSA lies within an area contemplated by the City’s 2020 Urban Water Management Plan demand forecast and within the legal boundaries of the City’s water rights entitlement.” (Exhibit 11, City staff report dated December 6, 2022, Consent Item 14, emphasis added.) That a project site (notably not the specific Project demand) is only somehow merely “contemplated”—whatever that Sacramento County, Department of Community Development, Planning and Environmental Review Division
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term may mean—is not the same as affirmatively “accounting for” a specific water demand. The same is true regarding the City’s irrelevant finding that the Project area is “within the legal boundaries” of the City’s water right. That the City may lawfully provide water to a parcel is in no way the same as demonstrating that the City affirmatively accounted for the parcel’s water demand, much less and increased water demand from a proposed (and unapproved) development project.
In short, the Project’s proposed demand of 4,242 AFY was not “accounted for” in the City’s UWMP, and so information from the UWMP may not be incorporated into a WSA for the Project—even if one had been prepared (it has not). A reviewing court will have no difficulty disapproving the County’s reliance on the false and misleading “water supply analysis” prepared by the applicant.8 A lawful WSA will need to be prepared for the Project along with a recirculated DEIR.
VII. THE DEIR FAILS AS AN INFORMATIONAL DOCUMENT REGARDING
AIR QUALITY EMISSIONS AND RESULTING HUMAN HEALTH
IMPACTS
The Project would result in significant air quality emissions and human health impacts resulting from air emissions. The DEIR fails as an informational document by not adequately disclosing such impacts. Expert comments by SWAPE are attached as Exhibit 3, incorporated by reference, and do not require repetition here.
A. The DEIR Fails to Disclose All Human Health Impacts Resulting from Acknowledged Significant Toxic Air Contaminant Emissions
The DEIR discloses that operation of the Project would result in significant cancer risk to both existing residents and future occupants of the Project. (DEIR, p. 6-49.) Indeed, the cancer risk to maximally exposed residents is greater than 44 increased cancer risks, which is more than four times the relevant significance standard of ten increased cancer risks. While this human health impact to residents is itself shocking, it unfortunately comes nowhere near to telling the whole story regarding the human health implications from the Project’s toxic air emissions (“TAC”).
8 While the City purported to approve the “water supply analysis” back in 2022, a legal challenge to its adequacy is not be ripe unless and until it is relied upon by the County to approve the Project. (California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464.)
Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
In addition to TAC emissions, the DEIR fails as an informational document by failing to adequately address the human health impacts associated with the Project’s contribution to ultrafine particulate (“UFP”) emissions.
The DEIR’s local transportation analysis reveals that the Project will increase auto and heavy-truck trips along I-80 and I-5, including increased vehicle queuing and resulting vehicle braking. This will exacerbate UFP emissions. (Exhibit 12 [“Very fine and ultrafine iron, nickel, copper, and zinc were identified as vehicular, with the most probable sources being brake drums and pads and the lubrication oil additive zinc thiophosphate . . . The braking systems of cars and trucks must now be considered along with direct exhaust emissions in estimating the health impacts from traffic.”].) The DEIR fails as an informational document by not adequately analyzing the human health impacts of increased UFP emissions on nearby residents, including existing residents and future occupants of the Project.
The human health impacts resulting from UFP emissions are very real, and include:
• Early heart attacks from ultra-fine metals from the upwind braking, • Increases in cancer from diesels exhaust . . .
• High rates of childhood asthma
• Rapid and permanent loss of lung function in children from ultra-fine metals, with 18 year olds having the lung function of 70 year olds.
(Exhibits 12,13,14,15.)
These health impacts, and others, are documented in several peer-reviewed technical studies. (Exhibits 12,13,14,15.) A peer-reviewed study entitled, “Prenatal Air Pollution and Newborns’ Predisposition to Accelerated Biological Aging” found that mothers “with higher residential exposure to PM2.5 . . . gave birth to newborns with significantly lower telomere length [a maker for biological aging] that could not be explained by other factors.” (Exhibit 14.) Another peer-reviewed study found that health impacts, including mortality, can be correlated to UFP exposure. (Exhibit 12.)
Notwithstanding the serious health impacts resulting from UFP emissions— particularly at particulate emissions giving rise to such high cancer risks—the DEIR makes no mention whatsoever of UFP emissions, much less the resulting health risk exposure. The DEIR’s failure to disclose health risk from UFP emissions violates CEQA. The California Supreme Court has held that an EIR must correlate air emissions to human health effects if it is feasible to do so. (Sierra Club v. County of Fresno (2018) Sacramento County, Department of Community Development, Planning and Environmental Review Division
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6 Cal.5th 502 [Sierra Club].) Sierra Club addressed a challenge to an EIR’s air quality discussion that, as here, simply listed various health conditions with no attempt to correlate those impacts to air emissions. The court explained:
The EIR’s discussion of health impacts of the named pollutants provides only a general description of symptoms that are associated with exposure to the ozone, particulate matter (PM), carbon monoxide (CO), and nitrogen dioxide (NOx), and the discussion of health impacts regarding each type of pollutant is at most a few sentences of general information. The disclosures of the health effects related to PM, CO, and sulfur dioxide fail to indicate the concentrations at which such pollutants would trigger the identified symptoms.
(Id. at 519, emphasis added.)
The defect identified in Sierra Club applies with equal force here. The DEIR in Sierra Club at least disclosed potential health risks. Here, by contrast, human health impacts are ignored. A new DEIR will need to be prepared, and that new DEIR will need to disclose the Project’s increased UFP emissions and correlate those UFP emissions to human health impacts if it is feasible to do so. If it is not feasible to correlate UFP emissions to health impacts, the DEIR must plainly state so and support that conclusion with substantial evidence.
B. The DEIR Fails to Set Forth All Feasible Mitigation for Acknowledged Human Health Impacts
As set forth above, the Project will significantly increase the risk of cancer to existing and future residents. Although exposing residents to more than four times the significance threshold for cancer risk, the DEIR purports to rely on mitigation that is ineffective rather than effective mitigation strategies.
DEIR acknowledges a significant operational health risk to existing residents located south of I-80. The only proposed mitigation is to install MERV 13 or greater air filters. The DEIR fails to explain, however, that this mitigation strategy is ineffective unless the HVAC system is actually running with all doors and windows closed. A study cited in the DEIR explains:
In the province of Ontario, building construction and equipment is regulated by NBC and the Ontario Building Code (OBC) [4], [5]. These codes establish the limiting design factors such as minimum ventilation Sacramento County, Department of Community Development, Planning and Environmental Review Division
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rates per person, minimum building envelope insulation values and guidance on use of filters for safety and fire protection purposes.
Residential buildings adopting the building codes typically install Heat Recovery Ventilators (HRVs). Future revisions of NBC include possible reduction of PM2.5 using air cleaning devices in the HVAC system if the outdoor air pollution levels are above ambient threshold levels.
In addition to the above mentioned building codes, the R-2000 standard is a voluntary standard meant to exceed building code requirements, regulating and promoting high energy efficiency and improved air quality initiatives by offering incentives on retrofit and new construction. Typical R-2000 houses have high-efficiency heating and ventilation systems (e.g. installation of HRV and exhaust fans certified by the Home Ventilating Institute), additional insulation, and an airtight building envelope.
(Emphasis added.)9
According to the DEIR’s own reference material, an “airtight building envelope” is required for the air filter to actually be effective at reducing TAC exposure inside the home. This means that all doors and windows must be closed, and the HVAC must be running. Further, and importantly, the study indicates specialized high-efficiency heating and ventilation systems are required in order to obtain any benefit, and so simply installing a MERV 13 air filter into a random gas furnace as suggested by the DEIR is not effective to reduce the cancer risk. Effective mitigation would include a program to pay the costs for high-efficiency heating and ventilation systems and airtight building envelopes.
The DEIR also proposes as mitigation to “include consideration of recommendations in land use siting found in CARB’s Air Quality and Land Use Handbook: A Community Health Perspective.” (Mitigation Measure AQ-4a.) This is patently ineffective and unenforceable since requiring “consideration of recommendations” provides no performance standard.
With respect to the cancer impact to on-site residents, the DEIR continues to offer ineffective mitigation. While the Project application can control design and construction, the DEIR does not require residential construction to include non-opening windows, which is required for increased air filtration to be effective. Similarly, the DEIR asserts as mitigation “Prohibit siting new sensitive land uses within 500 feet of urban roads
9 https://www.sciencedirect.com/science/article/abs/pii/S0360132315001171 Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
carrying 100,000 vehicles per pay,” and yet the Project’s site plan plainly violates this proposed mitigation measure. (See DEIR Plate PD-13, which proposes residential land uses adjacent to I-80.)
VIII. THE EIR FAILS TO ANALYZE A REASONABLE RANGE OF
ALTERNATIVES
CEQA requires that lead agencies consider alternatives at two stages in the EIR process. First, a DEIR must analyze a range of reasonable alternatives to the project. (CEQA Guidelines, § 15126.6.) Later, when the agency considers whether to approve or carry out the project as proposed, it cannot do so if a feasible alternative would substantially reduce significant effects. (CEQA Guidelines, § 15092, sub. (b)(2)(A).)
To explore ways for a project to meet as many goals as possible while protecting the environment, EIRs thus must evaluate alternatives that accomplish “most” basic objectives. (CEQA Guidelines, § 15126.6 (a).) Alternatives warrant study in the EIR process if they can reduce or avoid impacts and are “potentially feasible.” (CEQA Guidelines, §§ 15126.6. subds. (a), (c), (f); Watsonville Pilots Association v City of Watsonville (2010) 183 Cal.App.4th 1059, 1087 [Watsonville Pilots].) As to whether an EIR has analyzed an adequate range of reasonable alternatives, “[e]ach case must be evaluated on its facts . . . in light of the statutory purpose.” (Watsonville Pilots, supra, 183 Cal.App.4th at 1086.) The nature and scope of the alternatives to be studied are governed by the rule of reason. (CEQA Guidelines, § 15126., subd. (a).)
Feasible alternatives are allowed to “impede to some degree the attainment of the project objectives, or . . . be more costly.” (CEQA Guidelines, § 15126.6, subd. (b).) An “alternative that is potentially feasible should not be excluded from an EIR simply because it may not further all of the agency’s policy objectives.” (Watsonville Pilots, supra, 183 Cal.App.4th at 1087.) Watsonville Pilots found legal error when a draft EIR failed to evaluate a reduced development because it failed to meet two of twelve objectives: “The City’s argument on this issue is premised on its claim that no discussion of an alternative is required if that alternative would not meet a project objective. This premise is mistaken.” (Ibid.)
Finally, CEQA requires consideration of “alternative locations” for a project based on the answer to a “key question”:
The key question and first step in analysis is whether any of the significant effects of the project would be avoided or substantially lessened by putting the project in another location. Only locations that would avoid or Sacramento County, Department of Community Development, Planning and Environmental Review Division
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substantially lessen any of the significant effects of the project need be considered for inclusion in the EIR.
(CEQA Guidelines, § 15126.6, subd. (f)(2)(A).)
Many of the Project’s unprecedented laundry list of significant and unavoidable impacts would be avoided or substantially lessened by an alternative location, i.e., one that is within the County’s USB and UPA and does not consist of productive farmland that also provide habitat for special-status species. CEQA therefore requires analysis of alternative locations. Rather than comply with its legal duty to analyze offsite locations, the DEIR instead refuses to do so based on three specious arguments: (i) any alternative location would “entail either the same or new significant environmental effects as those that would occur within the UWSP area,” (ii) alternative sites that “could feasibly achieve many of the project objectives [are] not available as planning applications for those lands have already been filed with the City of Sacramento and with the County of Sacramento,” and (iii) an offsite alternative would not be feasible as the project applicants do not control any other properties within Sacramento County.” All of these are without merit.
A. The DEIR Fails to Support Its Assertion That All Alternative Sites Would Have the Same or New Significant Impacts
The DEIR broadly asserts that any alternative location would result in the same or new significant impacts, and then purports to support that claim with a few “examples.” This applies an incorrect standard because consideration of an alternative location is required if any significant impact is reduced or lessened. Here, the DEIR acknowledges that the Project would result in an incredible 29 different significant and unavoidable impacts. CEQA requires considering an alternative if any of these 29 significant impacts would be reduced. Alternative locations not consisting of prime farmland outside of the USB have reduced impacts associated with agricultural land conversion and inducing unplanned growth. These are just the impacts that are acknowledged in the DEIR. An objective analysis of the Project would disclose significant impacts associated with biological resources and land use consistency that would also be reduced by an alternative location.
Indeed, the DEIR acknowledges there are “other large vacant properties located adjacent to the City of Sacramento that could feasibly achieve many of the project objectives.” (DEIR, p. 3-4.) At minimum, the DEIR must disclose and analyze these alternative locations since the DEIR acknowledges that they are potentially feasible.
Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
B. The Existence of Otherwise Feasible Alternative Locations Demonstrates That the No Project Alternative Is Feasible
It is very rare that a “no project alternative” is also a feasible alternative. This is one of those cases. As indicated above, the DEIR acknowledges the existence of “other large vacant properties located adjacent to the City of Sacramento that could feasibly achieve many of the project objectives.” Thus, these projects satisfy the test for “potential feasibility” and must be analyzed in the DEIR. (Watsonville Pilots, supra, 183 Cal.App.4th at 1087.) Also, and importantly, the existence of other projects that satisfy most of the DEIR’s project objectives squarely supports the “no project” alternative as a feasible alternative. To put it simply, the DEIR’s concession that other projects will satisfy most of the DEIR’s project objectives means that the County can deny the Project and still achieve the majority of its project objectives through other developments.
Implicitly recognizing this conclusion, the DEIR asserts that these other projects do not achieve one of the Project’s objectives, but this is not the relevant standard for determining feasibility. (Watsonville Pilots, supra, 183 Cal.App.4th at 1087 [“alternative that is potentially feasible should not be excluded from an EIR simply because it may not further all of the agency’s policy objectives”].)10 Finally, that planning applications for these alternative locations have already been filed by developers other than Mr. Gidaro is of no consequence since CEQA does not provide guarantees to any specific developer. (Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1179 [“Ownership of the land used and the identity of the developer are factors of lesser significance”] [Goleta I].) County staff made this point with clarity in 2019 by explaining, “Initiation of the Master Plan process is only the first step and is not a guarantee of approval. The County strongly cautions that the applicants proceed at their own risk.” The DEIR now unfortunately represents a dramatic departure by transparently advocating for the Project, and even relying on unlawful reasons to avoid any consideration of feasible alternatives including the no project alternative.
C. Alternative Sites May Not Lawfully Be Dismissed from Consideration Because They are Not “Controlled” by the Applicant
The DEIR’s final argument for rejecting consideration of any alternative location is that they are not “controlled” by the “project applicants.” As a threshold matter, the DEIR’s reference to “project applicants” is false and misleading since there is only one project applicant, Upper Westside, which ones merely 1.53 percent of the Project area.
10 This analysis sets aside that the referenced project objective is manipulated and impermissibly narrow as explained above.
Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
The “participating properties” are not project applicants, and the DEIR provides nothing supporting its assertion that Mr. Gidaro controls these other properties for purposes of land development. That said, even if Mr. Gidaro actually controlled these “participating” properties, this would translate to merely 14 percent control over the 2,066-acre Project area.
In other words, Mr. Gidaro does not control the vast majority (either 98.47 percent or 86 percent) of the Project area. This is critical because the DEIR fails to explain how zero percent control makes a project infeasible whereas 1.53 percent (or 14 percent) control somehow makes a project feasible. In both instances the vast amount of contemplated development is wholly outside the control of the project applicant.
In any event, the DEIR’s reliance on “control” to dismiss alternative locations is contrary to CEQA since it is merely one consideration out of many. Although misquoted in the DEIR, the relevant CEQA Guideline explains:
Among the factors that may be taken into account when addressing the feasibility of alternatives are site suitability, economic viability, availability of infrastructure, general plan consistency, other plans or regulatory limitations, jurisdictional boundaries (projects with a regionally significant impact should consider the regional context), and whether the proponent can reasonably acquire, control or otherwise have access to the alternative site (or the site is already owned by the proponent). Not one of these factors establishes a fixed limit on the scope of reasonable alternatives.
(CEQA Guidelines, § 15126.6, subd. (f)(1).) Further, caselaw rejects assertions of inability to acquire alternate locations to avoid consideration of alternative locations. (Goleta I, supra, 197 Cal.App.3d at 1179 [“Ownership of the land used and the identity of the developer are factors of lesser significance”].)11
Finally, and importantly, allowing EIRs to dismiss consideration of alternative locations under these facts would eviscerate CEQA’s requirement to consider alternative
11 While Goleta I was distinguished in Save Our Residential Environment v. City of West Hollywood (1992) 9 Cal.App.4th 1745, 1753, the court’s analysis was based on its finding that “in order to meet the objectives of the General Plan, the project was required to be located within a very limited geographical area.” This analysis does not apply here since the Project is admittedly inconsistent with the County’s General Plan. There is no argument that the General Plan requires Mr. Gidaro’s proposed urban development “within a very limited geographic area.”
Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
locations. While Mr. Gidaro is free to acquire property at a discount price (precisely because the land is unsuitable for urban develop), Mr. Gidaro is not allowed to rely on his discounted land acquisition as a shield to prevent the County’s DEIR from considering whether alternate locations (i.e., locations that are more appropriately zoned for urban development and therefore commanding a higher price) would result in reduced environmental impacts. This is precisely what the DEIR’s alternatives analysis purports do to, and it flagrantly violates CEQA’s mandate to consider alternative locations where significant impacts are associated with the proposed project’s location.
The County will need to prepare a new alternatives analysis that objectively analyzes the feasibility of the no project alternative as well as alternative locations.
IX. THE DEIR FAILS TO SATISFY THE COUNTY’S DUTY TO
OBJECTIVELY ASSESS THE PROJECT, ITS IMPACTS, MITIGATION
MEASURES AND PROJECT ALTERNATIVES
As the CEQA lead agency for the Project, the County has a legal duty to prepare an EIR that objectively analyzes the Project. (Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 918–919 [Ceres].) Ceres provides:
It is this neutral role which could cause [the agency] to reject the project or certify an EIR supporting one of the project alternatives or calling for mitigation measures to which the applicant is opposed. The agency's unbiased evaluation of the environmental impacts of the applicant’s proposal is the bedrock on which the rest of the CEQA process is based. . . .
This means that the product of the agency’s efforts in conducting environmental review must reveal the true impacts of the proposed project, no matter how unattractive. The agency must unblinkingly include all significant impacts in the EIR and consider them with an open mind when deciding on project approval.
. . .
The relationship between a lead agency and project applicant is unique.
Before project approval, the agency must objectively judge whether the project as proposed is environmentally acceptable and therefore must make a decision about whether it will align itself with the applicant in part, in whole, or not at all.
(Ceres, supra, 217 Cal.App.4th at 918–919.)
Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
As Ceres explains, an objective analysis of a Project is one that may support rejection of the Project or selection of a Project alternative. An objective analysis is not one that transparently advocates for applicant’s proposed project by, as here, attempting to sweep troublesome issues under the rug or avoid consideration of feasible project alternatives.
While the law presumes the agency acts in accordance with its legal duty to be objective, the law is settled that the presumption can be overcome by evidence. Some of the DEIR’s most egregious violations of CEQA described above— ignoring General Plan Policy LU-127, ignoring the Project’s impact on existing habitat conservation plans, reliance on lack of applicant “control” to justify dismissing alternative locations, falsely asserting that expansion of the USB is necessary to accommodate the County’s share of future population growth —strongly suggest the DEIR was not prepared to advance the County’s duty to objectively analyze the Project but rather to promote the Project and avoid consideration of alternatives.
* * *
The DEIR is fundamentally flawed as an informational document. An entirely new DEIR will need to be prepared for the Project that objectively analyzes the Project’s significant impacts, mitigation measures and a reasonable range of alternatives.
Thank you for the opportunity to comment.
Very truly yours,
SOLURI MESERVE
A Law Corporation
By:
Patrick M. Soluri
Attachments:
Exhibit 1 Comments from Shawn Smallwood, PhD
Exhibit 2 Comments from Dan Smith, Smith Engineering & Management Exhibit 3 Comments from SWAPE
Exhibit 4 Upper Westside, LLC Articles of Incorporation Exhibit 5 Property Details for Applicant’s Property
Sacramento County, Department of Community Development, Planning and Environmental Review Division
October 28, 2024
Exhibit 6 Upper Westside, LLC’s Statement of Information Exhibit 7 Secretary of State Entry Database Entry for Upper Westside, LLC Exhibit 8 County Website regarding Natomas Joint Vision Exhibit 9 Recommended Action of the Office of Planning and Environmental Review to the Sacramento County Board of Supervisors for the meeting agenda for February 26, 2019
Exhibit 10 City of Sacramento’s Urban Water Management Plan, Chapters 3, 4 Exhibit 11 City staff report dated December 6, 2022, Consent Item 14 Exhibit 12 Cahill, T. A., Barnes, D. E., Spada, N. J., Lawton, J. A., and Cahill, T.
M. (2010). Very Fine and Ultra-Fine Metals and Ischemic Heart Disease in the California Central Valley 1: 2003-2007. Aerosol Sci.
Technol., 45:1123-1134.
Exhibit 13 Cahill, T. A., Barnes, D. E., Withycombe, E., and Watnik, M. (2010).
Very Fine and Ultra-Fine Metals and Ischemic Heart Disease in the California Central Valley 2: 1-74-1991. Aerosol Sci. Technol., 45:1135- 1142.
Exhibit 14 Martens D.S., Cox B, Janssen, B.G., Clemente, D., Gasparrini, A., Vanpoucke, C, Lefebvre, W., Roles, H.A., Plusquin, M., Nawrot, T. S. (2017). Prenatal Air Pollution and Newborns’ Predisposition to Accelerated Biological Aging. JAMA Pediatr., 171(12):1160-1167.
Exhibit 15 Cahill, T. A., Barnes, D. E., Lawton, J.A., Miller, R., Nicholas, S., Willis, R.D., Kimbrough, S. (2016. Transition metals in coarse, fine, very fine and ultra-fine particles from an interstate highway transect near Detroit. Atmos. Environ., 145:158-175.
EXHIBIT 1
1 Shawn Smallwood, PhD
3108 Finch Street
Davis, CA 95616
Attn: Julie Newton, Environmental Coordinator
County of Sacramento
Department of Community Development
Planning and Environmental Review Division
827 7th Street, Room 225 Sacramento, California 95814
25 October 2024
RE: Upper Westside Specific Plan DEIR
Dear Ms. Newton,
Having been retained by ECOS and Friends of the Swainson’s Hawk, I write to comment on potentially significant impacts to biological resources from the proposed Upper Westside Specific Plan and their analysis in the Draft Environmental Impact Report (DEIR). I understand the project would add 9,356 housing units for a predicted 25,578 people (the DEIR also predicts 25,200 residents and 25,460 residents), and >3 million square feet of commercial, retail, office buildings as well as parks and greenbelts on 1,532 acres, and on another 534 acres agricultural buffer to the Sacramento River.
My qualifications for preparing expert comments are the following. I hold a Ph.D. degree in Ecology from University of California at Davis, where I also worked as a post- graduate researcher in the Department of Agronomy and Range Sciences. My research has been on animal density and distribution, habitat selection, wildlife interactions with the anthrosphere, and conservation of rare and endangered species. I authored many papers on these and other topics. I served as Chair of the Conservation Affairs Committee for The Wildlife Society – Western Section. I am a member of The Wildlife Society and Raptor Research Foundation, and I’ve lectured part-time at California State University, Sacramento. I was Associate Editor of wildlife biology’s premier scientific journal, The Journal of Wildlife Management, as well as of Biological Conservation, and I was on the Editorial Board of Environmental Management. I have performed wildlife surveys in California for thirty-seven years. My CV is attached.
SITE VISIT
To prepare my testimony, I visited the site to complete a reconnaissance survey to sample the wildlife community. On 23 October 2024, from 07:00 to 08:42 hours, I surveyed from San Juan Road, scanning for wildlife with use of binoculars. After 1 hour and 42 minutes, I relocated to Radio Road because a tractor-drawn disk assembly covered my survey area with dust. I surveyed at my second site until 10:50 hours. I recorded all species of vertebrate wildlife we detected, including those whose members flew over the site or we saw nearby, off the site. Animals of uncertain species identity were either omitted or, if possible, recorded to the Genus or higher taxonomic level.
2 Conditions were clear with no wind and temperatures of 47–66° F. Most of the site is in agriculture, which is irrigated by canals and interspersed by ditches, annual grassland and small stands of trees including willows, oaks and Fremont cottonwoods (Photos 1 through 4).
I completed my survey was too late in the season for detecting Swainson’s hawks, as by October 1st the last of the local Swainson’s hawks would have departed on their annual winter migration to Mexico. However, I have seen Swainson’s hawks on the Specific Plan area many times before.
Photos 1 and 2. Western king amid a stand of willows on the project site, 14 May 2024.
3 Photos 3 and 4. Mallards on one of the water channels on the project site, 14 May 2024.
On the Specific Plan area, I observed two pairs of white-tailed kites and a peregrine falcon (Photos 5 and 6), California ground squirrels and sign of bobcat (Photos 7 and 8), coyotes (Photo 9), American kestrels and Anna’s hummingbirds (Photos 10 and 11), California scrub-jays and yellow-rumped warblers (Photos 12 and 13), Dark-eyed juncos and house finches (Photos 14 and 15), Great egrets and northern flickers (Photos 16 and 17), song sparrows and lesser goldfinches (Photos 18 and 19), white-crowned sparrows and golden-crowned sparrows (Photos 20 and 21), Lincoln’s sparrows and Nashville warbler (Photos 22 and 23), and many more species (Table 1).
4 Photos 5 and 6. A pair of
white-tailed kites atop an oak
(top) and a peregrine falcon
on the hunt (right) on the
Specific Plan area, 23 October
2024.
5 Photos 7 and 8. California ground squirrel (L) and track of a bobcat (R) on the Specific Plan area, 23 October 2024.
Photo 9. One of four coyotes on the Specific Plan area, 23 October 2024.
6 Photos 10 and 11. American kestrel (L) and Anna’s hummingbird (R) on the Specific Plan area, 23 October 2024.
Photos 12 and 13. California scrub-jay (L) and yellow-rumped warbler (R) on the Specific Plan area, 23 October 2024.
