LEGAL BACKGROUND
The lead agency must evaluate comments on the draft environmental impact report (“EIR”) and prepare written responses in the FEIR. (Pub. Resources Code, §21091, subd. (d).) The FEIR must include a “detailed” written response to all “significant environmental issues” raised by commenters. As the court stated in City of Long Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889, 904:
The requirement of a detailed written response to comments helps to ensure that the lead agency will fully consider the environmental consequences of a decision before it is made, that the decision is well informed and open to public scrutiny, and that public participation in the environmental review process is meaningful.
The FEIR’s responses to comments must be detailed and must provide a reasoned, good faith analysis. (Cal. Code Regs., tit. 14, § 15088, subd. (c).) Failure to provide a substantive response to comments render the EIR legally inadequate. (Rural Landowners Association v. City Council (1983) 143 Cal.App.3d 1013, 1020). If the public suggests a feasible mitigation measure or alternative, the agency may only decline to implement it if it provides substantial evidence that the mitigation measure or alternative is infeasible. (Covington v. Great Basin Unified Air Pollution Control District (2019) 43 Cal.App.5th 867.)
The responses to comments on a draft EIR must state reasons for rejecting suggested mitigation measures and comments on significant environmental issues. “Conclusory statements unsupported by factual information” are not adequate responses. (Cal. Code Regs., tit. 14, § 15088, subds. (b), (c); Cleary v. County of Stanislaus (1981) 118 Cal.App.3rd 348; Environmental Protection Information Center v. Johnson (1985) 170 Cal.App.3d 604, 628 [“Non-specific, general, or conclusory responses unsupported by empirical information, scientific authorities or explanatory information ‘fail to crystallize issues’”]; People v. County of Kern (1974) 39 Cal.App.3d 830, 841 [Responses to comments must “set forth in detail the reasons why the particular comments and objections were rejected . . . .”].) The need for substantive, detailed response is particularly appropriate when comments have been raised by experts or other agencies. (Berkeley Keep Jets Over the Bay Committee v. Board of Port Commissioners (2001) 91 Cal.App.4th 1344, 1367; People v. Kern (1976) 72 Cal.app.3d 761.) A reasoned analysis of the issue and references to supporting evidence are required for substantive comments raised. (California Oak Foundation v. Santa Clarita (2005) 133 Cal.App.4th 1219.)
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If significant new information is added to an EIR after notice of public review has occurred, but before final certification of the EIR, the lead agency must issue a new notice and recirculate the EIR for comments and consultation. (Pub. Resources Code, § 21092.1; Cal. Code Regs., tit. 14, § 15088.5.) “Significant new information” triggering the need for EIR recirculation includes information showing that: (1) a new or more severe environmental impact would result from the project, (2) a feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the significant environmental impacts of a project but the project proponent declines to adopt it, or (3) the draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded. (Cal. Code Regs., tit. 14, § 15088.5, subd. (a)(1)–(4).) A decision not to recirculate an EIR must be supported by substantial evidence in the administrative record. (Cal. Code Regs., tit. 14, § 15088.5, subd. (e).)
The FEIR fails to meet these legal standards as it is riddled with conclusory and outright false statements lacking any factual support or analysis. The discussion below is organized according to the FEIR’s characterization of comments and responses:
Responses to Comments 22-1 through 22-6:
Our prior comment letter included extensive analysis explaining how CEQA requires one lead agency for a project, and that this so-called “dual lead agency” scheme prejudiced informed decision-making. Indeed, the lead CEQA treatise plainly states, “There can be only one CEQA lead agency for a particular project.” (Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2022) § 3.2, p. 3 -3 [“Kostka Treatise”].) As the Third Appellate District plainly advises, “Neither the language of the statute nor the facts of this case support a so-called shared principal responsibility.” (Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 906.) Thus, ensuring that a CEQA document is prepared by the proper CEQA lead agency is unquestionably a significant environmental issue. (City of Redding v. Shasta County Local Agency Formation Commission (1989) 209 Cal.App.3d 1169, 1174; Habitat & Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277, 1297-1298; City of Sacramento v. State Water Resources Control Board (1992) 2 Cal.App.4th 960, 973.) Our prior comment letter also explained in detail that LAFCO was the proper CEQA lead agency.
The FEIR’s responses fall well below the standard of good faith. Rather than address the numerous legal authorities plainly demonstrating that the “dual lead agency” scheme is unlawful, the FEIR merely asserts, “The City and LAFCO disagree with the Chair Lisa Kaplan and Members of the Commission
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commenter’s interpretation of CEQA and the CEQA Guidelines.” Thus, the FEIR makes no attempt whatsoever to support its flagrantly unlawful “dual lead agency” scheme.2 The FEIR does not explain why this attempt to have dual lead agencies is distinguishable from the cases cited above that hold that dual lead agencies are improper. Moreover, the FEIR makes no attempt to address LAFCO’s own policies demonstrating that LAFCO, and not the City, is the proper lead agency here.
Responses to Comments 22-7 – 8:
The FEIR makes no attempt to respond to these comments, which highlight how the “dual lead agency” status have resulted in a DEIR that ignores LAFCO’s own prior comments about this Project on areas squarely within its jurisdiction. As quoted in our DEIR comment letter, LAFCO previously asserted, “Future development of the project could conflict with the assumptions regarding species, habitats, and preserves underlying the NBHCP’s conservation strategy.” By purporting to refer to different comments relating to biological resource issues, the FEIR does not attempt to reconcile the inconsistency raised in the comment.
Responses to Comments 22-9 – 14:
Our DEIR comments provided extensive analysis explaining that the EIR’s project description violates CEQA because the DEIR inconsistently analyzes Parcel 8 and the other so-called “non-participating” parcels. In short, the DEIR includes the impacts from so-called “non-participating” parcels’ when doing so would not trigger a significance determination, but excludes inclusion of impacts from Parcel 8 and other non- participating parcels when its inclusion would trigger a significant impact (as the case with cancer risk from TAC emissions). We explained that this inconsistent project description had the effect of minimizing Project impacts.
Rather than address this comment in good faith, the FEIR piecemeals the comment and its response, and then fails to address the overall point, namely that the EIR’s unlawful shifting and inconsistent project description minimizes Project impacts and
2 The FEIR’s failure to support is its “dual lead agency” scheme with any legal authority is contrasted with the FEIR’s responses to other public comments, including but not limited to Comment 23-12, where the FEIR cites three cases purporting to support the EIR’s analysis. A reviewing court will likely view this as evidence that the City and LAFCO know full well that the “dual lead agency” scheme is unlawful.
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thereby avoids mitigation. Further, the FEIR’s piecemealed response includes several false and misleading assertions that are also addressed below.
Response to comment 22-9 asserts, “details of future buildout are not currently available.” As explained in our DEIR comments, this assertion is false because the EIR found adequate details to be available to assess impacts—at least in those resource areas where including “non participating parcel” impacts would not lead to significance determinations and the need for mitigation. The FEIR does not address this inconsistency. Further, and as explained more fully in response to comment 22-13, the City’s claim of “additional entitlement requests and review pursuant to CEQA” is belied by the City Zoning Code.
Response to comment 22-12 is nonsensical. First, identifying baseline water features is in no way dependent on specific development plans. Second, the response simply ignores evidence that we submitted showing that the existing water features at Parcel 8 are well documented. Thus, the EIR’s strategy of deferred mitigation violates CEQA because the EIR fails to explain why deferral is required in the first place.
The FEIR’s response to comment 22-13 asserts that Parcel 8 would not be allowed as a matter of right, asserting, “Any development proposed for the nonparticipating parcels would require additional entitlement requests and review pursuant to CEQA.” The FEIR’s response is inexcusably false and misleading. The FEIR conspicuously fails to identify this “entitlement,” much less explain whether it would be discretionary or ministerial. In fact, the referenced page from the DEIR explains that Parcel 8 would be zoned “M-1.” Contrary to the FEIR’s intentionally misleading information, City Code section 17.220.110 provides that warehouses and distribution centers are permitted uses in the M-1 Zone. Further, a permitted use does not require any discretionary approval and so would also be exempt from CEQA. (Pub. Resources Code, § 21080, subd. (a).)
The response to comment 22-14 asserts that the health risk from DPM emissions is based on “highly specific truck circulation routes and load dock locations in order to provide a reasonable analysis.” A reference to DEIR Figure 3-3 reveals that this does not support assigning zero DPM emissions from Parcel 8, which is the closest parcel to the most sensitive receptors. Even if the loading docks were located at the farthest location on Parcel 8, they would still be closer than those facilities located on any other parcel.
Further, the roadways are set forth in Figure 3-3 and so are known at this point. Thus, assigning zero DPM emissions from Parcel 8 is unsupported, and appears intentionally designed to mislead the public by justifying a finding that the Project’s cancer risk to be less than significant.
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Further, the FEIR asserts that the failure to assign any TAC emissions for Parcel 8 is somehow cured because “Mitigation Measure 4.3-3, which required an additional health risk analysis at the time that Parcel 8 is proposed for development, to ensure that health risks associated with Parcel 8 do not occur.” This is misleading to say the least.
First, as established above, the proposed warehouse on Parcel 8 is a permitted use under the City’s Zoning Code and so is exempt from any discretionary action and associated CEQA review. Second, a health risk assessment limited to parcel 8 does nothing to disclose and mitigate the health risks from the Project. If a reasonable TAC emission for Parcel 8 were estimated, it would put the Project’s TAC emissions (presently estimated at
9.53 without Parcel 8 TAC emissions) above the relevant significance threshold. This, in turn, would require mitigation measures for the health impacts resulting from the Project’s TAC emissions. By conspicuously assigning zero TAC emissions from Parcel 8, the EIR fails to set forth all feasible mitigation measures for those health impacts to residents and school children. A future HRA that is limited to Parcel 8’s TAC emissions would not result in mitigating the Project’s health risk impacts, which is classic piecemealing.
Responses to Comments 13-30, 13-31, 40-4, 66-3, 66-4, 73-14:
Numerous comments, including but not limited to those identified above, note that the NBHCP does not cover the majority of the Project site that is without the NBHCP’s Permit Area. According to the City, it could seek NBHCP coverage for the entire Project site because there are some “unallocated” or ungraded properties within the 8,050.
According to the FEIR, the City can simply transfer NBHCP coverage from these other properties to the Project.
This is nonsense. The City cannot transfer NBHCP coverage to a property that is outside of the NBHCP’s Permit Area. What is more, the City knows full well this is false because it executed an agreement expressly limiting NBHCP coverage to the identified Permit Area. The NBHCP’s Implementation Agreement could not be more clear on this point: “CITY agrees not to approve more than 8,050 acres of Authorized Development and to ensure that all Authorized Development is confined to the CITY’s Permit Area as depicted on Exhibit B to this Agreement.” What is more, the City expressly agreed that the effectiveness of the NBHCP was dependent upon limiting development in the Natomas Area to the Permit Area: “[T]he effectiveness of the NBHC’s Operating Conservation Program is based upon CITY limiting total development to 8,050 acres within the CITY’s PERMIT AREA.” Finally, the City expressly agreed that violating its agreement to limit urban development to the Permit Area would require separate ESA permitting and also call into question the NBHCP itself:
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Thus, CITY and SUTTER further agree that in the event this future urban development should occur, 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, and/or possible suspension or revocation of CITY’s or SUTTER’s Permits in the event the CITY or SUTTER violate such limitations.
(NBHCP IA, § 3.1.1(b), emphasis added.)
The FEIR tellingly provides no explanation, and cites no authority, supporting its conclusory allegation that the City can somehow transfer NBHCP based on “surplus acreage.” This is not an issue where there is any confusion or where reasonable minds can disagree. The portion of the Project site (i.e., the majority) that is outside of the NBHCP’s Permit Area may not utilize the NBHCP as its mitigation strategy for Project impacts to special-status species or their environment. The FEIR fails to provide good faith responses to these comments, and the EIR fails as an informational document with respect to these impacts.
Responses to Comments 2-10, 13-26, 13-27, 13-29:
In response to comments asserting the Project is inconsistent with the NBHCP and will reduce its effectiveness, the FEIR repeatedly asserts, “[T]he success of the Natomas Basin HCP does not require a certain amount of agricultural land remaining in the basin.” This is false and misleading. As agreed by the City in the NBHCP’s Implementation Agreement, “Because the effectiveness of the NBHCP’s Operating Conservation Program is based upon CITY limiting total development to 8,050 acres within the CITY’s Permit Area . . . approval by either City or SUTTER of future urban development within the Plan Area or outside of their respective Permit Areas would constitute a significant departure from the Plan’s Operating Conservation Program.” (Emphasis added.) The City has expressly agreed that the effectiveness of the NBHCP is based upon the City limiting urban development to the Permit Area. This Project would extend urban development outside of the Permit Area, and so unquestionably calls into question the success of the NBHCP. The FEIR, therefore, provides false and misleading information; approval of this Project is both inconsistent with the NBHCP and brings into question the effectiveness of the entire NBHCP.
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Responses to Comment 13-28:
The FEIR asserts, “The Draft EIR did not preclude the potential for obtaining an incidental take permit.” This willfully misconstrues the issue. The issue is not whether the DEIR precludes obtaining an incidental take permit, but whether the EIR discloses the to the public and decision-makers the need for obtaining an incidental take permit and provides the public information relevant to that process required by CEQA. (Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, 942 [Banning Ranch] [“Information highly relevant to the Coastal Commission’s permitting function was suppressed. The public was deprived of a full understanding of the environmental issues raised by the Banning Ranch project proposal”].) Indeed, the City previously acknowledged this requirement for the Greenbriar project, explaining:
The NBHCP, Implementation Agreement, Biological Opinion and ITPs provide that because the NBHCP’s Operating Conservation Plan is based upon the City limiting total development to 8,050 acres within the City’s Permit Area, approval by the City of future urban development beyond the 8,050 acres or outside of its Permit Area would “constitute a significant departure from the NBHCP’s OCP” and would trigger reevaluation of the NBHCP, a new effects analysis, potential amendments and/or revisions to the NBHCP and ITPs, a separate conservation strategy Greenbriar Development Project EDAW City of Sacramento 1-5 Analysis of Effects on the Natomas Basin HCP and the need to obtain a new ITP by the Permittee for that additional development, and/or possible suspension or revocation of the City’s ITP in the event the City were to violate such limitations without having completed the required reevaluation, and amendments or revisions if necessary, or having obtained a new permit.
(Greenbriar Development Project, Analysis of Effects on the Natomas Basin Habitat Conservation Report (2006), p. 1-4.)
The DEIR woefully fails to comply with this informational requirement and is not corrected in the FEIR since it doggedly clings to the patently false notion that the City can transfer NBHCP coverage to properties located outside of the NBHCP Permit Area.
Responses to Comment 22-15:
Our DEIR comment letter explained in detail how the Project was inconsistent with the NBHCP as set forth in the plain language of the NBHCP itself, the Chair Lisa Kaplan and Members of the Commission
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Implementation Agreement, and its EIR. The FEIR makes no attempt to respond to this inconsistency. Rather, the FEIR refers to its responses to comments 2-5 and 2-17, which propose specific mitigation measures and do not address the EIR’s informational deficiency pursuant to the Banning Ranch decision for failing to address inconsistency with the NBHCP.
After improperly referring the reader to irrelevant responses, the FEIR merely asserts, “[P]roject mitigation has been revised to address potential impacts to biological resources outside of the Natomas Basin HCP permit area.” The FEIR makes no attempt to identify the relevant mitigation measures, explain how they are revised, or explain how their revisions address the identified informational deficiencies.
We note that the FEIR purports to revise mitigation measures applicable to GGS (MM 4.4-3(b)) and Swainson’s Hawk (MM 4.4-5(b)) impacts to address a scenario where “the City’s surplus HCP coverage be made available to the proposed project.” Setting aside these mitigation measures are improperly deferred, they do not address the DEIR’s informational deficiency associated with approving development outside of the NBHCP’s Permit Area. The NBHCP IA directly addresses this occurrence, and provides in relevant part:
Because the effectiveness of the NBHCP’s Operating Conservation Program is based upon CITY limiting total development to 8,050 acres within the CITY’s Permit Area, and SUTTER limiting total development to 7,467 acres within SUTTER’s Permit Area, approval by either CITY or SUTTER of future urban development within the Plan Area or outside of their respective Permit Areas would constitute a significant departure from the Plan’s Operating Conservation Program. Thus, CITY and SUTTER further agree that in the event this future urban development should occur, 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, and/or possible suspension or revocation of CITY’s or SUTTER’s Permits in the event the CITY or SUTTER violate such limitations.
(NBHCP IA, § 3.1.1(b), emphasis added.)
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The FEIR’s revisions to mitigation measures addressing GGS and Swainson’s Hawk impacts make no reference to the Project’s need for “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, and/or possible suspension or revocation of CITY’s or SUTTER’s Permits,” and so do not cure the obvious Banning Ranch informational deficiency.
Responses to Comment 22-16:
The FEIR fails to provide a good faith response regarding the DEIR’s failure to disclose and analyze UFP emissions and resulting human health impacts. Please see Exhibit 3.
Responses to Comment 22-18:
Our DEIR comment letter provided specific comments addressing the EIR’s project objectives in individual detail. The FEIR fails to provide good faith responses for these comments. For example, with respect to Objective 6, we wrote, “This objective is supported by an off-site location located elsewhere in the ‘region’.” The FEIR provides no specific response to this comment. Do the City and LAFCO seriously dispute that the objective of “attract[ing] new businesses and jobs to the City” could be met by ot her locations? The FEIR’s refusal to address this, and other specific comments, both violates CEQA and strongly indicates that it has no serious response.
Indeed, the FEIR claims that this comment “does not provide any evidence supporting the commenter’s claims of manipulation.” The FEIR willfully misconstrues the word “manipulation.” As we plainly explained, “The DEIR here includes several project objectives that are not supported by substantial evidence and are otherwise manipulated in order to exclude from consideration otherwise feasible project alternatives.” (FEIR, p. 2-279.) The so-called “evidence” supporting this claim would have been apparent from detailed responses purporting to justify the objectives, which is likely why the FEIR declined to provide that information.
Further, the FEIR argues, “While the project objectives are a component of CEQA, they are intended to identify the goals of the project, as proposed by the project applicant. The project objectives are generally defined by the applicant with input from the lead agency.” (FEIR, p. 2-369.) This is legal error. The lead agency, not a project applicant, establishes project objectives. (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, Chair Lisa Kaplan and Members of the Commission
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1163 [In re Bay-Delta] [“The process of selecting the alternatives to be included in the EIR begins with the establishment of project objectives by the lead agency”]; We Advocate Thorough Environmental Review v. County of Siskiyou (2022) 78 Cal.App.5th 683, 692 [We Advocate] [invalidating EIR because “The County largely defined the project objectives as operating the project as proposed”].) If private project applicants were allowed to dictate their own CEQA project objectives for their projects, then reduced-density or off-site alternatives could always be avoided since a project applicant always wants to develop a project on its own property; this is certainly not the case. (See, e.g., 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”].
The City and LAFCO’s uncritical option of the applicant’s objectives is demonstrated with clarity by the first project objective, which is “to amend the City’s Sphere of Influence, followed by Annexation of the project site into the City of Sacramento.” (DEIR, p. 7-2.) It may well be the project applicant’s objective to obtain a SOI Amendment and annexation for its property, but it is nonsensical for this to be LAFCO’s objective since it is LAFCO’s duty to determine whether these approvals are required in the first place. Including these approvals as a project objective would support a finding that a project alternative not requiring these approvals is infeasible, which impermissibly constrains LAFCO’s authority to consider whether SOI Amendment and annexation are required in the first place.