7 Photos 14 and 15. Dark-eyed junco and house finches on the Specific Plan area, 23 October 2024.
8 Photos 16 and
17. Great egret
and northern
flicker on the
Specific Plan area,
23 October 2024.
9 Photos 18 and 19.
Song sparrow and
lesser goldfinch on the
Specific Plan area, 23
October 2024.
10 Photos 20 and 21.
White-crowned sparrow
and golden-crowned
sparrow on the Specific
Plan area, 23 October
2024.
11 Photos 22 and 23.
Lincoln’s sparrow (top)
and Nashville warbler
(bottom) on the Specific
Plan area, 23 October
2024.
12 Among the 73 species I detected, 17 (23%) are special-status species (Table 1), including tricolored blackbird, which is listed as Threatened under the California Endangered Species Act, white-tailed kite, which is a California Fully Protected Species. Combining my results with those of Bargas (2022) and Helix (2024), we have detected 119 species of vertebrate wildlife on the Specific Plan area, 100 of which were detected by Bargas over their 40 surveys spanning more than two years, three additional species detected by Helix and 16 more detected by myself (Table 1). Our combined 119 species include 26 special-status species, including two Threatened species under CESA.
Although I saw 73 species of vertebrate wildlife during my brief 3.83-hour survey, the species of wildlife I detected comprised only a sampling of the species that were present during our survey, as was evidenced by the Bargas and Helix surveys. Reconnaissance surveys, such as the one I completed at the project site, cannot support determinations of species’ absence, but they can confirm species’ presence. Such surveys can also be useful for estimating the number of species that were not detected, thereby revealing the degree to which the survey sampled the local wildlife community that was available at the time of the survey. One way to do this is to model the pattern in species detections with time into a survey. The cumulative number of species’ detections increases with increasing survey time, but eventually with diminishing returns (Figure 1). In the case of my survey on the project site, the pattern in the data predicts that had I spent more time on the site, or had I help from more biologists, I would have detected 135 species of vertebrate wildlife during the morning of 23 October 2024, or 62 more species than I actually detected.
The pattern in my data also indicates that my rate of species detections at the project site far exceeded the upper bound of the 95% confidence interval I estimated from 52 surveys at other project sites that I have surveyed in the Sacramento-San Joaquin Valley since 2019 (Figure 1). In other words, wildlife species richness at the project site far exceeds the species richness my surveys indicated at other project sites in the region, despite the agricultural activities on the Specific Plan area.
The Specific Plan area supports many species of wildlife, including many more than I could detect during a brief reconnaissance survey. However, although this modeling approach is useful for more realistically representing the species richness of the site at the time of a survey, it cannot represent the species richness throughout the year or across multiple years because many species are seasonal or even multi-annual in their movement patterns and in their occupancy of habitat. I surveyed only in October, and therefore I was unlikely to see some of the species that would use the site in winter, spring or summer.
13 Table 1. Species of wildlife observed by Bargas during 40 surveys from March 2019 to July 2021, by Helix on 7 and 8 March 2023, and by myself (KSS) 3.83 hours on the morning of 23 October 2024.
Common name Species name Status1 Bargas Helix KSS Notes Western fence lizard Sceloporus occidentalis X
Red-eared slider Trachemys scripta elegans Non-native X X Giant gartersnake Thamnophis gigas FT, CT X2
Snow goose Anser caerulescens X
Canada goose Branta canadensis X X X Low-flying flocks Cinnamon teal Spatula cyanoptera X
Northern shoveler Anas clypeata X Just off site
Gadwall Mareca strepera X
Mallard Anas platyrhynchos X X X
California quail Callipepla californica X
Wild turkey Meleagris gallopavo X
Ring-necked pheasant Phaianus colchicus Non-native X
Pied-billed grebe Podilymbus podiceps X
Rock pigeon Columba livia Non-native X X X Hundreds
Band-tailed pigeon Patagioenas fasciata X
Eurasian collared-dove Streptopelia decaocto Non-native X X Mourning dove Zenaida macroura X X X
White-throated swift Aeronautes saxatalis X
Anna’s hummingbird Calypte anna X X
Rufous hummingbird Selasphorus rufus BCC X
American coot Fulica americana X X
Black-necked stilt Himantopus mexicanus X Just off site Killdeer Charadrius vociferus X X
Whimbrel Numenius phaeopus X
Greater yellowlegs Tringa melanoleuca X Just off site Western gull Larus occidentalis BCC X
Double-crested cormorant Nannopterum auritum TWL X X X
American white pelican Pelacanus erythrorhynchos SSC1 X X American bittern Botaurus lentiginosus X
Great blue heron Ardea herodias X X X
14 Common name Species name Status1 Bargas Helix KSS Notes Great egret Ardea alba X X X
Snowy egret Egretta thula X X X
White-faced ibis Pledagis chihi TWL X
Turkey vulture Cathartes aura BOP X X X
Osprey Pandion haliaetus TWL, BOP X X
White-tailed kite Elanus leucurus CFP, BOP X X Two pairs Northern harrier
Circus cyaneus BCC, SSC3,
BOP
X X Harassed by yellow-
headed blackbirds
Cooper’s hawk Accipiter cooperii TWL, BOP X X X
Red-shouldered hawk Buteo lineatus BOP X X
Swainson’s hawk Buteo swainsoni CT, BOP X
Red-tailed hawk Buteo jamaicensis BOP X X X
Rough-legged hawk Buteo lagopus BOP X
Great horned owl Bubo virginianus BOP X X
Belted kingfisher Ceryle alcyon X
Acorn woodpecker Melanerpes formicivorus X X X
Downy woodpecker Dryobates pubescens X
Nuttall’s woodpecker Picoides nuttallii BCC X X X
Northern flicker Colaptes auratus X X X
American kestrel Falco sparverius BOP X X Several
Peregrine falcon Falco peregrinus BOP X Foraging
Prairie falcon Falco mexicanus TWL, BOP X
Western kingbird Tyrannus verticalis X X
Black phoebe Sayornis nigricans X X X
Say’s phoebe Sayornis saya X X X
California scrub-jay Aphelocoma californica X X X
Yellow-billed magpie Pica nuttalli BCC X X X
American crow Corvus brachyrhynchos X X X Many
Common raven Corvus corax X X X
Oak titmouse Baeolophus inornatus BCC X X X
Horned lark Eremophila alpestris X X Many
Tree swallow Tachycineta bicolor X X
15 Common name Species name Status1 Bargas Helix KSS Notes Violet-green swallow Tachycineta thalassina X
Northern rough-winged
swallow Stelgidopteryx serripennis
X
Barn swallow Hirundo rustica X
Cliff swallow Petrochelidon pyrrhonota X
Bushtit Psaltriparus minimus X X
Ruby-crowned kinglet Regulus calendula X X
Golden-crowned kinglet Regulus satrapa X
Cedar waxwing Bombycilla cedrorum X X
Phainopepla Phainopepla nitens X
White-breasted nuthatch Sitta carolinensis X X X
Bewick’s wren Thryomanes bewickii X X
House wren Troglodytes aedon X
Northern mockingbird Mimus polyglottos X X
European starling Sturnus vulgaris Non-native X X X
Western bluebird Sialia mexicana X X X
American robin Turdus migratorius X X
House sparrow Passer domesticus Non-native X X
American pipit Anthus rubescens X X
House finch Haemorphous mexicanus X X X
Lesser goldfinch Spinus psaltria X X X
American goldfinch Spinus tristis X X
Lark sparrow Chondestes grammacus X
Dark-eyed junco Junco hyemalis X X
White-crowned sparrow Zonotrichia leucophrys X X X Many Golden-crowned sparrow Zonotrichia atricapilla X X
Savannah sparrow Passerculus sandwichensis X X
Modesto song sparrow Melospiza melodia SSC3 X X
Lincoln’s sparrow Melospiza lincolnii X X
California towhee Melozone crissalis X
Spotted towhee Pipilo maculatus X
Yellow-headed blackbird X. xanthocephalus SSC3 X X Many 16 Common name Species name Status1 Bargas Helix KSS Notes Western meadowlark Sturnella neglecta X X X
Hooded oriole Icterus cucullatus X
Bullock’s oriole Icterus bullockii BCC X
Red-winged blackbird Agelaius phoeniceus X X X
Tricolored blackbird Agelaius tricolor
CT, BCC,
SSC1
X
Multiple small flocks
Brown-headed cowbird Molothrus ater X
Brewer’s blackbird Euphagus cyanocephalus X X X
Great-tailed grackle Quiscalus mexicanus X X Flock
Orange-crowned warbler Oreothlypis celata X
Nashville warbler Vermivora ruficapilla X
Common yellowthroat Geothlypis trichas X
Yellow warbler Setophaga petechia SSC2 X
Yellow-rumped warbler Setophaga coronata X X X Many
Black-headed grosbeak Pheucticus melanocephalus X
Blue grosbeak Passerina caerulea X
Black-tailed jackrabbit Lepus californicus X X X
Desert cottontail Sylvilagus audubonii X One a roadkill Eastern fox squirrel Sciurus niger X
California ground squirrel Otospermophilus beecheyi X X Raccoon Procyon lotor X One a roadkill
Striped skunk Mephitis mephitis X
American mink Neovison vison X
River otter Lontra canadensis X
North American beaver Castor canadensis X
Bobcat Lynx rufus X
Coyote Canis latrans X
Gray fox Urocyon cinereoargenteus X
1 Listed as FT or FE = federal threatened or endangered, CT or CE = California threatened or endangered, CFP = California Fully Protected (CFG Code 3511), SSC = California Species of Special Concern, BCC = U.S. Fish and Wildlife Service Bird of Conservation Concern with priorities 1, 2 and 3, TWL = Taxa to Watch List (Shuford and Gardali 2008), and BOP = Birds of Prey (California Fish and Game Code 3503.5). 2 Eric Hansen detected eDNA on site. 17 Figure 1. Actual
and predicted
relationships
between the
number of
vertebrate
wildlife species
detected and my
elapsed survey
time on 23
October 2024.
At least a year’s worth of surveys would be needed to more accurately report the number of vertebrate species that occur at the Specific Plan area, but I only my one brief diurnal survey. However, by use of an analytical bridge, a modeling effort applied to a more expansive data set from a research site can predict the number of vertebrate wildlife species that likely make use of the Upper Westside Specific Plan area over the longer term. As part of my research, I completed 41 diurnal surveys on the Kassis property in Rancho Cordova, California. I used binoculars and otherwise the methods were the same as the methods I used on the Specific Plan area. I selected the Kassis data set as the basis of an analytical bridge because the species richness I detected there in my initial survey was similar to that of the Upper Westside Specific Plan area. I tallied new species detected with each sequential survey, and then related the cumulative species detected to the hours used to accumulate my counts of species detected. I used combined quadratic and simplex methods of estimation in Statistica to estimate least- squares, best-fit nonlinear models of the number of cumulative species detected regressed on hours of survey: 𝑅̂ =
1 1 𝑎⁄ +𝑏×(𝐻𝑜𝑢𝑟𝑠)𝑐 , where 𝑅̂ represented cumulative
species richness detected. The coefficient of determination, r2, was 0.98, indicating the model was an excellent fit to the data (Figure 2).
0 50 100 150 200 250 300
Minutes into survey
0 10
20 30
40 50
60 70
80 Cumulative number of wildlife species detected
Model prediction
r2 = 0.99, loss = 379.5
95% CI of visual-
scan surveys 2019-2024
Actual count of species
18 Figure 2. Cumulative
number of species of
vertebrate wildlife detected
with increasing number of
hours of survey at the Kassis
site in Rancho Cordova,
California, which was
surveyed 41 times from 3
December 2020 through 27
October 2023.
The model-predicted asymptote of species richness at the Kassis site was 180 following many more hours of visual-scan surveys than I actually completed. On average I would have detected 53.8 species over my first 3.83 hours of surveys at Kassis (3.83 hours to match the 3.83 hours I surveyed at the Upper Westside Specific Plan area during daylight), which composed 29.9% of the predicted total number of species I would detect with a much larger survey effort at Kassis. Given the example illustrated in Figure 2, the 73 species I detected after 3.83 hours of diurnal survey on the Upper Westside Specific Plan area likely represented 29.9% of the species to be detected after many more visual-scan surveys over another year or longer. With many more repeat surveys through the year, I would likely detect 73 0.299⁄ = 244 species of vertebrate wildlife on the Upper Westside Specific Plan area. Assuming my ratio of special-status to non- special-status species was to hold through the detections of all 244 predicted species, then continued surveys would eventually detect 54 special-status species of vertebrate wildlife.
I applied the same analytical approach to special-status species, where at Kassis I detected 34 special-status species after 157 hours across 41 surveys. The model- predicted asymptote of special-status species richness at Kassis was 36 following many more hours of visual-scan surveys than I actually completed (Figure 3). On average I would have detected 6.45 special-status species over my first 3.83 hours of surveys at Kassis (again, the 3.83 hours used here is to match the 3.83 hours I surveyed on the Upper Westside Specific Plan area), which composed 17.9% of the predicted total number of special-status species I would detect with a much larger survey effort at Kassis. Given the example illustrated in Figure 3), the 17 special-status species I detected after 3.83 hours of survey on the Upper Westside Specific Plan area likely represented 17.9% of the special-status species to be detected after many more visual- 0 20 40 60 80 100 120 140 160 180
Hours of survey
0 20
40 60
80 100
120
140Cumulative number of wildlife species detected
Model prediction
r2 = 0.98, loss = 366
Actual count of species
19 scan surveys over another year or longer. With many more repeat surveys through the year, I would likely detect 17 0.179⁄ = 95 special-status species of vertebrate wildlife on the Upper Westside Specific Plan area.
Figure 3. Cumulative
number of special-status
species of vertebrate wildlife
detected with increasing
number of hours of survey at
the Kassis site in Rancho
Cordova, California, which
was surveyed 41 times from
3 December 2020 through 27
October 2023.
Because my predictions of 244 species of vertebrate wildlife including 54 to 95 special- status species of vertebrate wildlife are derived from daytime visual-scan surveys, and would detect few nocturnal mammals such as bats, the true number of species composing the wildlife community of the Upper Westside Specific Plan area must be larger. My reconnaissance survey combined with the surveys of Bargas (2022) and Helix (2024) have so far detected fewer than half of the vertebrate wildlife species that occur on the Specific Plan area, and between a third to half the number of special-status species that occur there. The wildlife community has yet to be inventoried, and therefore has yet to be accurately characterized as part of the existing environmental setting. More surveys are needed, as the wildlife community is far richer in species than depicted in Helix (2024) and the DEIR.
Known for certain is that the project Upper Westside Specific Plan area supports Swainson’s hawk and tricolored blackbird, both species of which are listed as Threatened under the California Endangered Species Act. Helix (2024) also reports the presence of the federally- and state-listed threatened giant gartersnake on the Specific Plan area. It also supports yellow warbler, which is considered by the California Department of Fish and Wildlife to be a Species of Special Concern with priority level 2.
Also certainly present is Bullock’s oriole, which is listed by the U.S. Fish and Wildlife Service as a Bird of Conservation Concern. Double-crested cormorants are present, as are multiple species protected under California’s Birds of Prey statute. As my modeling 0 20 40 60 80 100 120 140 160 180
0 5
10 15
20 25
30 35
Hours of survey
Cumulative number of special-status
species of wildlife detected
Model prediction
r2 = 0.97, loss = 48.3
Actual count of species
20 suggests, many additional special-status species use the site, but I just did not have the fortune to see them on the project site during my survey.
EXISTING ENVIRONMENTAL SETTING
The first step in analysis of potential project impacts to biological resources is to accurately characterize the existing environmental setting, including the biological species that use the site, their relative abundances, how they use the site, key ecological relationships, and known and ongoing threats to those species with special status. A reasonably accurate characterization of the environmental setting can provide the baseline against which to analyze potential project impacts and to formulate appropriate mitigation measures. For these reasons, characterization of the environmental setting, including the project site’s regional setting, is one of CEQA’s essential analytical steps.
Methods to achieve this first step typically include (1) surveys of the site for biological resources, and (2) reviews of literature, databases and local experts for documented occurrences of special-status species. In the case of the proposed project, these required steps remain incomplete and misleading.
Environmental Setting Informed by Field Surveys
To CEQA’s primary objective to disclose potential environmental impacts of a proposed project, the analysis should be informed of which biological species are known to occur at the project site or nearby, and which special-status species are likely to occur, as well as the limitations of the survey effort directed to the site. Analysts need this information to characterize the environmental setting as a basis for opining on, or predicting, potential project impacts to biological resources.
Bargas (2022) committed to a serious survey effort of the Specific Plan area, and documented the presence of multiple special-status species. It is unfortunate, however, that Bargas (2022) refers the reader to other reports that purportedly include the details of study methods. These other reports are not provided with the DEIR, so I am unable to assess the methods, which makes it very difficult to assess Bargas’s findings.
Helix (2024) surveyed the Specific Plan area only on two consecutive days, and like Bargas, fails to report survey start times and survey duration, which are critical methodological details that the reader needs in order to assess the survey findings. Helix detected fewer than half the number of species detected by Bargas, but it is unreported exactly where Helix surveyed or for how long. Nonetheless, Helix (2024) detected three more species of wildlife that Bargas did not.
Although 102 species of vertebrate wildlife were detected by Bargas (2022) and Helix (2024), the DEIR does not summarize the survey findings into a coherent characterization of the wildlife community as part of the existing environmental setting.
Most of the species that truly occur in the area are never mentioned, nor is the species richness or biological diversity of the area summarized. The result is an unfortunate insinuation that the Specific Plan area is of low overall value to wildlife. My survey 21 results indicate the opposite, which is that despite the annual disking of most of the acreage on the Specific Plan area, the area is inherently species-rich.
Environmental Setting Informed by Desktop Review
The purpose of literature and database review, and of consulting with local experts, is to inform the reconnaissance-level survey, to augment it, and to help determine which protocol-level detection surveys should be implemented. Analysts need this information to identify which species are known to have occurred at or near the project site, and to identify which other special-status species could conceivably occur at the site due to geographic range overlap and site conditions. This step is important because the reconnaissance surveys are not going to detect all of the species of wildlife that make use of the site. This step can identity those species yet to be detected at the site but which have been documented to occur nearby or whose available habitat associations are consistent with site conditions. Some special-status species can be ruled out of further analysis, but only if compelling evidence is available in support of such determinations.
First Bargas (2022:22) and then Helix (2024:18-19) established an initial pool of special-status species considered for inclusion in their respective analyses of occurrence based on queries of CNDDB occurrence records. It is unclear to what spatial extent the CNDDB queries were made, but regardless this screening step is flawed. CNDDB is not designed to support absence determinations or to screen out species from characterization of a site’s wildlife community. As noted by CNDDB, “The CNDDB is a positive sighting database. It does not predict where something may be found. We map occurrences only where we have documentation that the species was found at the site.
There are many areas of the state where no surveys have been conducted and therefore there is nothing on the map. That does not mean that there are no special status species present.” And in its letter of 6 November 2020 to the County, CDFW writes, “Please note that CDFW’s CNDDB is not exhaustive in terms of the data it houses, nor is it an absence database. CDFW recommends that it be used as a starting point in gathering information about the potential presence of species within the general area of the Project site.” Bargas (2022), Helix (2024) and the DEIR misuse CNDDB.
CNDDB relies entirely on volunteer or permit reporting from biologists who were allowed access to whatever properties they report from. Many properties have never been surveyed by biologists. Many properties have been surveyed, but the survey outcomes never reported to CNDDB. Many properties have been surveyed multiple times, but not all survey outcomes reported to CNDDB. Furthermore, CNDDB is interested only in the findings of special-status species, which means that species more recently assigned special status will have been reported many fewer times to CNDDB than were species assigned special status since CNDDB’s inception. The lack of CNDDB records for species only recently assigned special status would have been due to insufficient time having elapsed since the assignments. And because negative findings are not reported to CNDDB, CNDDB cannot provide the basis for estimating occurrence likelihoods, either. The DEIR’s analysis of special-status species occurrence likelihoods is fundamentally flawed.
22 The DEIR is also internally inconsistent in its occurrence likelihood determinations (Table 2). Bargas (2022) analyzes the occurrence potential of only 22 species of vertebrate wildlife, whereas Helix (2024) does so for 30 species and the DEIR does so for 36 species. Bargas, Helix and the DEIR agree that five species are unlikely to occur, and they agree on four species known or suspected to be present, but determinations of occurrence likelihood vary among the other species considered. Bargas’s determinations mostly comport with my analysis of occurrence records, although Bargas’s determination of low likelihood of giant gartersnake occurrence does not comport with its own finding of eDNA evidence of the snake right in the middle of the Specific Plan area. Helix determines 15 species will not occur or are not expected, yet three of these are assigned moderate potential by Bargas and I saw two of these species on the Specific Plan area on October 23rd.
In my assessment of database review and site visit, 102 special-status species of wildlife are known to occur near enough to the Specific Plan area to be analyzed for potential to occur at one time or another (Table 2). Of these 102 species, 31 (30%) have been documented on the Specific Plan area (I confirmed 17 of these), and 23 (22.5%) have been documented in databases within 1.5 miles of the Specific Plan area (‘Very close’), 20 (19.6%) within 1.5 and 4 miles (‘Nearby’), and another 23 (22.5%) within 4 to 30 miles (‘In region’). Three quarters (74) of the special-status species in Table 2 have been reportedly seen within 4 miles of the Specific Plan area. Therefore, the Specific Plan area supports multiple special-status species of wildlife, and likely supports many more.
POTENTIAL BIOLOGICAL IMPACTS
An impacts analysis should consider whether and how the proposed project would affect members of a species, larger demographic units of the species, the whole of a species, and ecological communities. In the following I describe three types of impacts likely to result from the project, and which need to be analyzed in a revised DEIR.
INTERFERENCE WITH EXISTING HCPs
The DEIR fails to consider the need for the Natomas Basin Habitat Conservation Plan (NBHCP) to be reevaluated and new incidental take permits (ITPs) issued with a new conservation strategy. According to the DEIR (p. 7-37), “While the UWSP area is in the Natomas Basin, the County is not a participant in either the NBHCP or the MAP HCP.
Therefore, the applicant (and any future applicants for buildout of the UWSP area) is not eligible for the take coverage granted by USFWS and CDFW under the NBHCP or MAP HCP. The proposed UWSP is also outside of the planned development areas of the NBHCP and MAP HCP and potential impacts resulting from development allowed under the proposed UWSP were not considered in the NBHCP.” These conclusions, however, lack the analysis of whether the Specific Plan would require a reevaluation of the NBHCP. The 2003 NBHCP Implementation Agreement states, “…prior to approval of any related rezoning or prezoning, such future urban development shall trigger a reevaluation of the Plan and Permits, a new effects analysis, potential amendments and/or revisions to the Plan and Permits, a separate conservation strategy and issuance of Incidental Take Permits to the permittee for that additional development…” 23 Table 2. Occurrence likelihoods of special-status bird species at or near the proposed project site, according to eBird/iNaturalist records (https://eBird.org, https://www.inaturalist.org) and on-site survey findings, where ‘Very close’ indicates within 1.5 miles of the site, “nearby” indicates within 1.5 and 4 miles, and “in region” indicates within 4 and 30 miles, and ‘in range’ means the species’ geographic range overlaps the site. Entries in Bold identify species I detected.
Common name
Species name
Status1
Occurrence potential
Bargas
2022
Helix 2024
DEIR
Data base
records,
Site visits
Conservancy fairy
shrimp
Branchinecta
conservatio
FE Absent Won’t occur Not expected In range
Vernal pool fairy shrimp Branchinecta lynchi FT Low Won’t occur Low In region Vernal pool tadpole
shrimp
Lepidurus packardi FE Absent Won’t occur Not expected In region Valley elderberry
longhorn beetle
Desmocerus californicus
dimorphus
FT Low Not expected /
Habitat present
Moderate In region
Monarch Danaus plexippus FC Won’t occur Very close
Crotch’s bumble bee Bombus crotchii CCE Won’t occur Not expected In region Northwestern pond
turtle
Emys marmorata SSC High May occur /
Habitat present
Moderate Very close
Giant gartersnake Thamnophis gigas FT, CT Low Present / Habitat present
High On site
Brant Branta bernicla SSC2 In region
Cackling goose
(Aleutian)
Branta hutchinsii
leucopareia
WL Moderate Won’t occur Low Nearby
Redhead Aythya americana SSC2 Nearby
Barrow’s goldeneye Bucephala islandica SSC Very close Western grebe Aechmophorus
occidentalis
BCC Nearby
Clark’s grebe Aechmophorus clarkii BCC Nearby
Western yellow-billed
cuckoo
Coccyzus americanus
occidentalis
FT, CE Absent Won’t occur Not expected In region
Black swift Cypseloides niger SSC3, BCC Nearby
24 Common name
Species name
Status1
Occurrence potential
Bargas
2022
Helix 2024
DEIR
Data base
records,
Site visits
Vaux’s swift Chaetura vauxi SSC2 Very close
Calliope hummingbird Selasphorus calliope BCC Very close Rufous hummingbird Selasphorus rufus BCC On site
Allen’s hummingbird Selasphorus sasin BCC Nearby
Lesser sandhill crane Antigone canadensis
canadensis
SSC3 In region
Greater sandhill crane Antigone canadensis
tabida
CT, FP Low In region
Mountain plover Charadrius montanus SSC2, BCC Not expected Low In region Snowy plover Charadrius nivosus BCC Nearby
Western snowy plover Charadrius n. nivosus FT, SSC Absent Won’t occur Not expected In region Long-billed curlew Numenius americanus WL Very close Marbled godwit Limosa fedoa BCC Nearby
Pectoral sandpiper Calidris melanotos BCC Nearby
Short-billed dowitcher Limnodromus griseus BCC Very close Lesser yellowlegs Tringa flavipes BCC Very close
Willet Tringa semipalmata BCC Nearby
Franklin’s gull Leucophaeus pipixcan BCC Nearby
Western gull Larus occidentalis BCC On site
California gull Larus californicus BCC, WL On site, ebird California least tern Sternula antillarum
browni
FE, CE, FP In region
Black tern Chlidonias niger SSC2, BCC Nearby
Common loon Gavia immer SSC Very close
Double-crested
cormorant
Phalacrocorax auritus WL Won’t occur Not expected On site American white pelican Pelacanus
erythrorhynchos
SSC1 Present High On site
25 Common name
Species name
Status1
Occurrence potential
Bargas
2022
Helix 2024
DEIR
Data base
records,
Site visits
California brown pelican Pelecanus occidentalis
californicus
FP In region
Least bittern Ixobrychus exilis SSC2 Very close
White-faced ibis Plegadis chihi WL Moderate Not expected / Habitat present
Moderate On site ebird
Turkey vulture Cathartes aura BOP On site
Osprey Pandion haliaetus WL, BOP Present Present On site White-tailed kite Elanus luecurus CFP, BOP Present High / Habitat present
High On site
Golden eagle Aquila chrysaetos BGEPA, CFP,
BOP, WL
Very close
Northern harrier Circus cyaneus BCC, SSC3,
BOP
Present Present Present On site
Sharp-shinned hawk Accipiter striatus WL, BOP Very close Cooper’s hawk Accipiter cooperii WL, BOP Present /
Habitat present
Present On site
Bald eagle Haliaeetus
leucocephalus
CE, BGEPA,
BOP
Very close
Red-shouldered hawk Buteo lineatus BOP On site
Swainson’s hawk Buteo swainsoni CT, BOP Present High / Present High On site Red-tailed hawk Buteo jamaicensis BOP On site
Ferruginous hawk Buteo regalis WL, BOP Not expected Low Very close Rough-legged hawk Buteo lagopus BOP On site
Barn owl Tyto alba BOP On site, eBird
Western screech-owl Megascops kennicotti BOP Very close Great horned owl Bubo virginianus BOP On site
Burrowing owl Athene cunicularia BCC, SSC2,
BOP
Moderate May occur /
Habitat present
Moderate On site
26 Common name
Species name
Status1
Occurrence potential
Bargas
2022
Helix 2024
DEIR
Data base
records,
Site visits
Long-eared owl Asio otus BCC, SSC3,
BOP
In region
Short-eared owl Asia flammeus BCC, SSC3,
BOP
Nearby
Northern saw-whet owl Aegolius acadicus BOP Nearby
Lewis’s woodpecker Melanerpes lewis BCC Very close
Nuttall’s woodpecker Picoides nuttallii BCC On site
American kestrel Falco sparverius BOP On site
Merlin Falco columbarius WL, BOP Not expected Low Very close Peregrine falcon Falco peregrinus BOP Low On site
Prairie falcon Falco mexicanus WL, BOP On site
Olive-sided flycatcher Contopus cooperi BCC, SSC2 Very close Willow flycatcher Empidonax trailii CE Very close
Vermilion flycatcher Pyrocephalus rubinus SSC2 Nearby Least Bell’s vireo Vireo bellii pusillus FE, CE Absent Won’t occur Not expected In region Loggerhead shrike Lanius ludovicianus SSC2 High High / Habitat present
High Very close
Yellow-billed magpie Pica nuttalli BCC On site
Oak titmouse Baeolophus inornatus BCC On site
Bank swallow Riparia riparia CT Moderate Won’t occur Low Very close Purple martin Progne subis SSC2 May occur /
Habitat present
Moderate On site, eBird
Wrentit Chamaea fasciata BCC Very close
California thrasher Toxostoma redivivum BCC Nearby
Cassin’s finch Haemorhous cassinii BCC In region
Lawrence’s goldfinch Spinus lawrencei BCC Nearby
Grasshopper sparrow Ammodramus
savannarum
SSC2 Won’t occur Low Nearby
27 Common name
Species name
Status1
Occurrence potential
Bargas
2022
Helix 2024
DEIR
Data base
records,
Site visits
Modesto song sparrow Melospiza melodia
mailliardi
SSC3 High / Habitat
present
High On site
Black-chinned sparrow Spizella atrogularis BCC In region Gray-headed junco Junco hyemalis caniceps WL In region Oregon vesper sparrow Pooecetes gramineus
affinis
SSC2 In range
Yellow-breasted chat Icteria virens SSC3 Very close
Yellow-headed blackbird Xanthocephalus
xanthocephalus
SSC3 High May occur /
Habitat present
Moderate On site
Bullock’s oriole Icterus bullockii BCC On site
Tricolored blackbird Agelaius tricolor CT, BCC, SSC1 Moderate May occur / Habitat present
Moderate On site
Virginia’s warbler Leiothlypis virginiae WL, BCC In region Yellow warbler Setophaga petechia SSC2 High High On site Summer tanager Piranga rubra SSC1 In region
Yuma myotis Myotis yumanensis WBWG:LM In region
Small-footed myotis Myotis ciliolabrum WBWG: M In range Canyon bat Parastrellus hesperus WBWG:M In region
Silver-haired bat Lasionycteris
noctivagans
WBWG:M Low Nearby
Hoary bat Lasiurus cinereus WBWG:M Low Nearby
Western red bat Lasiurus blossevillii SSC, WBWG:H In region Townsend’s big-eared
bat
Corynorhinus
townsendii
SSC, WBWG:H In range
Pallid bat Antrozous pallidus SSC, WBWG:H May occur /
Habitat present
Moderate In region
American badger Taxidea taxus SSC Won’t occur Not expected In region 28 1 Listed as FT or FE = federal threatened or endangered, FC = federal candidate for listing, BCC = U.S. Fish and Wildlife Service Bird of Conservation Concern, CT or CE = California threatened or endangered, CCT or CCE = Candidate California threatened or endangered, CFP = California Fully Protected (California Fish and Game Code 3511), SSC = California Species of Special Concern (not threatened with extinction, but rare, very restricted in range, declining throughout range, peripheral portion of species' range, associated with habitat that is declining in extent), SSC1, SSC2 and SSC3 = California Bird Species of Special Concern priorities 1, 2 and 3, respectively (Shuford and Gardali 2008), WL = Taxa to Watch List (Shuford and Gardali 2008), and BOP = Birds of Prey (CFG Code 3503.5), and WBWG = Western Bat Working Group with priority rankings, of low (L), moderate (M), and high (H).
29 The need for a reevaluation of NBHCP’s conservation strategy was recognized by Leighann Moffitt, County Planning Director, in a 26 November 2019 letter to the County Supervisors regarding PLNP2018-00284. Initiation of the Upper Westside Specific Plan Process. The County’s letter cites United States District Judge David F. Levi’s 7 September 2005 warning that “The NBHCP anticipates that development by the City and Sutter will be limited to 15,517 acres – 8,050 acres within the City [of Sacramento] and 7,467 acres in Sutter County – and provides that approval of any development beyond this limit – whether by the City and Sutter or by other entities – will trigger reevaluation and possible amendment of the plan, and could result in suspension or revocation of the City and Sutter permits.” The letter goes on to conclude that “Staff recognizes that any new development in the Natomas Basin above the 17,500 acres already approved and permitted by the Natomas Basin and Metro Air Park HCPs will require careful coordination and consideration of existing approved developments, their mitigation strategies, and the regional conservation context.” Despite this recognition of the need for NBHCP reevaluation, it appears that no such reevaluation has occurred.
The need to reevaluate the NBHCP in the face of the proposed Upper Westside Specific Plan is obvious considering the frontloading of development and the holding of only 5,185.78 acres of mitigation land in the Natomas Basin as of 2023 (see the Conservancy’s 2023 audit). The Upper Westside Specific Plan occurs within the Natomas Basin and it supports special-status species that are covered by the NBHCP’s ITP. The land of the Upper Westside Specific Plan therefore provides candidate mitigation opportunities for the NBHCP to meet its mitigation obligations.
The NBHCP’s conservation strategy was not formulated with the proposed Specific Plan in mind. There was no effects analysis inclusive of the Specific Plan when the NBHCP’s conservation strategy was planned out, nor does the DEIR provide the needed effects analysis inclusive of the Specific Plan’s development of 1,532 acres and the NBHCP- planned development of 17,500 acres. This is important because the Specific Plan would degrade the existing NBHCP’s conservation strategy. Indeed, ICF (2023:3-21; https://natomasbasin.org/wp-content/uploads/2014/05/2004-ggs-monitoring- report.pdf) posits, “The most significant corridors spanning the Basin from north to south are the primary drainages managed by Reclamation District 1000; these include … West Drainage Canal (including Fisherman’s Lake) ...” It is the West Drainage Canal that abuts the northern and eastern sides of the Specific Plan area. ICF (2024) identifies giant gartersnake habitat within the Specific Plan area. The Specific Plan would eliminate land that remains available for mitigation from within the Natomas Basin, and direct and indirect takings of giant gartersnake would impair the NBHCP’s conservation strategy for giant gartersnake, which according to ICF (2023) is “to create a system of reserves that contain both wetland and upland components that will support viable populations of Swainson’s hawk (Buteo swainsoni), giant gartersnake (Thamnophis gigas), and other species covered under the Plan.”
The requirements of the 2003 NBHCP Implementation Agreement must be taken seriously. As revealed by Biological Effectiveness Monitoring, there is no room for additional mistakes in the NBHCP’s conservation strategy. The covered species given highest priority in the NBHCP – giant gartersnake and Swainson’s hawk – are showing 30 signs of steady decline and of population stress, respectively. According to Biological Effectiveness Monitoring (ICF 2024: Figure 3-14), the probability of capture of giant gartersnakes in HCP reserves steadily declined from 2011 through 2022. Estimating a trend line through the mean probability of capture in Figure 3-14 reveals a 40% decline in only 11 years. Similarly, estimating a trend line to the mean number of monitored sites occupied by giant garter snake from 2011 through 2022 reveals a 43% decline in only 11 years (ICF 2024: Figure 3-15).1
Because ICF (2024: Figure 3-15) did not fit a trend line to the change in indicators of giant gartersnake abundance, I fit a linear regression model to their data, specifically to the mean number of sites occupied by giant gartersnakes in the Natomas Basin (Figure 4). A model fit to the data is useful for prediction, so long as the prediction is not made too far beyond the scope of inference of the model. In this case, the model predicts that based on its current trend, giant gartersnake will be extirpated from the Natomas Basin by the year 2045, or 8 years short of the end of its permit period. It is possible, the linear pattern of decline will change. The rate of decline might slow should conditions improve for giant gartersnakes in the Natomas Basin. Alternatively, the rate of decline might accelerate if the species’ habitat is lost, degraded or further fragmented by development projects such as the proposed project.
Figure 4. Mean number
of sites occupied by giant
gartersnakes in the
Natomas Basin by year.
Data source: ICF (2024).
1 Examining the trend in relative abundance indicators since the start of monitoring in 2002 is not possible based on current reporting, because the metrics of abundance changed from density in 2002 - 2004 to capture probability and site occupancy in 2011-2022, and because no reports are posted for the years 2005 through 2010. Only use of a common metric would enable examination of the population trend of giant gartersnakes within the Natomas Basin from 2002 through the present.
Y = 3059.8479 – 1.4958X
r2 = 0.60, SE = 2.47
P = 0.0012
Year
2010 2012 2014 2016 2018 2020 2022 2024
25 30
35 40
45 50
55 60Mean no. of sites occupied by giant gartersnakes
Predicted year of extirpation = 2045
31 According to Biological Effectiveness Monitoring (ICF 2024: Figure 4-7), the number of Swainson’s hawk nest sites increased steadily from 2001 through 2022, from 46 nest sites to 68 – a 48% increase. However, over the same period, the number of Swainson’s hawks fledged per successful nest declined steadily from an average of 1.79 in 1999 to
1.14 in 2022, which was a 36% decrease. These data are displayed along with a best-fit linear regression model in Figure 4-9 of ICF (2024). Projecting the linear regression model forward to 2028, the number of fledglings per successful nest is predicted to be half of what it was in 1999. According to the data, the average number of fledglings per successful nest four years from now will be only 50% of what it was 25 years ago, but nevertheless there will be more occupied territories (nest sites).
More revealing than the graphs in ICF (2024), the data collected via Biological Effectiveness Monitoring reveal an important functional relationship between Swainson’s hawk productivity and the number of successful nests within the Natomas Basin (Figure 5). Because the number of fledglings per successful nest varies much less interannually than does the number of successful nests, it is the latter that contributes most to the local Swainson’s hawk population. Even though the number of nest territories (nest sites) has increased through the period of monitoring (ICF 2024: Figure 4-7), the number of fledglings per nest site has not. This is because the annual number of successful nests relates negatively with the annual number of nests without success, especially after excluding data from the years 1999 and 2000, which are obvious outliers (Figure 6). (Data were likely collected using different methods in the outlier years.) Since the earliest years of the NBHCP, the annual number of nests without success have increased in the Natomas Basin, and have increased in variation between years (Figure 7). This increasing variation in the annual number of nests without success has resulted in increasingly greater variation in the annual number of successful nests and hence the annual variation in productivity.
Figure 5. Annual number of
Swainson’s hawk young raised to
fledging regressed on the annual
number of successful nests within the
Natomas Basin reveals a near-
constant 1.43 fledglings per
successful nest. Data source: ICF
(2024).
Y = -0.0008 + 1.4308X
r2 = 0.90, SE = 4.48
P < 0.00001
Successful nests
0 10 20 30 40 50 60
0 10
20 30
40 50
60 70
80 90
Number of young reared to fledging
32 Figure 6. Annual number of Swainson’s hawk successful nests regressed on the annual number of nests without success within the Natomas Basin, including the years 1999 and 2000 (left graph) and excluding the years 1999 and 2000 (right graph).
Data source: ICF (2024).
Figure 7. Annual number of
Swainson’s hawk nests without
success by year. Data source: ICF
(2024).
The increased annual number of Swainson’s hawk nest sites reflects well on the NBHCP, but the functional relationship between the annual number of successful nests and the annual number of nests without success, and the less-varying number of fledglings per successful nest, indicate that the productive capacity of the NBHCP reserve lands has been reached, and that the number of successful nests can be suppressed by overcrowding of Swainson’s hawks of breeding age within the Natomas Basin. 2000 2004 2008 2012 2016 2020 2024
Year
0 10
20 30
40 50
60 Number of nest sites without success
1999
2000
0 10 20 30 40 50 60 70
0 10
20 30
40 50
Number of nest sites without success
Successful nests
Number of nest sites without success
Successful nests
Y = 50.0079 – 0.8454X
r2 = 0.83, SE = 5.72
P < 0.00001
0 10 20 30 40 50 60 70
0 10
20 30
40 50
33 Swainson’s hawks maintain breeding territories, the integrity of which is more stable than is the availability of forage. In other words, even with surplus forage available on enhanced habitat, only so many breeding territories can be established within the available space to exploit the enhanced forage. With the number of breeding territories relatively fixed based on the available space, the more the number of nonbreeding adults crowded into that space, the fewer of the nest attempts will succeed because there will be a lesser share of forage to convert into fledglings. The Specific Plan would further crowd the remaining habitat in the Natomas Basin with more Swainson’s hawk refugees.
I note, however, that Fleishman et al. (2016), after tracking telemetered Swainson’s hawks throughout the Natomas Basin, came to a different conclusion. Fleishman et al. (2016) hypothesized that the availability of suitable nest substrate is the primary limiting factor of the Swainson’s hawk population in the Natomas Basin. My argument against their hypothesis is that the number of occupied territories continued to increase since Fleishman et al. (2016) published their hypothesis, and this increase would serve to indicate there was more available nest substrate than Fleishman et al. realized, at least within the Natomas Basin. The trends in Figures 5–7 suggest to me that lands available for foraging is more limiting within the Natomas Basine, and dispersing Swainson’s hawks are finding fewer opportunities for breeding outside the Natomas Basin. The Specific Plan would worsen this situation.
To more effectively conserve Swainson’s hawks in the Natomas Basin, a change to the conservation strategy of the NBHCP might be warranted. Needed is more habitat within and without the Natomas Basin. Young Swainson’s hawks need to be able to find breeding opportunities outside their natal areas. However, Swainson’s hawks are rapidly losing breeding habitat in San Joaquin County and Yolo County, much of it to development and much of it to agricultural conversions to nut orchards and vineyards.
Furthermore, changes to more intensive agricultural practices and increased efforts to poison ground squirrels are diminishing forage across large portions of the areas used by Swainson’s hawks for decades.
In addition to giant gartersnake, multiple species covered by the NBHCP are showing signs of decline. According to ICF (2023), species on the decline from 2005 through 2022 include northern harrier, loggerhead shrike and burrowing owl. The trend of Pacific pond turtle is unknown because counts of turtles combine individuals of Pacific pond turtles and red-eared slider. It is also difficult to determine the trends of white- faced ibis and tricolored blackbird, partly due to inconsistent trends between metrics and partly due to lack of reported confidence intervals. I did not find any monitoring results for bank swallow, cackling goose, western spadefoot, Valley elderberry longhorn beetle, or multiple other species.
Complicating interpretation of the trends of the other covered species was the change in field methods, which shifted the seasonal weightings of survey results averaged per year.
All tracts within NBHCP reserves had been surveyed once per month through 2017, but afterwards the tracts were surveyed twice per month during April through June, once per month during July and August, never more during September through November, and – but only on tracts with rice fields and wetlands – monthly during December 34 through February (whether surveys were completed in March is unreported). Any species more detectable in spring would have been over-represented in the years following 2017 compared to the years 2005–2017. The same was true for any species partial to rice or wetlands in winter. For example, the graphed increases in white-faced ibis and tricolored blackbird were likely due to the change in field methods (see Figures 5-8 and 5-9 in ICF 2023).
Along with the other covered species, wildlife species not covered by the NBHCP were expected to benefit from the conservation of the two umbrella species – giant gartersnake and Swainson’s hawk. However, the effectiveness monitoring suggests declines of waterfowl as a group, neotropical migrants as a group, shorebirds as a group, and yellow-billed magpie. Again, without reported confidence intervals, some of the trends are difficult to ascertain. Overall, however, very little of the monitoring data indicates the NBHCP and MAPHCP are achieving their conservation objectives. The only covered species that has substantially benefitted from the mitigation measures of the NBHCP is Swainson’s hawk, and this species has benefitted to the maximum degree that it can unless and until more reserve land is acquired and converted to habitat within the Natomas Basin, or more breeding substrate and foraging habitat becomes av available in the Sacramento Valley outside the Natomas Basin.
Considering the foregoing, I concur with CDFW (6 November 2020 letter to Todd Smith, Sacramento County Planning, from Kelley Barker, California Department of Fish and Wildlife), where CDFW’s Kelley Barker writes “robust analysis of whether, in what way, and to what extent the Project may affect future implementation and the continued viability of the NBHCP and MAP HCP in the Natomas Basin is essential to the County’s informed review of the Project.” I entirely agree with Kelley Barker’s recommendations that the effects analysis should include the following:
Persistence of NBHCP and MAP HCP Covered Species in the Natomas Basin Impacts to established reserve land managed by the Natomas Basin Conservancy (TNBC)
Reduction of available reserve land in the Natomas Basin under the NBHCP and MAP HCP (with appropriate buffers and setbacks as detailed in the NBHCP) Reduction of ability for TNBC to establish or enhance Covered Species range and habitats in the southern Natomas Basin.
Continued viability of the land uses in the Natomas Basin as detailed in the NBHCP and MAP HCP
Financial impacts to TNBC and feepayers under the NBHCP and MAP HCP, including the recent action by TNBC Board of Directors and the Sacramento City Council to address related ongoing financial challenges of continuing to implement the required conservation strategy in the Natomas Basin, and Cumulative impact of the Project, in combination with other development in the Natomas Basin approved since 2003 that is outside of the City of Sacramento and Sutter County’s permitted area under the NBHCP (e.g., levee improvements by the Sacramento Area Flood Control Agency and the Greenbriar project).
35 I reiterate that the requirement of the 2003 NBHCP Implementation Agreement that a project such as the Upper Westside Specific Plan triggers a reevaluation of the original NBHCP’s Plan and Permits.
PRODUCTIVE CAPACITY REDUCED BY HABITAT LOSS
Development of the Specific Plan Area would contribute substantially to habitat loss and to habitat fragmentation, which together pose serious problems to wildlife in the region.
Habitat fragmentation and habitat loss have been recognized as the most likely leading causes of a documented 29% decline in overall bird abundance across North America over the last 48 years (Rosenberg et al. 2019). Habitat loss not only results in the immediate numerical decline of wildlife, but it also results in permanent loss of productive capacity. Habitat fragmentation multiplies the negative effects of habitat loss on the productive capacities of biological species by isolating habitat patches from recruitment and by leaving some patches too small to support functionally important demographic units (Smallwood 2001, 2015). None of these impacts, however, are adequately addressed in the DEIR.
In the case of birds, two methods exist for estimating the loss of productive capacity that would be caused by the Specific Plan. One method would involve surveys to count the number of bird nests and chicks produced. The alternative method is to infer productive capacity from estimates of total nest density elsewhere. Two study sites in grassland- wetland-woodland complexes had total bird nesting densities of 32.8 and 35.8 nests per acre (Young 1948, Yahner 1982). However, whereas these estimates might apply to portions of the Project site, they were acquired from far away. To acquire total nest densities closer to conditions in California, I surveyed two research sites through the breeding seasons of 2023 and 2024. I surveyed in grassland, woodlands, wetlands, and thickets of blackberry, elderberry, ornamentals and fig at the two sites in east Yolo County and in Rancho Cordova. I applied total nest density estimates from ground cover types in my studies that best matched the mapped ground cover types of the Specific Plan area (Table 3). Based on these acreages, I estimate the Specific Plan area supports 11,748 nest sites (Table 3).
However, the impact does not end with the immediate loss of nest sites as nest substrate is removed and foraging grounds graded in preparation for impervious surfaces. The reproductive capacity of the Upper Westside Specific Plan would be lost with the loss of nest sites. Assuming 1.39 broods per nest site, which is the average among 322 North American bird species I asked my daughter, Noriko Smallwood, to review, I predict the project would cost California 16,330 nest attempts/year.
The average number of fledglings per nest attempt in Young’s (1948) study was 2.9.
Assuming Young’s (1948) study site typifies bird productivity, the Specific Plan would prevent the production of 47,356 fledglings per year. Assuming an average bird generation time of 5 years, the lost capacity of both breeders and annual fledgling production can be estimated from an equation in Smallwood (2022): {(nests/year × chicks/nest × number of years) + (2 adults/nest × nests/year) × (number of years ÷ years/generation)} ÷ (number of years) = 52,055 birds per year denied to California 36 from the build-out of the Upper Westside Specific Plan. The impact of these losses of avian productivity would be significant, but they are not considered in the DEIR.
Table 3. Estimated numbers of nests by ground cover vegetation types on the area of the Upper Westside Specific Plan.
Cover Acres
Nesting
density
No. of nests
(rounded) Source
Annual grassland 17.31 5.08 88 1
Deciduous orchard 4.38 14.38 63 2
Vineyard 17.23 7.19 124 3
Annual field crops 681.65 1.77 1,207 4
Grain and hay (alfalfa) 792.79 2.54 2,014 5
Pasture 17.91 3.81 68 6
Ruderal 285.5 5.08 1,450 7
Urban (rural) 258.18 21.25 5,486 8
Canals 45.08 0.00 0 9
Valley oak and Fremont cottonwood 35.66 28.79 1,027 10
Created wetlands 43.62 5.08 222 11
Total 2,199.00 11,748
1 K. S. Smallwood 2024 unpubl. data, Grassland/wetland complex in eastern Yolo County 2 K. S. Smallwood 2023 unpubl. data, walnut orchard, Rancho Cordova 3 Best guess half the nest density of orchard (Smallwood 2023, unpublished data) 4 Assumed 25% the density as in grassland
5 Assumed 50% the density as in grassland
6 Assumed 75% the density as in grassland
7 Assumed equal density to grassland
8 K. S. Smallwood 2023 unpubl. data, shrub thickets between orchard and adjacent neighborhood, including blackberries, blue elderberry and fig, Rancho Cordova 9 Best guess
10 K. S. Smallwood 2023 unpubl. data, American River riparian, Rancho Cordova 11 Same as 1
INTERFERENCE WITH WILDLIFE MOVEMENT IN THE REGION
One of CEQA’s principal concerns regarding potential project impacts is whether a proposed project would interfere with wildlife movement in the region. The DEIR devotes very little analysis to the question of whether the Specific Plan would interfere with wildlife movement in the region, limiting discussion to the Pacific Flyway’s role as a migration corridor for birds, and to the roles of canals and ditches in channeling movement of several special-status species. Other than mention of the ditches and canals, missing from the analysis is any consideration of wildlife movement within the region of the Specific Plan area. Birds fly through the local aerosphere of the Specific Plan area, and mammals walk across it.
37 Neither Bargas (2022) nor Helix (2024) implemented any sort of program of observation capable of characterizing movement patterns or determining how and to what degrees wildlife use the Specific Plan area for movement. No methods are described of how Bargas or Helix might have assessed the site in the field for its role in wildlife movement in the region. Other than speculation, there is no analysis. And in fact, I saw plenty of wildlife movement across the project site, mostly of birds headed north or south. I saw hundreds of blackbirds flying across the project site, including red- winged blackbirds, yellow-headed blackbirds and tricolored blackbirds. I saw hundreds of horned larks and American pipits flying across the site, as well as Canada geese, double-crested cormorants and white-faced ibises. The 119 species of wildlife detected by Bargas, Helix and myself would not have been on the Specific Plan area had their members not been able to move to it. The Specific Plan area is obviously important to wildlife movement in the region, and the project would obviously interfere with wildlife movement in the region.
Whether the Specific Plan area includes or is within a wildlife movement corridor is not the only consideration when it comes to the standard CEQA Checklist question of whether the project would interfere with wildlife movement in the region. The primary phrase of the CEQA standard goes to wildlife movement regardless of whether the movement is channeled by a corridor. In fact, a site such as the Specific Plan area is critically important for wildlife movement because it composes an increasingly diminishing area of open space within a growing expanse of anthropogenic uses, forcing more species of volant wildlife to use the area for stopover and staging during migration, dispersal, and home range patrol (Warnock 2010, Taylor et al. 2011, Runge et al. 2014).
The Specific Plan, due to its elimination of 1,532 acres of open space, would cut wildlife off from expansive stopover and staging opportunities in the Specific Plan area, forcing volant wildlife to travel even farther between remaining stopover sites. This impact would be significant, and as the project is currently proposed, it would be effectively unmitigated. In fact, the impact would be worse than usual should Phase 1 of the Specific Plan be sited in the middle of the Specific Plan area, or along the western edge of it. Such siting of Phase 1 would sever existing movement pathways, including of birds using the aerosphere (Photos 24 and 25) and of terrestrial animals moving along the ground (Photo 26). I saw nothing in the DEIR that would prevent this type of siting of Phase 1, resulting in habitat fragmentation.