It is the public agency that defines a project’s objectives, since those objectives guide the lead agency’s consideration of project alternatives and any statement of overriding considerations adopted by the public agency. (CEQA Guidelines, §§ 15124, 1526.6.)
Contrary to the FEIR’s comment, project applicants do not dictate project objectives. The FEIR’s response manifests an inexcusable abdication to a private party.
Since the FEIR concedes that the City and LAFCO allowed the applicant to dictate project objectives, an entirely new Draft EIR will now need to be prepared that is free from this undue influence. As explained in We Advocate, “In taking this artificially narrow approach for describing the project objectives, the County ensured that the results of its alternatives analysis would be a foregone conclusion. It also, as a result, transformed the EIR’s alternatives section—often described as part of the ‘core of the EIR’ (In re Bay-Delta, supra, 43 Cal.4th at p. 1162)—into an empty formality.” (We Advocate, supra, 78 Cal.App.5th 683, 692.) That is precisely what occurred here.
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Responses to Comment 22-19:
Our DEIR comment letter explained how the DEIR failed to comply with CEQA because it dismissed from consideration any off-site alternative without finding that any such off-site alternative would fail to satisfy most project objectives. We even suggested two specific alternative locations, Sutter Pointe Specific Plan and McClellan Park, explaining, “Both of these sites would satisfy most of the Projects’ objectives (at least those that were not manipulated in order to exclude any offsite alternative) and do not require SOIA, annexation or any amendments to the NBHCP.” (FEIR, p. 2-283.)
Incredibly, the FEIR makes no attempt to analyze these additional sites, much less explain how they would fail to meet most project objectives. This flagrantly violates CEQA. Even worse, the FEIR reinforces the City and LAFCO’s abandonment of land use authority by now asserting, “[A]n Off-Site Alternative was determined to be infeasible because the project applicant does not own any off-site locations that could accommodate the proposed project.” The FEIR provides no legal authority supporting this abdication of land use authority to private developers; case law rejects this justification for refusing to consider offsite alternatives. Citizens of Goleta Valley v.
Board of Supervisors (1988) 197 Cal.App.3d 1167, 1179-1180 explains:
Hyatt contends that because it owns the Haskell’s Beach site and no other feasible site in the general area, it would be unreasonable to require consideration of another site as an alternative. [citation] Further, it suggests that its development of Haskell’s Beach as a hotel will not foreclose hotel development of any other feasible site.
Both of these contentions are questionable. From the viewpoint of the public interest, a visitor-serving development in the general area has been found to be desirable. Whether its location should be Haskell’s Beach or elsewhere depends upon the relative merits and demerits remaining after maximum amelioration of environmental impacts. Serving the public purpose at minimal environmental expense is the goal of CEQA.
Ownership of the land used and the identity of the developer are factors of lesser significance.
. . .
Reason requires that the agency charged with the duty to protect the environment compare impacts at feasible alternative locations.
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Jose C. Henriquez, Executive Officer
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(Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1179- 1180, emphasis added.)
And while CEQA Guidelines includes ownership as a factor relevant to feasibility of an alternative, it is just one factor out of many:
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), emphasis added.)
The FEIR violates this CEQA Guideline by purporting to justify consideration of offsite alternatives based solely on ownership, which is a factor of “lesser significance.”
In short, the DEIR and FEIR violate CEQA by rejecting all offsite alternatives from detailed analysis, even specific proposed offsite alternatives, because the project applicant does not own these alternative sites. This also manifests an inexcusable abdication of LAFCO’s authority over the SOI Amendment to private landowners.
Responses to Comment 23-20:
Our DEIR comment explained how the DEIR’s failure to address inconsistency with the NBHCP tainted the EIR’s consideration of alternatives pursuant to the Banning Ranch decision. (Banning Ranch, supra, 2 Cal.5th 918, 937 [“the regulatory limitations imposed by the Coastal Act’s ESHA provisions should have been central to the Banning Ranch EIR’s analysis of feasible alternatives”].) Once again, the FEIR fails to address this comment at all and instead directs the reader to comments 13-27 through 13-31.
While those comments and responses concern the NBHCP in other context, they simply do not address how the Project’s inconsistency with the NBHCP affects the EIR’s alternatives analysis.
Chair Lisa Kaplan and Members of the Commission
Jose C. Henriquez, Executive Officer
Sacramento LAFCO
April 2, 2025
Responses to Comment 23-12:
This comment explains that the EIR’s project description is inadequate because the applicant and City have not yet disclosed the proposed Development Agreement for the Project. This comment is correct. As explained above, for example, the FEIR falsely claims that the proposed warehouse on Parcel 8 is not allowed as a matter of right and requires CEQA review. While we explain above that the FEIR’s claims are false, the development agreement would provide additional confirmation regarding this, and other uncertainties associated with the so-called “non participating” parcels. The FEIR cannot rely on unknown and unanalyzed provisions of an unknown and undisclosed development agreement that may or may not actually be approved to support its conclusions.
Further, the FEIR does not provide a good faith response to this comment. The cases cited in the FEIR do not address the situation presented here, where the development agreement has not been publicly released prior to public approval. While the cases cited in the FEIR hold that a detailed analysis specific to the development agreement (i.e., distinct from the underlying project) is not required, the development agreements themselves were available in order to inform decision-makers and the public about the underlying project. (Native Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 910 [“Here, the EIR gave adequate notice of the existence of the development agreement and provided a means for determining the terms of that document”]; East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281, 291 [“it is sufficient if, as here, the development agreement is included in the notice of the public hearing on the Project before the city council”]; Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 926-927 [“The approval of the development agreement was duly noticed and considered at the public hearings on the project before the City Council, along with the certification of the EIR and other project approvals”].) No case has held that the decision-makers and the public must be forced to speculate about how a project may be modified by an undisclosed development agreement.
The Project Will Result in Cumulatively Significant Impacts to Biological Resources
The EIR concludes that the Project’s cumulative impact to special-status species would be mitigated to less than significant. (See Impact 4.4-15, DEIR, pp. 4.4-78 – 83.) Substantial evidence does not support this conclusion. First, the EIR attempts to rely solely on mitigation for project-level impacts to mitigate the cumulative impact. This is improper because it ignores that a project’s cumulative impact is distinct from a project’s Chair Lisa Kaplan and Members of the Commission
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cumulative impact. Indeed, while the DEIR purports to set forth various mitigation measures, the DEIR fails as an informational document by explaining how these mitigation measures will reduce the Project’s cumulative impact to less than significant.
In response to comment 80-1, the FEIR asserts, “[T]he Natomas Basin HCP is specifically designed to address potential impacts to biological resources on a cumulative scale within the basin.” Wholly omitted in this response, however, is that purporting to approve urban development outside of the Project area triggers “reevaluation of the Plan and Permits . . . and/or possible suspension or revocation of CITY’s or SUTTER’s Permits.” (NBHCP IA, § 3.1.1.) Since the Project could individually result in “reevaluation” or even outright “revocation” of the entire NBHCP, this refutes the FEIR’s conclusory assertion that the Project’s incremental contribution would be less than significant.
Finally, the DEIR and FEIR dismiss the Project’s cumulative impact in combination with the Upper Westside Project by asserting that the Draft EIR for that project was not available, and further that the project is not yet approved. (DEIR, p. 4.4- 81 [“publicly available information regarding the potential biological impacts of the Upper Westside Specific Plan is not available”]; FEIR, p. 2-30 [“the proposed Upper Westside and Grandpark projects have not yet been approved by Sacramento County, and thus have not yet removed agricultural land from the Basin”].) For purposes of cumulative impacts, it is irrelevant that the Upper Westside project has not yet been approved. Further, the Draft EIR for the Upper Westside Project was released back in August 2024. The EIR fails as an informational document by not analyzing and disclosing the severity of the cumulative impact to the NBHCP.
The FEIR’ Revision to DEIR Table 4.9-6 Fails to Cure the Informational Deficiency
The FEIR includes revisions to DEIR Table 4.9-6. However, this revision is inadequate to cure that table’s informational deficiencies.
First, Table 4.9-6 claims that the Project is consistent with LAFCO’s policy 3, which provides, “The Sphere of Influence amendments shall precede applications for annexations.” The DEIR asserts, “Prior to Annexation of the project site into the City of Sacramento limits, the proposed project would require approval of a SOI Amendment to modify the City’s SOI to include the project site.” This does not establish consistency with the policy, which requires the SOI Amendment to precede the application for annexation. The DEIR makes no attempt to address the timing of the annexation application. Attachment D plainly establishes that an application for annexation was Chair Lisa Kaplan and Members of the Commission
Jose C. Henriquez, Executive Officer
Sacramento LAFCO
April 2, 2025
filed long ago, and so any approval of the SOIA annexation does not “precede applications for annexations.” The DEIR and FEIR fail to disclose this obvious inconsistency with LAFCO policy, much less acknowledge how this demonstrates disorderly development that is driven by private landowners and not public agencies charged with conserving public resources within the county.
Second, Table 4.9-6 completely ignores many LAFCO policies that are directly applicable to the Project, and LAFCO’s discretionary action presently at issue.
Specifically, LAFCO’s Policy Manual plainly identifies policies that are applicable to its approval of a SOIA amendment:
The LAFCo’s policies will be applied to applications for amendment to a Sphere of Influence as if it were an annexation planned for the mid- to long-range future. For that reason, each of the following sets of policies will apply to applications for amendments to Spheres of Influence:
a. General policies;
b. Specific policies and standards for annexations to cities and special districts; and
c. Specific policies and standards or amendments to Spheres of Influence.
(LAFCO Policy Manual, p. 50.)
Incredibly, however, the DEIR and FEIR simply ignore LAFCO’s general policies pertaining to “Agricultural Land Conservation” that unquestionably apply here. (LAFCO Policy Manual, pp. 31-32.) These include:
E. AGRICULTURAL LAND CONSERVATION
LAFCo will exercise its powers to conserve agricultural land pursuant to the following standards.
1. LAFCo will approve a change of organization or reorganization which will result: in the conversion of prime agricultural land in open space use to other uses only if the Commission finds that the proposal will lead to the planned, orderly and efficient development of an area. For purposes of this standard, a proposal leads to the Chair Lisa Kaplan and Members of the Commission
Jose C. Henriquez, Executive Officer
Sacramento LAFCO
April 2, 2025
planned, orderly and efficient development of an area only if all of the following criteria are met:
a. The land subject to the change of organization or
reorganization is contiguous to either lands developed with an urban use or lands which have received all discretionary approvals for urban development.
b. The proposed development of the subject lands is consistent with the Spheres, of Influence Plan, including the Municipal Service Review of the affected agency or agencies.
c. Development of all or a substantial portion of the subject land is likely to occur within five years. In the case of very large developments, annexation should be phased wherever
feasible. If the Commission finds phasing infeasible for specific reasons, it may approve annexation if all or a substantial portion of the subject land is likely to develop within a reasonable period of time.
d. Insufficient vacant non-prime lands exist within the applicable Spheres of Influence that are planned, accessible and developable for the same general type of use.
e. The proposal will have no significant adverse effect on the physical and economic integrity of other agricultural lands.
In making this determination, LAFCo will consider the
following factors:
(1) The agricultural significance of the subject and
adjacent areas relative to other agricultural lands in the region.
(2) The use of the subject and the adjacent areas.
(3) Whether public facilities related to the proposal would be sized or situated so as to facilitate the conversion of adjacent or nearby agricultural land, or will be
extended through or adjacent to, any other agricultural Chair Lisa Kaplan and Members of the Commission
Jose C. Henriquez, Executive Officer
Sacramento LAFCO
April 2, 2025
lands which lie between the project site and existing
facilities.
(4) Whether natural or main-made barriers serve to buffer adjacent or nearby agricultural land from the effects of the proposed development.
(5) Applicable provisions; of the General Plan open space and land use elements, applicable growth-management
policies, or other statutory provisions designed to
protect agriculture.
2. LAFCo will not make the affirmative findings that the proposed development of the subject lands is consistent with the Spheres of Influence in the absence of an approved Spheres of Influence Plan.
LAFCo will not make the affirmative findings that insufficient vacant non-prime land exists within the Spheres of Influence Plan unless the applicable jurisdiction has:
a. Identified within its Spheres of Influence all “prime agricultural land” as defined herein.
b. Enacted measures to preserve prime agricultural land identified within its Spheres of Influence for agricultural use.
c. Adopted as part of its General Plan specific measures to facilitate and encourage in-fill development as an
alternative to the development of agricultural lands.
3. The LAFCo will comment upon, whenever feasible, Notices of Preparation for Environmental Impact Reports or projects which involve the development of large tracts of open space and agricultural land and that are not scheduled for urbanization within a five-year- period. Potential adverse impacts related to the loss of open space or agricultural land also will be commented upon by LAFCo.
Chair Lisa Kaplan and Members of the Commission
Jose C. Henriquez, Executive Officer
Sacramento LAFCO
April 2, 2025
4. LAFCo’s analysis for changes of organization or reorganization or sphere of influence amendments related to territory subject to Williamson Act contracts shall be consistent with Government Code Sections 56426 et seq.
(LAFCO Policy Manual, pp. 31-32, emphasis added.)
Incredibly, the DEIR makes no attempt to address the Project’s consistency with these LAFCO policies. The wholesale failure to address Policy 2 is particularly egregious since it imposes substantive constraints on LAFCO’s authority to find that sufficient alternative land is available for annexation within the existing Sphere of Influence. The DEIR purports to find that insufficient land is available (DEIR, pp. 4.9 -21 and -21), and yet does not address the above-quoted conditions that must be satisfied in order to make that finding.
In sum, the EIR fails as an informational document by not addressing all relevant LAFCO policies.
Comments Regarding the LAFCO Staff Report
LAFCO’s cursory staff report provides false and misleading information regarding the nature of LAFCO’s action to approve the SOIA, the NBHCP and the Project’s consistency with established LAFCO policies. Accordingly, LAFCO’s approval of the SOIA amendment would constitute an abuse of discretion in violation of LAFCO polices and the Cortese-Knox-Hertzberg Act.
The Staff Report Misconstrues the Proposed Approval
The staff report asserts, “Approving an SOI expansion does not mean that LAFCo is endorsing the ASI project, or approving future SOI expansions into the City or other projects in the area. Each of those will be considered based on their own facts should they come before you at some other time.” This is untrue. As a CEQA lead agency for a project that includes significant and unavoidable impacts, LAFCO must adopt a statement of overriding considerations for the underlying development project, which necessarily means that LAFCO believes the project’s benefits outweigh all identified environmental impacts.3 Thus, LAFCO is endorsing the project.
3 While CEQA requires LAFCO to adopt findings and a statement of overriding considerations, LAFCO has not done so. LAFCO’s Resolution LAFC2025-07 purports Chair Lisa Kaplan and Members of the Commission
Jose C. Henriquez, Executive Officer
Sacramento LAFCO
April 2, 2025
LAFCO Fails to Disclose Inconsistency with LAFCO Policies
“Attachment F” to the staff report purports to analyze consistency with applicable LAFCO policies. Conspicuously absent is any mention of LAFCO’s third policy regarding SOI Amendments, which provides, “The Sphere of Influence amendments shall precede applications for annexations.” The application attached to the staff report as Exhibit D unquestionably establishes a single application for both SOI Amendment and annexation. Thus, an application for SOI Amendment did not precede an annexation for application as required by LAFCO’s policies. Thus, the project is unquestionably inconsistent with LAFCO Policy. LAFCO’s apparent strategy to handle this obvious inconsistency is to treat the policy like it does not exist. This is the hallmark of arbitrary and capricious conduct.
Similarly, the staff report ignores LAFCO policies regarding annexations even though LAFCO’s Policy Manual plainly states that these policies “will apply” to LAFCO’s consideration of SOI amendments: “[E]ach of the following sets of policies will apply to applications for amendments to Spheres of Influence: . . . Specific policies and standards for annexations to cities and special districts. . . .” (LAFCO Policy Manual, p. 50.) The same is true regarding LAFCO’s “Agricultural Land Conservation” general standards that unquestionably apply here. (LAFCO Policy Manual, pp. 31-32.)
The Staff Report Misconstrues the NBHCP
The staff report finding of consistency with the NBHCP is based upon the “There is surplus acreage under the City’s Natomas Basin HCP allocation that may be available for use by the remainder of the project site.” As we demonstrate above, this assertion is wholly false and misleading. The existence of any so-called “surplus acreage” is irrelevant, and in no way supports NBHCP take coverage, since the NBHCP does not
to adopt findings set forth in “Exhibit A,” but those findings clarify that they are only findings by the City and not LAFCO. (See, e.g., p. 7 of 100 [“LAFCo will prepare its own procedural findings of fact for its consideration of the SOI Amendment and Annexation”]; p. 10 of 100 [“In these Findings, the City first addresses the extent to which each significant environmental effect can be substantially lessened or avoided through the adoption of feasible mitigation measures.”]; In the Statement of Overriding Considerations found at the end of these Findings, the City identifies the specific economic, social, and other considerations that, in its judgment, outweigh the significant environmental effects that the proposed project will cause”].) Thus, the “Exhibit A” findings preclude adoption LAFCO by their own terms.
Chair Lisa Kaplan and Members of the Commission
Jose C. Henriquez, Executive Officer
Sacramento LAFCO
April 2, 2025
allow transferring NBHCP permit coverage to property outside of the NBHCP’s Permit Area. (NBHCP IA, § 3.1.1 [“CITY agrees not to approve more than 8,050 acres of Authorized Development and to ensure that all Authorized Development is confined to the CITY’s Permit Area as depicted on Exhibit B to this Agreement. . . [T]he effectiveness of the NBHC’s Operating Conservation Program is based upon CITY limiting total development to 8,050 acres within the CITY’s PERMIT AREA”].) The staff report’s reliance on so-called “excess acreage” to find consistency with the NBHCP is contrary to law and an abuse of discretion.
* * *
Thank you for the opportunity to comment. The FEIR confirms that the City and LAFCO’s unlawful “dual lead agency” scheme prejudices informed decision-making and public participation regarding this Commission’s decision whether to authorize the City’s request for a sphere of influence amendment. The FEIR is woefully inadequate as a document of informed decision-making and public participation. The same is true regarding LAFCO’s staff report. We urge the Commission to deny the requested SOI Amendment.
Very truly yours,
SOLURI MESERVE
A Law Corporation
By:
Patrick M. Soluri
PS/mre
Attachments:
Exhibit 1: Comments from Shawn Smallwood, PhD
Exhibit 2: Comments from Smith Engineering & Management Exhibit 3: Comments from Earl Withycombe & Ralph Propper
References and Other Cited Material are provided separately to LAFCO on a flash drive
EXHIBIT 1
1 Shawn Smallwood, PhD
3108 Finch Street
Davis, CA 95616
Scott Johnson, Senior Planner
City of Sacramento Community Development Department
Sacramento, CA 95814
31 March 2025
RE: Airport South Industrial Park and City Annexation DEIR
Dear Mr. Johnson,
I write to rebut the City’s responses to my comments on the potential impacts of the Airport South Industrial Project on wildlife. In my comments below, I adopt the numbering of responses initiated by the City, but I further distinguish some of them by sequential lettering to address multiple issues addressed in some individually numbered responses.
Response 22-37: The comment is an introductory statement and does not address the adequacy of the Draft EIR.
Reply: A portion of the cited introductory text does address the adequacy of the DEIR, but only in summary form. I will add that my introductory paragraphs summarized my experience with the NBHCP and my research of wildlife in the project area. These summaries identify me as one of the experts the City could have consulted as part of its preparation of its characterization of the environmental setting. The CEQA Guidelines recommends that the lead agency should consult with “Any person who has special expertise with respect to any environmental impact involved.” Bargas (2023), however, fails to disclose that they consulted with me or any other expert on the NBHCP or on the species at issue. Furthermore, Bargas (2023) cites nothing of the scientific literature on the NBHCP or on the species at issue. As examples, no reports or papers are cited on the ecology and conservation of giant gartersnake or Swainson’s hawk. My introductory comments could have been more directly stated, but their point was that the DEIR is deficient, partly because it ignores the available expertise on the existing environment setting, and subsequently because it mischaracterizes the environmental setting and the project’s potential impacts to plants and wildlife.
Response 22-38: The comment does not address the adequacy of the Draft EIR.
Reply: The response is inaccurate. Our site visit was intended to check on the completeness and credibility of the wildlife surveys that were performed by the City’s environmental consultants. In fact, we detected 18 species of vertebrate wildlife that the City’s consultants did not, and these species included two special-status species – the yellow warbler and the tricolored blackbird. The tricolored blackbird is listed as threatened under California’s Endangered Species Act.
2 Our survey also revealed that our rate of new species detections exceeded the upper bound of the 95% confidence interval of models I fit to our survey outcomes at sites located throughout the Sacramento-San Joaquin Valley. This finding reveals that the project site is richer in wildlife species than most other sites in the region, and the site is therefore more important to wildlife than is characterized in the DEIR.
Bridging our findings to my findings from a more intensively studied research site also supported my prediction of the number of diurnally active wildlife species that use the project site. The pattern in our species detection rates support my prediction that the site provides habitat to 212 species of diurnally active vertebrate wildlife, including 31 special-status species. The project site is much more valuable to wildlife than is portrayed by the DEIR, partly because there was insufficient survey effort in support of the DEIR, but largely because the DEIR’s analyses of data are deficient and conclusions drawn from the data are unsupportable and misleading.
Response 22-39a: The comment is an introductory statement describing to commentor’s opinion on initial “steps” to characterize the existing environmental setting for a site. The comment states that Step 1, biological surveys of the site, and Step 2, literature/database review, are incomplete and misleading. Chapter 4.4, Biological Resources, of the Draft EIR, which includes the information provided in the BRA prepared for the proposed project (Appendix E of the Draft EIR), thoroughly discusses the biological field surveys (commentor Step 1) and desktop literature/database reviews (commentor Step 2) conducted for the project. The introductory comment statement does not raise and specific issues on adequacy of the Draft EIR.
Reply: My introductory comment does raise specific issues on the adequacy of the DEIR, but it does not go into the details of comments that appear after it.
Response 22-39b: The commentor provides the opinion that the surveys conducted as part of the BRA are inadequate based on the commentor's equation model of species detected per hour of survey. The equation model presented by the commentor is not an industry-accepted practice/standard or appropriate methodology for several reasons.
The commentor’s model provides a biased result, likely greatly overstates the number of species that occur on the site, and infers that few species were detected each survey.
When in fact, the majority of the species were detected repeatedly during each survey, which is a common result. The surveys conducted for the project were intentionally conducted between fall through summer to provide opportunity to capture resident and migratory wildlife species utilizing the site.
Reply: The response refers to an equation model, which is an unfamiliar term to me, but what I reported were empirical models, or more specifically best-fit mathematical functions to patterns in real data, where best fits were decided by least sums of squared deviations of observations from the mean. Least-square regression models are probably the most common type of modeling in science. My use of them allows me to draw more meaning from the data than one can get from the simple list of species observed in the DEIR. The DEIR’s list of species detected provides no context with which to interpret or to compare the findings, and in fact it is not compared to findings from any other time 3 or place. The modeling I use, and which the City complains is not accepted industry practice, provides the context of survey effort and a framework for comparing my survey findings to the findings from other times and places.
The response alleges my model (1) overstates the number of species that occur on the site due to bias, and (2) infers few species were detected each survey. It is unclear to which model the response refers, it provides no evidence of the alleged bias, and it neglects to explain how the bias came about. On these points, the response asserts empty accusations of bias and misdirected inference.
It is unclear which model the response alleges to be biased, considering that the response spans my comments addressing three models, the first depicted in Figure 1, the second depicted in the text on page 18, and the third depicted in Figure 2 of my 16 July 2024 comment letter. Even less clear is that portion of the response that claims my model infers “few species were detected each survey.” My final point on this lack of clarity is that it is not the model that draws inferences, but rather the analyst making use of the model. I fail to understand the point of the response regarding inference pertaining to bias and surveys.
The methods I used in my comment letter have been found acceptable to the scientific community. Nonlinear model-fitting and analytical bridges have been around for many decades. The modeling methods I used in my comment letter underwent scientific peer review (e.g., Smallwood and Smallwood 2023), which is a higher standard than a purported industry standard. All said, I still cannot understand how or why my comments are characterized by the City as out of compliance with industry standards, because the Response does not make this clear.
Response 22-39c: In response to the comment that the biological survey did not detect certain wildlife species identified by the Smallwood survey, the comment is misleading and does not accurately characterize the site. Many of Smallwood’s observations were avian “flyovers” of the site or species detected off-site. Merely because a bird flew over the site does not suggest the site is utilized or inhabited by that species.
Unless the bird is observed hunting, foraging, perching, or preening, flyovers are generally not included in the list of avian species that inhabit a site.
Reply: The response cites no evidence in support of its assertion that most of the wildlife we detected on the site were flyover or off the site. According to my records, of the 48 species of vertebrate wildlife we detected, 48 were detected directly on the site; that is, none of them were strictly off site. The response is inaccurate on this point.
As for flyovers, none of my notes indicate that any of the species merely flew over the site, and I do not recall that any of them did so. Except for perhaps one of two species (possibly double-crested cormorants and Canada geese), members of all the species we detected made contact with soil, water or vegetation on the project site during our survey. On this point the response is short on evidence and is grossly inaccurate.
4 Even had most of the animals we saw been “mere flyovers,” wildlife are not two- dimensional; their environment spans from bedrock to great heights into the atmosphere, otherwise known as the aerosphere (Kunz et al. 2008, Diehl et al. 2017).
That portion of the aerosphere with which Noriko and I concerned ourselves during our survey was the portion that would be affected by the project. In other words, we considered birds flying low over the project site as having selected the project site for their flight paths. And by low, we also considered the soaring behaviors of Buteo hawks such as Swainson’s hawks, because soaring is used for travel, socializing, and foraging – all behaviors of which are of critical importance to the survival of the birds involved.
Therefore, merely because a bird flew over the site does in fact mean that the site is utilized by that bird. I will add that it is not always clear why a bird is flying over a site, as it might be pursuing multiple objectives of travel, foraging and socializing, so the response’s condition for determining habitation is contrived.
Response 22-39d: The commentor’s statement about tricolored blackbird being detected on-site is unfounded, given that Bargas conducted several surveys on-site. If tricolored blackbird resided on-site, the species would have been detected during surveys of the site, but was not. Potential impacts to tricolored blackbird are addressed under Impact 4.4-7 in Chapter 4.4, Biological Resources, of the Draft EIR. As discussed therein, nesting habitat does not occur within the project site. Furthermore, in the unlikely event that tricolored blackbird would be present on-site, Mitigation Measures
4.4-9(a) and 4.4-9(b) require surveys, avoidance, and coordination with the City and CDFW if nesting birds and raptors protected under the Migratory Bird Treaty Act (MBTA) and California Fish and Game Code (CFGC), which includes tricolored blackbird, are found actively nesting on-site. Therefore, the Draft EIR adequately addresses potential impacts to tricolored blackbird.
Reply: The response claims that our tricolored blackbird detection is unfounded, which is another way of claiming that we falsified our detection. However, in anticipation that we might one day have to rebut claims of falsification (this is the first time it has happened to us), we paid extra for cameras fit with global positioning systems (GPS). In Photo 1, I show one of our tricolored blackbird photos along with its photo attributes that include our spatial coordinates when the photo was taken. We were on Bayou Way at the north side of the project site when this photo was taken, and Noriko was aiming her camera to the west-southwest of our position (note the angle of the reflected sunlight off the tricolored blackbird’s primary feathers – the sun was east-southeast of the birds).
5 Photo 1. Our spatial coordinates are shown at the upper right portion of this image of tricolored blackbirds on the project site, 14 May 2024. This photo was taken by Noriko Smallwood.
The tricolored blackbirds in Photo 1 were not the only tricolored blackbirds we saw on the site. We observed flocks of them (Photo 2). That Bargas missed this species after several surveys is not evidence in support of the City’s claim that we could not have detected the species. As the City itself admits in its Response 22-40, biologists are not going to see all the species that occur at a site – not in one survey, and not in several surveys. Biologists miss species because they were looking one way when the species was detectable from the other way, or because the species was present earlier or later in the day than when the survey occurred, or because the species was present during a season other than when the survey was performed. Tricolored blackbird colonies happen to be spatially dynamic, meaning that they change centers of activity from year to year. Anyhow, that species are often missed was the point of Figure 2 in my comment letter of 16 July 2024. As I commented in my letter of 16 July 2024, on average I detected within my first hour of survey only 12% of the total number of species I would detect at my cited research site, and on average I detected within my first three hours of survey only 22.6% of the total number of species I would eventually detect. Figure 1, below, shows the accumulation of species I detected over 41 surveys at another site in the Sacramento area. In this example, the species I detected after the first several surveys numbered only 50% of the 149 species I detected after 41 surveys, and only 34% of the 191 species the best-fit model to the data predicts (Figure 1). The response’s basis for determining that our detection of tricolored blackbird is being unfounded is not supported by the data.
6 Photo 2. Part of a flock of tricolored blackbird on the project site, 14 May 2024.
The response attempts to cover the possibility that we really did observe tricolored blackbirds (we really did, in fact, observe them) by arguing that the DEIR’s mitigation measures would adequately address any impacts. Specifically, the response cites Mitigation Measures 4.4-9(a) and 4.4-9(b). However, Mitigation Measure 4.4-9(a) applies to raptors. Tricolored blackbirds are not raptors, so this Measure does not apply.
Measure 4.4-9(b) applies to songbirds. Tricolored blackbirds are songbirds, but tricolored blackbirds are not mentioned in the Measure, probably because the City did not anticipate the occurrence of this species due to the negative findings of the consultants’ reconnaissance surveys. The problem with not mentioning tricolored blackbird in Measure 4.4-9(b) is that the tricolored blackbird is not just any songbird, but it is listed as threatened under California’s Endangered Species Act. The recommended survey protocol for determining presence or absence requires at least three surveys separated by three weeks each during April through June (Airola et al. 2024). This protocol cannot be achieved by the single preconstruction survey required in Measure 4.4-9(b). Therefore, the DEIR is deficient.
7 Figure 1.
Accumulation of
wildlife species
detections at a
Sacramento-
area site over 41
surveys, ending
at 149 species.
However, the
pattern in the
data indicates
via modeling
that 191 species
would eventually
be detected after
additional
surveys.
Moreover, the tricolored blackbird is present. We saw them, and we photographed them. What is needed now are more substantial surveys to ascertain how many tricolored blackbirds are foraging or nesting on the site. Even if the tricolored blackbird is nesting off site, members of the species are obviously foraging on the project site during the breeding season. These foraging activities are in support of nesting regardless of whether the nesting is on or off site. More needs to be learned about the tricolored blackbirds on the project site so that accurate impact predictions can be prepared, along with the formulation of appropriate mitigation measures.
Response 22-39e: As for site access and surveys on the nonparticipating parcels, Bargas was informed that they did not have permission to access these lands; thus, survey of these areas were conducted along the periphery with sight assistance via binoculars.
Reply: I appreciate the response’s information that Bargas was denied access to the nonparticipating parcels. However, the response does not address my related comments about the consequences of lack of access. Unable to survey from directly on the nonparticipating parcels, Bargas was even less prepared for determining the absences of multiple special-status species. Field surveys from the peripheries of these parcels could not have possibly sufficed as evidence of absence of any species of wildlife, let alone Hours of survey
Cumulative number of wildlife species detected
0 20 40 60 80 100 120 140 160 180
0 20
40 60
80 100
120
140
160
Model prediction
r2 = 0.98, loss = 461
Actual count of species
8 giant gartersnake. The DEIR needs to disclose any deficiencies of the survey effort, and it needs to report only those determinations that are supportable by the survey effort.
Response 22-39f: With respect to rare plants, Bargas's surveys were conducted during the appropriate timing to detect rare plants. The use of reference sites can be helpful, especially for determining magnitude of populations of rare plant expression. However, the use of reference site(s) is not a requirement for conducting presence/absence rare plant surveys, and often those off-site reference locations are not accessible due to lack of permissible access. Ultimately, based on the literature searches and desktop database queries, as well as the site-specific conditions, it was determined the site does not support habitat for special-status plants and that none are expect to occur such that would warrant focused rare plant surveys. The nearest records of rare plants were over five miles from the site.
Reply: The response implies but does not state that reference sites were unavailable to Bargas. I also note that none of the recommendations in CDFW (2018) are survey requirements. However, the implementation of CDFW (2018) would have supported determinations that 14 rare plant species are absent from the project site, if in fact the findings still turned out to be negative. Having not achieved the recommended standards of CDFW (2018), the appropriate determinations would be to err on the side of caution by not determining absences of these species.
Response 22-40a: As presented in Section 3.1.2.1 of the BRA prepared for the proposed project by Bargas (Appendix E of the Draft EIR), the CNDDB records search area included the Regional Study Area, which was defined in Section 1.3 in the BRA as the project site and the surrounding five miles.
Reply: I appreciate the clarification. I suggest that the methods more clearly state the CNDDB query buffer so that the readers need not bounce around the document to find critical details.
Response 22-40b: The desktop database searches (including use of CNDDB and other sources) are not the sole factor in determining presence/absence of special-status species. Therefore, Bargas supplemented the desktop database searches with field surveys of the site, which were intentionally performed by Bargas between fall to summer. Thus, the commentor’s claim that the analysis of special-status species occurrence is flawed is not true. Further, it is acknowledged that biologists are unlikely to observe all species that occur on a site through site surveys alone. Thus, the BRA follows accepted practice to evaluate the potential for species to occur on-site by conducting site surveys and creating a list of species not observed but considered to have potential to occur based on on-site resources, including habitat types and vegetation communities, historic observations, species extents, geographic range, population sizes, and distribution, etc.
Reply: The response reveals internal inconsistencies in the FEIR’s responses. For example, here the City acknowledges that biologists performing reconnaissance surveys are unlikely to observe all species that occur on a site. I agree, but earlier the City 9 expressed incredulity at our detection of tricolored blackbird after Bargas failed to detect this species over several surveys. The City attempts to have it both ways.
Supplementing the desktop review with reconnaissance surveys is not enough for determining absences of species. As noted in the response, biologists performing reconnaissance surveys are unlikely to observe all species that occur on a site. It is for this reason that absence determinations are not supportable by reconnaissance surveys.
The outcomes of reconnaissance surveys do not get around the CNDDB’s warning that appears on its website about misinterpreting or misrepresenting CNDDB query results as evidence of absence (see my comment letter of 16 July 2024). Evidence of absence can only be found in the negative outcomes of adequate implementation of protocol- level detection surveys. No detection surveys have been completed. And no onsite reconnaissance surveys have been completed on Parcel 8.
Neither a CNDDB query nor the implementation of a few reconnaissance surveys can support determinations of species absences, unless a very compelling case can be made for the species’ habitat not existing on the site. To follow accepted practice to evaluate the occurrence likelihoods of species based on these types of evidence, statements of uncertainty over species occurrences would have been needed. Stating that a species is absent without having implemented the types of surveys that have been formulated to detect the species when it is present is the type of determination that has long been established as inappropriate when addressing the fates of precious resources in the face of uncertainty (National Research Council 1986).
Response 22-40c: The commentor's use of iNaturalist can be helpful but is not a typical reliable source in the eyes of the State and Federal Wildlife Agencies. State and federal databases (i.e., USFWS, CDFW, etc.) serve as the primary sources of reliable data references for biological studies because they are species and sub-species specific, credible, vetted by specialists, and provide site- and observation-specific location information.
Reply: The response cites no source in support of its representation of USFWS and CDFW. In which document does CDFW or USFWS state that iNaturalist or eBird are insufficiently reliable for use as sightings records? In which document is it stated that state and federal databases qualify as the primary sources of occurrence records? I do not recall seeing that either agency has issued such proclamations, and it is my experience that the agencies encourage lead agencies to consult all available sources of information value regarding the species that could be at issue.
Response 22-40d: Public websites such as eBird and iNaturalist may be referred to as secondary resources as they are considered citizen-based science efforts. Any member of the public can record an unverified observation, which may or may not be accurate.
Such observations from non-professional contributors may therefore be unreliable as to species and locational information. Additionally, even if accurate, the records provide general information, often not to the sub-species level, and depending on the species sensitivity, do not provide site specific or observation location information. The information on these sites may not be credible and they are not considered a credible 10 primary resource by the City. Furthermore, while iNaturalist data often provides general information on a regional scale, the State and federal databases provide site-specific observation information that can be very useful when analyzing a specific property.
Reply: State and federal databases provide site-specific occurrence records only for sites that have been surveyed by biologists and the survey findings reported to the state and federal databases. Take Parcel 8, for example. If biologists in addition to those of Bargas were denied access to it, then there are unlikely to be occurrence records from Parcel 8 in the CNDDB. On the other hand, any biologist or bird enthusiast with a pair of binoculars can see into the aerosphere of Parcel 8 to detect birds, and these detections can be reported to eBird. Furthermore, CNDDB is only interested in reports of species that happen to be designated with special status at the time of the sighting.
Therefore, species more recently designated as special-status species are less likely to be represented with records in the CNDDB, but this is not the case for eBird or iNaturalist.
Response 22-40e: Public databases are becoming more recognized as technology and screening advances, but currently there is still much uncertainty in the accuracy and validity of what is posted on those public forums.
Reply: Here and earlier in the response, the City mischaracterizes eBird and iNaturalist as having undergone less scrutiny than occurs with occurrence records submitted to the CNDDB. And to be clear, there is no similar occurrence database maintained by the federal government, so every insinuation in the response that such a database exists is misleading. In fact, the occurrence records in the public databases can undergo multiple levels of scrutiny, one level of which is accomplished by participating members of the public. Occurrence records to these databases often include photos, sonograms or other evidence that can be examined by peers, whereas the same cannot be said about the records in the CNDDB. eBird includes algorithms to detect irregularities. Experts at the Cornell University Lab of Ornithology often follow up on eBird records by contacting and questioning reporters of flagged records. The details of the vetting processes at these databases are available on the websites. I will add that thousands of papers based on eBird records have been published in peer-reviewed scientific papers, whereas few have been published based on CNDDB records. Inaccuracies certainly occur in eBird and iNaturalist records, but nowhere near the levels implied by the response.
Response 22-40f: The evaluation by the commentor of species recorded up to 30 miles from the project site is misleading, unnecessary, and not applicable to the species that could likely occur on the project site. Simply because a species has been reported as occurring in the 30-mile region does not mean that they have a potential for presence at the project site, which would largely depend on whether suitable habitat is present.