38 Photos 24 and 25.
One of multiple flocks
of Canada goose flying
along the west side of
the Specific Plan area
(top), and one small
portion of a one of
multiple flocks of
yellow-headed
blackbirds flying north
along the west-central
aspect of the Specific
Plan area (right), 23
October 2024.
39 Photo 26. Three of four members of a coyote family on the Specific Plan area, 23 October 2024. I watched these coyotes travel north for at least 0.5 miles.
HOUSE CAT DEPREDATION
Considering national trends, it is safe to assume that house cats would be introduced to the Upper Westside Specific Plan Area by residents of the proposed residential units.
This is significant because house cats serve as one of the largest sources of avian mortality in North America (Dauphiné and Cooper 2009, Blancher 2013, Loss et al. 2013, Loyd et al. 2017). Loss et al. (2013) estimated 139 million cats in the USA in 2013 (range 114 to 164 million), which killed an estimated 16.95 billion vertebrate wildlife annually (range 7.6 to 26.3 billion). In 2012 there were 0.44 house cats per human, and 122 vertebrate animals were killed per cat, free-ranging members of which killed disproportionately larger numbers of vertebrate wildlife. The DEIR predicts there would be 25,578 new residents in the Specific Plan. The above rates of cat ownership applied to this number of new residents would predict 11,254 new cats, which would kill 1,373,027 vertebrate wildlife per year. Many of the wildlife fatalities caused by house cats would be in neighboring open spaces.
House cats also contribute to downstream loading of Toxoplasma gondii. According to a UC Davis wildlife health research program, “Toxoplasma gondii is a parasite that can infect virtually all warm-blooded animals, but the only known definitive hosts are cats – domesticated and feral house cats included. Cats catch the parasite through hunting rodents and birds and they offload it into the environment through their feces… and …rain that falls on cement creates more runoff than rain that falls on natural earth, which contributes to increased runoff that can carry fecal pathogens to the sea” (http://www.evotis.org/ toxoplasma-gondii- sea-otters/).
Impacts to wildlife from the introduction of house cats into the environment would be highly significant, and yet these impacts are not considered in the DEIR. A fair argument can be made for the need to revise the DEIR with more meaningful review of
40 potential impacts to wildlife due to depredation by free-ranging house cats introduced by residents of the projects in the Specific Plan. An obvious mitigation measure would be to constrain house cat ownership such as requiring cats to remain indoors.
WINDOW COLLISION MORTALITY
The Upper Westside Specific Plan would add 9,356 residential units to open space that is currently habitat to many birds. These new residences would present glass windows to birds attempting to use an essential portion of their habitat – that portion of the gaseous atmosphere that is referred to as the aerosphere (Davy et al. 2017, Diehl et al. 2017). The aerosphere is where birds and bats and other volant animals with wings migrate, disperse, forage, perform courtship and where some of them mate. Birds are some of the many types of animals that evolved wings as a morphological adaptation to thrive by moving through the medium of the aerosphere. The aerosphere is habitat. Indeed, an entire discipline of ecology has emerged to study this essential aspect of habitat – the discipline of aeroecology (Kunz et al. 2008). Many special-status species of birds have been recorded at or near the aerosphere of the Upper Westside Specific Plan area, and I saw many birds using the aerosphere while I surveyed the site. Bird-window collision mortality is a potentially significant impact that warrants analysis.
Window collisions are often characterized as either the second or third largest source or human-caused bird mortality. The numbers behind these characterizations are often attributed to Klem’s (1990) and Dunn’s (1993) estimates of about 100 million to 1 billion bird fatalities in the USA, or more recently by Loss et al.’s (2014) estimate of 365-988 million bird fatalities in the USA or Calvert et al.’s (2013) and Machtans et al.’s (2013) estimates of 22.4 million and 25 million bird fatalities in Canada, respectively. The proposed Project would impose windows in the airspace normally used by birds.
Glass-façades of buildings intercept and kill many birds, but these façades are differentially hazardous to birds based on spatial extent, contiguity, orientation, and other factors. At Washington State University, Johnson and Hudson (1976) found 266 bird fatalities of 41 species within 73 months of monitoring of a three-story glass walkway (no fatality adjustments attempted). Prior to marking the windows to warn birds of the collision hazard, the collision rate was 84.7 per year. At that rate, and not attempting to adjust the fatality estimate for the proportion of fatalities not found, 4,574 birds were likely killed over the 54 years since the start of their study, and that’s at a relatively small building façade. Accounting for the proportion of fatalities not found, the number of birds killed by this walkway over the last 54 years would have been about 14,270. And this is just for one 3-story, glass-sided walkway between two college campus buildings.
Klem’s (1990) estimate was based on speculation that 1 to 10 birds are killed per building per year, and this speculated range was extended to the number of buildings estimated by the US Census Bureau in 1986. Klem’s speculation was supported by fatality monitoring at only two houses, one in Illinois and the other in New York. Also, the basis of his fatality rate extension has changed greatly since 1986. Whereas his estimate served the need to alert the public of the possible magnitude of the bird- 41 window collision issue, it was highly uncertain at the time and undoubtedly outdated more than three decades hence. Indeed, by 2010 Klem (2010) characterized the upper end of his estimated range – 1 billion bird fatalities – as conservative. Furthermore, the estimate lumped species together as if all birds are the same and the loss of all birds to windows has the same level of impact.
By the time Loss et al. (2014) performed their effort to estimate annual USA bird- window fatalities, many more fatality monitoring studies had been reported or were underway. Loss et al. (2014) incorporated many more fatality rates based on scientific monitoring, and they were more careful about which fatality rates to include. However, they included estimates based on fatality monitoring by homeowners, which in one study were found to detect only 38% of the available window fatalities (Bracey et al. 2016). Loss et al. (2014) excluded all fatality records lacking a dead bird in hand, such as injured birds or feather or blood spots on windows. Loss et al.’s (2014) fatality metric was the number of fatalities per building (where in this context a building can include a house, low-rise, or high-rise structure), but they assumed that this metric was based on window collisions. Because most of the bird-window collision studies were limited to migration seasons, Loss et al. (2014) developed an admittedly assumption-laden correction factor for making annual estimates. Also, only 2 of the studies included adjustments for carcass persistence and searcher detection error, and it was unclear how and to what degree fatality rates were adjusted for these factors. Although Loss et al. (2014) attempted to account for some biases as well as for large sources of uncertainty mostly resulting from an opportunistic rather than systematic sampling data source, their estimated annual fatality rate across the USA was highly uncertain and vulnerable to multiple biases, most of which would have resulted in fatality estimates biased low.
In my review of bird-window collision monitoring, I found that the search radius around homes and buildings was very narrow, usually 2 meters. Based on my experience with bird collisions in other contexts, I would expect that a large portion of bird-window collision victims would end up farther than 2 m from the windows, especially when the windows are higher up on tall buildings. In my experience, searcher detection rates tend to be low for small birds deposited on ground with vegetation cover or woodchips or other types of organic matter. Also, vertebrate scavengers entrain on anthropogenic sources of mortality and quickly remove many of the carcasses, thereby preventing the fatality searcher from detecting these fatalities. Adjusting fatality rates for these factors – search radius bias, searcher detection error, and carcass persistence rates – would greatly increase nationwide estimates of bird-window collision fatalities.
Buildings can intercept many nocturnal migrants as well as birds flying in daylight. As mentioned above, Johnson and Hudson (1976) found 266 bird fatalities of 41 species within 73 months of monitoring of a four-story glass walkway at Washington State University (no adjustments attempted for undetected fatalities). Somerlot (2003) found 21 bird fatalities among 13 buildings on a university campus within only 61 days.
Monitoring twice per week, Hager at al. (2008) found 215 bird fatalities of 48 species, or 55 birds/building/year, and at another site they found 142 bird fatalities of 37 species for 24 birds/building/year. Gelb and Delacretaz (2009) recorded 5,400 bird fatalities under buildings in New York City, based on a decade of monitoring only during 42 migration periods, and some of the high-rises were associated with hundreds of fatalities each. Klem et al. (2009) monitored 73 building façades in New York City during 114 days of two migratory periods, tallying 549 collision victims, nearly 5 birds per day. Borden et al. (2010) surveyed a 1.8 km route 3 times per week during 12-month period and found 271 bird fatalities of 50 species. Parkins et al. (2015) found 35 bird fatalities of 16 species within only 45 days of monitoring under 4 building façades. From 24 days of survey over a 48-day span, Porter and Huang (2015) found 47 fatalities under 8 buildings on a university campus. Sabo et al. (2016) found 27 bird fatalities over 61 days of searches under 31 windows. In San Francisco, Kahle et al. (2016) found 355 collision victims within 1,762 days under a 5-story building. Ocampo-Peñuela et al. (2016) searched the perimeters of 6 buildings on a university campus, finding 86 fatalities after 63 days of surveys. One of these buildings produced 61 of the 86 fatalities, and another building with collision-deterrent glass caused only 2 of the fatalities, thereby indicating a wide range in impacts likely influenced by various factors. There is ample evidence available to support my prediction that the proposed Upper Westside Specific Plan would result in many collision fatalities of birds.
Bird-window impact prediction
I have reviewed and processed results of bird collision monitoring at 213 buildings and façades for which bird collisions per m2 of glass per year could be calculated and averaged (Johnson and Hudson 1976, O’Connell 2001, Somerlot 2003, Hager et al. 2008, Borden et al. 2010, Hager et al. 2013, Porter and Huang 2015, Parkins et al. 2015, Kahle et al. 2016, Ocampo-Peñuela et al. 2016, Sabo et al. 2016, Barton et al. 2017, Gomez-Moreno et al. 2018, Schneider et al. 2018, Loss et al. 2019, Brown et al. 2020, City of Portland Bureau of Environmental Services and Portland Audubon 2020, Riding et al. 2020). These study results averaged 0.073 bird deaths per m2 of glass per year (95% CI: 0.042-0.102). This average and its 95% confidence interval provide a robust basis for predicting fatality rates at a site of a proposed new project.
I found no information on the extent of glass windows on the proposed new residential units. I therefore relied on another source for estimating the extent of glass windows in the Upper Westside Specific Plan. I have maintained a database of the extent of glass windows relative to the extents of floor space among other projects for which I have prepared expert testimony. For 25 recently proposed California residential projects, the ratio of m2 of windows to ft2 of floor space was 0.017 (95% CI: 0.0088‒0.0253).
Assuming 2,000 sf per residential unit, the 9,356 residential units anticipated in the Upper Westside Specific Plan would total 18,712,000 sf, which multiplied against the ratio reported above would predict 318,104 m2 (95% CI: 164,666‒473,414 m2). Applying the mean fatality rate (above) to my estimate of 318,104 m2 of glass in the Upper Westside Specific Plan, I predict annual bird deaths of 23,253 (95% CI: 13,806‒ 32,701). I could update this prediction if I was to see more details about the Specific Plan. With or without more details, however, a bird-window collision mortality of this predicted magnitude would by highly significant. My analysis, updated or not, reveals that the impacts of bird-window collision mortality would be highly significant in the Upper Westside Specific Plan. This impact is not considered in the DEIR. The DEIR 43 needs to be revised with a more meaningful review of potential impacts to wildlife due to collisions with windows.
ROAD COLLISION MORTALITY
The DEIR fails to consider impacts on wildlife from road collision mortality. Project- generated traffic would endanger wildlife that must, for various reasons, cross roads used by the project-generated traffic (Photos 27―30), including along roads far from the villages. Vehicle collisions have accounted for the deaths of many thousands of amphibian, reptile, mammal, bird, and arthropod fauna, and the impacts have often been found to be significant at the population level (Forman et al. 2003). Across North America traffic impacts have taken devastating tolls on wildlife (Forman et al. 2003). In Canada, 3,562 birds were estimated killed per 100 km of road per year (Bishop and Brogan 2013), and the US estimate of avian mortality on roads is 2,200 to 8,405 deaths per 100 km per year, or 89 million to 340 million total per year (Loss et al. 2014). Local impacts can be more intense than nationally.
Photo 27. A coyote
uses the crosswalk
to cross a street
and was fortunate
that one driver
showed the good
grace to stop for it,
2 February 2023.
Not all drivers stop,
nor do all animals
use the crosswalk.
Too often, animals
are injured or killed
when they attempt
to cross roads.
Increased traffic
volume increases
collision risk to
wildlife.
44 Photo 28. A Gambel’s quail dashes
across a road on 3 April 2021. Such road
crossings are usually successful, but too
often prove fatal to the animal. Photo by
Noriko Smallwood.
Photo 29. Mourning dove killed
by vehicle on a California road.
Photo by Noriko Smallwood, 21
June 2020.
Photo 30. Raccoon killed on Road 31 just east of
Highway 505 in Solano County. Photo taken on
10 November 2018.
The nearest study of traffic-caused wildlife mortality was performed along a 2.5-mile stretch of Vasco Road in Contra Costa County, California. Fatality searches in this study found 1,275 carcasses of 49 species of mammals, birds, amphibians and reptiles over 15 months of searches (Mendelsohn et al. 2009). This fatality number needs to be adjusted for the proportion of fatalities that were not found due to scavenger removal and searcher error. This adjustment is typically made by placing carcasses for searchers to find (or not find) during their routine periodic fatality searches. This step was not taken at Vasco Road (Mendelsohn et al. 2009), but it was taken as part of another study next to Vasco Road (Brown et al. 2016). Brown et al.’s (2016) adjustment factors for carcass persistence resembled those of Santos et al. (2011). Also applying searcher detection rates from Brown et al. (2016), the adjusted total number of fatalities was estimated at 12,187 animals killed by traffic on the road. This fatality number over 1.25 years and 2.5 miles of road translates to 3,900 wild animals per mile per year. In terms comparable to the national estimates, the estimates from the Mendelsohn et al. (2009) study would translate to 243,740 animals killed per 100 km of road per year, or 29 times that of Loss et al.’s (2014) upper bound estimate and 68 times the Canadian estimate. An analysis is
45 needed of whether increased traffic generated by the project would similarly result in local impacts on wildlife.
For wildlife vulnerable to front-end collisions and crushing under tires, road mortality can be predicted from the study of Mendelsohn et al. (2009) as a basis, although it would be helpful to have the availability of more studies like that of Mendelsohn et al. (2009) at additional locations. My analysis of the Mendelsohn et al. (2009) data resulted in an estimated 3,900 animals killed per mile along a county road in Contra Costa County. Two percent of the estimated number of fatalities were birds, and the balance was composed of 34% mammals (many mice and pocket mice, but also ground squirrels, desert cottontails, striped skunks, American badgers, raccoons, and others),
52.3% amphibians (large numbers of California tiger salamanders and California red- legged frogs, but also Sierran treefrogs, western toads, arboreal salamanders, slender salamanders and others), and 11.7% reptiles (many western fence lizards, but also skinks, alligator lizards, and snakes of various species). VMT is useful for predicting wildlife mortality because I was able to quantify miles traveled along the studied reach of Vasco Road during the time period of the Mendelsohn et al. (2009), hence enabling a rate of fatalities per VMT that can be projected to other sites, assuming similar collision fatality rates.
Animal-vehicle collision mortality prediction
The DEIR does not directly predict annual VMT, but at p. 23-8 it predicts 7,575 non- resident employees and 25,460 residents, and earlier it predicted daily VMT of 15.31 per employee and 14.34 per resident. Extended over the period of a year, these predictions would predict 175,590,422 annual VMT resulting from the project. During the Mendelsohn et al. (2009) study, 19,500 cars traveled Vasco Road daily, so the vehicle miles that contributed to my estimate of non-volant fatalities was 19,500 cars and trucks × 2.5 miles × 365 days/year × 1.25 years = 22,242,187.5 vehicle miles per 12,187 wildlife fatalities, or 1,825 vehicle miles per fatality. This rate divided into the above-predicted annual VMT would predict 96,214 vertebrate wildlife fatalities per year. Even if the mortality is half this rate, it would be highly significant. Even if the mortality is a tenth of this rate, it would be highly significant.
Based on my analysis, the project-generated traffic from and within the Upper Westside Specific Plan project area would cause substantial, significant impacts to wildlife. Given the predicted level of traffic-caused mortality, and the lack of any proposed mitigation, it is my opinion that the proposed project would result in potentially significant adverse biological impacts. However, these impacts are not considered in the DEIR.
CUMULATIVE IMPACTS
The DEIR asserts that the Specific Plan, as well as all the other development projects within the DEIR’s defined geographic scope of cumulative impacts analysis, must meet the mitigation requirements of the Sacramento County 2030 General Plan, the Endangered Species Act, and other existing regulations, permits, and requirements. The DEIR concludes that the permanent loss of habitats to various special-status species of 46 wildlife would be potentially significant, but implies that compliance with existing regulations would minimize cumulative impacts. Because I had seen this same argument made in CEQA reviews prepared by many of California’s Cities and Counties, I decided to test it (Smallwood and Smallwood 2023).
To measure the impacts of habitat loss to wildlife caused by development projects, and to measure cumulative impacts of development, Noriko Smallwood and I revisited 80 sites of proposed projects that we had originally surveyed in support of comments on CEQA review documents (Smallwood and Smallwood 2023). We revisited the sites to repeat the survey methods at the same time of year, the same start time in the day, and the same methods and survey duration in order to measure the effects of mitigated development on wildlife. We structured the experiment in a before-after, control-impact experimental design, as some of the sites had been developed since our initial survey and some had remained undeveloped. All of the developed sites had included mitigation measures to avoid, minimize or compensate for impacts to wildlife. Nevertheless, we found that mitigated development resulted in a 66% loss of species on site, and 48% loss of species in the project area. Counts of vertebrate animals declined 90%. We reported that “Development impacts measured by the mean number of species detected per survey were greatest for amphibians (-100%), followed by mammals (-86%), grassland birds (-75%), raptors (-53%), special-status species (-49%), all birds as a group (-48%), non-native birds (-44%), and synanthropic birds (-28%). Our results indicated that urban development substantially reduced vertebrate species richness and numerical abundance, even after richness and abundance had likely already been depleted by the cumulative effects of loss, fragmentation, and degradation of habitat in the urbanizing environment,” and despite all of the mitigation measures and existing policies and regulations.
The DEIR’s implication that existing regulations would minimize cumulative impacts is also largely inconsistent with the CEQA. According to the CEQA Guidelines §15064(h)(3), “When relying on a plan, regulation or program, the lead agency should explain how implementing the particular requirements in the plan, regulation or program ensure that the project’s incremental contribution to the cumulative effect is not cumulatively considerable.” The DEIR does not explain how any of its cited laws or regulations would minimize the Specific Plan’s contributions to cumulative impacts.
The DEIR does cite its own mitigation measures as they might relate to cumulative impacts. However, a Worker Environmental Awareness Program, weed surveys, and preconstruction surveys for wildlife are not going to prevent or even minimize the Specific Plan’s contributions to cumulative impacts. The DEIR includes no specific mitigation measure to avoid, minimize or compensate for the Specific Plan’s contributions to cumulative impacts.
MITIGATION
BR-1 Pre-construction Baseline Biological Resources Report Before the construction phase–specific development applications are deemed complete by the County, a qualified biologist shall prepare a Baseline Biological Resources Report 47 documenting current land cover, land use, plant and wildlife habitat, and the locations of potential jurisdictional aquatic resources, native and non-native trees, and any other biological resources needed to reach a conclusion regarding which of the following mitigation measures are required for the specific project phase.
The baseline biological resources report is the characterization of the biological portion of the existing environmental setting that is required by the CEQA. This measure is flawed, however, by shifting the timing of the characterization of the existing environmental setting from before the public circulation of the DEIR to after FEIR certification. The CEQA never intended the characterization of the existing environmental setting to be completed by preconstruction surveys. The methods and results of preconstruction surveys would not undergo public review, as even the formulation of the survey methods are deferred until after FEIR certificaiton.
Furthermore, preconstruction surveys do not carry anywhere close to the same probabilities of detections of plant and wildlife species as do surveys designed to characterize the environmental setting for the purpose of informing the public and decision-makers in an EIR. This measure is inconsistent with the CEQA’s primary objectives.
BR-2a Worker Environmental Awareness Program All project personnel involved in ground-disturbing activities will receive a comprehensive Worker Environmental Awareness Program (WEAP) presentation on the first day on a site prior to the initiation of construction provided by a qualified biologist. ...
I concur with the measure should the project go forward, but I must point out that its conservation benefits are far outweighed by the project’s potential impacts to wildlife.
BR-2a would do very little to avoid direct impacts, and would do nothing to avoid, minimize or compensate for losses of the productive capacity of the Specific Plan area to wildlife.
BR-2b Weed Control Plan Prior to the issuance of a grading permit, the applicant for each phase of the UWSP area development shall prepare a weed control plan for review and approval by the Environmental Coordinator. … shall only apply to UWSP properties that are within 100 feet of NBHCP and SAFCA reserve areas (e.g., the Alleghany Reserve and the Cummings Reserve) and the levee for the West Drainage Canal (Witter Canal) toe drain …
I concur with the measure should the project go forward, but I must point out that its conservation benefits are far outweighed by the project’s potential impacts to plants and wildlife. BR-2b would do very little to avoid, minimize or compensate for weed invasions of the areas targeted for protection, which are themselves very small relative to the extent of the Specific Plan area.
BR-2c Avoid and Minimize Impacts on Rare Plant Species Adequate measures shall be taken to avoid inadvertent take of Sanford’s arrowhead (Sagittaria sanfordii) and other special-status plants by … conduct[ing] a properly timed special-status plant survey … [that] follow the CDFW Protocols for Surveying and Evaluating 48 Impacts to Special Status Plan Populations and Sensitive Natural Communities (CDFW 2018) ...
Measure BR-2c misrepresents the CDFW (2018) rare plant survey guidelines as a form of preconstruction survey. Preconstruction surveys are take-avoidance surveys, and as such they are a form of mitigation. The CDFW (2018) survey guidelines are intended to guide reconnaissance surveys for rare plants, and as such they are intended to support the characterization of the existing environmental setting as part of CEQA review. The DEIR misappropriates CDFW (2018).
BR-3 Avoid, Minimize, and Compensate for Impacts on Giant Garter Snake Project applicants shall obtain authorization for take of giant garter snake from USFWS and CDFW and implement all measures required therein to avoid, minimize, and compensate for impacts to giant garter snake. In addition, … where construction activities will be conducted within 200 feet of aquatic giant garter snake habitat, project applicants shall: • [Implement] BR-2a, “Worker Environmental Awareness Program”); • Restrict construction activities to the giant garter snake active season; • Conduct pre-construction habitat surveys; • Dewater aquatic habitat prior to construction; • Conduct pre-construction surveys for giant garter snake presence; • Minimize vegetation clearing and avoid retained habitat; • Monitor ground- disturbing construction activities; and/or • Remove temporary fill and construction debris. To compensate for unavoidable permanent loss of aquatic giant garter snake habitat, project applicants shall either: (i) create, restore, or enhance, and preserve and manage suitable aquatic and associated upland habitat to provide giant garter snake habitat at a 1:1 or greater ratio (mitigation acreage to impact acreage), (ii) preserve and manage rice fields as habitat for giant garter snake at a 2:1 or greater ratio, and/or (iii) provide compensatory giant garter snake habitat of equal or greater ecological value as established in separate authorizations or permits by the USFWS and CDFW. Mitigation to compensate for losses of giant garter snake habitat may be fulfilled through a combination of these options, assuming minimum ratios are met.
These mitigation measures are described further below. • Secure Authorization from the USFWS and CDFW for the Incidental Take of Giant Garter Snake …
Unless take authorizations from CDFW or USFWS require compensatory mitigation of equal or greater ecological value to giant garter snake, compensatory mitigation shall be as follows. Compensatory mitigation shall be provided through creation, preservation, and management of suitable aquatic and associated upland habitat for giant garter snake; and/or preservation and management of rice fields or other suitable aquatic habitat, as habitat for giant garter snake. Mitigation sites shall be located outside of the Natomas Basin and in the American Basin Recovery Unit as defined in the Recovery Plan for the Giant Garter Snake (Thamnophis gigas) (USFWS 2017a. This mitigation may be provided through: • Purchase of credits from a CDFW- and USFWS-approved conservation bank; • Payment to an existing in-lieu fee program; • Creation, restoration, or enhancement, and preservation and management of suitable aquatic and associated upland habitat for giant garter snake; or • Preservation and management of existing giant garter snake habitat through 49 acquisition of fee-title or a conservation easement and funding for long-term management of giant garter snake habitat at a site. … • The selection of mitigation site(s) shall be approved by the County in coordination with CDFW and USFWS. • The form and content of the easement, and the amount of the endowment for long-term management, shall be acceptable to the County, CDFW, and USFWS, and the easement shall prohibit any activity that substantially impairs or diminishes the land’s capacity as suitable giant garter snake habitat and protect any existing water rights necessary to maintain giant garter snake habitat, in accordance with then-current water allocations and in coordination with USFWS. … For mitigation that creates, restores, or enhances suitable aquatic and associated upland giant garter snake habitat, a restoration plan shall be developed, approved by the USFWS, CDFW, and the County. ...
The NBHCP effectiveness monitoring (ICF 2024) shows that the measures of BR-3 are not working to conserve giant gartersnakes in the Natomas Basin. The giant gartersnake is disappearing from NBHCP Reserves, and at the present rate the species will be extirpated from the Natomas Basin by 2014. Given the current trend, it is unlikely the USFWS is going to approve the Specific Plan’s BR-3. BR-3 therefore presents only a speculative disposition of mitigation measures in lieu of any reevaluation of the NBHCP’s conservation strategy directed to giant gartersnake.
BR-4 Avoid and Minimize Impacts on Northwestern Pond Turtle As recommended in the Natomas Basin Habitat Conservation Plan or NBHCP, take of the northwestern pond turtle as a result of habitat destruction during construction activities, including the removal of irrigation ditches and drains, and during ditch and drain maintenance, will be minimized by the dewatering requirement described under BR-3. In addition: • For sites that contain northwestern pond turtle habitat, no more than 24 hours prior to start of construction activities (site preparation and/or grading), the project area shall be surveyed for the presence of northwestern pond turtle. ... • Clearing shall be confined to the minimal area necessary to facilitate construction activities. …. If a live northwestern pond turtle is found during construction activities, the biological monitor shall immediately notify USFWS and CDFW. ... The biological monitor shall also report any northwestern pond turtle mortality within one working day to USFWS. Any project-related activity that results in northwestern pond turtle mortality shall cease so that this activity can be modified to the extent practicable to avoid future mortality. ...
Should the project go forward, this measure should be implemented. However, it does not avoid the reduction productive capacity of northwestern pond turtles that would result from habitat loss. Northwestern pond turtles require upland areas for nesting.
BR-5 Avoid and Minimize Impacts on Nesting Birds Mitigation Measure BR-5 applies to projects that include removal of trees or vegetation, tree trimming, or use of heavy equipment (e.g., earthwork, demolition).
50 Some bird species, including special-status species of some birds, are ground-nesters.
Examples include northern harrier and western snowy plover. BR-5 ignores these species.
BR-5 Avoid and Minimize Impacts on Nesting Birds A qualified wildlife biologist shall conduct pre-construction nesting surveys during the avian nesting breeding season (approximately February 1 to August 31) within 7 days prior to construction. … If bird nests are found, an adequate no-disturbance buffer shall be established around the nest location and construction activities shall be restricted within the buffer until the qualified biologist has confirmed that any young birds have fledged and are able to leave the construction area. Required setback distances for the no-disturbance zone shall be established by the qualified biologist and may vary depending on species, line of sight between the nest and the construction activity, and the birds’ sensitivity to disturbance. ...
This mitigation language allows a single individual to make a subjective decision, outside the public’s view, to determine the buffer area for any given species. This measure lacks objective criteria, and is unenforceable.
BR-5 Avoid and Minimize Impacts on Nesting Birds Any birds that begin nesting within the project area and survey buffers amid construction activities shall be assumed to be habituated to construction-related or similar noise and disturbance levels and no disturbance zones shall not be established around active nests in these cases; however, should birds nesting within the project area and survey buffers amid construction activities begin to show disturbance associated with construction activities, no-disturbance buffers shall be established as determined by the qualified wildlife biologist.
The more realistic assumption to apply to birds that begin nesting after construction activities begin is that the breeding birds are demonstrating strong nest site fidelity, which is common. This assumption can be supported by ample scientific evidence, whereas the DEIR’s assumption is merely convenient to the developer and the lead agency.
BR-5 Avoid and Minimize Impacts on Nesting Birds Any work that must occur within established no-disturbance buffers around active nests shall be monitored by a qualified biologist. If adverse effects in response to project work within the buffer are observed and the biologist determines the activities are likely to compromise the nest’s success, work within the no-disturbance buffer shall halt until the nest occupants have fledged. If the qualified biologist determines that the activities are unlikely to compromise the nest’s success, work can continue.
This mitigation language allows a single individual to make a subjective decision, outside the public’s view, to determine the buffer area for any given species. This measure lacks objective criteria, and is unenforceable.
51 BR-6 Avoid and Minimize Impacts on Western Burrowing Owl … A qualified biologist shall conduct focused burrowing owl surveys in suitable habitat in the area … in accordance … Appendix D of CDFW’s Staff Report on Burrowing Owl Mitigation (Staff Report), published March 7, 2012. … If nest sites are found, CDFW shall be contacted regarding suitable mitigation measures, which may include on-site avoidance … or implementation of a relocation effort …Take avoidance surveys may also be conducted. … Where on-site avoidance is not possible, disturbance and/or destruction of occupied burrows shall be offset through development of suitable habitat on upland reserves. Such habitat shall include creation of new burrows with adequate foraging area (a minimum of 6.5 acres) or 300 feet radii around the newly created burrows. Additional habitat design and mitigation measures are described in the Staff Report.
The DEIR inaccurately characterizes breeding season detection surveys as a mitigation measure. CEFW (2012) clearly intends for these surveys to be completed in support of the preparation of the environmental review document, and not as a mitigation measure.
I must also point out that CDFW (2012) warns that burrowing owl relocations can be interpreted as a form of take. Furthermore, the DEIR identifies no candidate locations to where burrowing owls might be relocated.
Finally, following a unanimous vote of the California Fish and Game Commission, the burrowing owl is now a candidate species for listing under the California Endangered Species Act. Burrowing owls have sharply declined in the Sacramento region, and are near extirpation (Miller 2024). It is imperative that the surveys be implemented as CDFW (2012) recommends, which is prior to the circulation of the DEIR.
BR-7a Avoid and Minimize Impacts on Nesting Swainson’s Hawk Project applicants for each construction phase shall avoid, minimize, and compensate for impacts on Swainson’s hawk … If construction activities will begin during the Swainson’s hawk nesting season …, a qualified biologist shall conduct surveys in accordance with … Swainson’s Hawk Technical Advisory Committee 2000 ... If an active Swainson’s hawk nest is found on or within 0.5 mile of the project footprint, a survey report shall be submitted to the County and CDFW, and an avoidance and minimization plan shall be developed and implemented ...
Should the Specific Plan go forward, I concur with BR-7a. However, BR-7a would not prevent the permanent loss of productive capacity caused by Swainson’s hawk habitat destruction. Nor would BR-7a shift the need to reevaluate the NBHCP conservation strategy. With the number of unsuccessful nests increasing in the Natomas Basin (Figure 7), the Upper Westside Specific Plan must trigger the reevaluation of the NBHCP conservation strategy.
BR-7b Compensate for Permanent Impacts on Swainson’s Hawk Foraging Habitat Compensation for the permanent loss of foraging habitat shall be determined for each development phase. … project applicants … shall compensate for permanent 52 loss of foraging habitat through the preservation of foraging habitat … at a ratio of at least 1:1 … Mitigation sites shall be located outside, and within 10 miles of, the Natomas Basin … through purchase of credits from a CDFW-approved conservation bank, or through protection of habitat, including acquisition of a conservation easement and funding long-term administration, monitoring, and enforcement of the easement. ….
A 1:1 mitigation ratio assures a 50% net loss of Swainson’s hawk habitat and of Swainson’s hawks. Additionally, BR-7b is flawed for not identifying where Swainson’s hawk habitat can be found and protected within 10 miles of the Natomas Basin. Failing to show where Swainson’s hawk habitat can be protected within 10 miles of the Natomas Basin calls into question whether 1,538 acres of Swainson’s hawk habitat can be found and protected.
BR-8 Avoid and Minimize Impacts on Pallid Bat A qualified biologist who is experienced with bat surveying techniques (including auditory sampling methods), behavior, roosting habitat, and identification of local bat species shall be consulted prior to building or bridge demolition, building relocation activities, or tree work to conduct a pre-construction habitat assessment of the project area (focusing on buildings to be demolished or relocated) to characterize potential bat habitat and identify potentially active roost sites. … The following measures shall be implemented should potential roosting habitat or potentially active bat roosts be identified …: … initial bridge or building demolition, relocation, and any tree work (trimming or removal) shall occur when bats are active … to the extent feasible. … If seasonal avoidance of potential roosting habitat is infeasible, the qualified biologist shall conduct pre-construction surveys of potential bat roost sites identified during the initial habitat assessment no more than 14 days prior to bridge or building demolition or relocation, or any tree trimming or removal. ...
There was no reason not to survey for bat activity and bat roost sites prior to the public circulation of the DEIR. Instead, the DEIR defers the surveys until after EIR certification, which is after the time when the public and decision-makers needed an accurate characterization of the wildlife community, disclosure of potential project impacts to bats, and the survey-informed formulation of mitigation measures.
Moreover, the measure fails to avoid or compensate for reduced productive capacity of bats that would result from habitat destruction.
BR-9a Avoid and Minimize Impacts on Valley Elderberry Longhorn Beetle A pre-construction survey will be conducted by a qualified biologist prior to construction-related ground disturbance. If such a survey determines that valley elderberry longhorn beetle habitat is present, … the County shall require … to avoid and minimize take of individuals: … a 100-foot wide avoidance buffer ...
Compensatory mitigation for adverse effects may include the transplanting of elderberry shrubs during the dormant season … to an area protected in perpetuity as well as required additional elderberry and associated native plantings as approved by the USFWS. … If elderberry plants cannot be avoided, or if project activities will result 53 in the death of stems or the entire shrub, they shall be transplanted during the dormant season … to an area protected in perpetuity and approved by the USFWS. … Replacement seedling plants will be provided at a ratio of 2 to 1 to 5 to 1 depending on the extent of valley elderberry longhorn beetle utilization of the plants moved or lost.
An 1,800-square-foot area will be provided for each transplanted elderberry shrub or every five elderberry seedling plants.
In my experience, translocations of VELB-inhabited elderberry shrubs tend to fail to provide habitat to VELB (Morrison et al. 2002). The measure translocations and plants new elderberry shrubs, but not necessarily where they can support VELB. The measure also includes no monitoring of the outcome directly related to VELB, and there are no consequences for failures of translocated or planted elderberry shrubs to support VELB.
Wildlife Movement: The following measures are listed as supposed mitigation of potential project impacts to wildlife movement in the region:
BR-2a Worker Environmental Awareness Program – See Impact BR-2: Special Status Plant Species.
BR-3 Compensate for Permanent Impacts to Giant Garter Snake Habitat – See Impact BR-3: Giant Garter Snake.
BR-5 Avoid and Minimize Impacts on Nesting Birds – See Impact BR-5: Special Status Bird Species (Other Than Burrowing Owl and Swainson’s Hawk), Birds Protected by the Migratory Bird Treaty Act, and Nesting Raptors.
None of these measures would avoid, minimize or compensate for project impacts to wildlife movement in the region. None of these measures nor any other measures can mitigate such impacts without there first being some understanding of how wildlife move within and beyond the Specific Plan area.
BR-14 Conflict with Natomas Basin Hcp and Metro Air Park HCP Mitigation Measures BR-1 and BR-10a through BR-10c … would contribute to protection of species covered under the NBHCP and MAP HCP.
As I commented on most of these mitigation measures above, BR-1 through BR-10 cannot eliminate the interference of the Specific Plan with the NBHCP. The geographic scope of the NBHCP’s conservation strategy is the entire Natomas Basin. As County Staff (Todd Smith) wrote to Scott Johnson, Senior Planner, City of Sacramento on 4 April 2022, “In the Natomas Basin, any future development not covered by an existing Habitat Conservation Plan (HCP) must obtain take authorization under the Endangered Species Act (ESA). The NBHCP along with the MAP HCP require that a total of 8,750 acres of mitigation be located within Natomas Basin and the mitigation must adhere to specific requirements of the HCP. The HCPs provide a conservation strategy for the protection of 22 covered species, and their implementation has been underway for over 20 years.” (Airport South Industrial Project Notice of Preparation of Environmental Impact Report (Project P21-017).) The County must know that BR-14 is inadequate. 54 RECOMMENDED MEASURES
Construction Phasing: Should the Specific Plan go forward, construction phasing should begin with land nearest existing residential or commercial uses, and it should proceed sequentially from there. The way I read the DEIR, the developer can decide at any time prior to initial construction to construct Phase 1 anywhere within the Specific Plan area. Siting Phase 1 in the middle of the Specific Plan area, or farthest to the west toward the River would disrupt wildlife movement across the Specific Plan area, and if another economic crisis was to arrive, Phase 1 could be stranded for many years or even permanently. Siting Phase 1 far from existing development would also increase wildlife- automobile collision mortality as residents drive rural roads between their homes and the City, intersecting wildlife attempting to travel across roads on the only open spaces that remain. Already, there exists considerable commuter traffic on San Juan Road, as commuters seek shortcuts around the crowded arterial roads and highways. And already there are animals dead on the road – I found a road-killed desert cottontail and raccoon on the Specific Plan area.
Preconstruction Surveys: Following the completion of protocol-level detection surveys to inform a revised DEIR, take-avoidance surveys should be performed for special-status species and breeding birds prior to construction. For the most part, these surveys are already required by the DEIR, but they need to follow properly implemented detection surveys for the purpose of informing the DEIR. Whereas Bargas (2022) performed detection surveys for giant gartersnake and Swainson’s hawk, its surveys are up to five years old, and therefore are outdated and should be repeated. Lastly, a report of preconstruction surveys and their outcomes should be prepared and made available to the public.
Habitat Loss: If the Specific Plan goes forward, compensatory mitigation is warranted for the acres of habitat that would be lost. At minimum, an equal area of open space should be protected in perpetuity close to any new developments.
Substantial upland buffers are needed to protect wetland areas. I recommended at least 600 feet of clearance between the wetland features and the nearest impervious surface.
Buffered areas should be restored to natural vegetation cover appropriate to the area.
Pest Control: The Specific Plan should commit to no use of rodenticides and avicides.
It should commit to no placement of poison bait stations outside commercial buildings and residential units.
House Cats: If the Specific Plan goes forward, homeowners should not be allowed to let their cats range free. A fund should be established for long-term management of house cats in the Specific Plan. Management could include public education about the environmental effects of outdoor and free-ranging cats. It could also include a program to spade and neuter cats, especially free-ranging cats. It could also involve some removals of feral cats.
55 Minimize Bird-Window Collision Mortality: If the Project goes forward, it should adhere to available Bird-Safe Guidelines, such as those prepared by American Bird Conservancy and New York and San Francisco. The American Bird Conservancy (ABC) produced an excellent set of guidelines recommending actions to: (1) Minimize use of glass; (2) Placing glass behind some type of screening (grilles, shutters, exterior shades); (3) Using glass with inherent properties to reduce collisions, such as patterns, window films, decals or tape; and (4) Turning off lights during migration seasons (Sheppard and Phillips 2015). The City of San Francisco (San Francisco Planning Department 2011) also has a set of building design guidelines, based on the excellent guidelines produced by the New York City Audubon Society (Orff et al. 2007). The ABC document and both the New York and San Francisco documents provide excellent alerting of potential bird- collision hazards as well as many visual examples.
New research results inform of the efficacy of marking windows. Whereas Klem (1990) found no deterrent effect from decals on windows, Johnson and Hudson (1976) reported a fatality reduction of about 69% after placing decals on windows. In an experiment of opportunity, Ocampo-Peñuela et al. (2016) found only 2 of 86 fatalities at one of 6 buildings – the only building with windows treated with a bird deterrent film. At the building with fritted glass, bird collisions were 82% lower than at other buildings with untreated windows. Kahle et al. (2016) added external window shades to some windowed façades to reduce fatalities 82% and 95%. Brown et al. (2020) reported an 84% lower collision probability among fritted glass windows and windows treated with ORNILUX R UV. City of Portland Bureau of Environmental Services and Portland Audubon (2020) reduced bird collision fatalities 94% by affixing marked Solyx window film to existing glass panels of Portland’s Columbia Building. Many external and internal glass markers have been tested experimentally, some showing no effect and some showing strong deterrent effects (Klem 1989, 1990, 2009, 2011; Klem and Saenger 2013; Rössler et al. 2015). For example, Feather Friendly® circular adhesive markers applied in a grid pattern across all windows reduced bird-window collision mortality by 95% in one study (Riggs et al. 2023) and by 95% in another (de Groot et al. 2021).
Another study tested the efficacy of two filmshades to be applied exteriorly to windows prior to installations: BirdShades increased bird-window avoidance by 47% and Haverkamp increased avoidance by 39% (Swaddle et al. 2023).
Monitoring and the use of compensatory mitigation should be incorporated at any new building project because the measures recommended in the available guidelines remain of uncertain efficacy, and even if these measures are effective, they will not reduce collision mortality to zero. The only way to assess mitigation efficacy and to quantify post-construction fatalities is to monitor newly constructed buildings or homes for fatalities.
Road Mortality: Compensatory mitigation is needed for the increased wildlife mortality that would be caused by regional road traffic generated by the Specific Plan. I suggest that this mitigation be directed toward funding research to identify fatality patterns and effective impact reduction measures such as reduced speed limits and wildlife under-crossings or overcrossings of particularly dangerous road segments. 56 Compensatory mitigation can also be provided in the form of donations to wildlife rehabilitation facilities (see below).
Fund Wildlife Rehabilitation Facilities: Compensatory mitigation ought also to include funding contributions to wildlife rehabilitation facilities to cover the costs of injured animals that will be delivered to these facilities for care. Many animals would likely be injured by collisions with automobiles and windows and by depredation attempts by house cats and dogs.
Landscaping: If the Project goes forward, California native plant landscaping (i.e., grassland and locally appropriate scrub plants) should be considered to be used as opposed to landscaping with lawn and exotic shrubs and trees. Native plants offer more structure, cover, food resources, and nesting substrate for wildlife than landscaping with lawn and ornamental trees. Native plant landscaping has been shown to increase the abundance of arthropods which act as importance sources of food for wildlife and are crucial for pollination and plant reproduction (Narango et al. 2017, Adams et al. 2020, Smallwood and Wood 2022.). Further, many endangered and threated insects require native host plants for reproduction and migration, e.g., monarch butterfly. Around the world, landscaping with native plants over exotic plants increases the abundance and diversity of birds, and is particularly valuable to native birds (Lerman and Warren 2011, Burghardt et al. 2008, Berthon et al. 2021, Smallwood and Wood 2022). Landscaping with native plants is a way to maintain or to bring back some of the natural habitat and lessen the footprint of urbanization by acting as interconnected patches of habitat for wildlife (Goddard et al. 2009, Tallamy 2020). Lastly, not only does native plant landscaping benefit wildlife, it requires less water and maintenance than traditional landscaping with lawn and hedges.
Thank you for your consideration,
______________________
Shawn Smallwood, Ph.D.
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EXHIBIT 2
October 25, 2024
Mr. Patrick Soluri, Esq.
Soluri Meserve
510 Eighth Street
Sacramento, CA 95814
Subject: Upper Westside Specific Plan DEIR
P24005
Dear Mr. Soluri:
Per your request, I reviewed the Draft Environmental Impact Report (the “DEIR”) for the Upper Westside Specific Plan Project (the “Project”) in the County of Sacramento (the “County”). My review is with respect to transportation and circulation considerations.
My qualifications to perform this review include registration as a Civil and Traffic Engineer in California, over 50 years professional consulting practice in these fields and both preparation and review of the traffic and transportation components of numerous environmental documents prepared under the California Environmental Quality Act (“CEQA”). My professional resume is attached hereto.
My comments follow.
The DEIR Identifies Significant Safety Issues Related To Excessive Freeway Off and On Ramp Queues At Several Interchanges In the Project Vicinity.
Because Of Serious Nature Of the Issues Involved The Project Should Not Be Approved For Construction Until There Is Clear Agreement Among The Agencies Having Jurisdiction As To What The Actual Mitigation Plans Are, How Full Funding Will Be Accomplished And When Construction Will Take Place.
The DEIR discloses that the Project would have direct significant impacts on excessive queuing and related safety on the I-80 eastbound and westbound off Mr. Patrick Soluri
Soluri Meserve
October 25, 2024
ramps to West El Camino Avenue. It would have direct impact as well as, in the AM peak the southbound I-5 0ff ramp to J Street. In addition, it discloses that the Project would have cumulatively significant impacts related to unsafe off ramp queue buildups at the interchanges of I-5 with Del Paso Road and with Garden Highway (ramps in both northbound and southbound directions at both interchanges) and at I-5 with Arena Boulevard (northbound off ramp only).
At the I-80 / West El Camino interchange, the Project proposes to reconstruct the iinterchange, widening West El Camino from 2 to 4 lanes extending extend the queue storage capacity to 1500 feet on each of the impacted ramps. This it finds mitigate the Existing + Project condition and, with minor signal timing modifications, would mitigate the Cumulative + Project condition. However, as a bicycle/pedestrian network connectivity and safety measure, the interchange reconstruction mitigation proposal includes construction of a two-way bike/pedestrian path paralleling the westbound side of El Camino Avenue and extending from El Centro Road easterly through the interchange to Orchard Lane in the City of Sacramento and suggests abandonment of the eastbound on-street bike lane on the other side. These proposed changes are features the safety aspects of which both Caltrans and the City may view with askance.
What, if anything, the Project would do to mitigate its direct significant impact on the I-5 southbound off ramp queue at J Street is unexplained, a key flaw in the document.
At the I-5 interchanges with Arena Boulevard, Del Paso Road and Garden Highway, the DEIR concludes that the excessive off ramp queuing is caused by backups from adjacent cross-street intersections that impair movements from the exit ramps. The DEIR proposes at DEIR page 22-68 to pay fair share funds toward improvements to the intersections of Arena with El Centro and Arena with East Commerce Way which, according to the analysis, would allow the off ramps to operate without hazardous queue spill-backs onto the I-5 mainline.
The text on DEIR page 22-68 continues as follows:
“With respect to the off-ramp queues at the two remaining study interchanges (I-5/Arena Boulevard1 and I-5/Garden Highway) a variety of potential surface street improvements were tested along the roadways leading to this [sic] facility. This involved collaboration with staff from the City of Sacramento regarding the viability of certain improvements.
Improvements such as lane restriping, adding lanes or modifying signal phasing were either found to not to be effective or could also cause the need for additional right-of –way. At both interchanges the following conclusions were reached. First, there are no known improvements
1 We think the authors meant to say I-5/Del Paso Road here.
Mr. Patrick Soluri
Soluri Meserve
October 25, 2024
planned at either interchange. Second, the feasibility of any surface street improvements that could reduce off-ramp queuing is not known.” What this says is that the preparers were not considering all feasible improvements as CEQA requires. Such feasible improvements could involve widening or lengthening the off ramps to provide sufficient queue storage without hazardous back-ups onto the freeway main lines. The preparers are evidently only considering cheap improvements that don’t require significant construction or right-of-way acquisition (which may not be necessary to lengthen or multi-lane the ramps).
The DEIR also discloses that the project would have significant direct and cumulative safety impacts related to excessive on ramp queues at the I-5 southbound loop on ramp from Garden Highway2 and the diagonal on ramp to southbound I-5 from Del Paso Road. This latter impact is not evident in the representation on Appendix TR-1, Table 17 that shows the queue in the subject on ramp from Del Paso to be 1950 feet in the cumulative condition and only 200 feet in the cumulative plus project condition. The confusion is because, contrary to the representations at other on ramp locations analyzed in the subject table, in the case of the on ramp from Del Paso the added on ramp lane provided for in what is described as Mitigation TR-8 in Appendix TR-1 and as Mitigation Measure C-TR-3 in the DEIR itself is assumed to be in place in the case of the southbound on ramp from Del Paso but similar added lanes provided for under the same mitigation measure are not assumed in place in the analysis of southbound loop on ramp from Garden Highway or the southbound diagonal ramp from West El Camino.
Because mitigation of all of the impacts above include modifications to State highway facilities and sometimes to facilities under jurisdiction of the City of Sacramento and because some mitigations may require the participation of other fair share payers neither the Applicant nor the County can guarantee the full funding, approvals and implementation of those mitigations. Therefore, the DEIR has characterized these impacts as significant and unavoidable.
There is a tendency to be dismissive of impacts categorized as significant and unavoidable based on jurisdictional issues and funding uncertainties. It is common to regard provision of housing and fostering economic growth as overriding considerations to impacts categorized significant and unavoidable due to what is perceived as mere administrative nuisance. However, the severity of the impacts involved must be considered. Take for example the freeway off ramp deficiencies at the I-5/Del Paso interchange. In the northbound direction during the PM peak hour, the Cumulative No Project queue would be 4200 feet; the Cumulative With Project would be 5025 feet. The ramp is only 1300 feet to
2 Queues on the diagonal ramp from Garden Highway to I-5 northbound also exceed capacity in the existing and cumulative conditions but the Project is not projected to add any traffic to this movement.
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October 25, 2024
the gore point. So the With Project queue will extend back south on the main line 3725 feet beyond the gore point. Del Paso Road is separated from the next interchange south, Arena Boulevard, along the Alignment of I-5 by slightly less than one mile. However, the distance from the gore point at the northbound exit to Del Paso to the merge point of the northbound on ramp from Arena is only about 2640 feet. So the exit queue will extend south past the merge point from the on ramp. This situation will lead to abrupt merges and lane changes sure to produce frequent collisions.
A similar situation will exist on the southbound I-5 off ramp to Del Paso. The projected PM peak queue is 4500 feet in the Cumulative No Project condition, 4525 feet in the Cumulative Plus Project condition. The ramp queue storage length is1300 feet so the exit queues will extend 3200 and 3225 feet north on the main line beyond the ramp gore point. However, the merge point of the ramp from State Routes 70/99 to I-5 southbound is only about 1500 feet north of the Del Paso exit gore. So queued exiting traffic will overlap the entry point from 70/99. Again, this situation will cause abrupt merge and lane change maneuvers that will surely cause frequent collisions.
Both of the deficiencies at the Del Paso interchange appear to be capable of mitigation by adding additional exit ramp lanes since the existing right-of-way appears sufficient for this purpose although the DEIR fails to disclose that as an option. However, to the point of the serious safety related nature of the impacts, the County (as well as the City in its northern development areas) should condition that building permits for various portions or stages of this and other projects be tied to implementation of an explicit item by item list of successful mitigation measures where transportation-related safety impacts have been categorized as significant and unavoidable for jurisdictional and funding reasons.
The DEIR Finds the Project Would Have Cumulatively Significant Traffic Safety Impact On Garden Highway, Requiring Lane Widening and Paved Shoulder Improvements and Also Requiring Lane Additions To Project Intersections With Garden Highway. It Indicates a Plan By Others To Add A 12 Foot Wide Bike/Pedestrian Facility Alongside the Roadway. How All This Can Fit Within the Apparent 40 Foot Right-Of-Way or Why the Residents and Property Owners Along Garden Highway Should Experience Property Takings to Allow Improvements For a Project From Which They Do Not Benefit, Why the Residential Properties Are Not Evaluated For Residential Traffic Impacts Or Why The DEIR Does Not Identify the Project As Impactful for Precluding The Development of the Bike/Pedestrian Trail.
Garden Highway is a two-lane road with lanes of approximately 10 feet width, no paved shoulders except where residents have paved streetside areas for residential parking purposes, and in most cases open drainage with an apparent Mr. Patrick Soluri
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October 25, 2024
right-of-way of only 40 feet. This is below County standards for roadways carrying more than 6000 ADT. The DEIR indicates that in the Cumulative + Project condition Garden Highway would carry more than 6000 ADT and the Project would add more than 600 vehicles to the total. Hence, it exceeds the criterion for upgrading the roadway to minimum County standards of 12 foot lane widths and 6 foot paved shoulders. In addition, it indicates that additional turn lanes would be required at Project intersections with Garden Highway. The DEIR states that the Project would make fair share contribution to the lane widenings and shoulder improvements on the roadway segments and pay for the intersection improvements. Also, DEIR Plate PD 15 Bikeway Master Plan indicates development of a 12 foot wide Class 1 Bikeway within the roadway right-of-way by others (the County?). Please explain how the 24 feet of traffic lanes, 12 feet of shoulders and 12 feet of Class 1 Bike lanes and extra feet of adding lanes at intersections can be fit in the 40 feet of right-of-way, and where the takings of right-of-way would be, who would be responsible for the cost, why the Project is not identified as potentially interfering with a planned bikeway development and why the Project is not identified in having neighborhood impacts on the residential development on the west side of Garden Highway.