Reply: The response is inaccurate because it is looking at our proximity domains (within 1.5 miles, between 1.5 and 4 miles, and between 4 and 30 miles in the case of my letter of 16 July 2024) in the wrong way. The proximities of occurrence records serve as a useful predictor of the likelihood of detection of a species on a given site (Figure 2). As shown in this case for white-tailed kite, occurrence records that are more distant from a site decrease the likelihood of detection at a given level of survey effort, but they do not 11 preclude detections altogether (consistent with the tenet that occurrence records should not lead to determinations of absence). More distant records more accurately inform of the need for greater survey effort to detect the species on the site. In the example of the white-tailed kite, the addition of proximity domains informs us that to achieve a 10% likelihood of detection, even a brief survey should be all that is needed if the nearest occurrence record was on site or adjacent to the site, but four hours would be needed if the nearest record was within 1.5 of the site, and 10 hours would be needed if the nearest record was between 1.4 and 40 miles of the site.
Figure 2. The
probability of
detection of white-
tailed kite at a
given site within its
geographic range
in California is a
function of both
survey duration
and proximity of
occurrence records
in eBird.
Response 22-41a: See Response to Comment 22-40. Using credible databases, reasonable distances, on-site conditions, and various database tools, Bargas focused the project analysis to those species with the reasonable potential to occur on-site. Doing so is standard technique purposely used to screen out species unlikely to occur in the target survey study area. In addition, to ensure thorough evaluation of special-status species, Bargas conducted multiple biological surveys at the project site over a nine-month span.
Reply: This part of the response repeats earlier responses. It is simply not “standard technique,” as alleged in the response, to use the CNDDB to screen out species from the Log10 Survey hours
-0.6 -0.2 0.2 0.6 1.0 1.4 1.8 2.2
0.2 0.4
0.6 0.8
1.0 0
Probability of detection
1.5 and 40 miles
Within 1.5 miles
On site or adjacent
Nearest eBird records
White-tailed kite Elanus leucurus
California Fully Protected
0.4 1584 10 Hours1
12 study area. As previously documented, this flagrantly violates the warning from the CNDDB to not use their data in this manner. To the extent this is Bargas’ “standard technique,” it confirms that Bargas’ surveys are inconsistent with accepted industry practice. As I commented in my letter of 16 July 2024, the CNDDB is a database that relies on volunteer reporting of sightings made by biologists who enjoyed access to certain properties; it is not derived from a program of observations based on scientific sampling, and it is even more ad hoc in its geographic representation that are eBird or iNaturalist. But regardless of the occurrence-records database, and whether one’s opinion of it as credible or not, positive-sightings databases cannot be used to conclude that any species is absent from a site. These databases can be used to conclude a species is present, but not that it is absent. Special survey protocols have been developed for the purpose of supporting absence determinations, and none of these have been implemented at the project site.
Response 22-41b: The commentor is misinterpreting the discussion presented in Section 3.1.3 of the BRA (Appendix E of the Draft EIR). The "further distinguished" is additional consideration and not the sole/primary factor of the analysis, as inferred and interpreted by the commentor. Biological surveys were intentionally conducted by Bargas between fall through summer to provide opportunity to capture resident, migratory, and transient, wildlife species utilizing the site.
Reply: My comment was directed to the statement at issue, which I had quoted in full from the Bargas report. As I commented, that statement, whether additional to other considerations or not, qualifies the analyses of special-status species occurrence likelihoods as inaccurate and unreliable.
Response 22-41c: The commenter’s claim that Bargas did not extend evaluation to the nonparticipating parcels is not correct. As explained on page 4.4-38 of the Draft EIR, the terminology in the BRA prepared by Bargas varies slightly from that of Chapter 4.4 of the Draft EIR, but the industrial park area and nonparticipating parcels area were evaluated at an appropriate level. Potential impacts to the industrial park and nonparticipating parcels were evaluated throughout Chapter 4.4 of the Draft EIR.
Reply: What would be appropriate would be to put biologists’ boots on the ground of the nonparticipating parcels, to do so as part of appropriate detection surveys for the multiple special-status species that possibly occur there, and to otherwise prepare determinations of species occurrence likelihoods that are defensible given the available information. Determinations of species’ absences are not at present defensible.
Response 22-42a: See Response to Comment 22-40. The commentor suggests that white-faced ibis should be noted as present and/or using the site. The commenter is again misunderstanding and misrepresenting the data presented in the BRA. For clarity, Section 4.6.2.4 of the BRA prepared for the proposed project (Appendix E of the Draft EIR) acknowledges that white-faced ibis has the potential to occur within the on-site canals and adjacent agricultural areas. Potential impacts to white-faced ibis are addressed under Impact 4.4-7 in Chapter 4.4, Biological Resources, of the Draft EIR.
13 Reply: I understand that the DEIR assigns a low occurrence likelihood to white-faced ibis. The DEIR’s occurrence likelihood is not supported by the evidence.
Response 22-42b: As for loggerhead shrike, Section 4.6.2.4 of the BRA states that although the species does occur within the Natomas Basin, suitable scrubby habitat preferred by the species is not present on-site. Potential impacts to the species are addressed under Impact 4.4-8 of the Draft EIR. As discussed therein, implementation of Mitigation Measure 4.4-8 would be required to reduce potential impacts to loggerhead shrike to a less-than-significant level.
Reply: I understand that the DEIR assigns a low occurrence likelihood to loggerhead shrike. The DEIR’s occurrence likelihood is not supported by the evidence.
Response 22-42c: Modesto song sparrow is also evaluated and described in Section
4.6.2.4 of the BRA as potentially occurring within the canals that border the site; however, the project site was found to contain limited low quality habitat for the species.
Potential impacts to the species are addressed under Impact 4.4 9 of the Draft EIR.
Given that numerous biological surveys of the site were conducted by Bargas across a nine-month span, the foregoing species would have been detected if present. As stated within the BRA, white-faced ibis, loggerhead shrike, and Modesto song sparrow were not observed on-site.
Reply: I understand that the DEIR assigns a low occurrence likelihood to Modesto long sparrow. The DEIR’s occurrence likelihood is not supported by the evidence.
Response 22-42d: Given that numerous biological surveys of the site were conducted by Bargas across a nine-month span, the foregoing species would have been detected if present. As stated within the BRA, white-faced ibis, loggerhead shrike, and Modesto song sparrow were not observed on-site.
Reply: Again, as the City itself admits in its Response 22-40, biologists conducting reconnaissance surveys are not going to see all the species that occur at a site. Response 22-42, however, revisits the indefensible notion that no species that occur on the project site could have escaped Bargas’s detection. I am confident that Bargas’s biologists were sufficiently skilled to perform the surveys asked of them, but I also know for certain that no biologists are sufficiently skilled to detect all the species that occur at a site over a few surveys. The eBird occurrence records I presented in Figures 3 and 4 of my 16 July 2024 comment letter readily refute the City’s assertion that Bargas’s biologists detected all the species that were available to be detected. Even the occurrence records that are off the project site refute the City’s assertion, because members of all the species at issue are mobile and would occur at many other nearby locations in addition to where they were specifically reported.
Response 22-43: The comment does not address the adequacy of the Draft EIR.
Reply: Yes, it does. In Response 22-433, the City identifies my Table 2 as a comment, but Table 2 is referenced and discussed in text that the City numbers as its Response 22- 14 40. The City has split my comments into two Responses, neither of which addresses my comments. Here is the text of my comments:
“In my assessment of our database review and our site visit, 103 special-status species of wildlife are known to occur near enough to the site to be analyzed for occurrence potential at one time or another (Table 2). Of these, 13 have been documented on the project site (we confirmed 7 of these), and 26 (25%) have been documented in databases within 1.5 miles of the site (‘Very close’), 24 (23%) within 1.5 and 4 miles (‘Nearby’), and another 34 (33%) within 4 to 30 miles (‘In region’). More than half (63) of the special- status species in Table 2 have been reportedly seen within 4 miles of the project site.
Therefore, the site supports multiple special-status species of wildlife, and likely supports many.
Bargas (2023) analyzes occurrence likelihoods of only 17 of the special-status species of wildlife in my Table 2. Of these 17 species, Bargas (2023) determines 5 do not occur, 6 have low likelihood to occur, and 1 has moderate likelihood to occur. Of the six species determined to have low to moderate likelihoods of occurrence, 2 have been documented on the project site, 2 have been documented within 1.5 miles of the site, and 1 has been documented between 1.5 and 4 miles from the site. Bargas’s (2023) determinations of occurrence likelihood poorly comport with the evidence from reconnaissance surveys and occurrence likelihood databases.”
The tallies in the above quoted comments are from Table 2. None of these comments are addressed by the City’s responses.
Response 22-44a: See Responses to Comments 22-40 and 22-41. The determination that tricolored blackbird has low potential for occurrence within the study area is based on database records, site-specific conditions, and the result of the biological field surveys conducted across nine months.
Reply: The DEIR’s determination of low occurrence likelihood was inaccurate, no matter what the determination was based on. We know for certain that tricolored blackbirds occur on the project site. The response indicates that the City intends to maintain its incorrect determination regardless of the evidence. This determination is inconsistent with the spirit and intent of the California Environmental Quality Act.
Response 22-44b: The commentor’s statement that bank swallow is difficult to identify is unfounded and solely the opinion of the commentor. The swallow species is very easily identifiable and distinguishable from other swallow species by their plumage and vocalizations. Given the extent of biological surveys of the site conducted by Bargas, bank swallow would have been easily detected, if present; none were observed.
Reply: It is great to learn that the responder finds it easy to identify bank swallow. In my experience, many biologists struggle to determine the species of most swallows, because they are small and fast, and their availability to be identified only fleeting.
Nevertheless, the response fails to address the rest of my comments regarding bank swallow. I commented that it is inappropriate to determine that bank swallow has no 15 likelihood of occurrence on the project site. I also commented that Bargas’s hedge against someone actually seeing a bank swallow on the site by claiming such sightings would be of mere flyovers is misleading, as flyovers are how bank swallows forage.
I find it relatively easy to distinguish tricolored blackbirds from other species of blackbirds, perhaps just as the responder finds it easy to distinguish bank swallows, but this does not mean that every survey is going to detect tricolored blackbirds even though Noriko and I established the species’ presence. The same applies to even more conspicuous species such as black-crowned night-heron and ring-necked pheasant; how did Bargas’s biologists miss these species? How did they miss the Botta’s pocket gophers, whose sign is always visible. How did Noriko and I miss the great blue heron and snowy egret observed by Bargas’s biologists? The answers are that reconnaissance surveys fail to detect all the species that are present, and in fact they detect only fractions of the local wildlife community. To claim otherwise is inaccurate and misleading.
Response 22-45a: The comment is incorrectly inferring the "greater risk of bird- aircraft strike," which is not stated or suggested in the BRA prepared for the proposed project (Appendix E of the Draft EIR). The BRA states facts regarding the existing condition of the site and relationship with the airport and FAA zone. The BRA does not state or suggest that development of the site would result in fewer bird strikes.
Reply: No, I interpreted the statement accurately. The quoted statement provides: “The current lack of development surrounding the Airport provides for substantial risk of bird strikes with departing or arriving aircraft…” This statement implies greater risk of bird-aircraft strikes by leaving the project site undeveloped. And if this is not the intended meaning, then what is the intended meaning? And why even include this analysis?
Response 22-45b: The commentor's opinion and request to measure and study bird flight heights in an experimental setting is typically not part of an effective project impact analysis under CEQA. Furthermore, such study is neither necessary nor required for the Draft EIR and does not raise new or additional environmental issues concerning the adequacy of the Draft EIR.
Reply: What should be typically part of CEQA analysis is whatever is needed to achieve the goals and objectives of the California Environmental Quality Act. If the City is going to claim that not developing the project site substantially increases the risk of bird- aircraft strikes, then it needs to support the claim with appropriate data. A risk analysis is most effectively performed with data, and the data that would be relevant in this case are bird flight paths and heights above ground, as I commented.
I noticed evasive responses to a similar issue, and that was in responses to 13-26 and 13- 64, to which I reply below.
16 Response to Comment 13-26: As noted on pages 4.4-56 and 4.4-57 in Chapter 4.4, Biological Resources, of the Draft EIR, Aleutian Canada goose and white-faced Ibis are not expected to occur on-site. ...
Reply: It is not true that the DEIR determines the Aleutian Canada goose and white- faced ibis are not expected to occur on the project site. The determination for both species is of low likelihood of occurrence. Bargas assigns its low occurrence likelihood to “Species with few known recent recorded occurrences/populations near the Biological Study Area and habitat within the Biological Study Area is highly disturbed or extremely limited.” A different standard is applied to species not expected to occur. This error of the response pointed out, I will add that I disagree even with the DEIR’s assignments of low occurrence likelihoods. I have seen Aleutian Canada goose and white-faced ibis all around the project site. Furthermore, there are many eBird occurrence records of both species around the project site (Figures 3 and 4), all of which add to the likelihoods that both species occur on the site (indeed, one record of white-faced ibis is on the site).
The addition of 86 acres of detention basins would increase the likelihoods of occurrences of these species on the project site, unless, that is, the Wildlife Hazard Management Plan would resort to extreme or even lethal measures to discourage them (more on this below).
Figure 3. eBird occurrence records (teardrop symbols, where red symbols identify Aleutian Canada goose
17 records reported in the past month) of Aleutian Canada goose in the area of the project site (red polygon).
Figure 4. eBird occurrence records (teardrop symbols) of white-faced ibis in the area of the project site (red polygon). One record is on the project site.
Response 13-64a: The reference by the commenter to FAA Advisory Circular 150/5200-33C is taken out of context. As stated in Section 3, Application, of the FAA Advisory Circular 150/5200-33C, “This [Advisory Circular (AC)] does not constitute a regulation, is not mandatory, and is not legally binding in its own right. It will not be relied upon as a separate basis by the FAA for affirmative enforcement action or other administrative penalty. Conformity with this AC is voluntary, and nonconformity will not affect rights and obligations under existing statutes and regulations […]”.3 Contrary to the claim of the commenter, the language included in Advisory Circular 150/5200- 33C is not a federal standard, but is a series of recommendations to be considered to minimize wildlife hazards associated with various land uses, including new stormwater management facilities.
Reply: The FAA’s Advisory Circular 150/5200-33C does not need to be legally binding or mandatory to result in adequate analysis of a potentially significant impacts of the proposed detention basins to wildlife. Whether adherence to the Advisory Circular is mandatory is not the issue. The issue is whether the addition of 86 acres of detention basins has been adequately analyzed for their impacts to wildlife, and whether volant White
-
faced ibis
18 wildlife would be attracted to the basins in numbers and in manners that would increase risk of bird-aircraft collisions.
Response 13-64b: The recommendations in Advisory Circular 150/5200-33C are also intended to be examined with other best-management practices in consultation with the City of Sacramento and the Sacramento County Department of Airports; in the case of the proposed project, through the preparation of a Wildlife Hazard Management Plan as required by Mitigation Measure 4.7-5. The plan will identify the best management practices for the detention basin operations to minimize wildlife hazards to the Sacramento International Airport.
Reply: The more important question is whether the proposed detention basins should be constructed in the first place.
Response 13-64bc The recently approved Greenbriar Project located directly north and east of the project site includes approximately 40 acres of permanent lakes that are operated in conformance with an approved Wildlife Hazard Management Plan. The lakes also lie within the 10,000-foot separation zone. A similar collaborative approach of determining the best management practices will be used for the proposed project.
Reply: The approval of the Greenbriar Project and its 40 acres of lakes north of the project only heightens concerns over the impacts to both wildlife and aircraft safety. If the project goes forward as planned, there would be 126 acres of open water bodies to attract volant wildlife to areas within 10,000 feet of the Airport’s runway. My concern is that these water bodies might increase the numbers and types of avian flight activity that would increase bird-aircraft strike hazard, and would subsequently result in lethal measures to discourage birds from visiting the detention basins. The Wildlife Hazard Management Plan might turn into the type of bird control plan that already exists at the Airport, or worse. The detention basins, located in the middle of the Pacific Flyway and right next to the Sacramento International Airport, could be turned into ecological sinks for many species of birds, including special-status species such as Aleutian Canada goose, white-faced ibis, American white pelican, double-crested cormorant, and bald eagle, among many others. The DEIR is deficient in its analysis of the potential impacts to wildlife of the proposed water detention basins.
Response 22-46a: See Response to Comment 2-6. As discussed in Section 4.7.1 of the BRA prepared for the proposed project (Appendix E of the Draft EIR), implementation of the project would not result in significant habitat fragmentation or adversely affect wildlife corridors. Such impacts are also addressed under Impact 4.4-12 of the Draft EIR. As discussed therein, aquatic species could be affected by the proposed project; however, implementation of the proposed mitigation measures presented in Chapter
4.4, Biological Resources, of the Draft EIR would reduce the impact to less than significant. Furthermore, although the term “habitat fragmentation” is not used in the Draft EIR, as discussed under Impact 4.4-12, implementation of the project would not result in significant habitat fragmentation because habitats present that could provide sufficient shelter that would support typical wildlife movements/corridors are not present on-site. Suitable habitats exist off-site and beyond the project site that are larger 19 contiguous habitats and could provide higher quality resources and serve as wildlife movement corridors.
Reply: As I commented in my letter of 16 July 2024, habitat fragmentation is not analyzed in the DEIR. Neither is it adequately addressed in the response. Habitat fragmentation needs to be analyzed at the landscape level, and not just at the project level, and it is not all about corridors and movement. In fact, in my comments I did not mention corridors in the context of habitat fragmentation, but I did define habitat fragmentation. The response appears to have not noticed the definition of habitat fragmentation, and so it resorts to discussing corridors instead of habitat fragmentation.
Habitat fragmentation multiplies the negative effects of habitat loss on the productive capacities of biological species. It can do this through insularization by blocking movement into or out of the habitat fragments, or by leaving habitat fragments that are each too small to support a significant demographic unit of the species. The potential effects of habitat fragmentation need to be analyzed at a landscape level that puts the project site into context of other patches of habitat used by the species at issue. For the giant gartersnake, the Natomas Basin would qualify as a landscape sufficient in scope for analysis. The response’s statement that the “implementation of the project would not result in significant habitat fragmentation” is conclusory. Considering all the development and loss of habitat within the Natomas Basin, and considering the ongoing rapid decline of the giant gartersnake, the response’s statement is ridiculous.
Response 22-46b: Potential impacts to giant gartersnake as a result of project implementation are discussed under Impact 4.4-3 in Chapter 4.4, Biological Resources, of the Draft EIR. As discussed therein, implementation of mitigation would reduce impacts to giant gartersnake, including its habitat, to a less-than-significant level.
Reply: The DEIR’s discussion of potential impacts to giant gartersnake is inadequate, as I commented. The DEIR only assumes that giant gartersnakes are present, and this assumption serves as the basis for the DEIR’s prescribed mitigation. An estimate of the abundance of the giant gartersnake on the project site is needed but not provided.
Mitigation needs to be formulated based on knowledge of the abundance of the giant gartersnake.
Response 22-46c: The comment suggests conducting survey/analysis of productive capacity for giant gartersnake, which is acknowledged. However, the suggestion is a concluding opinion and such study is not necessary or required for the Draft EIR and does not raise new or additional environmental issues concerning the adequacy of the Draft EIR.
Reply: The response fails to explain how my recommendation is a concluding opinion.
It is not. And even if it is, I fail to see what difference that would make in terms of providing a response. The response seems to be in search of an excuse to justify ignoring my comments.
20 Appropriate surveys would be the best way forward to estimate the abundance of the giant gartersnake on the project site. I also recommended the alternative approach of estimating giant gartersnake abundance by drawing inference from the comparison of existing density estimates regressed on the sizes of the study areas used to estimate density. In fact, I performed the analysis already, and the resulting abundance estimate of 121 adult giant gartersnakes is available in my comment letter (and herein). The approach I used has been peer-reviewed and published (Smallwood 2001), so there is strong foundation for relying on it.