These are deficiencies in the DEIR. In addition, as an alternative to the proposed mitigation measures, the DEIR is deficient in failing to consider leaving the connections from the developed areas of the Project through the improperly titled Agricultural Buffer3 to Garden Highway as the gated private roads that currently exist, thereby avoiding the need for widening at intersections and perhaps the upgrading of Garden Highway to current County minimum standards.
It also seems likely that, given the congestion forecast along I-5 and at surface street locations, significant numbers of knowledgeable travelers would choose a calming drive in the pleasant, scenic surroundings of Garden Highway, even though a tense drive on the congested routes would remain faster. This product of human preference could result in considerably more impactful traffic on Garden Highway than predicted in transportation models that tend to assign traffic to the fastest routes.
The DEIR Underestimates the Project’s External Trip Generation In Numerous Ways. Consequently It Underestimates the Project’s VMT Per Capita, Its Contribution To Safety Related Hazardous Queue Problems on
3 The characterization of lands at the west side of the Project area as Agricultural Buffer is improper. This land so described is Agricultural. A buffer is a significant open space between urban/suburban development and agricultural use. This is necessary to avoid overspill of impacts of agricultural operations including pesticide spraying, dust and noise of cultivation and lighting and noise of nighttime harvesting and other night agricultural work impacting residential areas. The only buffer between agricultural and residential use in the proposed plan is a proposed 30 to 50 foot wide open space corridor between the residential uses and the agricultural use at the west side of the Development Area, an open space too narrow to effectively buffer between the residential and agricultural uses.
Mr. Patrick Soluri
Soluri Meserve
October 25, 2024
Freeway Ramps Discussed In Sections Above and Its Contribution To Issues Discussed In DEIR Appendix T-2, the Local Transportation Analysis.
First, the DEIR presents no statistical evidence that it offers a greater mix of land uses, greater overall density, greater walkability, bikeability and transit accessibility that would make it likely to have more internal and fewer external motor vehicle trips than recently developed, comparably sized areas to the north and east of the Project site. Assertions to this effect are merely flowery statements of urban planner rhetoric and ideals.
In furtherance of this notion, the DEIR’s transportation analysts adjusted initial trip generation estimates for the Project based on data from the Institute of Transportation Engineers formerly authoritative publication Trip Generation Manual, 10th Edition,4 by applying a procedure called MXD+ that is purported to account for the special qualities of travel in mixed use developments.
As is explained in Final Technical Appendix to DEIR Appendix TR-1, the current version of MXD+ was calibrated to 2019 data from 12 mixed use sites. Per Table 1 of the Technical Appendix, the 12 calibration sites ranged in size from 4 acres to 221 acres, averaged 50 acres and had a median size of 19 acres. They had a range of dwelling units of 8 to 1841, an average of 563 units and a median of 414 units. By footnote it is indicated that over 95 percent of the units are multi-family and that the site with only 8 units also included a 315 person student dormitory.
The sites retail component ranged from 0 to 753,000 square feet of retail with an average of 168,000 square feet and a median of 38,000 square feet. The sites office components ranged from 0 to 1,084,000 square feet with an average of 212,000 square feet and a median of 41,000 square feet. By contrast, the UWSP project encompasses 2,066 gross acres and 1,532 Development Acres, 9,356 dwelling units and over 3,000,000 square feet of commercial, retail and office development. Obviously, it dwarfs all of the mixed use sites whose data the MXD+ procedure was calibrated to. Also, the residential component is much more evenly split between single family detached units (4367 du) and multi-family units (4989 du) in contrast to the over 95 percent multi-family units in the calibration sites. There is every reason to believe that the MXD+ process is biased toward the travel characteristics of much smaller mixed use projects with predominantly multi-family housing as opposed to the scale and balance of housing types in the subject UWSP Project.
The Technical Appendix to DEIR Appendix T-1 also describes validation of the MXD+ process to 4 additional mixed use developments. The validation sites ranged in size from 4 acres to 3,000 acres with 3 of the 4 sites being less than 80 acres. The residential components at these sites ranged from 120 dwelling units
4 We say ‘formerly authoritative’ because in September, 2021 the Institute released Trip Generation Manual, 11th Edition that supercedes the 10th Edition.
Mr. Patrick Soluri
Soluri Meserve
October 25, 2024
to 7,704 with the total at the largest site being over 88 percent single family detached while the 3 smaller site had predominantly multi-family residential. At the largest site, the office component totaled only 80,000 square feet, the general retail component only 387,000 square feet, 15,000 square feet of restaurant, and 54,000 square feet of supermarket so this site is more like a typical suburban neighborhood than a truly mixed use community. The Technical Report claims that the recalibrated MXD+ procedure was reasonably validated at all four sites, but in the case of the largest this is dependent on certain assumptions about other traffic at the gateways.
The DEIR indicates at page 18-30, Table TR-2, that when the UWSP project data is processed through the SACOG SACSIM19 regional transportation model, the results indicate that 15.4 percent of the Projects residential trips would be internal to the Project. If processed through the MXD+ process, the result is 22.9 percent internal trips. The DEIR’s transportation analysts arbitrarily choose to interpret the more favorable to the Project MXD+ results rather than those of the highly refined SACSIM tour-based model. This causes a critical understatement of the Project’s VMT per capita analysis. If the more conservative and likely more reliable SACSIM19 output is relied upon, the resultant VMT per capita for the Project would be 15.41 miles per capita instead of 14.34. Since 15.41 is above the significance threshold of 14.83 miles per capita, the Project would be found to have significant VMT impact and require mitigation.
Another way the DEIR understates Project external trip generation is by assuming that trip deductions for attracting traffic already passing by retail, restaurant and similar uses are allowable at percentages suggested by the Institution of Transportation Engineers’ publication Trip Generation Handbook.
There are two problems with this. Most of the roadways internal to the Project have zero or close to zero existing traffic. Hence, there is no existing traffic to sustain those attracted passerby percentages assumed. Ergo, attracted passers-by would have to come from traffic generated within the Project itself.
However, the DEIR analysis has already deducted for hefty estimates of internal trips. So discounting for attracted passers-by is in essence double discounting of the same trips. This double discounting amounts to about 5.7 percent of the DEIR’s Table TR-1 estimate of Project external trips.
Another problem with the DEIR’s analysis is the fact it relies on Trip Generation Manual, 10th Edition. As noted in a footnote above, the 10th Edition was superseded by the 11th Edition in September, 2021, in plenty of time for the DEIR analysts to have relied on it for the UWSP work. One of the primary advantages of the newer editions of Trip Generation Manual is that they have been successively improved by getting rid of very old data and adding in more current data, providing data on new land use categories, and disaggregating data from dense urban sites from general urban/suburban sites. One of the problems that Mr. Patrick Soluri
Soluri Meserve
October 25, 2024
professionals noted of the 10th Edition and those that preceded it is that Category 820, Shopping Center, included data from tiny retail establishments of a few thousand square feet to regional shopping centers over a million square feet.
The disparity of the trip characteristics from the very small to very large caused problems with the representative of weighted averages and fitted curves at the opposite ends of the size scale. The 11th Edition solved this by splitting the smaller sized retail into two new use categories and reserving the 820 shopping center category for retail centers over 150,000 square feet. The implication for the DEIR is this. The DEIR is relying on the wrong data set and is relying on a version of MXD+ calibrated to adjust the wrong data set.
Conclusion
Given the above, the DEIR’s transportation section is inadequate and must be revised and recirculated in draft status.
Sincerely,
Smith Engineering & Management
A California Corporation
Daniel T. Smith Jr., P.E.
President
Mr. Patrick Soluri
Soluri Meserve
October 25, 2024
Mr. Patrick Soluri
Soluri Meserve
October 25, 2024
Transportation Centers. Project manager for Daly City Intermodal Study which developed a $7 million surface bus terminal, traffic access, parking and pedestrian circulation improvements at the Daly City BART station plus development of functional plans for a new BART station at Colma. Project manager for design of multi-modal terminal (commuter rail, light rail, bus) at Mission Bay, San Francisco. In Santa Clarita Long Range Transit Development Program, responsible for plan to relocate system's existing timed-transfer hub and development of three satellite transfer hubs. Performed airport ground transportation system evaluations for San Francisco International, Oakland International, Sea-Tac International, Oakland International, Los Angeles International, and San Diego Lindberg.
Campus Transportation. Campus transportation planning assignments for UC Davis, UC Berkeley, UC Santa Cruz and UC San Francisco Medical Center campuses; San Francisco State University; University of San Francisco; and the University of Alaska and others. Also developed master plans for institutional campuses including medical centers, headquarters complexes and research & development facilities.
Special Event Facilities. Evaluations and design studies for football/baseball stadiums, indoor sports arenas, horse and motor racing facilities, theme parks, fairgrounds and convention centers, ski complexes and destination resorts throughout western United States.
Parking. Parking programs and facilities for large area plans and individual sites including downtowns, special event facilities, university and institutional campuses and other large site developments; numerous parking feasibility and operations studies for parking structures and surface facilities; also, resident preferential parking .
Transportation System Management & Traffic Restraint. Project manager on FHWA program to develop techniques and guidelines for neighborhood street traffic limitation. Project manager for Berkeley, (Calif.), Neighborhood Traffic Study, pioneered application of traffic restraint techniques in the U.S. Developed residential traffic plans for Menlo Park, Santa Monica, Santa Cruz, Mill Valley, Oakland, Palo Alto, Piedmont, San Mateo County, Pasadena, Santa Ana and others. Participated in development of photo/radar speed enforcement device and experimented with speed humps. Co-author of Institute of Transportation Engineers reference publication on neighborhood traffic control.
Bicycle Facilities. Project manager to develop an FHWA manual for bicycle facility design and planning, on bikeway plans for Del Mar, (Calif.), the UC Davis and the City of Davis. Consultant to bikeway plans for Eugene, Oregon, Washington, D.C., Buffalo, New York, and Skokie, Illinois. Consultant to U.S. Bureau of Reclamation for development of hydraulically efficient, bicycle safe drainage inlets. Consultant on FHWA research on effective retrofits of undercrossing and overcrossing structures for bicyclists, pedestrians, and handicapped.
MEMBERSHIPS
Institute of Transportation Engineers Transportation Research Board
PUBLICATIONS AND AWARDS
Residential Street Design and Traffic Control, with W. Homburger et al. Prentice Hall, 1989.
Co-recipient, Progressive Architecture Citation, Mission Bay Master Plan, with I.M. Pei WRT Associated, 1984.
Residential Traffic Management, State of the Art Report, U.S. Department of Transportation, 1979.
Improving The Residential Street Environment, with Donald Appleyard et al., U.S. Department of Transportation, 1979.
Strategic Concepts in Residential Neighborhood Traffic Control, International Symposium on Traffic Control Systems, Berkeley, California, 1979.
Planning and Design of Bicycle Facilities: Pitfalls and New Directions, Transportation Research Board, Research Record 570, 1976.
Co-recipient, Progressive Architecture Award, Livable Urban Streets, San Francisco Bay Area and London, with Donald Appleyard, 1979.
EXHIBIT 3
2656 29th Street, Suite 201
Santa Monica, CA 90405
Matt Hagemann, P.G, C.Hg.
(949) 887-9013
[email protected]
Paul E. Rosenfeld, PhD
(310) 795-2335
[email protected]
October 25, 2024
Patrick Soluri
Soluri Meserve Law
510 8th St
Sacramento, CA 95814
Subject: Co mments on the Sacramento Upper Westside Specific Plan (SCH No. 2020100069) Dear Mr. Soluri,
We have reviewed the August 2024 Draft Environmental Impact Report (“DEIR”) for the Upper Westside Specific Plan (“Specific Plan”) located in the City of Sacramento (“City”). The Specific Plan allows for the future development of 9,356 housing units and over 3,000,000-square-feet (“SF”) of commercial, retail, and office uses on the 2,066-acre site.
Our review concludes that the DEIR fails to adequately evaluate the Specific Plan’s air quality impacts. As a result, emissions and health risk impacts associated with operation of future projects under the proposed Specific Plan may be underestimated and inadequately addressed. A revised Environmental Impact Report (“EIR”) should be prepared to adequately assess and mitigate the potential air quality impacts that the future projects may have on the environment.
Air Quality
Failure to Implement All Feasible Mitigation to Reduce Emissions The DEIR estimates that the Specific Plan’s operational reactive organic gas (“ROG”), nitrogen oxides (“NOX”), particulate matter 10 (“PM10”), and particulate matter 2.5 (“PM2.5”) emissions would exceed the applicable Sacramento Metropolitan Air Quality Management District thresholds (see excerpt below) (p. 6-42, Table AQ-9).
2 The DEIR implements mitigation measure (“MM”) AQ-1b, which “require[s] that the project applicant comply with the provisions of the AQMP, and provides a list of all feasible measures that the proposed UWSP can implement to reduce operational emissions” (p. 6-34).
Even with the inclusion of MM AQ-1b, however, the DEIR concludes that impacts associated with the operation of future projects would be significant-and-unavoidable. Specifically, the DEIR states:
“Although the mobile sources that would be associated with the proposed UWSP are not specifically delineated from the other proposed UWSP sources in Tables AQ-9 and AQ-9, implementation of Mitigation Measure AQ-1b would achieve the 35 percent reduction in NOX and ROG mobile-source emissions feasibility goal relative to unmitigated emissions (see Appendix AQ-1 model outputs). However, as shown in Table AQ-10, emission levels would still exceed the applicable thresholds of significance relative to all criteria pollutants and precursors evaluated, and therefore, the impact would remain significant and unavoidable” (p. 6-44).
According to California Environmental Quality Act (“CEQA”) Guidelines § 15096(g)(2):
“When an updated EIR has been prepared for a project, the Responsible Agency shall not approve the project as proposed if the agency finds any feasible alternative or feasible
3 mitigation measures within its powers that would substantially lessen or avoid any significant effect the project would have on the environment.”1
The DEIR is required under CEQA to implement all feasible mitigation to reduce impacts to the greatest extent viable. While the DEIR implements MM AQ-1b, the DEIR fails to implement all feasible mitigation.
The DEIR’s conclusion that Specific Plan’s air quality emissions would be significant-and-unavoidable may therefore be unsubstantiated.
To reduce future projects’ air quality impacts to the maximum extent possible, additional feasible mitigation measures should be incorporated, such as those suggested in the section of this letter below titled “Feasible Mitigation Measures Available to Reduce Emissions.” The Specific Plan should not be approved until a revised EIR is prepared, incorporating all feasible mitigation to reduce emissions to the greatest extent possible.
Mitigation
Feasible Mitigation Measures Available to Reduce Emissions The DEIR is required under CEQA to implement all feasible mitigation to reduce the future projects’ potential impacts, as referenced above. As the Specific Plan would result in potentially significant operational air quality impacts, we propose additional mitigation measures for the DEIR to consider.
First, to reduce ROG emissions associated with the operation of future projects, we recommend the DEIR consider incorporating the following mitigation used by other land use development projects to address maintenance-related volatile organic compounds (“VOC”)/ROG emissions:
2 • Recycle leftover paint. Take any leftover paint to a household hazardous waste center; do not mix leftover water-based and oil-based paints.
• Keep lids closed on all paint containers when not in use to prevent VOC emissions and excessive odors.
• For water-based paints, clean up with water only. Whenever possible, do not rinse the cleanup water down the drain or pour it directly into the ground or the storm drain • Use compliant low-VOC cleaning solvents to clean paint application equipment. • Keep all paint- and solvent-laden rags in sealed containers to prevent VOC emissions. • Use high-pressure/low-volume paint applicators with a minimum transfer efficiency of at least 50 percent or other application techniques with equivalent or higher transfer efficiency.
1 “Cal. Code Regs. tit. 14 § 15096.” California Legislature, available at: https://casetext.com/regulation/california- code-of-regulations/title-14-natural-resources/division-6-resources-agency/chapter-3-guidelines-for- implementation-of-the-california-environmental-quality-act/article-7-eir-process/section-15096-process-for-a- responsible-agency.
2 “Banning Commerce Center Project.” Kimley-Horn and Associates, Inc., June 2024, available at:
https://ceqanet.opr.ca.gov/2022090102/2; Draft Environmental Impact Report, p. 1-7. 4 Second, the Environmental Protection Agency explains that NOx emissions originate from “motor vehicle internal combustion engines and fossil fuel-fired electric utility and industrial boilers” and sources of PM10/PM2.5 emissions include “combustion of gasoline, oil, [and] diesel fuel.”3,4 To reduce the NOx, PM10, PM2.5 emissions associated with the operation of future projects, we recommend the DEIR consider incorporating several mitigation measures (see list below).
The California Air Resources Board (“CARB”) recommends the following:5 • Require tenants to use the cleanest technologies available, and to provide the necessary infrastructure to support zero-emission vehicles and equipment that will be operating on site. • Requiring all service equipment (e.g., yard hostlers, yard equipment, forklifts, and pallet jacks) used within the project site to be zero-emission. This equipment is widely available and can be purchased using incentive funding from CARB’s Clean Off-Road Equipment Voucher Incentive Project (CORE).
• Require future tenants to exclusively use zero-emission light and medium-duty delivery trucks and vans.
• Require all heavy-duty trucks entering or on the project site to be zero-emission vehicles, and be fully zero-emission. A list of commercially available zero-emission trucks can be obtained from the Hybrid and Zero-emission Truck and Bus Voucher Incentive Project (HVIP). Additional incentive funds can be obtained from the Carl Moyer Program and Voucher Incentive Program. • Require the installation of vegetative walls or other effective barriers that separate loading docks and people living or working nearby.
In addition to recommending similar mitigation as the above-mentioned measures from CARB, the California Department of Justice (“CA DOJ”) suggests:
6 • Constructing zero-emission truck charging/fueling stations proportional to the number of dock doors at the project.
• Running conduit to designated locations for future electric truck charging stations. • Oversizing electrical rooms by 25 percent or providing a secondary electrical room to accommodate future expansion of electric vehicle charging capability.
3 “Proposed Revisions to the National Ambient Air Quality Standards for Nitrogen Dioxide.” EPA, July 2009, available at: https://www.gpo.gov/fdsys/pkg/FR-2009-07-15/pdf/E9-15944.pdf. 4 “Inhalable Particulate Matter and Health (PM2.5 and PM10).” CARB, available at:
https://ww2.arb.ca.gov/resources/inhalable-par ticulate-matter-and- health#:~:text=Emissions%20from%20combustion%20of%20gasoline,a%20significant%20proportion%20of%20PM
10. 5 “Recommended Air Pollution Emission Reduction Measures for Warehouses and Distribution Centers.” CARB, August 2023, available at: https://ww2.arb.ca.gov/sites/default/files/2023-08/C ARB%20Comments%20- %20NOP%20for%20the%20%20Oak%20Valley%20North%20Project%20DEIR.pdf; Attachment A, p. 5 – 8. 6 “Warehouse Projects: Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act.” State of California Department of Justice, September 2022, available at:
https://oag.ca.gov/system/files/media/warehouse-best-practices.pdf, p. 8 – 10. 5 • Constructing and maintaining electric light-duty vehicle charging stations proportional to the number of employee parking spaces (for example, requiring at least 10% of all employee parking spaces to be equipped with electric vehicle charging stations of at least Level 2 charging performance).
• Running conduit to an additional proportion of employee parking spaces for a future increase in the number of electric light-duty charging stations.
• Sequent future projects under the Proposed Specific Plan shall install Level 2 EV charging stations in 15% of all parking spaces for multi-family developments and pre-wiring to allow for a Level 2 EV charging stations in all single-family residential garages.
Additionally, the Specific Plan allows plans for future development of restaurants on the proposed site.
South Coast Air Quality Management District (“SCAQMD”) Rule 1138 outlines the following requirements for projects that include fast-food charbroilers:
7 • No person shall operate a new or existing chain-driven charbroiler unless it is equipped and operated with a catalytic oxidizer control device, and the combination charbroiler/catalyst has been tested and certified by the Executive Officer.
• Catalytic oxidizers or other control devices shall be maintained in good working order to minimize visible emissions to the atmosphere, an operated, cleaned, and maintained in accordance with the manufacturer's specifications in a maintenance manual or other written materials supplied by the manufacturer or distributor of the catalyst or other control device, or chain-driven charbroiler.
Note that while the Specific Plan is not located within the jurisdiction of the SCAQMD, compliance with Rule 1138 would nonetheless decrease future projects’ emissions.
We have provided several mitigation measures that would reduce the Specific Plan’s ROG, NOx, PM10, and PM2.5 emissions, gathering from sources including CARB, the CA DOJ and others. These measures offer a cost-effective, feasible way to incorporate lower-emitting design features into future projects.
A revised EIR should be prepared that includes all feasible mitigation measures, as well as an updated air quality analysis to ensure that the necessary mitigation measures are implemented.
Disclaimer
SWAPE has received limited discovery regarding this project. Additional information may become available in the future; thus, we retain the right to revise or amend this report when additional information becomes available. Our professional services have been performed using that degree of care and skill ordinarily exercised, under similar circumstances, by reputable environmental consultants practicing in this or similar localities at the time of service. No other warranty, expressed or implied, is made as to the scope of work, work methodologies and protocols, site conditions, analytical testing results, and findings presented. This report reflects efforts which were limited to information that was
7 “Rule 1138. Control Of Emissions from Restaurant Operations.” SCAQMD, November 1997, available at:
https://www.aqmd.gov/docs/default-source/rule-book/reg-xi/rule-1138.pdf, p. 2 – 3. 6 reasonably accessible at the time of the work, and may contain informational gaps, inconsistencies, or otherwise be incomplete due to the unavailability or uncertainty of information obtained or provided by third parties.
Sincere
ly,
Matt
Hagemann, P.G., C.Hg.
Paul
E. Rosenfeld, Ph.D.
Attachment A: Matt Hagemann CV
Attachment B: Paul Rosenfeld CV
2656 29th Street, Suite 201
Santa Monica, CA 90405
Matt Hagemann, P.G, C.Hg.
(949) 887-9
013
[email protected]
Matthew F. Hagemann, P.G., C.Hg., QSD, QSP
Geologic and Hydrogeologic Characterizati
on
Investigation and Remediation Strategies
Litigation Support and Testifying Expert
Industrial Stormwater Compliance
CEQA Review
Education:
M.S. Degree, Geology, California State University Los Angeles, Los Angeles, CA, 1984.
B.A. Degree, Geology, Humboldt State University, Arcata, CA, 1982.
Professional Certifications:
California Professional Geologist
California Certified Hydrogeologist
Qualified SWPPP Developer and Practitioner
Professional Experience:
Matt has 30 years of experience in environmental policy, contaminant assessment and remediation, stormwater compliance, and CEQA review. He spent nine years with the U.S. EPA in the RCRA and Superfund programs and served as EPA’s Senior Science Policy Advisor in the Western Regional Office where he identified emerging threats to groundwater from perchlorate and MTBE. While with EPA, Matt also served as a Senior Hydrogeologist in the oversight of the assessment of seven major military facilities undergoing base closure. He led numerous enforcement actions under provisions of the Resource Conservation and Recovery Act (RCRA) and directed efforts to improve hydrogeologic characterization and water quality monitoring. For the past 15 years, as a founding partner with SWAPE, Matt has developed extensive client relationships and has managed complex projects that include consultation as an expert witness and a regulatory specialist, and a manager of projects ranging from industrial stormwater compliance to CEQA review of impacts from hazardous waste, air quality and greenhouse gas emissions.
Positions Matt has held include:
• Founding Partner, Soil/Water/Air Protection Enterprise (SWAPE) (2003 – present); • Geology Instructor, Golden West College, 2010 – 2104, 2017; • Senior Environmental Analyst, Komex H2O Science, Inc. (2000 ‐‐ 2003); Attachment A
2 • Executive Director, Orange Coast Watch (2001 – 2004); • Senior Science Policy Advisor and Hydrogeologist, U.S. Environmental Protection Agency (1989– 1998);
• Hydrogeologist, National Park Service, Water Resources Division (1998 – 2000); • Adjunct Faculty Member, San Francisco State University, Department of Geosciences (1993 – 1998);
• Instructor, College of Marin, Department of Science (1990 – 1995); • Geologist, U.S. Forest Service (1986 – 1998); and
• Geologist, Dames & Moore (1984 – 1986).
Senior Regulatory and Litigation Support Analyst:
With SWAPE, Matt’s responsibilities have included:
• Lead analyst and testifying expert in the review of over 300 environmental impact reports and negative declarations since 2003 under CEQA that identify significant issues with regard to hazardous waste, water resources, water quality, air quality, greenhouse gas emissions, and geologic hazards. Make recommendations for additional mitigation measures to lead agencies at the local and county level to include additional characterization of health risks and implementation of protective measures to reduce worker exposure to hazards from toxins and Valley Fever.
• Stormwater analysis, sampling and best management practice evaluation at more than 100 industrial facilities.
• Expert witness on numerous cases including, for example, perfluorooctanoic acid (PFOA) contamination of groundwater, MTBE litigation, air toxins at hazards at a school, CERCLA compliance in assessment and remediation, and industrial stormwater contamination. • Technical assistance and litigation support for vapor intrusion concerns. • Lead analyst and testifying expert in the review of environmental issues in license applications for large solar powe r plants before the California Energy Commission. • Manager of a project to evaluate numerous formerly used military sites in the western U.S. • Manager of a comprehensive evaluation of potential sources of perchlorate contamination in Southern California drink ing water wells.
• Manager and designated expert for litigation support under provisions of Proposition 65 in the review of releases of gasolin e to sources drinking water at major refineries and hundreds of gas stations throughout Calif ornia.
With Komex H2O Science Inc., Matt’s duties included the following:
• Senior author of a report on the extent of perchlorate contamination that was used in testimony by the former U.S. EPA A dministrator and General Counsel. • Senior researcher in the development of a comprehensive, electronically interactive chronology of MTBE use, researc h, and regulation.
• Senior researcher in the development of a comprehensive, electronically interactive chronology of perchlorate use, resea rch, and regulation.
• Senior researcher in a study that estimates nationwide costs for MTBE remediation and drinking water treatment, result s of which were published in newspapers nationwide and in testimony against provisions of an energy bi ll that would limit liability for oil companies. • Research to support litigation to restore drinking water supplies that have been contaminated by MTBE in California and New York.