The claim is misleading that my comments failed to raise new or additional environmental issues regarding the adequacy of the DEIR. Before my comments, the City had no abundance estimate of giant gartersnakes on the project site. And now, after my comments, the City does have an abundance estimate.
Response 22-47a: The commentor’s assumptions and predictions, as well as calculation by the commentor’s model, suggest that implementation of the project would deny the production of 11,361 birds per year to the State of California. The comment states that such loss would qualify as a significant project impact to birds that has not been quantitatively addressed in the Draft EIR. The commenter’s argument draws conclusions and speculation about the project site from studies (over 75 years old) in the mid-west portion of the United States that have no relation to the project site.
Reply: The response is based on a misread of my comments. I cited Young (1948) and Yahner (1982) to introduce the metric and methods of total nest density, but I made no use of their estimates other than the average number of fledglings. Before I continue, however, I will note that the ages of the estimates from Young and Yahner are irrelevant, as birds have not changed their nesting patterns over the past 75 years. Moreover, if I relied on our review of the numbers of fledglings produced per nest of 322 bird species across North America, the average is higher than the value of 2.9 I borrowed from Young (1948). Ass for the density estimates themselves, I mostly relied on our own data (I also relied on an estimate from Jorgenson et al. 2014), as I commented.
Response 22-47b: The potential for the project site to support 3,564 bird nests per year is unlikely, speculative, and unsupported by substantial evidence.
Reply: The evidence consists of actual data from actual study sites, one of which is located only 7 miles to the southwest of the project site. My approach includes a few assumptions, but it is not speculative. Scientific inference is not speculation.
Response 22-47c: Additionally, the mathematical analysis used by the commenter to extrapolate bird nests and reproductive success for a particular site is misleading and inaccurate.
Reply: The mathematical model is just an indicator-level model. It was peer reviewed and published in wildlife biology’s premier scientific journal (Smallwood 2022).
21 Response 22-47d: The analysis is based on two studies which have no relation to and are not comparable to the project site. One study (i.e., Young 1948) relies on data from over 75 years ago that was taken from a single park site in Wisconsin, which is substantially different than the project site. The other study (i.e., Yahner 1982) presents data over 40 years old from farmsteads located in Minnesota, with row plantings of trees and shrubs, which is also substantially different habitat/vegetation than the project site. In addition to the location and age of this data, the bird species and associated habitats are different that those on the project site. The commentor’s opinion on future impacts, which is based on an unknown number of bird nests from habitat removal calculated using outdated or inapplicable surveys, is highly speculative and inappropriate. Such speculation is a misrepresentation of the site and is typically not part of an effective project impact analysis under CEQA.
Reply: As I commented above, the ages of the cited studies are irrelevant. I only borrowed the average number of fledglings per nest from Young (1948), and I used none of the data from Yahner (1982), just as my comments stated in my letter of 16 July 2024.
My analysis is not speculative, all assumptions are stated, the methods are peer- reviewed and published, and it has appeared in CEQA review many times, contrary to the claims in the response. What is especially notable about the response is that it continues to leave the DEIR without any analysis of the potential losses of productive capacities of birds and other species that would result from habitat loss.
Response 22-47e: Although nests were observed on-site during the biological surveys conducted by Bargas, the Draft EIR determined that potential impacts to nesting birds if construction were to occur during the nesting season would be reduced to a less-than- significant level with implementation of Mitigation Measures 4.4-9(a) and 4.4-9(b) in Chapter 4.4, Biological Resources, of the Draft EIR, consistent with the MBTA and CFGC.
Reply: The prescribed mitigation measures would be inadequate. They consist of one- time preconstruction surveys that do not carry anywhere close to the same level of detection likelihoods as would the types of surveys performed for estimating total nest density. It is highly unlikely that the preconstruction survey would detect more than a small fraction of the number of nest sites on the project site. Even if the survey did detect them all, it would not avoid the permanent loss of productive capacity that would result from the project’s habitat destruction.
Furthermore, the language of Mitigation Measures 4.4-9(a) and 4.4-9(b) allows a single individual to make subjective decisions, outside the public’s view, to determine the buffer area for any given species. This measure lacks objective criteria, and it is unenforceable.
Response 22-48: See Response to Comment 22-46. Section 4.7.1 of the BRA prepared for the proposed project (Appendix E of the Draft EIR) discusses habitat fragmentation.
As discussed therein, the BRA finds that implementation of the project would not adversely affect wildlife corridors. Based on the biological surveys and setting of the project site, it was determined that the likelihood for quadruped movement to and from 22 the site is low, and the site is not considered a wildlife corridor. In addition, given the lack of natural habitats present on-site that provide sufficient shelter to support typical wildlife movements or corridors, implementation of the project is not expected to result in habitat fragmentation. The BRA does acknowledge contiguous habitats are present beyond the project site that could provide higher quality resources and serve as wildlife movement corridors. The BRA, as well as the discussion under Impact 4.4-12 in Chapter
4.4, Biological Resources, of the Draft EIR, states that aquatic species on-site could be potentially impacted by project buildout; however, implementation of the proposed mitigation measures would reduce the impact to a less-than-significant level.
Reply: The response provides circular logic, repeating the DEIR’s conclusory findings that the site is not a wildlife corridor, but there is no compelling reason given for why the loss of up to 475 acres would have no significant impact on wildlife movement in the region. There is no answer to my comment that the CEQA’s concern is not restricted to whether the project would interfere with the function of a corridor, but that it primarily goes to whether the project would interfere with wildlife movement regardless of whether one or more corridors are involved.
There is no statement in Bargas’s report that indicates Bargas’s biologists set out to determine whether or how wildlife move across the project site. No study objective was directed to this question. No data were collected that could have gone to the question, other than Bargas’s observations of species on the site, and presuming that members of the detected species got to the site by moving to it.
Noriko and I saw abundant movement of wildlife onto, out of, and across the project site. We saw flocks of birds of various species moving across the site. The project site is obviously important to wildlife movement in the region, and it is important to regional movement and continued persistence of the giant gartersnake.
Response 22-49a: The commentor’s opinion and prediction that the project would result in over 9,000 road kills per year is highly speculative, misleading, and presents a misrepresentation of the site. The study used by the commentor to predict road kills is from an extremely highly traveled and known dangerous roadway (Vasco Road - Wikipedia), which does not reflect the conditions at the project site.
Reply: The roadways of the project site are also highly traveled, and they would be even more highly traveled as a result of the project, as the DEIR predicts 16,828,967 annual VMT. And again, the City misconstrues scientific inference as speculation. The DEIR relies heavily on speculation, whereas I strive to rely on inference as much as possible.
Response 22-49b: Thus, the magnitude of such an impact is not known and to presume such a significant impact based on a stretch of road in Contra Costa County is inappropriate, misleading, and not directly relatable to the proposed project.
Reply: But this is how scientific predictions are made. Scientific predictions are often made by drawing inferences from scientific investigations at other times or places. It is true that we do not know the magnitude of project-generated traffic on wildlife, but we 23 have the means to predict the impact, and scientists do this all the time. When we find our predictions are in error or are biased in one way or another, we adjust our assumptions to improve the accuracy of the next predictions.
On the topic of accuracy, I have since adjusted some of the assumptions of my estimates of mortality from the Mendelsohn et al. (2009) study. During the Mendelsohn et al. (2009) study, 19,500 cars traveled Vasco Road daily, so the vehicle miles that contributed to my estimate of wildlife fatalities was 19,500 cars and trucks × 2.5 miles × 365 days/year × 1.25 years = 22,242,187.5 vehicle miles per 9,462 wildlife fatalities, or 2,351 vehicle miles per fatality. What has changed here is the estimate of wildlife fatalities, which I reduced from 12,187 to 9,462. The change came about by my more recent use of species-specific estimates for the detection likelihoods of road-killed animals linked to their average body mass. The change also results in my new prediction that the project would result in 7,158 annual wildlife fatalities on roads used by project- generated traffic.
Since my comments of 16 July 2024, I have been conducting my own study of wildlife fatalities on roads. Seven months into my daily searches for fatalities along 2.7 km of collector and minor arterial roads in north Davis, California, have tallied 259 fatalities of vertebrate wildlife species. My rate of fatality finds is on pace for 444 fatality discoveries in a year, but my number of discoveries is only a fraction of the total number killed.
Many of the animals killed by cars and trucks disappear from the roadway before I get the chance to find them, most especially Sierran treefrogs and western toads, most of which are gone within only a few hours after death. Once I finish monitoring roadkill fatalities in my study, I will model the removal times of each species. I expect the estimated number of fatalities to at least double the number I find, which would result in an estimate of 525 fatalities per mile, or 17% of the number per mile at Vasco Road.
The true number of wildlife fatalities resulting from the project-generated traffic would be some number per mile in between my Davis estimate and the estimate from Vasco Road, and I would favor an estimate that is closer to between 50% and 80% of my estimate for Vasco Road, or between 4,731 and 7,597 fatalities per year.
I have no doubt that the roads of the project area collect more wildlife fatalities caused by automobile collisions than do the roads of Davis. I have driven those roads many times, and on some of them I have monitored for wildlife fatalities over 36 years. One of my survey transects terminates at the northwest corner of the project site. But the important point here is that I am striving for an accurate estimate of wildlife mortality while the City does nothing other than criticize my efforts. The City needs to analyze the potential impact. If the City distrusts my analysis, then it ought to hire another ecologist who is prepared to perform a suitable analysis. In the meantime, pretending that nearly 17 million vehicle miles per year would impart no significant impacts to wildlife is woefully deficient.
Response 22-49c: The fatality rates presented by the commenter are neither supportable by professional standards nor supportable by standard CEQA review practices.
24 Reply: The response tellingly fails to identify the professional standards that my estimated fatality rates allegedly fail to meet. I have been estimating fatality rates over many years, and have published many papers on fatality estimation, including on how to accurately estimate fatalities. In the absence of such support, the response is simply evasive.
Response 22-49d: Wildlife mortality as a result of collisions with vehicle traffic is a known risk and will not be exacerbated by the project.
Reply: This is a remarkably unsubstantiated and evasive statement considering that the DEIR predicts 16,828,967 annual VMT would result from the project. The response fails to explain how nearly another 17 million miles per year would avoid wildlife on roads traveled to and from the project site. And if the risk is a known risk, as the response claims, then what is it? The DEIR needs to disclose the potential impacts.
Response 22-49e: Given the project is not creating a new arterial roadway and is not anticipated to generate significant traffic impacts, significant wildlife mortality is not expected.
Reply: Whether a project triggers a significance threshold for traffic impacts, as determined in the DEIR, has nothing to do with wildlife mortality. It has to do with traffic circulation. Therefore, the response is disingenuous.
Response 22-49f: Furthermore, the project would not widen the size of existing off- site roads and new off-site roadways would not be constructed. The project site is not considered a wildlife corridor, and there is little expectation that wildlife is not expected to predominantly cross the roads used by project traffic in the area. Given the nature of the proposed project and the results of the technical reports related to traffic prepared for the proposed project, which determined the project would have minimal contribution to existing roadway volumes, a substantial adverse effect to wildlife species would not occur. Additional analysis of such impacts is not required by standard CEQA review practices for approval of the Draft EIR.
Reply: This response is wildly speculative and difficult to understand. Especially difficult to understand is the statement, “there is little expectation that wildlife is not expected to predominantly cross the roads used by project traffic in the area.” Nowhere in my comments did I suggest that wildlife would need to predominantly cross roads used by the project in order for my predicted mortality to be accurate. However I try to interpret it, this portion of Response 22-49 is nonsensical and evasive.
Response 22-50: See Responses to Comments 13-30, 22-15, and 22-46.
Reply: Response 13-30 fails to clarify my understanding of the mitigation strategy of the DEIR, so it does not effectively address my comments the City labeled collectively as 22-50. Regardless of how the City calculates surplus acreage, the City cannot use those acres to mitigate project impacts to giant gartersnake and Swainson’s hawk, at least not without meeting with the CDFW, USFWS, and the Conservancy reevaluate the “Plan and 25 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…” (2003 NBHCP).
I fail to see how Response 22-46 addresses my comments identified by Response 22-50.
Response 22-51: See Response to Comment 22-15.
Reply: Response 22-15 refers to Responses 2-5 and 2-17. Response 2-5 includes language change to mitigation measures to “clarify” how surplus acreage might be used to mitigate project impacts to giant gartersnake and Swainson’s hawk. Response 2-17 refers to Response 2-16, but Response 2-16 identifies a minor language change to a mitigation measure for potential impacts to jurisdictional aquatic resources. Response 22-51 succeeds at giving the reader the run-around, but it does not address my comments.
Response 22-52: The comment does not address the adequacy of the Draft EIR. See the Master Response.
Reply: Not so. My comments consist of the analysis that the City should have performed, but did not, in order to determine whether the proposed project would interfere with the NBHCP. This analysis is essential. It reveals that Swainson’s hawk breeding performance in the Natomas Basin is limited by the availability of forage, which is a limitation that the project would exacerbate.
Response 22-53: The Draft EIR discusses the proposed project’s consistency with the Natomas Basin HCP throughout Chapter 4.4, Biological Resources, of the Draft EIR; the analysis therein is consistent with the requirements of the CEQA Guidelines. The recommendations of the commenter have been noted for the record and will be forwarded to the decision-makers for their consideration.
Reply: “Comment noted” is an inadequate response. One of CEQA’s primary objectives is to consider public comment for the purpose of identifying issues and feasible alternative mitigation measures. Agencies are required to provide “detailed written response to comments . . . to ensure that the lead agency will fully consider the environmental consequences of a decision before it is made, that the decision is well informed and open to public scrutiny, and the public participation in the environmental review process is meaningful.” (City of Long Beach v. Los Angeles Unified Sch. Dist. (2009) 176 Cal.4th 889, 904.)
Response 22-54a: See Response to Comment 22-50. While the development of the proposed project would preclude the use of the project as preserved habitat for the Natomas Basin HCP, as discussed under Response to Comment 13-30, adequate acreage exists elsewhere.
Reply: Where is this “adequate acreage”? My analysis of Swainson’s hawk data from the Natomas Basin indicates that the Basin currently provides insufficient foraging 26 opportunities for the existing population of Swainson’s hawk. My comments also address the ongoing rapid decline of giant gartersnake. These situations fail to support the claim in the response that adequate acreage exists elsewhere.
Response 22-54b: In addition, the discussion of the No Project (No Build) Alternative’s impact related to biological resources, as presented beginning on page 7-8 of Chapter 7, Biological Resources, of the Draft EIR, acknowledges that the Alternative would not have any other impacts to such resources, and, by extension, would be beneficial in terms of achieving the goals of the Natomas Basin HCP. Nonetheless, because the Natomas Basin HCP would not receive funds under the No Project (No Build) Alternative, which would hinder the HCP’s ability to operate as compared to operations with the funds generated by the proposed project, the potential impact to the Natomas Basin HCP would be slightly greater under the Alternative.
Reply: It is unclear how this conclusion was derived. The Swainson’s hawk and the giant gartersnake are in need of more than funds for their conservation; they are in need of what is left of their habitats in the Natomas Basin.
Response 22-55: See Response to Comment 22-50. As discussed on page 4.4-82 in Chapter 4.4, Biological Resources, of the Draft EIR, the proposed project’s contribution to the significant cumulative impact would be cumulatively considerable; however, with the implementation of mitigation, the impact would be reduced to a less than cumulatively considerable level. As such, the Draft EIR adequately addresses such impacts. Furthermore, the Draft EIR adequately addresses the role of the proposed project in meeting the overall goals of the HCP.
Reply: Having seen the same claim many times before, Noriko Smallwood and I tested whether mitigated projects in California avoid cumulative impacts to species. As I commented, “Noriko and I revisited 80 sites of proposed projects that we had originally surveyed in support of comments on CEQA review documents, and where the project’s environmental review documents claimed that the wildlife at issue would experience less-than-significant impacts due to the proposed mitigation measures (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. 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%. “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.” To 27 summarize, I have seen the same claim as made in Response 22-55, and with Noriko’s help, I have tested the veracity of the claim and found it wanting. Removing hundreds of acres more of habitat would, in combination with recent, ongoing and foreseeable developments, cause significant cumulative impacts to wildlife that could not possibly be mitigated by the measures prescribed in the DEIR.
Response 22-56a: See Responses to Comments 2-5, 2-17, and 22-47. As discussed in Responses to Comments 2 5 and 2-17, mitigation measures in Chapter 4.4, Biological Resources, of the Draft EIR have been revised to address potential impacts to special- status species located outside of the Natomas Basin HCP permit area. The commenter falsely mischaracterizes the mitigation measures included in the Draft EIR for biological resources as only requiring preconstruction surveys. For example, subsequent to preconstruction surveys, Mitigation Measure 4.4-1(a) requires transplantation of special-status plant species and/or consultation with USFWS to determine appropriate measures to avoid and minimize loss of individual special-status plant species within the Natomas Basic HCP area, and Mitigation Measure 4.4-1(b) requires the project applicant to consult with the appropriate agency to develop appropriate mitigation for impacts to special-status plant species. Furthermore, contrary to the claim of the commenter, Mitigation Measures 4.4-9(a) and 4.4-9(b) in Chapter 4.4, Biological Resources, of the Draft EIR, establish specific protocols to address potential impacts to nesting songbirds and raptor species protected under the MBTA and CFGC that are discovered on-site during preconstruction surveys, such as delaying construction activities until the young have fledged and establishing appropriate avoidance buffers, consistent with the MBTA and CFGC. Therefore, the claim of the commenter that the Draft EIR does not include adequate mitigation to address potential impacts to special- status species is inaccurate.
Reply: I have not mischaracterized the DEIR’s mitigation measures. I stated that the mitigation measures are mostly preconstruction surveys, which is true. As for the establishment of buffers around nest sites during construction, the language of Mitigation Measures 4.4-9(a) and 4.4-9(b) allows a single individual to make subjective decisions, outside the public’s view, to determine the buffer area for any given species.
This measure lacks objective criteria, and is unenforceable.
The response fails to address my comments concerning the site’s loss of productive capacity for wildlife, and how the prescribed measures would do nothing to avoid this loss. It also fails to address my comment that the DEIR’s claim of meaningful provisions for special-status species beyond the preconstruction surveys is empty.
Response 22-56b: Furthermore, contrary to the claim of the commenter, page 4.4-78 of Chapter 4.4, Biological Resources, of the Draft EIR explicitly states the following regarding cumulative impacts:
As defined in Section 15355 of the CEQA Guidelines, “cumulative impacts” refers to two or more individual effects which, when considered together, are considerable, compound, or increase other environmental impacts. The individual effects may be changes resulting from a single project or a number of 28 separate projects. The cumulative impact from several projects is the change in the environment that results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects.
In addition, as stated on page 4.4-82:
As further discussed in Chapter 6 of this EIR, CEQA Guidelines Section 15064, Subdivision (h)(5) states, “[…]the mere existence of significant cumulative impacts caused by other projects alone shall not constitute substantial evidence that the proposed project’s incremental effects are cumulatively considerable.” Therefore, even where cumulative impacts are significant, any level of incremental contribution is not necessarily deemed cumulatively considerable (see also CEQA Guidelines Section 15130). In addition, the courts have explicitly rejected the notion that a finding of significance is required simply because a proposed project would result in a net loss of habitat. “[M]itigation need not account for every square foot of impacted habitat to be adequate. What matters is that the unmitigated impact is no longer significant,” (Save Panoche Valley v. San Benito County [2013] 217 Cal.App.4th 503, 528, quoting Banning Ranch Conservancy v. City of Newport Beach [2012] 211 Cal.App.4th 1209, 1233).
The above discussion provides substantial evidence that, while the combined effects on the habitats of special-status species resulting from approved/planned development throughout the cumulative setting may be considered significant, the proposed project’s incremental contribution to the potentially significant cumulative effect would be reduced with implementation of the project-specific mitigation measures required in this EIR.
The Draft EIR does not say that mitigation would negate the cumulative impacts of the proposed project, but would rather reduce the significance of such impacts to a less than cumulatively considerable level.
Reply: The response repeats the quotations of CEQA Guidelines that appear in the DEIR, but they do not in themselves provide substantial evidence that the mitigation measures would reduce cumulative impacts to less than significant levels. The project would destroy hundreds of additional acres of giant gartersnake habitat – habitat of a species that is facing an imminent threat of extirpation from the Natomas Basin. The project would destroy hundreds of acres of Swainson’s hawk foraging grounds, which my analysis shows is a limiting factor for the species. Neither the DEIR nor the response has made the case that the prescribed mitigation would reduce the project’s contribution to cumulative impacts to these or any other species to less than significant levels.
Response 22-57: Compliance with a regulatory permit or other similar process may be identified as mitigation if compliance would result in implementation of measures that would be reasonably expected, based on substantial evidence in the record, to reduce the significant impact to the specified performance standards (CEQA Guidelines Section 15126.4.) In the case Center for Biological Diversity v. California Department of 29 Conservation, etc. (2019), the court explains that “[g]enerally, it is improper to defer the formulation of mitigation measures…However, an exception to this general rule applies when the agency has committed itself to specific performance criteria for evaluating the efficacy of the measures to be implemented in the future, and the future mitigation measures are formulated and operational before the project activity that they regulate begins.” (36 Cal.App.5th 210, 239.) The court determined both conditions were met and upheld the deferred mitigation measures. Similarly, the mitigation measures presented in the Draft EIR require compliance with specific performance standards and regulatory requirements, and also require implementation prior to project activities begin.
Therefore, the proposed mitigation is considered adequate.
Reply: I have seen no evidence that the CDFW or the USFWS have committed to performance criteria for evaluating the efficacy of any measures that might or might not be required with the issuances of regulatory permits. A statement of intent to comply with statutes is not in itself a legitimate mitigation strategy, as it only suggests that the permitting agencies intend to issue the permits, and that appropriate mitigation measures would be formulated as conditions of the permits.
Response 22-58: The commenter’s argument draws conclusions and speculation about the project site from studies that have no relation to the project site. The commentor’s opinion on future impacts, which is based on inapplicable surveys, is highly speculative and inappropriate. Such speculation is a misrepresentation of the site and is typically not part of an effective project impact analysis under CEQA.
Reply: Again, the City misconstrues scientific inference as speculation. In this case, the City characterizes as speculation the results of a before-after, control-impact (BACI) experiment to test the effects of developments of buildings on what was once open space. Most of the projects in our experiment were industrial warehouses similar to the proposed project, and some were located near the project site; one of the sites was <2 miles away. The response does not explain how the surveys were “inapplicable” or the experimental results “highly speculative.” The paper we prepared from the study was peer reviewed and published, and it has since turned out to be one of more popular papers at the journal where it was published. The paper was selected by the then President-elect (and current President) of the Western Section of The Wildlife Society as one of the eight “Scientific Papers You Should Read Now” in preparation for the 2025 Annual Meeting. In fact, the paper is highly relevant to the proposed project, as the experiment was designed and conducted to test the effects on wildlife caused by this very type of development.
I note that the City criticizes our study, but cites no evidence of its own in support of the DEIR’s conclusions that the prescribed mitigation measures would reduce cumulative impacts to less than significant levels. If the City has attempted to measure the impacts to wildlife from any of its approved development projects, then the findings ought to be disclosed in the EIR.
Response 22-59: See Responses to Comments 22-56 and 22-57.
30 Reply: The responses to comments 22-56 and 22-57 do not address my comment that the City labels as 22-59. In fact, Responses 22-56 and 22-57 repeat the shortfall I address in my comment labeled 22-59. according to CEQA Guidelines §15064(h)(3), “a project’s incremental contribution to a cumulative impact can be found not cumulatively considerable if the project would comply with an approved plan or mitigation program that provides specific requirements that would avoid or substantially lessen the cumulative problem within the geographic area of the project.” And “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, and now the responses to comments, refers to larger regional plans, policies and statewide statutes as evidence that project impacts to wildlife would somehow be reduced to less than significant levels, but without explaining how this would happen. If all these types of plans, policies and statutes were effective, Smallwood and Smallwood (2023) would not have measured declines in every group of wildlife species we addressed throughout California. We would not have measured an average decline of 90% of vertebrate animal abundance which can be directly linked to the same types of development projects as the proposed project. We even measured declines in wildlife in areas adjacent to the development projects in our study, meaning we measured some portion of the cumulative impacts as well. The City has not committed to a mitigation strategy that would adequately avoid or minimize impacts to wildlife, and it cannot hide this shortfall by pointing to general plans, specific plans or regulatory statutes without explaining how any of these other plans or statutes would specifically benefit wildlife.
Response 22-60: See Response to Comment 22-56. Contrary to the claim of the commenter, the Draft EIR includes mitigation that requires the direct and indirect preservation of off-site habitat to mitigate for the project. For example, Mitigation Measure 4.4-5(b), as amended under Response to Comment 2 5, requires either the preservation of Swainson’s hawk foraging habitat at a 1:1 ratio, which would be direct preservation, or the payment of Natomas Basin HCP fees for the preservation of off-site Swainson’s hawk foraging habitat, which would be considered indirect preservation.
Reply: Response 22-56 merely repeats the argument of the DEIR. As for Response 2-5, the NBHCP disallows the transfer of coverage of the NBHCP permit to property located outside the NBHCP’s Permit Area (NBHCP IA, § 3.1.1), and the City lacks sole authority to make use of so-called “surplus acreage” to mitigate project impacts to giant gartersnake and Swainson’s hawk. Surplus acreage is characterized in Response 13-30 as 338 acres that comprise the difference between the City’s allowable development of 8,050 acres under the NBHCP and the total acreage thus far developed or permitted for development, including acreage revealed as an accounting discrepancy between the Conservancy’s and the City’s records. The City asserts that it can use these 338 acres to mitigate impacts to giant gartersnake and Swainson’s hawk caused by the proposed project. However, the so-called surplus acreage exists within the NBHCP permit area, whereas most of the proposed project does not. According to the 2003 NBHCP Implementation Agreement, a project such as the proposed project triggers the need to reevaluate the original NBHCP’s Plan and Permits, and the need for a separate conservation strategy.
31 Response 2-5, to which Response 22-60 also refers, speculates that the NBHCP’s original mitigation ratio of 0.5:1 effectively conserved habitat of greater value than otherwise occurs in the Natomas Basin, thereby frontloading greater habitat value in the NBHCP reserve system, and potentially freeing up more land that ought to be considered for development. The Response further speculates that the project provides only marginal habitat to giant gartersnakes. Somehow, these speculated conclusions are used to support the notion that surplus acreage is available for the purpose of mitigating project impacts to giant gartersnake and Swainson’s hawk, but none of this speculation or train of logic is backed up by any analysis of the performance of the NBHCP conservation strategy for these species.
Response 22-61a: See Responses to Comments 2-5, 22-46, 22-56, and 22-57. With respect to mitigation for potential impacts to burrowing owl, the proposed project includes Mitigation Measure 4.4-6, which requires implementation of the applicable Natomas Basin HCP Take Avoidance, Minimization, and Mitigation Measure, which is the most current and relevant mitigation available. Therefore, reliance on the Natomas Basin HCP is considered adequate mitigation for the impact.
Reply: Considering the overwhelming evidence that the burrowing owl has rapidly declined across California in recent years despite all the general plans and project- specific mitigation strategies intended to conserve the species (Miller 2024), the CDFW (2024) staff endorsed Miller’s (2024) petition to list the burrowing owl as threatened or endangered. The California Fish and Game Commission adopted the petition on 10 October 2024. This is important because (1) consultation with CDFW is now needed to obtain an incidental take permit, (2) all impacts to foraging habitat are going to need to be mitigated, and (3) adherence to the CDFW’s (2012) survey guidelines is going to be necessary.
Response 22-61b: With respect to mitigation for giant gartersnake and northwestern pond turtle, the commenter neglects to mention that Mitigation Measure 4.4-3 requires construction activities to halt upon the discovery of such species until they leave the area, as stated on page 4.4-48 of Chapter 4.4, Biological Resources, of the Draft EIR. In addition, Mitigation Measure 4.4-3 requires the determination of escape routes for giant gartersnake in advance of construction and snakes should always be allowed to leave on their own.
Reply: It is irrelevant that I neglect to mention that construction must halt upon the discovery of giant gartersnake or northwestern pond turtle. As I commented, and which the response fails to address, is that preconstruction surveys do not carry the same detection likelihoods as protocol-level detection surveys. The DEIR discusses preconstruction surveys as if they are the same as detection surveys, which is false and misleading. Without completing detection surveys, it will be unknown how many giant gartersnakes and northwestern pond turtles were missed during preconstruction surveys, and therefore unknown to what magnitude members of these species were destroyed by construction.
32 Response 22-61b: Potential impacts to monarch butterfly are addressed under Impact
4.4-2 and potential impacts to Aleutian cackling goose, white-faced ibis, and tricolored blackbird are discussed under Impact 4.4-7 in Chapter 4.4, Biological Resources, of the Draft EIR. As discussed therein, the project site contains low or unsuitable habitat for the foregoing species and, thus, the species are unlikely to occur on-site. Therefore, mitigation for the foregoing species is not required.
Reply: The mitigation under Impact 4.4-2 is described as “None required.” As I commented, “The DEIR prescribes no mitigation to potential impacts to Monarch, Aleutian cackling goose, white-faced ibis, and tricolored blackbird. Impacts to these species, which would be significant, would be unmitigated.”
The response claims that habitat is unsuitable for Monarch, Aleutian cackling goose, white-faced ibis, and tricolored blackbird. First, by definition, there is no such thing as unsuitable habitat, because, by definition, habitat is suitable to the species. Second, our survey of the project site proved the response wrong in the case of tricolored blackbird, and nearby occurrence records refute the City’s determination regarding the other species at issue. Habitat exists onsite for all these species.
Response 22-62: The comment is a conclusion statement and does not address the adequacy of the Draft EIR.
Reply: The response identifies a comment where none exists.
Thank you for your attention,
______________________
Shawn Smallwood, Ph.D.
LITERATURE CITED
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Bargas. 2023. DRAFT Biological Resources Assessment, Airport South Industrial Park Sacramento County, California. Prepared for Raney Planning & Management, Inc., Sacramento, California.
CDFW (California Department of Fish and Wildlife). 2012. Staff Report on Burrowing Owl Mitigation. Sacramento, California.
CDFW. 2024. Petition evaluation for Western Burrowing Owl (Athene cunicularia hypugaea). Report to the Fish and Game Commission, August 2024. Sacramento, California.
33 Diehl, R. H., A. C. Peterson, R. T. Bolus, and D. Johnson. 2017. Extending the habitat concept to the airspace. USGS Staff -- Published Research. 1129. https://digitalcommons.unl.edu/usgsstaffpub/1129
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Steinauer. 2014. Breeding bird diversity, abundance and density at Indian Cave and Ponca State Parks, Nebraska 2012-2014. Nongame Bird Program of the Nebraska Game and Parks Commission. Lincoln, NE.
Kunz, T. H., S. A. Gauthreaux Jr., N. I. Hristov, J. W. Horn, G. Jones, E. K. V. Kalko, R.
P. Larkin, G. F. McCracken, S. M. Swartz, R. B. Srygley, R. Dudley, J. K. Westbrook, and M. Wikelski. 2008. Aeroecology: probing and modelling the aerosphere.
Integrative and Comparative Biology 48:1-11. doi:10.1093/icb/icn037
Miller, J. 2024. Petition Before the California Fish and Game Commission to list California populations of the Western Burrowing Owl (Athene cunicularia hypugaea) as Endangered or Threatened Under the California Endangered Species Act. Center for Biological Diversity, Defenders of Wildlife, Burrowing Owl Preservation Society, Santa Clara Valley Audubon Society, Urban Bird Foundation, Central Valley Bird Club, San Bernardino Valley Audubon Society.
National Research Council. 1986. Ecological knowledge and environmental problem- solving: concepts and case studies. National Academy Press, Washington, D.C.
Smallwood, K. S. 2001. Linking habitat restoration to meaningful units of animal demography. Restoration Ecology 9:253-261.
Smallwood, K. S., and N. L. Smallwood. 2023. Measured effects of anthropogenic development on vertebrate wildlife diversity. Diversity 15, 1037. https://doi.org/10.3390/d15101037.
Yahner, R. H. 1982. Avian nest densities and nest-site selection in farmstead shelterbelts. The Wilson Bulletin 94:156-175.
Young, H. 1948. A comparative study of nesting birds in a five-acre park. The Wilson Bulletin 61:36-47.
EXHIBIT 2
March 31, 2025
Patrick M. Soluri
Soluri Meserve, A Law Corporation
510 8th Street,
Sacramento, CA 95814-1206
Subject: Airport South Industrial Project FEIR (SCH # 2022030181) P24003
Dear Mr. Soluri:
Per your request, I reviewed the Final Environmental Impact Report (the “FEIR”) for the Airport South Industrial Project (the “Project”) in the City of and the County of Sacramento (respectively the “City” and the “County”). My review is with respect to transportation and circulation considerations. I previously reviewed and commented on the Draft Environmental Impact Report (“DEIR”) for this Project in a letter dated July 15,2025
My qualifications to perform this review are fully documented in the letter of July 15, 2025.
The FEIR Replies To the Responders Own Summarization of Our Comments On the DEIR, Not To the Actual Comments. This Copybook Tactic Enables the Replies To Appear Responsive While Avoiding Response to Points in the Actual Comments That Would Be Uncomfortable To Forthrightly Respond To.
In subsequent sections we point out where this response-evasion technique is employed.
Comment and Response 22-251
1 We reference here and subsequently the FEIR’s enumeration of its segmentation of its response.
Mr. Patrick Soluri
Soluri Meserve
March 31, 2025
The FEIR summarizes this comment as “ the comment summarizes the analysis of the Draft EIR and does not specifically address the adequacy of the Draft EIR.” This summarization is a mischaracterization as described in the prior comment.
The actual comment points out that the DEIR is inadequate in that it defers mitigation of significant VMT impacts transportation impacts the DEIR does disclose past EIR Certification to the time of actual application for building permits, thereby depriving the Public of the opportunity to comment on the adequacy of mitigation under CEQA process and instead transferring it to a private negotiation between the Applicants advocates and City/County staff. This is an example of how the FEIR’s response to self generated summaries of comment instead of the actual comment evades the central issue of the comment. Also, the FEIR preparers apparently wish to avoid reminding public policy decision-makers and the Public that the Project, without mitigation, would have significant VMT impact.
Comment and Response 22-26
Comment 22-26 continued the discussion of deferral of mitigation of the Projects significant VMT impacts.
The essence of the FEIR response is admission that there is potentially significant VMT impact, that there is deferral of mitigation and that the Project ‘s CEQA Project Definition statement is so uncertain and inadequate that it cannot be determined now what mitigation measures might be necessary. However, the FEIR response asserts that the situation meets the circumstances under which CEQA Guidelines allow for a deferral of mitigation when there are practical reasons why such deferral is necessary and that the Lead Agency meets three conditions:
1. The Lead Agency commits to the mitigation,
2. The Lead Agency adopts specific performance standards the mitigation will achieve, and
3. Identifies the types of potential actions that can feasibly achieve that performance.
However, our comments on the DEIR, now labeled 22-27 in the FEIR establish doubt that Condition 3 can be feasibly met and have not been fully responded to in the FEIR. (See discussion of Comment and Response 22-27 below.)
Comment and Response 22-27
The initial section of Comment 22-27 concerned the fact that to all appearances, the only analysis of the VMT mitigation program had been prepared by the applicant’s advocacy counsel. Although that document relied on the current Mr. Patrick Soluri
Soluri Meserve
March 31, 2025
(2021) edition of the authoritative CAPCOA Handbook,2 there was no evidence presented that this person was qualified to perform the assessment and the assessment naively assumed the highest effectiveness from the range of effectiveness presented for each measure and that the full workforce would be able to participate in each measure.
Response 22-27 asserts that the Public Works Department did perform its own analysis of the measures proposed by the applicant’s attorney but that this memorandum by City engineering staff was inadvertently left out of Appendix Q to the DEIR. The FEIR now includes as its Appendix B a 3-page “Draft Memorandum” dated September 5, 2023 prepared by an Assistant Engineer for the City.
Although to its credit the now released memorandum, considering the nature of the use (industrial) and because transit services in the site vicinity are sparse with no new services planned, it limits consideration to 10 measures within the Trip Reduction Programs category. However, like the applicant attorney’s memo, it lacks recognition of the performance-limiting nuances that CAPCOA points out.
The CAPCOA Handbook is a nuanced document. Although in the basic computational advice for estimating the effectiveness of measures, CAPCOA suggests assuming 100 percent of the workforce as potentially participating, separately it warns that workers on night shifts are unlikely to participate in ridesharing (carpooling or vanpooling).3
As we noted in our comments on the DEIR, per DEIR Appendix O, Table 1, at least 78.7 percent of the industrial use in the Project would be warehousing.
Some portion of the currently unspecified industrial use in the Project would likely also be warehousing. So the Industrial use in the Project could easily be comprised of 90 percent warehousing use or more. Modern warehousing, especially that related to e-commerce, tends to operate round-the-clock with three shifts. So does warehousing related to air cargo which, considering proximity to Sacramento International Airport, could be significant. So roughly two-thirds of the workforce at these employers would be non-participants in these programs. The whole of the estimated mitigation reduction would have to be achieved solely from the day shift third of the workforce, a highly unlikely proposition.
The logic of this nuanced CAPCOA warning is inescapable. For workers whose shift begins or ends in the deep night hours, who would want to be picked up or dropped off at a darkened park-n-ride/park-n-pool lot or roadside meeting point?
2 Handbook for Analyzing Greenhouse Gas Emission Reductions, Assessing Climate Vulnerabilities, and Advancing Health and Equity, California Air Pollution Control Officers’ Association, 2021 3 See Op. Cit., page 93.
Mr. Patrick Soluri
Soluri Meserve
March 31, 2025
By logical extension, the same limitation exists measures that encourage active transportation (bike, walk, scooter or skateboard). Who is going to use those modes if ones shift begins or ends in the deep-night hours? These are day-shift only measures.
Even others are affected by scheduling. Timing issues also affect the driving workforce at warehouse distribution hubs. Modern practice is to stagger the arrival times (departure to the route) so a smaller workforce can sequentially load departing vehicles. And drivers return times are not per a schedule but uncertain based on the difficulties of traffic and the day’s particular load. So these employees are not practical participants in carpooling and vanpooling strategies.
CAPCOA also warns that location can have impact on the effectiveness of particular strategies. For example, it indicates that ridesharing (carpooling and vanpooling) tends to have a maximum participation of 8 percent in dense urban areas, 4 percent in suburban areas and about 0 percent in rural areas.4 The Project site is clearly at the urban/suburban fringe, suggesting that ridesharing and logically other strategies would have less than half the maximum effectiveness indicated in the CAPCOA ranges.