3 • Expert witness testimony in a case of oil production‐related contamination in Mississippi. • Lead author for a multi‐volume remedial investigation report for an operating school in Los Angeles that met str ict regulatory requirements and rigorous deadlines. • Development of strategic approaches for cleanup of contaminated sites in consultation with clients and regul ators.
Executive Director:
As Executive Director with Orange Coast Watch, Matt led efforts to restore water quality at Orange County beaches from multiple sources of contamination including urban runoff and the discharge of wastewater. In reporting to a Board of Directors that included representatives from leading Orange County universities and businesses, Matt prepared issue papers in the areas of treatment and disinfection of wastewater and control of the discharge of grease to sewer systems. Matt actively participated in the development of countywide water quality permits for the control of urban runoff and permits for the discharge of wastewater. Matt worked with other nonprofits to protect and restore water quality, including Surfrider, Natural Resources Defense Council and Orange County CoastKeeper as well as with business institutions including the Orange County Business Council.
Hydrogeology:
As a Senior Hydrogeologist with the U.S. Environmental Protection Agency, Matt led investigations to characterize and cleanup closing military bases, including Mare Island Naval Shipyard, Hunters Point Naval Shipyard, Treasure Island Naval Station, Alameda Naval Station, Moffett Field, Mather Army Airfield, and Sacramento Army Depot. Specific activities were as follows:
• Led efforts to model groundwater flow and contaminant transport, ensured adequacy of monitoring networ ks, and assessed cleanup alternatives for contaminated sediment, soil, and groundwater.
• Initiated a regional program for evaluation of groundwater sampling practices and laboratory analysis at military bases.
• Identified emerging issues, wrote technical guidance, and assisted in policy and regulation development through wo rk on four national U.S. EPA workgroups, including the Superfund Groundwater Techni cal Forum and the Federal Facilities Forum.
At the request of the State of Hawaii, Matt developed a methodology to determine the vulnerability of groundwater to contamination on the islands of Maui and Oahu. He used analytical models and a GIS to show zones of vulnerability, and the results were adopted and published by the State of Hawaii and County of Maui.
As a hydrogeologist with the EPA Groundwater Protection Section, Matt worked with provisions of the Safe Drinking Water Act and NEPA to prevent drinking water contamination. Specific activities included the following:
• Received an EPA Bronze Medal for his contribution to the development of national guidance for the protection of drink ing water.
• Managed the Sole Source Aquifer Program and protected the drinking water of two communities through designation under t he Safe Drinking Water Act. He prepared geologic reports, conducted 4 public hearings, and responded to public comments from residents who were very concerned about the impact of designation.
• Reviewed a number of Environmental Impact Statements for planned major developments, including large hazardous and solid waste disposal facilities, mine reclamation, and water transfer.
Matt served as a hydrogeologist with the RCRA Hazardous Waste program. Duties were as follows:
• Supervised the hydrogeologic investigation of hazardous waste sites to determine compliance with Subtitle C requirements.
• Reviewed and wrote ʺpart Bʺ permits for the disposal of hazardous waste. • Conducted RCRA Corrective Action investigations of waste sites and led inspections that formed the basis for significant enforcement actions that were developed in close coordination with U.S.
EPA legal counsel.
• Wrote contract specifications and supervised contractor’s investigations of waste sites.
With the National Park Service, Matt directed service‐wide investigations of contaminant sources to prevent degradation of water quality, including the following tasks:
• Applied pertinent laws and regulations including CERCLA, RCRA, NEPA, NRDA, and the Clean Water Act to control military, mining, and landfill contaminants. • Conducted watershed‐scale investigations of contaminants at parks, including Yellowstone and Olympic National Park.
• Identified high‐levels of perchlorate in soil adjacent to a national park in New Mexico and advised park superintendent on appropriate response actions under CERCLA. • Served as a Park Service representative on the Interagency Perchlorate Steering Committee, a national workgroup.
• Developed a program to conduct environmental compliance audits of all National Parks while serving on a national workgroup.
• Co‐authored two papers on the potential for water contamination from the operation of personal watercraft and snowmobiles, these papers serving as the basis for the development of nation‐ wide policy on the use of these vehicles in National Parks. • Contributed to the Federal Multi‐Agency Source Water Agreement under the Clean Water Action Plan.
Policy:
Served senior management as the Senior Science Policy Advisor with the U.S. Environmental Protection Agency, Region 9.
Activities included the following:
• Advised the Regional Administrator and senior management on emerging issues such as the potential for the gasoline additive MTBE and ammonium perchlorate to contaminate drinking water supplies.
• Shaped EPA’s national response to these threats by serving on workgroups and by contributing to guidance, including the Office of Research and Development publication, Oxygenates in Water: Critical Information and Research Needs.
• Improved the technical training of EPAʹs scientific and engineering staff. • Earned an EPA Bronze Medal for representing the region’s 300 scientists and engineers in negotiations with the Administrator and senior management to better integrate scientific 5 principles into the policy‐making process.
• Established national protocol for the peer review of scientific documents.
Geology:
With the U.S. Forest Service, Matt led investigations to determine hillslope stability of areas proposed for timber harvest in the central Oregon Coast Range. Specific activities were as follows:
• Mapped geology in the field, and used aerial photographic interpretation and mathematical models to determi ne slope stability.
• Coordinated his research with community members who were concerned with natural resource protection.
• Characterized the geology of an aquifer that serves as the sole source of drinking water for the city of Medford, Oreg on.
As a consultant with Dames and Moore, Matt led geologic investigations of two contaminated sites (later listed on the Superfund NPL) in the Portland, Oregon, area and a large hazardous waste site in eastern Oregon. Duties included the following:
• Supervised year‐long effort for soil and groundwater sampling. • Conducted aquifer tests.
• Investigated active faults beneath sites proposed for hazardous waste disposal.
Teaching:
From 1990 to 1998, Matt taught at least one course per semester at the community college and university levels:
• At San Francisco State University, held an adjunct faculty position and taught courses in environmental geology , oceanography (lab and lecture), hydrogeology, and groundwater contamination.
• Served as a committee member for graduate and undergraduate students. • Taught courses in environmental geology and oceanography at the College of Marin.
Matt is currently a part time geology instructor at Golden West College in Huntington Beach, California where he taught from 2010 to 2014 and in 2017.
Invited Testimony, Reports, Papers and Presentations:
Hagemann, M.F., 2008. Disclosure of Hazardous Waste Issues under CEQA. Presentation to the Public Environmental Law Conference, Eugene, Oregon.
Hagemann, M.F., 2008. Disclosure of Hazardous Waste Issues under CEQA. Invited presentation to U.S.
EPA Region 9, San Francisco, California.
Hagemann, M.F., 2005. Use of Electronic Databases in Environmental Regulation, Policy Making and Public Participation. Brownfields 2005, Denver, Coloradao.
Hagemann, M.F., 2004. Perchlorate Contamination of the Colorado River and Impacts to Drinking Water in Nevada and the Southwestern U.S. Presentation to a meeting of the American Groundwater Trust, Las Vegas, NV (served on conference organizing committee).
6 Hagemann, M.F., 2004. Invited testimony to a California Senate committee hearing on air toxins at schools in Southern California, Los Angeles.
Brown, A., Farrow, J., Gray, A. and Hagemann, M., 2004. An Estimate of Costs to Address MTBE Releases from Underground Storage Tanks and the Resulting Impact to Drinking Water Wells.
Presentation to the Ground Water and Environmental Law Conference, National Groundwater Association.
Hagemann, M.F., 2004. Perchlorate Contamination of the Colorado River and Impacts to Drinking Water in Arizona and the Southwestern U.S. Presentation to a meeting of the American Groundwater Trust, Phoenix, AZ (served on conference organizing committee).
Hagemann, M.F., 2003. Perchlorate Contamination of the Colorado River and Impacts to Drinking Water in the Southwestern U.S. Invited presentation to a special committee meeting of the National Academy of Sciences, Irvine, CA.
Hagemann, M.F., 2003. Perchlorate Contamination of the Colorado River. Invited presentation to a tribal EPA meeting, Pechanga, CA.
Hagemann, M.F., 2003. Perchlorate Contamination of the Colorado River. Invited presentation to a meeting of tribal repesentatives, Parker, AZ.
Hagemann, M.F., 2003. Impact of Perchlorate on the Colorado River and Associated Drinking Water Supplies. Invited presentation to the Inter‐Tribal Meeting, Torres Martinez Tribe.
Hagemann, M.F., 2003. The Emergence of Perchlorate as a Widespread Drinking Water Contaminant.
Invited presentation to the U.S. EPA Region 9.
Hagemann, M.F., 2003. A Deductive Approach to the Assessment of Perchlorate Contamination. Invited presentation to the California Assembly Natural Resources Committee.
Hagemann, M.F., 2003. Perchlorate: A Cold War Legacy in Drinking Water. Presentation to a meeting of the National Groundwater Association.
Hagemann, M.F., 2002. From Tank to Tap: A Chronology of MTBE in Groundwater. Presentation to a meeting of the National Groundwater Association.
Hagemann, M.F., 2002. A Chronology of MTBE in Groundwater and an Estimate of Costs to Address Impacts to Groundwater. Presentation to the annual meeting of the Society of Environmental Journalists.
Hagemann, M.F., 2002. An Estimate of the Cost to Address MTBE Contamination in Groundwater (and Who Will Pay). Presentation to a meeting of the National Groundwater Association.
Hagemann, M.F., 2002. An Estimate of Costs to Address MTBE Releases from Underground Storage Tanks and the Resulting Impact to Drinking Water Wells. Presentation to a meeting of the U.S. EPA and State Underground Storage Tank Program managers.
7 Hagemann, M.F., 2001. From Tank to Tap: A Chronology of MTBE in Groundwater. Unpublished report.
Hagemann, M.F., 2001. Estimated Cleanup Cost for MTBE in Groundwater Used as Drinking Water.
Unpublished report.
Hagemann, M.F., 2001. Estimated Costs to Address MTBE Releases from Leaking Underground Storage Tanks. Unpublished report.
Hagemann, M.F., and VanMouwerik, M., 1999. Potential W a t e r Quality Concerns Related to Snowmobile Usage. Water Resources Division, National Park Service, Technical Report.
VanMouwerik, M. and Hagemann, M.F. 1999, Water Quality Concerns Related to Personal Watercraft Usage. Water Resources Division, National Park Service, Technical Report.
Hagemann, M.F., 1999, Is Dilution the Solution to Pollution in National Parks? The George Wright Society Biannual Meeting, Asheville, North Carolina.
Hagemann, M.F., 1997, The Potential for MTBE to Contaminate Groundwater. U.S. EPA Superfund Groundwater Technical Forum Annual Meeting, Las Vegas, Nevada.
Hagemann, M.F., and Gill, M., 1996, Impediments to Intrinsic Remediation, Moffett Field Naval Air Station, Conference on Intrinsic Remediation of Chlorinated Hydrocarbons, Salt Lake City.
Hagemann, M.F., Fukunaga, G.L., 1996, The Vulnerability of Groundwater to Anthropogenic Contaminants on the Island of Maui, Hawaii. Hawaii Water Works Association Annual Meeting, Maui, October 1996.
Hagemann, M. F., Fukanaga, G. L., 1996, Ranking Groundwater Vulnerability in Central Oahu, Hawaii. Proceedings, Geographic Information Systems in Environmental Resources Management, Air and Waste Management Association Publication VIP‐61.
Hagemann, M.F., 1994. Groundwater Ch ar ac te r i z a t i o n and Cl ean up a t Closing Military Bases in California. Proceedings, California Groundwater Resources Association Meeting.
Hagemann, M. F. and Sabol, M.A., 1993. Role of the U.S. EPA in the High Plains States Groundwater Recharge Demonstration Program. Proceedings, Sixth Biennial Symposium on the Artificial Recharge of Groundwater.
Hagemann, M.F., 1993. U.S. EPA Policy on the Technical Impracticability of the Cleanup of DNAPL‐ contaminated Groundwater. California Groundwater Resources Association Meeting. 8 Hagemann, M.F., 1992. Dense Nonaqueous Phase Liquid Contamination of Groundwater: An Ounce of Prevention... Proceedings, Association of Engineering Geologists Annual Meeting, v. 35.
Other Experience:
Selected as subject matter expert for the California Professional Geologist licensing examinations, 2009‐2011.
SOIL WATER AIR PROTECTION ENTERPRISE
2656 29th Street, Suite 201
Santa Monica, California 90405
Attn: Paul Rosenfeld, Ph.D.
Mobil: (310) 795-2335
Office: (310) 452-5555
Fax: (310) 452-5550
Email: [email protected]
Paul E. Rosenfeld, Ph.D. Page 1 of 12 October 2022
Paul Rosenfeld, Ph.D. Chemical Fate and Transport & Air Dispersion Modeling Principal Environmental Chemist Risk Assessment & Remediation Specialist Education
Ph.D. Soil Chemistry, University of Washington, 1999. Dissertation on volatile organic compound filtration.
M.S. Environmental Science, U.C. Berkeley, 1995. Thesis on organic waste economics.
B.A. Environmental Studies, U.C. Santa Barbara, 1991. Focus on wastewater treatment.
Professional Experience
Dr. Rosenfeld has over 25 years of experience conducting environmental investigations and risk assessments for evaluating impacts to human health, property, and ecological receptors. His expertise focuses on the fate and transport of environmental contaminants, human health risk, exposure assessment, and ecological restoration. Dr.
Rosenfeld has evaluated and modeled emissions from oil spills, landfills, boilers and incinerators, process stacks, storage tanks, confined animal feeding operations, industrial, military and agricultural sources, unconventional oil drilling operations, and locomotive and construction engines. His project experience ranges from monitoring and modeling of pollution sources to evaluating impacts of pollution on workers at industrial facilities and residents in surrounding communities. Dr. Rosenfeld has also successfully modeled exposure to contaminants distributed by water systems and via vapor intrusion.
Dr. Rosenfeld has investigated and designed remediation programs and risk assessments for contaminated sites containing lead, heavy metals, mold, bacteria, particulate matter, petroleum hydrocarbons, chlorinated solvents, pesticides, radioactive waste, dioxins and furans, semi- and volatile organic compounds, PCBs, PAHs, creosote, perchlorate, asbestos, per- and poly-fluoroalkyl substances (PFOA/PFOS), unusual polymers, fuel oxygenates (MTBE), among other pollutants. Dr. Rosenfeld also has experience evaluating greenhouse gas emissions from various projects and is an expert on the assessment of odors from industrial and agricultural sites, as well as the evaluation of odor nuisance impacts and technologies for abatement of odorous emissions. As a principal scientist at SWAPE, Dr. Rosenfeld directs air dispersion modeling and exposure assessments. He has served as an expert witness and testified about pollution sources causing nuisance and/or personal injury at sites and has testified as an expert witness on numerous cases involving exposure to soil, water and air contaminants from industrial, railroad, agricultural, and military sources.
Attachment B
Paul E. Rosenfeld, Ph.D. Page 2 of 12 October 2022
Professional History:
Soil Water Air Protection Enterprise (SWAPE); 2003 to present; Principal and Founding Partner UCLA School of Public Health; 2007 to 2011; Lecturer (Assistant Researcher) UCLA School of Public Health; 2003 to 2006; Adjunct Professor UCLA Environmental Science and Engineering Program; 2002-2004; Doctoral Intern Coordinator UCLA Institute of the Environment, 2001-2002; Research Associate Komex H2O Science, 2001 to 2003; Senior Remediation Scientist National Groundwater Association, 2002-2004; Lecturer
San Diego State University, 1999-2001; Adjunct Professor Anteon Corp., San Diego, 2000-2001; Remediation Project Manager Ogden (now Amec), San Diego, 2000-2000; Remediation Project Manager Bechtel, San Diego, California, 1999 – 2000; Risk Assessor King County, Seattle, 1996 – 1999; Scientist
James River Corp., Washington, 1995-96; Scientist
Big Creek Lumber, Davenport, California, 1995; Scientist Plumas Corp., California and USFS, Tahoe 1993-1995; Scientist Peace Corps and World Wildlife Fund, St. Kitts, West Indies, 1991-1993; Scientist Publications:
Rosenfeld P. E., Spaeth K., Hallman R., Bressler R., Smith, G., (2022) Cancer Risk and Diesel Exhaust Exposure Among Railroad Workers. Water Air Soil Pollution. 233, 171.
Remy, L.L., Clay T., Byers, V., Rosenfeld P. E. (2019) Hospital, Health, and Community Burden After Oil Refinery Fires, Richmond, California 2007 and 2012. Environmental Health. 18:48 Simons, R.A., Seo, Y. Rosenfeld, P., (2015) Modeling the Effect of Refinery Emission On Residential Property Value. Journal of Real Estate Research. 27(3):321-342
Chen, J. A, Zapata A. R., Sutherland A. J., Molmen, D.R., Chow, B. S., Wu, L. E., Rosenfeld, P. E., Hesse, R. C., (2012) Sulfur Dioxide and Volatile Organic Compound Exposure To A Community In Texas City Texas Evaluated Using Aermod and Empirical Data. American Journal of Environmental Science , 8(6), 622-632.
Rosenfeld, P.E. & Feng, L. (2011). The Risks of Hazardous Waste. Amsterdam: Elsevier Publishing.
Cheremisinoff, N.P., & Rosenfeld, P.E. (2011). Handbook of Pollution Prevention and Cleaner Production: Best Practices in the Agrochemical Industry, Amsterdam: Elsevier Publishing.
Gonzalez, J., Feng, L., Sutherland, A., Waller, C., Sok, H., Hesse, R., Rosenfeld, P. (2010). PCBs and Dioxins/Furans in Attic Dust Collected Near Former PCB Production and Secondary Copper Facilities in Sauget, IL.
Procedia Environmental Sciences. 113–125.
Feng, L., Wu, C., Tam, L., Sutherland, A.J., Clark, J.J., Rosenfeld, P.E. (2010). Dioxin and Furan Blood Lipid and Attic Dust Concentrations in Populations Living Near Four Wood Treatment Facilities in the United States. Journal of Environmental Health. 73(6), 34-46.
Cheremisinoff, N.P., & Rosenfeld, P.E. (2010). Handbook of Pollution Prevention and Cleaner Production: Best Practices in the Wood and Paper Industries. Amsterdam: Elsevier Publishing.
Cheremisinoff, N.P., & Rosenfeld, P.E. (2009). Handbook of Pollution Prevention and Cleaner Production: Best Practices in the Petroleum Industry. Amsterdam: Elsevier Publishing.
Paul E. Rosenfeld, Ph.D. Page 3 of 12 October 2022
Wu, C., Tam, L., Clark, J., Rosenfeld, P. (2009). Dioxin and furan blood lipid concentrations in populations living near four wood treatment facilities in the United States. WIT Transactions on Ecology and the Environment, Air Pollution, 123 (17), 319-327.
Tam L. K.., Wu C. D., Clark J. J. and Rosenfeld, P.E. (2008). A Statistical Analysis Of Attic Dust And Blood Lipid Concentrations Of Tetrachloro-p-Dibenzodioxin (TCDD) Toxicity Equivalency Quotients (TEQ) In Two Populations Near Wood Treatment Facilities. Organohalogen Compounds, 70, 002252-002255.
Tam L. K.., Wu C. D., Clark J. J. and Rosenfeld, P.E. (2008). Methods For Collect Samples For Assessing Dioxins And Other Environmental Contaminants In Attic Dust: A Review. Organohalogen Compounds, 70, 000527- 000530.
Hensley, A.R. A. Scott, J. J. J. Clark, Rosenfeld, P.E. (2007). Attic Dust and Human Blood Samples Collected near a Former Wood Treatment Facility. Environmental Research. 105, 194-197.
Rosenfeld, P.E., J. J. J. Clark, A. R. Hensley, M. Suffet. (2007). The Use of an Odor Wheel Classification for Evaluation of Human Health Risk Criteria for Compost Facilities. Water Science & Technology 55(5), 345-357.
Rosenfeld, P. E., M. Suffet. (2007). The Anatomy Of Odour Wheels For Odours Of Drinking Water, Wastewater, Compost And The Urban Environment. Water Science & Technology 55(5), 335-344.
Sullivan, P. J. Clark, J.J.J., Agardy, F. J., Rosenfeld, P.E. (2007). Toxic Legacy, Synthetic Toxins in the Food, Water, and Air in American Cities. Boston Massachusetts: Elsevier Publishing
Rosenfeld, P.E., and Suffet I.H. (2004). Control of Compost Odor Using High Carbon Wood Ash. Water Science and Technology. 49(9),171-178.
Rosenfeld P. E., J.J. Clark, I.H. (Mel) Suffet (2004). The Value of An Odor-Quality-Wheel Classification Scheme For The Urban Environment. Water Environment Federation’s Technical Exhibition and Conference (WEFTEC) 2004. New Orleans, October 2-6, 2004.
Rosenfeld, P.E., and Suffet, I.H. (2004). Understanding Odorants Associated With Compost, Biomass Facilities, and the Land Application of Biosolids. Water Science and Technology. 49(9), 193-199.
Rosenfeld, P.E., and Suffet I.H. (2004). Control of Compost Odor Using High Carbon Wood Ash, Water Science and Technology, 49( 9), 171-178.
Rosenfeld, P. E., Grey, M. A., Sellew, P. (2004). Measurement of Biosolids Odor and Odorant Emissions from Windrows, Static Pile and Biofilter. Water Environment Research. 76(4), 310-315.
Rosenfeld, P.E., Grey, M and Suffet, M. (2002). Compost Demonstration Project, Sacramento California Using High-Carbon Wood Ash to Control Odor at a Green Materials Composting Facility. Integrated Waste Management Board Public Affairs Office, Publications Clearinghouse (MS–6), Sacramento, CA Publication #442-02-008.
Rosenfeld, P.E., and C.L. Henry. (2001). Characterization of odor emissions from three different biosolids. Water Soil and Air Pollution. 127(1-4), 173-191.
Rosenfeld, P.E., and Henry C. L., (2000). Wood ash control of odor emissions from biosolids application. Journal of Environmental Quality. 29, 1662-1668.
Rosenfeld, P.E., C.L. Henry and D. Bennett. (2001). Wastewater dewatering polymer affect on biosolids odor emissions and microbial activity. Water Environment Research. 73(4), 363-367.
Rosenfeld, P.E., and C.L. Henry. (2001). Activated Carbon and Wood Ash Sorption of Wastewater, Compost, and Biosolids Odorants. Water Environment Research, 73, 388-393.
Paul E. Rosenfeld, Ph.D. Page 4 of 12 October 2022
Rosenfeld, P.E., and Henry C. L., (2001). High carbon wood ash effect on biosolids microbial activity and odor.
Water Environment Research. 131(1-4), 247-262.
Chollack, T. and P. Rosenfeld. ( 1998). Compost Amendment Handbook For Landscaping. Prepared for and distributed by the City of Redmond, Washington State.
Rosenfeld, P. E. (1992). The Mount Liamuiga Crater Trail. Heritage Magazine of St. Kitts, 3(2).
Rosenfeld, P. E. (1993). High School Biogas Project to Prevent Deforestation On St. Kitts. Biomass Users Network, 7(1).
Rosenfeld, P. E. ( 1998). Characterization, Quantification, and Control of Odor Emissions From Biosolids Application To Forest Soil. Doctoral Thesis. University of Washington College of Forest Resources.
Rosenfeld, P. E. (1994). Potential Utilization of Small Diameter Trees on Sierra County Public Land. Masters thesis reprinted by the Sierra County Economic Council. Sierra County, California.
Rosenfeld, P. E. (1991). How to Build a Small Rural Anaerobic Digester & Uses Of Biogas In The First And Third World. Bachelors Thesis. University of California.
Presentations:
Rosenfeld, P.E., "The science for Perfluorinated Chemicals (PFAS): What makes remediation so hard?" Law Seminars International, (May 9-10, 2018) 800 Fifth Avenue, Suite 101 Seattle, WA.
Rosenfeld, P.E., Sutherland, A; Hesse, R.; Zapata, A. (October 3-6, 2013). Air dispersion modeling of volatile organic emissions from multiple natural gas wells in Decatur, TX. 44th Western Regional Meeting, American Chemical Society. Lecture conducted from Santa Clara, CA.
Sok, H.L.; Waller, C.C.; Feng, L.; Gonzalez, J.; Sutherland, A.J.; Wisdom-Stack, T.; Sahai, R.K.; Hesse, R.C.; Rosenfeld, P.E. (June 20-23, 2010). Atrazine: A Persistent Pesticide in Urban Drinking Water .
Urban Environmental Pollution. Lecture conducted from Boston, MA.
Feng, L.; Gonzalez, J.; Sok, H.L.; Sutherland, A.J.; Waller, C.C.; Wisdom-Stack, T.; Sahai, R.K.; La, M.; Hesse, R.C.; Rosenfeld, P.E. (June 20-23, 2010). Bringing Environmental Justice to East St. Louis, Illinois. Urban Environmental Pollution. Lecture conducted from Boston, MA.
Rosenfeld, P.E . (April 19-23, 2009). Perfluoroctanoic Acid (PFOA) and Perfluoroactane Sulfonate (PFOS) Contamination in Drinking Water From the Use of Aqueous Film Forming Foams (AFFF) at Airports in the United States. 2009 Ground Water Summit and 2009 Ground Water Protection Council Spring Meeting , Lecture conducted from Tuscon, AZ.
Rosenfeld, P.E. (April 19-23, 2009). Cost to Filter Atrazine Contamination from Drinking Water in the United States” Contamination in Drinking Water From the Use of Aqueous Film Forming Foams (AFFF) at Airports in the United States. 2009 Ground Water Summit and 2009 Ground Water Protection Council Spring Meeting . Lecture conducted from Tuscon, AZ.
Wu, C., Tam, L., Clark, J., Rosenfeld, P . (20-22 July, 2009). Dioxin and furan blood lipid concentrations in populations living near four wood treatment facilities in the United States. Brebbia, C.A. and Popov, V., eds., Air Pollution XVII: Proceedings of the Seventeenth International Conference on Modeling, Monitoring and Management of Air Pollution. Lecture conducted from Tallinn, Estonia.
Rosenfeld, P. E. (October 15-18, 2007). Moss Point Community Exposure To Contaminants From A Releasing Facility. The 23rd Annual International Conferences on Soils Sediment and Water. Platform lecture conducted from University of Massachusetts, Amherst MA.