All of the foregoing was asserted in the comments but not responded to in the FEIR.
In summary, the analysis of VMT mitigation fails to qualify for the conditional CEQA approval for deferred mitigation since it fails to demonstrate that a feasible mitigation program is possible.
Comment and Response 22-28
This comment related to the hazardous condition posed by queues extending into the freeway mainline at the off-ramp at the interchange of I-5 northbound and Del Paso Road and indicates that additional analysis and potential contribution to fair share mitigation improvements.
The FEIR response, citing a December 18, 2020 Caltrans document that this commenter also relied upon, claims that because queues in the cumulative condition without the Project would already exceed capacity causing safety defects in the AM peak hour, the Project could not be said to have significant safety impact requiring contribution to fair share mitigation in the PM peak hour, even though it is only when Project traffic is added to other cumulative traffic that an adverse safety situation occurs in that peak. This is a nonsensical response since, by that logic, every project in the cumulative condition would we exempt from findings of significant safety impact and fair share mitigation. And as we
4 Op. Cit., Appendix C, Table T-8.1.
Mr. Patrick Soluri
Soluri Meserve
March 31, 2025
pointed out in our comments in the DEIR, the language of Traffic Safety Bulletin 20-02-R1 indicates that only when existing traffic queues exceed exit storage capacity and spills back past the gore point is the Project exempt from the further safety analysis required in the referenced Caltrans Traffic Safety Bulletin.
Caltrans July 2,2024 comment letter on the DEIR, now labeled comment Letter 3 in the FEIR, which claims the Project should pay fair share fees toward mitigation of this safety issue is indicative that this commenter’s interpreting of the language of Traffic Safety Bulletin20-02-R1 is the correct one.
For the FEIR to be certified, this additional safety analysis described in Traffic Safety Bulletin20-02-R1 must be carried out and if necessary, findings of significance and mitigation must be incorporated.
Comment and Response 22-29
This comment described the logical operational effects of the queues predicted in the DEIR, given the lane configuration on northbound I-5 approaching the Del Paso off ramps and the other non-exiting traffic movements taking place in this area. The logical conclusion is that the extreme exiting queues would result in very much shortened weaving and merging sections seriously affecting other traffic and leading to. extensive weaving maneuvers, abrupt lane changes, shock waves extending upstream and a tremendous amount of braking within a short segment of freeway.
The response is to complain that the comment did not provide any weaving and merging computations. It is ridiculous for the responders to attempt to place responsibility on the commenter for calculations they should have made themselves. It is also ridiculous for the responders to attempt to brush aside the comment by claiming the DEIR’s own calculations are “unstable”. The FEIR response is inadequate.
Comment and Response 22-30
This comment questioned apparent inconsistent statements about heavy truck considerations in the VMT analysis. The response supplies clarifications.
Comment and Response 22-31
This comment raised question whether the why there were significant differences in trip generation totals in various appendixed tables of same and whether the differences implied that the traffic analysis did not include trip generation for the “nonparticipating parcels. The response asserts that the transportation impact analysis reflects traffic from both the participating and non-participating parcels.
Mr. Patrick Soluri
Soluri Meserve
March 31, 2025
Comment and Response 22-32
This comment concerned the insufficiency in the DEIR of traffic information relating to neighborhoods east and southeast of the Project site and in one case, the inconsistency of information that was provided. The inconsistency is the indication the Project would cause cumulative traffic on El Centro to decrease from 20,750 vehicles per day to 18,810. The insufficiency is the lack of traffic data and projections on Del Paso east of El Centro and those on El Centro south of Del Paso.
The response indicates that the reduction in traffic on El Centro from the Cumulative-No-Project to the Cumulative-With-Project condition is the result of traffic shifts due to a new planned connection across I-5 between El Centro and East Commerce Way and the improved I-5 interchange connection between El Centro and Metro Air Parkway. However, this explanation does not make sense because the improved connections should affect traffic in both the Cumulative- No-Project and Cumulative-With-Project conditions.
The response explains that existing traffic counts were not taken on the requested segments of Del Paso east of El Centro and those on El Centro south of Del Paso. This makes comparisons of future scenarios to the existing conditions impossible but the response opines that the project with the planned future connection improvements described above would result in “only a very minor change in total daily traffic on the requested segments” This response is inadequate. The City or its consultants should have responded by going out and making current traffic counts on the requested segments and compared them to the Travel Demand Model results for the future scenarios. It should do so now before the FEIR can be certified.
Comment and Response 22-33
This comment conveyed the concerns of residents to the South and East about what improvements on El Centro this Project and cumulative development may necessitate. It suggests that the EIR should condition the Project to guarantee concerned neighbors a role when the Project Phasing and Improvements Funding Plan is developed.
The response, claiming the comment does not address the adequacy of the DEIR, just blows off the comment. To be adequate, the FEIR should adopt a condition assuring the neighbors have a role in framing said Project Phasing and Improvements Funding Plan.
Conclusion
Mr. Patrick Soluri
Soluri Meserve
March 31, 2025
This concludes my current comments on the Airport South Industrial Project FEIR. The foregoing identifies deficiencies that must be remedied before the FEIR can Be certified.
Sincerely,
Smith Engineering & Management
A California Corporation
Daniel T. Smith Jr., P.E.
President
EXHIBIT 3
April 2, 2025
Patrick Soluri
Soluri Meserve, A Law Corporation
510 8th Street
Sacramento, CA 95814
RE: Comments on the Airport South Industrial Project and Its Final Environmental Impact Report
Mr. Soluri:
We understand that your office provided comments regarding the Airport South Project Draft EIR’s (“DEIR”) treatment of ultra-fine particulate (“UFP”) emissions.
We further understand that the Final EIR provided the following response to those comments:
Response to Comment 22-16
As discussed on page 4.3-50 of the Draft EIR, an HRA was prepared to assess the increase in DPM emissions associated with heavy- duty diesel trucks travelling to and from the project site. DPM is considered a subset of PM2.5 emissions. As such, the estimated concentration of PM2.5 was used as a proxy to represent emissions of DPM. In addition, a total of 80 to 95 percent of DPM is made up of UFPs, and, as discussed on page 4.3-5 of the Draft EIR, UFP mass is a small portion of PM2.5. Thus, health risks associated with UFPs generated by heavy-duty diesel trucks travelling to and from the project site have been inherently considered within the HRA prepared for the proposed project. As shown in Table 4.3-11 of the Draft EIR, operation of heavy-duty diesel-powered trucks on roadways and within the project site would result in cancer risk and hazard index at the maximally exposed receptor below the applicable SMAQMD thresholds of significance. Consequently, health risks associated with UFPs are also considered to be below the applicable SMAQMD thresholds of significance and further analysis is not warranted.
This response is inadequate for several reasons:
1. The FEIR states that PM10 and PM2.5 can be used as a proxy for UFP emissions. Scientific studies do not support this. First, concentrations of PM10 do not vary with those of UFPs to any significant degree, and the relationship of PM2.5 to UFPs is very Soluri Meserve, A Law Corporation
April 2, 2025
tenuous. Second, because UFPs are so much smaller, they produce different health impacts than PM10 and PM2.5. Indeed, several studies show that UFP is much worse than PM2.5 for our health.
Thus, simply analyzing PM10 and PM2.5 is inadequate as a surrogate for an analysis of UFP emissions.
2. The FEIR appears to assume that all UFPs come from DPM. This is not correct. The primary sources of UFPs in on-road traffic are primarily gasoline vehicle exhaust, diesel vehicle exhaust, natural gas vehicle exhaust, and brake and tire wear. Because of the contributions of gasoline and natural gas vehicles, the relationship between DPM and UFP from on-road traffic is not linear.
3. The Response to Comment 22-16 is limited to “cancer risk and hazard index” health risks from DPM and does not address health impacts resulting from exposure to UFP emissions. The health impacts of UFP are not included in analyses of cancer and hazard indices. Thus, the DEIR fails to address the health risks from UFP exposure.
Sincerely,
_____________________________
Earl Withycombe
_____________________________
Ralph Propper
Attachments:
Résumés of Earl Withycombe and Ralph Propper
Résumé
Earl Withycombe
Education
1970, B.S., Aeronautical Engineering, Massachusetts Institute of T echnology, Cambridge, Massachusetts
1989, Certificate in the Management of Hazardous Materials, University of California, Davis, California
Professional Experience
8/06 to 12/22 Air Resources Engineer
California Air Resources Board
Served as the planning liaison to the South Coast Air Quality Management District, facilitating coordination between ARB and the District in the development of the 2007 8-hour ozone and PM2.5 State Implementation Plan for the South Coast Air Basin. Served as the planning liaison to the Sacramento Metropolitan region, the Mountain Counties Air Basin, and Eastern Kern County. Provided technical oversight to windblown dust issues at Owens Lake, Mono Lake, and the Salton Sea. Served as a member of the Oceano Dunes State Vehicle Recreation Area Scientific Advisory Group, and as a member of the Salton Sea T ask Force’s Science and Air Quality Committees.
5/93 to 6/06 Partner
Sierra Research
4/88 to 5/93 Senior Engineer
Sierra Research
Worked as a partner and project manager in a consulting firm specializing in air quality analysis and management. Experience included management of regulatory development and project evaluation services for governmental clients; management of process, control, and instrumentation design; emission and impact evaluation; and compliance strategy services for private clients. Technical contributions included air quality modeling, combustion modeling, control equipment design and analysis, ambient air quality analysis, ambient and stack sampling project design, screening risk assessment, permit development, and particulate matter and fugitive dust emission factor development services for a variety of projects, including those related to power production, cogeneration, industrial boilers, geothermal activities, mineral extraction and processing, lumber production, toxic waste treatment, fugitive dust, and Superfund remediation.
-2-
7/75 to 4/88 Air Basin Engineer
Mountain Counties Air Basin,
Lake Tahoe Air Basin
Established and managed a consulting practice providing exclusive and comprehensive technical services to an association of nine county air pollution control districts in the Sierra Nevada region of California. Drafted numerous amendments to the air basin plan in implementing federal and state mandates and responding to new local problems. Developed annual budgets for a number of districts. Developed ozone nonattainment plans for El Dorado and Mariposa Counties. Drafted and implemented the first local Prevention of Significant Deterioration program in rural California. Analyzed compliance with emission limits and ambient air quality standards for all major and many minor new and modified source applications within the nine county region. Developed comprehensive stationary and area source emission inventories for the Mountain Counties Air Basin (1977) and for the Lake Tahoe Ozone Nonattainment Plan (1981). Certified all test plans and oversaw all stationary source testing in the Air Basin.
Served as the Co-Chairman of the CAPCOA-ARB New Source Review Rule Committee that developed the 1982 CAPCOA NSR rule which served for many years as a model regulation for the permitting of new sources by districts. Drafted and successfully lobbied several legislative bills amending the relationship between districts and the California Air Resources Board and authorizing experimental programs seeking innovative solutions to air quality problems. Drafted language and lobbied for passage of AB 3374 (1986), the second Calderon landfill testing bill, which refocused priorities on active landfills and adopted more cost effective monitoring protocols for small rural landfills.
8/73 to 1/75 Air Pollution Control Officer
County of Sierra
Served as the program manager of a rural county air pollution control district. Developed and implemented compliance plans for two timber processing facilities. Managed the accounting, budget, reporting, permit review, and air quality monitoring functions of the agency. Developed the technical justification for formation of the Mountain Counties Air Basin to supplant the mountain portions of the Sacramento and San Joaquin Valley Air Basins. Drafted major portions of the first Air Basin Plan and related regulations.
Credentials, Memberships, and Awards
Qualified Environmental Professional, Air Pollution; Institute of Professional Environmental Practice
Registered Civil Engineer, California
Member, Air and Waste Management Association
Outstanding Individual, 1994 Summer Smog Season Campaign, Partners for Clean Air, Sacramento, California
Clean Air Award, American Lung Association of Sacramento-Emigrant Trails, 1996 Environmentalist of the Year Award, Environmental Council of Sacramento, 1997 Pottenger Award for Volunteer Service, American Lung Association of California, 2002
Résumé of
RALPH PROPPER
BA Chemistry, Brandeis University
PhD Chemistry (all but dissertation), University of Chicago MPH Environmental Health, Boston University Medical School
Toxicology research assistant:
MIT, Stanford University, UC Berkeley, UC San Francisco
Air Pollution Research Specialist, CA Air Resources Board 1984-2015 Focus: Diesel Exhaust regulation, air toxics control
Chemistry Professor, UC Davis and Sacramento City College 2015-2018
Current Board Member, and past board president of both:
* Breathe California Sacramento Region, and
* Environmental Council of Sacramento
April 17, 2025
SENT VIA EMAIL
([email protected]; [email protected]; [email protected])
Chair Lisa Kaplan and Members of the Commission
and Jose C. Henriquez, Executive Officer
Sacramento Local Agency Formation Commission
1112 I Street, Suite 100
Sacramento, California 95814
RE: Comments on the Airport South Industrial Project and Its Final Environmental Impact Report
Dear Chair Kaplan, Members of the Commission, and Mr. Henriquez:
Please find attached as Exhibit A a letter, dated April 10, 2025, from The Natomas Basin Conservancy (“NBC”) regarding consequences to the Natomas Basin Habitat Conservation Plan (“NBHCP”) resulting from attempts to urbanize outside the NBHCP’s Permit Area. The attached document is submitted on behalf of Sierra Club, Environmental Council of Sacramento and Friends of Swainson’s Hawk regarding the Airport South Industrial Project (“Project”) and its Final Environmental Impact Report (“FEIR”).
NBC is the “Plan Operator” of the NBHCP. NBC’s letter refutes the FEIR’s false and irresponsible claims that (i) the City may simply transfer so-called “surplus” take coverage to property located outside the NBHCP’s Permit Area, and (ii) the NBHCP’s continued effectiveness does not depend on maintaining agricultural activities on Natomas Basin lands outside the Permit Area. NBC’s letter thereafter concludes by noting, “It is not a stretch to state that if not tempered, advancing urbanization outside the 17,500-acre Permit Area is likely to serve as the death knell for the HCPs, their implementation, and in some cases, the species that have been and are being mitigated through them.” (Emphasis added.)
We trust that this document will be included in the record of proceedings for the Project. While we understand that the LAFCO commissioners purported to close “public comment” on the Project at the meeting on April 2, 2025, they reopened “public Chair Lisa Kaplan and Members of the Commission
Jose C. Henriquez, Executive Officer
Sacramento LAFCO
April 17, 2025
comment” just a few minutes later by soliciting additional public comments from a representative of the City of Sacramento. Moreover, the motion to continue LAFCO’s consideration of the Project expressly kept the public hearing open. Commissioner Hume’s motion plainly stated, “I would make the motion to continue to leave the hearing open and continue the item to May the 7th.” Staff responded by stating, “Okay.” Thus, the record remains open. (Pub. Resources Code, § 21177, subd. (a).)
Very truly yours,
SOLURI MESERVE
A Law Corporation
By:
Patrick M. Soluri
Attachment: Exhibit A, April 10, 2025, Letter from The Natomas Basin Conservancy
cc (via email):
LAFCo Commissioners
Lisa Kaplan, Chair, City of Sacramento Member, [email protected] Chris Little, Vice Chair, Public Member, [email protected] Rich Desmond, County of Sacramento Member, [email protected] Gay Jones, Special District Member (Sac Metro FD), [email protected] Pat Hume, County of Sacramento Member, [email protected] Lindsey Carter, Special District Member (Sloughhouse RCD), [email protected]
Matt Pratton, City Member (Galt), [email protected]
EXHIBIT A
2150 RIVER PIAZA DRJVE
SUITE 460
SACRAMENTO, CA 95833
PHONE: 9 I 6.649.3331
FAX, 916.649.3322
OFFICERS AND
BOARD OF DIRECTORS
CHANDRA CHILMAKURI
Chair
MICHAELJOHNSTON
Vice Chair
PATRICK HUBER
Secretary
GABRIELLE STADEM
Treasurer
MELINDA BRADBURY
Board Member
MATTHEW DIGIACOMO
Board Member
DOUG LIBBY
Board Member
SEAN MINARD
Board Member
ETHAN VALBURG
Board Member
EXECUTIVE OFFICER
John R. Roberts
Executive Director
April 10, 2025
Honorable Members of the Board of Supervisors
County of Sacramento
700 H Street
Sacramento, CA 95814
RE: Urbanization in the Sacramento County portion of the Natomas Basin (Revised) Dear Supervisors Serna, Kennedy, Desmond, Rodriguez and Hume:
This communication is for the purpose of keeping you informed about efforts to implement the Natomas Basin Habitat Conservation Plan (NBHCP). It takes into account that the County is actively engaged in entertaining urban development proposals in the Sacramento County portion of the Natomas Basin.
As background, the "Parties" to the NB HCP include the City of Sacramento, the County of Sutter, the California Department of Fish and Wildlife (CDFW) and the U.S. Fish and Wildlife Service (USFWS).1 The Conservancy acts as "Plan Operator" of the NB HCP. It also acts as Plan Operator for the Metro Air Park Habitat Conservation Plan (MAPHCP) 2 in the Sacramento County portion of the Basin. The Conservancy holds approximately 2,500 acres of mitigation land in the Sacramento County portion of the Basin,3 and last year paid in excess of $288,000 in property taxes to the County. Property tax receipts from Metro Air Park are also significant to this discussion, as the Conservancy has assisted in the development of the industrial park through MAPHCP implementation.
The Conservancy has over 25 years of successful implementation of the HCPs.
The HCPs have been heavily adjudicated in both State and federal court. The most prominent of these cases was the National Wildlife Federation v. Norton case (see more detailed references below) that concluded with a June 2005 ruling by the federal court's David Levy. We urge County officials to review the highlights of that case because much of what the Conservancy asserts in matters of urban development in the Natomas Basin stems from it. The decision in that case can be found on the Conservancy's website.
In the National Wildlife Federation v. Norton decision, the U.S. District Court for the Eastern District of California reviewed a legal challenge concerning the U.S. Fish and Wildlife Service's (FWS) approval of the Natomas Basin Habitat Conservation Plan (NBHCP). The case centered on whether the habitat conservation plan and the associated incidental take permit (ITP) complied with the federal Endangered Species Act (ESA), particularly concerning development impacts within and beyond a 17,500- acre permit limit in the Natomas Basin.
The key findings of that decision relevant to this conversation include:
1 The County of Sacramento was invited and encouraged to be a part of the NB HCP process in the late-1990s and again in the early 2000s but declined. Placeholder language remains in most of the HCP governing documents for the County of Sacramento.
2 The Conservancy has worked with Sacramento County on the Metro Air Park project in the past. 3 The Conservancy owns and manages more than 5,300-acre Basin wide.
May 2, 2025
SENT VIA EMAIL
([email protected])
Matthew Aijala, Assistant Planner
Community Development Department
City of Sacramento
300 Richards Boulevard, 3rd Floor
Sacramento, CA 95811
RE: Comments on the Airport South Industrial Annexation (P21-017)
Dear Mr. Aijala:
This letter responds to your email and public notice issued today regarding the scheduled meeting for the Airport South Industrial Project (“Project”). The timing of this notice is fortuitous because LAFCO is considering certification of the EIR for the Project next Wednesday, and the notice is directly relevant to that matter. The City’s notice provides that the Project’s entitlements include a development agreement (“DA”). The Draft EIR advised that the DA was not available; our comment letter to the Final EIR explained that information about the DA was relevant to the Project’s impacts, asserting in relevant part:
This comment explains that the EIR’s project description is inadequate because the applicant and City have not yet disclosed the proposed Development Agreement for the Project. This comment is correct. As explained above, for example, the FEIR falsely claims that the proposed warehouse on Parcel 8 is not allowed as a matter of right and requires CEQA review. While we explain above that the FEIR’s claims are false, the development agreement would provide additional confirmation regarding this, and other uncertainties associated with the so-called “non participating” parcels. The FEIR cannot rely on unknown and unanalyzed provisions of an unknown and undisclosed development agreement that may or may not actually be approved to support its conclusions.