Paul E. Rosenfeld, Ph.D. Page 5 of 12 October 2022
Rosenfeld, P. E. (October 15-18, 2007). The Repeated Trespass of Tritium-Contaminated Water Into A Surrounding Community Form Repeated Waste Spills From A Nuclear Power Plant . The 23 rd Annual International Conferences on Soils Sediment and Water . Platform lecture conducted from University of Massachusetts, Amherst MA.
Rosenfeld, P. E. (October 15-18, 2007). Somerville Community Exposure To Contaminants From Wood Treatment Facility Emissions. The 23rd Annual International Conferences on Soils Sediment and Water . Lecture conducted from University of Massachusetts, Amherst MA.
Rosenfeld P. E. (March 2007). Production, Chemical Properties, Toxicology, & Treatment Case Studies of 1,2,3- Trichloropropane (TCP). The Association for Environmental Health and Sciences (AEHS) Annual Meeting . Lecture conducted from San Diego, CA.
Rosenfeld P. E. (March 2007). Blood and Attic Sampling for Dioxin/Furan, PAH, and Metal Exposure in Florala, Alabama. The AEHS Annual Meeting. Lecture conducted from San Diego, CA.
Hensley A.R., Scott, A., Rosenfeld P.E., Clark, J.J.J. (August 21 – 25, 2006). Dioxin Containing Attic Dust And Human Blood Samples Collected Near A Former Wood Treatment Facility. The 26th International Symposium on Halogenated Persistent Organic Pollutants – DIOXIN2006 . Lecture conducted from Radisson SAS Scandinavia Hotel in Oslo Norway.
Hensley A.R., Scott, A., Rosenfeld P.E., Clark, J.J.J. (November 4-8, 2006). Dioxin Containing Attic Dust And Human Blood Samples Collected Near A Former Wood Treatment Facility . APHA 134 Annual Meeting & Exposition. Lecture conducted from Boston Massachusetts.
Paul Rosenfeld Ph.D . (October 24-25, 2005). Fate, Transport and Persistence of PFOA and Related Chemicals.
Mealey’s C8/PFOA. Science, Risk & Litigation Conference. Lecture conducted from The Rittenhouse Hotel, Philadelphia, PA.
Paul Rosenfeld Ph.D . (September 19, 2005). Brominated Flame Retardants in Groundwater: Pathways to Human Ingestion, Toxicology and Remediation PEMA Emerging Contaminant Conference . Lecture conducted from Hilton Hotel, Irvine California.
Paul Rosenfeld Ph.D . (September 19, 2005). Fate, Transport, Toxicity, And Persistence of 1,2,3-TCP. PEMA Emerging Contaminant Conference. Lecture conducted from Hilton Hotel in Irvine, California.
Paul Rosenfeld Ph.D. (September 26-27, 2005). Fate, Transport and Persistence of PDBEs. Mealey’s Groundwater Conference. Lecture conducted from Ritz Carlton Hotel, Marina Del Ray, California.
Paul Rosenfeld Ph.D . (June 7-8, 2005). Fate, Transport and Persistence of PFOA and Related Chemicals.
International Society of Environmental Forensics: Focus On Emerging Contaminants . Lecture conducted from Sheraton Oceanfront Hotel, Virginia Beach, Virginia.
Paul Rosenfeld Ph.D . (July 21-22, 2005). Fate Transport, Persistence and Toxicology of PFOA and Related Perfluorochemicals. 2005 National Groundwater Association Ground Water And Environmental Law Conference .
Lecture conducted from Wyndham Baltimore Inner Harbor, Baltimore Maryland.
Paul Rosenfeld Ph.D . (July 21-22, 2005). Brominated Flame Retardants in Groundwater: Pathways to Human Ingestion, Toxicology and Remediation. 2005 National Groundwater Association Ground Water and Environmental Law Conference. Lecture conducted from Wyndham Baltimore Inner Harbor, Baltimore Maryland.
Paul Rosenfeld, Ph.D. and James Clark Ph.D. and Rob Hesse R.G. (May 5-6, 2004). Tert-butyl Alcohol Liability and Toxicology, A National Problem and Unquantified Liability. National Groundwater Association. Environmental Law Conference. Lecture conducted from Congress Plaza Hotel, Chicago Illinois.
Paul E. Rosenfeld, Ph.D. Page 6 of 12 October 2022
Paul Rosenfeld, Ph.D. (March 2004). Perchlorate Toxicology. Meeting of the American Groundwater Trust .
Lecture conducted from Phoenix Arizona.
Hagemann, M.F., Paul Rosenfeld, Ph.D. and Rob Hesse (2004). Perchlorate Contamination of the Colorado River.
Meeting of tribal representatives. Lecture conducted from Parker, AZ.
Paul Rosenfeld, Ph.D. (April 7, 2004). A National Damage Assessment Model For PCE and Dry Cleaners.
Drycleaner Symposium. California Ground Water Association . Lecture conducted from Radison Hotel, Sacramento, California.
Rosenfeld, P. E ., Grey, M., (June 2003) Two stage biofilter for biosolids composting odor control. Seventh International In Situ And On Site Bioremediation Symposium Battelle Conference Orlando, FL.
Paul Rosenfeld, Ph.D. and James Clark Ph.D. (February 20-21, 2003) Understanding Historical Use, Chemical Properties, Toxicity and Regulatory Guidance of 1,4 Dioxane. National Groundwater Association. Southwest Focus Conference. Water Supply and Emerging Contaminants .. Lecture conducted from Hyatt Regency Phoenix Arizona.
Paul Rosenfeld, Ph.D. (February 6-7, 2003). Underground Storage Tank Litigation and Remediation. California CUPA Forum. Lecture conducted from Marriott Hotel, Anaheim California.
Paul Rosenfeld, Ph.D . (October 23, 2002) Underground Storage Tank Litigation and Remediation. EPA Underground Storage Tank Roundtable. Lecture conducted from Sacramento California.
Rosenfeld, P.E . and Suffet, M. (October 7- 10, 2002). Understanding Odor from Compost, Wastewater and Industrial Processes. Sixth Annual Symposium On Off Flavors in the Aquatic Environment. International Water Association. Lecture conducted from Barcelona Spain.
Rosenfeld, P.E. and Suffet, M. (October 7- 10, 2002). Using High Carbon Wood Ash to Control Compost Odor.
Sixth Annual Symposium On Off Flavors in the Aquatic Environment. International Water Association . Lecture conducted from Barcelona Spain.
Rosenfeld, P.E. and Grey, M. A. (September 22-24, 2002). Biocycle Composting For Coastal Sage Restoration.
Northwest Biosolids Management Association . Lecture conducted from Vancouver Washington..
Rosenfeld, P.E. and Grey, M. A. (November 11-14, 2002). Using High-Carbon Wood Ash to Control Odor at a Green Materials Composting Facility. Soil Science Society Annual Conferenc e. Lecture conducted from Indianapolis, Maryland.
Rosenfeld. P.E. (September 16, 2000). Two stage biofilter for biosolids composting odor control. Water Environment Federation. Lecture conducted from Anaheim California.
Rosenfeld. P.E. ( October 16, 2000). Wood ash and biofilter control of compost odor. Biofest. Lecture conducted from Ocean Shores, California.
Rosenfeld, P.E. ( 2000). Bioremediation Using Organic Soil Amendments. California Resource Recovery Association. Lecture conducted from Sacramento California.
Rosenfeld, P.E ., C.L. Henry, R. Harrison. (1998). Oat and Grass Seed Germination and Nitrogen and Sulfur Emissions Following Biosolids Incorporation With High-Carbon Wood-Ash. Water Environment Federation 12th Annual Residuals and Biosolids Management Conference Proceedings . Lecture conducted from Bellevue Washington.
Rosenfeld, P.E., and C.L. Henry. (1999). An evaluation of ash incorporation with biosolids for odor reduction. Soil Science Society of America. Lecture conducted from Salt Lake City Utah.
Paul E. Rosenfeld, Ph.D. Page 7 of 12 October 2022
Rosenfeld, P.E. , C.L. Henry, R. Harrison. (1998). Comparison of Microbial Activity and Odor Emissions from Three Different Biosolids Applied to Forest Soil. Brown and Caldwell. Lecture conducted from Seattle Washington.
Rosenfeld, P.E. , C.L. Henry. (1998). Characterization, Quantification, and Control of Odor Emissions from Biosolids Application To Forest Soil. Biofest. Lecture conducted from Lake Chelan, Washington.
Rosenfeld, P.E, C.L. Henry, R. Harrison. (1998). Oat and Grass Seed Germination and Nitrogen and Sulfur Emissions Following Biosolids Incorporation With High-Carbon Wood-Ash. Water Environment Federation 12th Annual Residuals and Biosolids Management Conference Proceedings. Lecture conducted from Bellevue Washington.
Rosenfeld, P.E. , C.L. Henry, R. B. Harrison, and R. Dills. (1997). Comparison of Odor Emissions From Three Different Biosolids Applied to Forest Soil. Soil Science Society of America . Lecture conducted from Anaheim California.
Teaching Experience:
UCLA Department of Environmental Health (Summer 2003 through 20010) Taught Environmental Health Science 100 to students, including undergrad, medical doctors, public health professionals and nurses. Course focused on the health effects of environmental contaminants.
National Ground Water Association, Successful Remediation Technologies. Custom Course in Sante Fe, New Mexico. May 21, 2002. Focused on fate and transport of fuel contaminants associated with underground storage tanks.
National Ground Water Association; Successful Remediation Technologies Course in Chicago Illinois. April 1, 2002. Focused on fate and transport of contaminants associated with Superfund and RCRA sites.
California Integrated Waste Management Board, April and May, 2001. Alternative Landfill Caps Seminar in San Diego, Ventura, and San Francisco. Focused on both prescriptive and innovative landfill cover design.
UCLA Department of Environmental Engineering, February 5, 2002. Seminar on Successful Remediation Technologies focusing on Groundwater Remediation.
University Of Washington, Soil Science Program, Teaching Assistant for several courses including: Soil Chemistry, Organic Soil Amendments, and Soil Stability.
U.C. Berkeley, Environmental Science Program Teaching Assistant for Environmental Science 10.
Academic Grants Awarded:
California Integrated Waste Management Board. $41,000 grant awarded to UCLA Institute of the Environment.
Goal: To investigate effect of high carbon wood ash on volatile organic emissions from compost. 2001.
Synagro Technologies, Corona California: $10,000 grant awarded to San Diego State University.
Goal: investigate effect of biosolids for restoration and remediation of degraded coastal sage soils. 2000.
King County, Department of Research and Technology, Washington State. $100,000 grant awarded to University of Washington: Goal: To investigate odor emissions from biosolids application and the effect of polymers and ash on VOC emissions. 1998.
Northwest Biosolids Management Association, Washington State. $20,000 grant awarded to investigate effect of polymers and ash on VOC emissions from biosolids. 1997.
Paul E. Rosenfeld, Ph.D. Page 8 of 12 October 2022
James River Corporation, Oregon: $10,000 grant was awarded to investigate the success of genetically engineered Poplar trees with resistance to round-up. 1996.
United State Forest Service, Tahoe National Forest: $15,000 grant was awarded to investigating fire ecology of the Tahoe National Forest. 1995.
Kellogg Foundation, Washington D.C. $500 grant was awarded to construct a large anaerobic digester on St. Kitts in West Indies. 1993
Deposition and/or Trial Testimony:
In the Superior Court of the State of California, County of San Bernardino Billy Wildrick, Plaintiff vs. BNSF Railway Company
Case No. CIVDS1711810
Rosenfeld Deposition 10-17-2022
In the State Court of Bibb County, State of Georgia
Richard Hutcherson, Plaintiff vs Norfolk Southern Railway Company Case No. 10-SCCV-092007
Rosenfeld Deposition 10-6-2022
In the Civil District Court of the Parish of Orleans, State of Louisiana Millard Clark, Plaintiff vs. Dixie Carriers, Inc. et al.
Case No. 2020-03891
Rosenfeld Deposition 9-15-2022
In The Circuit Court of Livingston County, State of Missouri, Circuit Civil Division Shirley Ralls, Plaintiff vs. Canadian Pacific Railway and Soo Line Railroad Case No. 18-LV-CC0020
Rosenfeld Deposition 9-7-2022
In The Circuit Court of the 13th Judicial Circuit Court, Hillsborough County, Florida Civil Division Jonny C. Daniels, Plaintiff vs. CSX Transportation Inc.
Case No. 20-CA-5502
Rosenfeld Deposition 9-1-2022
In The Circuit Court of St. Louis County, State of Missouri Kieth Luke et. al. Plaintiff vs. Monsanto Company et. al.
Case No. 19SL-CC03191
Rosenfeld Deposition 8-25-2022
In The Circuit Court of the 13th Judicial Circuit Court, Hillsborough County, Florida Civil Division Jeffery S. Lamotte, Plaintiff vs. CSX Transportation Inc.
Case No. NO. 20-CA-0049
Rosenfeld Deposition 8-22-2022
In State of Minnesota District Court, County of St. Louis Sixth Judicial District Greg Bean, Plaintiff vs. Soo Line Railroad Company
Case No. 69-DU-CV-21-760
Rosenfeld Deposition 8-17-2022
In United States District Court Western District of Washington at Tacoma, Washington John D. Fitzgerald Plaintiff vs. BNSF
Case No. 3:21-cv-05288-RJB
Rosenfeld Deposition 8-11-2022
Paul E. Rosenfeld, Ph.D. Page 9 of 12 October 2022
In Circuit Court of the Sixth Judicial Circuit, Macon Illinois Rocky Bennyhoff Plaintiff vs. Norfolk Southern
Case No. 20-L-56
Rosenfeld Deposition 8-3-2022
In Court of Common Pleas, Hamilton County Ohio
Joe Briggins Plaintiff vs. CSX
Case No. A2004464
Rosenfeld Deposition 6-17-2022
In the Superior Court of the State of California, County of Kern George LaFazia vs. BNSF Railway Company.
Case No. BCV-19-103087
Rosenfeld Deposition 5-17-2022
In the Circuit Court of Cook County Illinois
Bobby Earles vs. Penn Central et. al.
Case No. 2020-L-000550
Rosenfeld Deposition 4-16-2022
In United States District Court Easter District of Florida Albert Hartman Plaintiff vs. Illinois Central
Case No. 2:20-cv-1633
Rosenfeld Deposition 4-4-2022
In the Circuit Court of the 4 th Judicial Circuit, in and For Duval County, Florida Barbara Steele vs. CSX Transportation
Case No.16-219-Ca-008796
Rosenfeld Deposition 3-15-2022
In United States District Court Easter District of New York Romano et al. vs. Northrup Grumman Corporation
Case No. 16-cv-5760
Rosenfeld Deposition 3-10-2022
In the Circuit Court of Cook County Illinois
Linda Benjamin vs. Illinois Central
Case No. No. 2019 L 007599
Rosenfeld Deposition 1-26-2022
In the Circuit Court of Cook County Illinois
Donald Smith vs. Illinois Central
Case No. No. 2019 L 003426
Rosenfeld Deposition 1-24-2022
In the Circuit Court of Cook County Illinois
Jan Holeman vs. BNSF
Case No. 2019 L 000675
Rosenfeld Deposition 1-18-2022
In the State Court of Bibb County State of Georgia
Dwayne B. Garrett vs. Norfolk Southern
Case No. 20-SCCV-091232
Rosenfeld Deposition 11-10-2021
Paul E. Rosenfeld, Ph.D. Page 10 of 12 October 2022
In the Circuit Court of Cook County Illinois
Joseph Ruepke vs. BNSF
Case No. 2019 L 007730
Rosenfeld Deposition 11-5-2021
In the United States District Court For the District of Nebraska Steven Gillett vs. BNSF
Case No. 4:20-cv-03120
Rosenfeld Deposition 10-28-2021
In the Montana Thirteenth District Court of Yellowstone County James Eadus vs. Soo Line Railroad and BNSF
Case No. DV 19-1056
Rosenfeld Deposition 10-21-2021
In the Circuit Court Of The Twentieth Judicial Circuit, St Clair County, Illinois Martha Custer et al.cvs. Cerro Flow Products, Inc.
Case No. 0i9-L-2295
Rosenfeld Deposition 5-14-2021
Trial October 8-4-2021
In the Circuit Court of Cook County Illinois
Joseph Rafferty vs. Consolidated Rail Corporation and National Railroad Passenger Corporation d/b/a
AMTRAK,
Case No. 18-L-6845
Rosenfeld Deposition 6-28-2021
In the United States District Court For the Northern District of Illinois Theresa Romcoe vs. Northeast Illinois Regional Commuter Railroad Corporation d/b/a METRA Rail Case No. 17-cv-8517
Rosenfeld Deposition 5-25-2021
In the Superior Court of the State of Arizona In and For the Cunty of Maricopa Mary Tryon et al. vs. The City of Pheonix v. Cox Cactus Farm, L.L.C., Utah Shelter Systems, Inc.
Case No. CV20127-094749
Rosenfeld Deposition 5-7-2021
In the United States District Court for the Eastern District of Texas Beaumont Division Robinson, Jeremy et al vs. CNA Insurance Company et al.
Case No. 1:17-cv-000508
Rosenfeld Deposition 3-25-2021
In the Superior Court of the State of California, County of San Bernardino Gary Garner, Personal Representative for the Estate of Melvin Garner vs. BNSF Railway Company.
Case No. 1720288
Rosenfeld Deposition 2-23-2021
In the Superior Court of the State of California, County of Los Angeles, Spring Street Courthouse Benny M Rodriguez vs. Union Pacific Railroad, A Corporation, et al.
Case No. 18STCV01162
Rosenfeld Deposition 12-23-2020
In the Circuit Court of Jackson County, Missouri
Karen Cornwell, Plaintiff, vs. Marathon Petroleum, LP, Defendant.
Case No. 1716-CV10006
Rosenfeld Deposition 8-30-2019
Paul E. Rosenfeld, Ph.D. Page 11 of 12 October 2022
In the United States District Court For The District of New Jersey Duarte et al, Plaintiffs, vs. United States Metals Refining Company et. al. Defendant.
Case No. 2:17-cv-01624-ES-SCM
Rosenfeld Deposition 6-7-2019
In the United States District Court of Southern District of Texas Galveston Division M/T Carla Maersk vs. Conti 168., Schiffahrts-GMBH & Co. Bulker KG MS “Conti Perdido” Defendant.
Case No. 3:15-CV-00106 consolidated with 3:15-CV-00237
Rosenfeld Deposition 5-9-2019
In The Superior Court of the State of California In And For The County Of Los Angeles – Santa Monica Carole-Taddeo-Bates et al., vs. Ifran Khan et al., Defendants Case No. BC615636
Rosenfeld Deposition 1-26-2019
In The Superior Court of the State of California In And For The County Of Los Angeles – Santa Monica The San Gabriel Valley Council of Governments et al. vs El Adobe Apts. Inc. et al., Defendants Case No. BC646857
Rosenfeld Deposition 10-6-2018; Trial 3-7-19
In United States District Court For The District of Colorado Bells et al. Plaintiffs vs. The 3M Company et al., Defendants Case No. 1:16-cv-02531-RBJ
Rosenfeld Deposition 3-15-2018 and 4-3-2018
In The District Court Of Regan County, Texas, 112 th Judicial District Phillip Bales et al., Plaintiff vs. Dow Agrosciences, LLC, et al., Defendants Cause No. 1923
Rosenfeld Deposition 11-17-2017
In The Superior Court of the State of California In And For The County Of Contra Costa Simons et al., Plaintifs vs. Chevron Corporation, et al., Defendants Cause No. C12-01481
Rosenfeld Deposition 11-20-2017
In The Circuit Court Of The Twentieth Judicial Circuit, St Clair County, Illinois Martha Custer et al., Plaintiff vs. Cerro Flow Products, Inc., Defendants Case No.: No. 0i9-L-2295
Rosenfeld Deposition 8-23-2017
In United States District Court For The Southern District of Mississippi Guy Manuel vs. The BP Exploration et al., Defendants
Case No. 1:19-cv-00315-RHW
Rosenfeld Deposition 4-22-2020
In The Superior Court of the State of California, For The County of Los Angeles Warrn Gilbert and Penny Gilber, Plaintiff vs. BMW of North America LLC Case No. LC102019 (c/w BC582154)
Rosenfeld Deposition 8-16-2017, Trail 8-28-2018
In the Northern District Court of Mississippi, Greenville Division Brenda J. Cooper, et al., Plaintiffs, vs. Meritor Inc., et al., Defendants Case No. 4:16-cv-52-DMB-JVM
Rosenfeld Deposition July 2017
Paul E. Rosenfeld, Ph.D. Page 12 of 12 October 2022
In The Superior Court of the State of Washington, County of Snohomish Michael Davis and Julie Davis et al., Plaintiff vs. Cedar Grove Composting Inc., Defendants Case No. 13-2-03987-5
Rosenfeld Deposition, February 2017
Trial March 2017
In The Superior Court of the State of California, County of Alameda Charles Spain., Plaintiff vs. Thermo Fisher Scientific, et al., Defendants Case No. RG14711115
Rosenfeld Deposition September 2015
In The Iowa District Court In And For Poweshiek County
Russell D. Winburn, et al., Plaintiffs vs. Doug Hoksbergen, et al., Defendants Case No. LALA002187
Rosenfeld Deposition August 2015
In The Circuit Court of Ohio County, West Virginia
Robert Andrews, et al. v. Antero, et al.
Civil Action No. 14-C-30000
Rosenfeld Deposition June 2015
In The Iowa District Court for Muscatine County
Laurie Freeman et. al. Plaintiffs vs. Grain Processing Corporation, Defendant Case No. 4980
Rosenfeld Deposition May 2015
In the Circuit Court of the 17 th Judicial Circuit, in and For Broward County, Florida Walter Hinton, et. al. Plaintiff, vs. City of Fort Lauderdale, Florida, a Municipality, Defendant.
Case No. CACE07030358 (26)
Rosenfeld Deposition December 2014
In the County Court of Dallas County Texas
Lisa Parr et al, Plaintiff, vs. Aruba et al, Defendant.
Case No. cc-11-01650-E
Rosenfeld Deposition: March and September 2013
Rosenfeld Trial April 2014
In the Court of Common Pleas of Tuscarawas County Ohio
John Michael Abicht, et al., Plaintiffs, vs. Republic Services, Inc., et al., Defendants Case No. 2008 CT 10 0741 (Cons. w/ 2009 CV 10 0987)
Rosenfeld Deposition October 2012
In the United States District Court for the Middle District of Alabama, Northern Division James K. Benefield, et al., Plaintiffs, vs. International Paper Company, Defendant.
Civil Action No. 2:09-cv-232-WHA-TFM
Rosenfeld Deposition July 2010, June 2011
In the Circuit Court of Jefferson County Alabama
Jaeanette Moss Anthony, et al., Plaintiffs, vs. Drummond Company Inc., et al., Defendants Civil Action No. CV 2008-2076
Rosenfeld Deposition September 2010
In the United States District Court, Western District Lafayette Division Ackle et al., Plaintiffs, vs. Citgo Petroleum Corporation, et al., Defendants.
Case No. 2:07CV1052
Rosenfeld Deposition July 2009
EXHIBIT 4
EXHIBIT 5
El Centro Rd, Sacramento, CA 95833, Sacramento County Expired Listing APN: 274-0010-056-0000 CLIP: 3103332894
Beds
N/A
Full Baths
N/A
Half Baths
N/A
Sale Price
$909,500
Sale Date
05/14/2019
Bldg Sq Ft
N/A
Lot Sq Ft
1,378,238
Yr Built
N/A
Type
AGR LND
OWNER INFORMATION
Owner Name Upper Westside LLC Tax Billing Zip 95864
Owner Name 2 Tax Billing ZIP + 4 Code
Tax Billing Address 401 Watt Ave Owner Occupied
Tax Billing City & State Sacramento, CA Mail Opt Out Flag
COMMUNITY INSIGHTS
Median Home Value $730,313 School District NATOMAS UNIFIED Median Home Value Rating 8 / 10 Family Friendly Score 64 / 100 Total Crime Risk Score (for the neig
hborhood, relative to the nation)
41 / 100 Walkable Score 12 / 100
Total Incidents (1 yr) 67 Q1 Home Price Forecast $680,954 Standardized Test Rank 39 / 100 Last 2 Yr Home Appreciation 34%
LOCATION INFORMATION
Census Tract 70.17 Topography
Tract Number Traffic
Mailing Carrier Route School District Natomas
Subdivision Natomas Riverside Sub 2 Comm College District Code Los Rios Jt Zoning AG40 Elementary School District
Section Flood Zone Code A
Map Page/Grid Flood Zone Panel 06067C0160J
Location Influence Flood Zone Date 06/16/2015
Neighborhood Code M-M Within 250 Feet of Multiple Flood Z one
No
TAX INFORMATION
APN 274-0010-056-0000 Block ID
Tax Area 95009 Lot # 38
Tax Appraisal Area % Improved
Water Tax Dist County Homestead Percent
Fire Dept Tax Dist Natomas Exemption(s)
Legal Description POR OF LOT 38 NATOMAS RIVER
SIDE SUB 2 BEG AT PTON E LINE
S 0%15'30"E 95.04 FT FROM NE C
OR LOT 38 TH N 89%57'W 1117.77
FT TH S 0%03'W 1242.26 FTTO S
LINE TH N 89%38'30"E TO SE COR
OF LOT 38 TH N 0%15'30"W TO
POB
ASSESSMENT & TAX
Assessment Year 2024 2023 2022
Assessed Value - Total $873,275 $856,152 $839,365
Assessed Value - Land $873,275 $856,152 $839,365
Assessed Value - Improved
YOY Assessed Change ($) $17,123 $16,787
YOY Assessed Change (%) 2% 2%
Exempt Building Value
Exempt Land Value
Exempt Total Value
Tax Year Total Tax Change ($) Change (%)
2021 $11,537
2022 $11,429 -$108 -0.94%
2023 $12,381 $952 8.33%
Jurisdiction Tax Type Tax Amount Tax Rate
Rd 1000 Stormwater Service Fee Actual $1,047.46
Safca Consolidated Capital Ass Actual $529.80
Property Details Courtesy of Patrick Soluri, MetroList Services, Inc Generated on: 10/11/24 The data within this report is compiled by CoreLogic from public and private sources. The data is deemed reliable, but is not guaranteed. The accuracy of the data contained herein can be independently verified by the recipient of this report with the applicable county or municipality.