Further, the FEIR does not provide a good faith response to this comment.
The cases cited in the FEIR do not address the situation presented here, where the development agreement has not been publicly released prior to Matthew Aijala
City of Sacramento
May 2, 2025
public approval. While the cases cited in the FEIR hold that a detailed analysis specific to the development agreement (i.e., distinct from the underlying project) is not required, the development agreements themselves were available in order to inform decision-makers and the public about the underlying project. (Native Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 910 [“Here, the EIR gave adequate notice of the existence of the development agreement and provided a means for determining the terms of that document”]; East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281, 291 [“it is sufficient if, as here, the development agreement is included in the notice of the public hearing on the Project before the city council”]; Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 926-927 [“The approval of the development agreement was duly noticed and considered at the public hearings on the project before the City Council, along with the certification of the EIR and other project approvals”].) No case has held that the decision-makers and the public must be forced to speculate about how a project may be modified by an undisclosed development agreement.
Since the proposed DA is now available, we urgently request a copy or, failing that, the City provide a copy to LAFCO pursuant to the MOU between the City and LAFCO. Indeed, the MOU makes clear that the EIR must analyze the DA, explaining in relevant part, “The environmental document must include the environmental review of all of the following: the Sphere of Influence Amendment, General Plan amendment, Prezoning, Master Tentative Parcel Map, Development Agreement, Reorganization (annexation and detachments), Planned Unit Development approval and any related issues identified by LAFCo relating to the requirements of the Cortese-Knox-Hertzberg Act.” (MOU, § B(2), emphasis added.) Further, as we explain in the quote above, information from the DA is directly relevant to the Project description and analysis of environmental impacts.
Very truly yours,
SOLURI MESERVE
A Law Corporation
By:
Patrick M. Soluri
Matthew Aijala
City of Sacramento
May 2, 2025
cc (via email):
Jose C. Henriquez, Executive Officer, Sacramento Local Agency Formation Commission ([email protected])
Cheryle Hodge , Principal Planner/New Growth Manager, City of Sacramento ([email protected])
Garrett Norman, Senior Planner, North Area, City of Sacramento ([email protected])
May 2, 2025
SENT VIA EMAIL
([email protected]; [email protected]; [email protected])
Chair Lisa Kaplan and Members of the Commission
and Jose C. Henriquez, Executive Officer
Sacramento Local Agency Formation Commission
1112 I Street, Suite 100
Sacramento, California 95814
RE: May 7, 2025, LAFCo Meeting, Agenda Item V-6:
LAFCo Project #2023-03
Dear Chair Kaplan, Members of the Commission, and Mr. Henriquez:
On behalf of Sierra Club, Environmental Council of Sacramento and Friends of Swainson’s Hawk, this letter provides comments regarding the continued public hearing to consider the Environmental Impact Report (“EIR”) for the Airport South Industrial Project (“Project”).
We note that LAFCO has revised its draft findings following the April 2, 2025 hearing. The most significant of these revisions is LAFCO’s attempt to recast the “project” before it. The original findings, no doubt prepared by the City and for the City’s sole use1, correctly identify the “Project” as the “Airport South Industrial Project.” The revised findings, by contrast, assert, “The project presently before LAFCo is a proposed sphere of influence (‘SOI’) amendment for the City of Sacramento.” This is patently false, misleading, and contrary to law.
CEQA cannot be more clear that a “project” is the “whole of the action,” even when a project is comprised, as here, of multiple discretionary approvals by different agencies.2 LAFCO is well aware of this rule, as it was the basis for the memorandum of
1 See our prior letter dated April 2, 2025.
2 CEQA Guidelines, § 15378, subd. (c) (“The term ‘project’ refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term ‘project’ does not mean each separate governmental approval”).
Chair Lisa Kaplan and Members of the Commission
Jose C. Henriquez, Executive Officer
Sacramento LAFCO
May 2, 2025
understanding (“MOU”) with the City of Sacramento to designate both agencies as “co - lead agencies” for the Project.
This is not academic nitpicking. As a CEQA lead agency for the Project— specifically the South Airport Industrial Project—LAFCO can certify the EIR and approve the SOI amendment only if LAFCO affirmatively finds that the claimed benefits of the Project override its environmental impacts. (CEQA Guidelines, § 15043.) Here, the Project’s environmental impacts include loss of agricultural land, loss of habitat and direct take of special-status species, transportation safety impacts, and even human health impacts resulting from toxic air emissions.
Now that LAFCO correctly faces public scrutiny regarding these proposed findings and “overriding considerations,” staff attempts to backpedal from LAFCO’s CEQA lead agency status with revised findings purporting to limit the scope of LAFCO’s review and statement of overriding considerations to just the SOI amendment. This flagrantly violates CEQA. As the CEQA lead agency, its statement of overriding considerations necessarily applies to the entire project (i.e., the underlying development) and not just an individual approval (i.e., SOI amendment). (CEQA Guidelines, §§ 15043, 15378.) Certifying the EIR necessarily “endorses” the underlying development project, and LAFCO simply cannot distance itself from that.
A similar analysis applies to the scope of LAFCO’s underlying consideration of the SOI amendment. LAFCO staff asserted at the April 2 hearing that the Commission’s review was limited to only ensuring whether services can be provided. This is false. The LAFCO Policy Manual plainly states that its annexation policy considerations “will apply” to LAFCO’s consideration of SOI amendments: “[E]ach of the following sets of policies will apply to applications for amendments to Spheres of Influence: . . . Specific policies and standards for annexations to cities and special districts. . . .” (LAFCO Policy Manual, p. 50.) Further, LAFCO policy requires denial of SOI amendments for projects “that would result in significant unmitigable adverse effects upon other service recipients or other agencies serving the affected area.” (Ibid.) The recent letter from the Natomas Basin Conservancy, provided to LAFCO on April 17, 2025, establishes such impacts.
There is a straightforward resolution here. As noted at the April 2 hearing, the City can itself apply for the SOI amendment. This Commission therefore can and should deny the existing landowner; if the City is truly interested in moving forward with the Project—and is willing to make the affirmative finding that increased profit and tax revenue from land speculation overrides environmental and human health impacts—then the City can certify the EIR and apply for the SOI amendment.
Chair Lisa Kaplan and Members of the Commission
Jose C. Henriquez, Executive Officer
Sacramento LAFCO
May 2, 2025
Very truly yours,
SOLURI MESERVE
A Law Corporation
By:
Patrick M. Soluri
cc (via email):
LAFCo Commissioners
Lisa Kaplan, Chair, City of Sacramento Member, [email protected] Chris Little, Vice Chair, Public Member, [email protected] Rich Desmond, County of Sacramento Member, [email protected] Gay Jones, Special District Member (Sac Metro FD), [email protected] Pat Hume, County of Sacramento Member, [email protected] Lindsey Carter, Special District Member (Sloughhouse RCD), [email protected]
Matt Pratton, City Member (Galt), [email protected] Phil Pluckebaum, Alternate Commissioner, City of Sacramento Member, [email protected]
May 5, 2025
SENT VIA EMAIL
([email protected]; [email protected]; [email protected])
Jose C. Henriquez, Executive Officer
Sacramento Local Agency Formation Commission
1112 I Street, Suite 100
Sacramento, California 95814
RE: Additional Comments re: May 7, 2025, LAFCo Meeting
Agenda Item V-6: LAFCo Project #2023-03
Dear Mr. Henriquez:
We copied you on a letter that we sent to the City of Sacramento (“City”) requesting a copy of the draft development agreement (“DA”) for the Airport South Industrial Project (“Project”), which was prompted by the City’s notice of its May 22, 2025 meeting for the Project. (See Exhibits 1, 2.) We explained to the City that obtaining the DA was critical to understanding the Project’s environmental impacts, including support from specific language of the City and LAFCO’s memorandum of understanding concerning (“MOU”) its CEQA review for the Project. (See Exhibit 3.)
The MOU expressly requires the Project’s EIR to analyze “the Sphere of Influence Amendment, General Plan amendment, Prezoning, Master Tentative Parcel Map, Development Agreement, Reorganization (annexation and detachments), Planned Unit Development approval and any related issues identified by LAFCo relating to the requirements of the Cortese-Knox-Hertzberg Act.” (MOU, § B(2).) Since the Project’s Draft EIR had not been informed by, and thus fails to analyze, these Project materials, it violates the MOU.1
To the extent LAFCO takes the position that the MOU’s requirements for the EIR are somehow not binding on LAFCO, the MOU provides compelling evidence to a reviewing court that LAFCO and the City believe this information is required for
1 A further review of the City’s public notice from last Friday (May 2, 2025) reveals that the Project entitlements now include multiple DAs, and not just a single DA as asserted in the MOU and Draft EIR. The public is left in the dark about these multiple DAs.
Chair Lisa Kaplan and Members of the Commission
Jose C. Henriquez, Executive Officer
Sacramento LAFCO
May 5, 2025
adequate CEQA review of the Project, and are capriciously abandoning their MOU simply to satisfy the whims of the project applicant.
Put simply, a revised Draft EIR must be prepared and circulated for public review and comment based upon information provided by the DAs and other Project documents required by the MOU. LAFCO cannot lawfully take action on the requested SOI amendment until it recirculates a Draft EIR.
Very truly yours,
SOLURI MESERVE
A Law Corporation
By:
Patrick M. Soluri
Attachments:
Exhibit 1 May 2, 2025, City of Sacramento’s Notice of Public Hearing re: Airport South Industrial Annexation (P21-017)
Exhibit 2 May 2, 2025, Letter to City of Sacramento re: Comments on the Airport South Industrial Annexation (P21-017)
Exhibit 3 MOU Between LAFCO and City of Sacramento Relating to the Preparation of a Coordinated Environmental Review Process for the Airport South Industrial Project and Establishment of Co-Lead Agencies for the Purpose Thereto
EXHIBIT 1
NOTICE OF PUBLIC HEARING
May 02, 2025
300 Richards Blvd., 3rd Floor
Sacramento, CA 95811
Help Line: 916-264-5011
[email protected]
The Community Development Department is notifying all interested parties of the proposed project (described below) that the Sacramento City Planning and Design Commission will review this proposal at a Public Hearing scheduled to begin at 5:30PM on Thursday, May 22, 2025, at New City Hall, 915 I St, 1st Floor, Sacramento, CA 95814.
Members of the public may participate in the meeting by submitting written comments electronically before and during the meeting via eComments , accessible through the City’s official website at http://sacramento.granicus.com/ViewPublisher.php?view_id=21. Members of the public may also watch the meeting live online .
Instructions for accessing and participating in the meeting will be posted along with the meeting agenda by close of business Friday May 16, 2025 . To access this information, please visit https://meetings.cityofsacramento.org and choose “Upcoming Meetings” and then select the appropriate meeting to access the agenda material. The City also posts meeting agendas at City Hall. Members of the public are encouraged to submit public comments electronically via eComment through the City’s “Upcoming Meetings” webpage. All comments will become part of the public record and be provided to Commission members.
TITLE: Airport South Industrial Annexation (P21-017)
LOCATION: Southeast of the intersection of Powerline Road and Interstate 5 (I-5) in Sacramento County, California. The project site is located south of Metro Air Parkway (and the new Metro Air Parkway/I-5 interchange), and west of the existing Westlake residential community adjacent to the current City of Sacramento boundary. Portions of Bayou Way and Metro Air Parkway are located within the project site / Adjacent to Council District 1
PROJECT: A request to annex approximately 475 acres into the City of Sacramento for the future development of light industrial and highway commercial uses. The project entitlements include:
Development Agreements; Prezone; General Plan Amendments; Bicycle Master Plan Amendment; Tentative Master Parcel Map; Establishment of Planned Unit Development Guidelines and Schematic Plan; Site Plan and Design Review; Water Supply Assessment; and Public Facilities Finance Plan. Any actual development will be subject to additional entitlement approval.
ENVIRONMENTAL: Environmental Impact Report, Mitigation Monitoring and Reporting Program, and Statement of Overriding Considerations
If you challenge the nature of the proposed action in court, you may be limited to raising only those issues you or someone else raised at the Public Hearing described in this notice or in written correspondence delivered to the Planning and Design Commission at or prior to the Public Hearing.
If you have any concerns, questions or objections, or need further information, please contact Matthew Aijala, Assistant Planner, Community Development Department, (916) 808 -7176, [email protected]
EXHIBIT 2
May 2, 2025
SENT VIA EMAIL
([email protected])
Matthew Aijala, Assistant Planner
Community Development Department
City of Sacramento
300 Richards Boulevard, 3rd Floor
Sacramento, CA 95811
RE: Comments on the Airport South Industrial Annexation (P21-017)
Dear Mr. Aijala:
This letter responds to your email and public notice issued today regarding the scheduled meeting for the Airport South Industrial Project (“Project”). The timing of this notice is fortuitous because LAFCO is considering certification of the EIR for the Project next Wednesday, and the notice is directly relevant to that matter. The City’s notice provides that the Project’s entitlements include a development agreement (“DA”). The Draft EIR advised that the DA was not available; our comment letter to the Final EIR explained that information about the DA was relevant to the Project’s impacts, asserting in relevant part:
This comment explains that the EIR’s project description is inadequate because the applicant and City have not yet disclosed the proposed Development Agreement for the Project. This comment is correct. As explained above, for example, the FEIR falsely claims that the proposed warehouse on Parcel 8 is not allowed as a matter of right and requires CEQA review. While we explain above that the FEIR’s claims are false, the development agreement would provide additional confirmation regarding this, and other uncertainties associated with the so-called “non participating” parcels. The FEIR cannot rely on unknown and unanalyzed provisions of an unknown and undisclosed development agreement that may or may not actually be approved to support its conclusions.
Further, the FEIR does not provide a good faith response to this comment.
The cases cited in the FEIR do not address the situation presented here, where the development agreement has not been publicly released prior to Matthew Aijala
City of Sacramento
May 2, 2025
public approval. While the cases cited in the FEIR hold that a detailed analysis specific to the development agreement (i.e., distinct from the underlying project) is not required, the development agreements themselves were available in order to inform decision-makers and the public about the underlying project. (Native Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 910 [“Here, the EIR gave adequate notice of the existence of the development agreement and provided a means for determining the terms of that document”]; East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281, 291 [“it is sufficient if, as here, the development agreement is included in the notice of the public hearing on the Project before the city council”]; Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 926-927 [“The approval of the development agreement was duly noticed and considered at the public hearings on the project before the City Council, along with the certification of the EIR and other project approvals”].) No case has held that the decision-makers and the public must be forced to speculate about how a project may be modified by an undisclosed development agreement.
Since the proposed DA is now available, we urgently request a copy or, failing that, the City provide a copy to LAFCO pursuant to the MOU between the City and LAFCO. Indeed, the MOU makes clear that the EIR must analyze the DA, explaining in relevant part, “The environmental document must include the environmental review of all of the following: the Sphere of Influence Amendment, General Plan amendment, Prezoning, Master Tentative Parcel Map, Development Agreement, Reorganization (annexation and detachments), Planned Unit Development approval and any related issues identified by LAFCo relating to the requirements of the Cortese-Knox-Hertzberg Act.” (MOU, § B(2), emphasis added.) Further, as we explain in the quote above, information from the DA is directly relevant to the Project description and analysis of environmental impacts.
Very truly yours,
SOLURI MESERVE
A Law Corporation
By:
Patrick M. Soluri
Matthew Aijala
City of Sacramento
May 2, 2025
cc (via email):
Jose C. Henriquez, Executive Officer, Sacramento Local Agency Formation Commission ([email protected])
Cheryle Hodge , Principal Planner/New Growth Manager, City of Sacramento ([email protected])
Garrett Norman, Senior Planner, North Area, City of Sacramento ([email protected])
EXHIBIT 3
Memorandum of Understanding between the
Sacramento Local Agency Formation Commission and the City of Sacramento Relating to the Preparation of a Coordinated Environmental Review Process for the Airport South Industrial Project and Establishment of Co-Lead Agencies for the purpose thereto
A. Recitals
1. The CITY OF SACRAMENTO is a California municipal corporation and charter city (the "City"), and the SACRAMENTO LOCAL AGENCY FORMATION COMMISSION ("LAFCo"), is an independent, county-wide agency, pursuant to the Cortese-Knox-Hertzberg Act of 2000, which can be found at California Government Code § 56000, et. seq.
2. The City and LAFCo desire a Memorandum of Understanding that outlines the steps for preparation of a coordinated environmental review process, which may include preparation of an Environmental Impact Report regarding a Sphere of Influence Amendment, and related subsequent reorganization Annexation and detachments) for the Airport South Industrial Project and related actions.
3. The affected territory is comprised of approximately 450 acres located immediately south of 1-5, extending from Powerline Road on the west to the City of Sacramento city limits on the east and south to the West Drainage Canal. The project site is south of Metro Air Park (and the new Metro Air Parkway/I-5 interchange) and southwest of the City of Sacramento Greenbriar development project (now known as Northlake), which is currently under construction and east of the existing Westlake community. City roads, water, sewer, and drainage are all located immediately adjacent to the Airport South Industrial area.
4. The development proposal is comprised of a General Plan Amendment, Prezoning, Master Tentative Parcel Map, Planned Unit Development, Development Agreement and Public Facilities Financing Plan. In addition, the proposed development would require the City to apply to LAFCo for a Sphere of Influence Boundary Amendment (including a related Municipal Services Review) and Reorganization (annexation and related detachments).
5. Taken together these applications would comprise a "project" within the meaning of and subject to the California Environmental Quality Act (Pub. Res. Code, § 21000 et seq.) (CEQA) for which an environmental review will be conducted, to 1 determine the appropriate level of environmental review. This is referred to collectively in this Memorandum of Understanding as the Airport South Industrial Project.
6. LAFCo is the appropriate Lead Agency for the proposed Sphere of Influence Boundary Amendment(s). (Gov. Code, § 56425 subd. (a); Pub. Res. Code, § 21067; LAFCo Policies, IV.F.1, p. IV-7.) LAFCo will require that the EIR adequately address all environmental issues associated with LAFCo proceedings related to this application. The City is the appropriate lead Agency for the remaining elements of the proposed Airport South Industrial Project and will require that the environmental document adequately address the environmental issues associated with applications related to all land use entitlements and reorganization requests, except the Sphere of Influence Amendment. (14 Cal. Code Regs.,§ 15051 subd. (b)(2); LAFCo Policies,§ IV F.1.d ... p. IV-7.)
7. The City and LAFCO desire to have a single EIR prepared for the Airport South Industrial Project. LAFCo will consider the adequacy of the necessary LAFCo related CEQA analysis in a single EIR. The City and LAFCo will cooperate in the CEQA review process. It is the intent of this MOU to support the completion of the most efficient CEQA review process, in a mutually acceptable manner.
8. A lead Agency may comply with CEQA by adopting EIR materials provided by an applicant or an applicant's consultant so long as the Lead Agency independently reviews, evaluates, and exercises its independent judgment over the documents and the issues they raise and address. (14 Cal. Code Regs.,§ 15084 subd. (d) and (e); Friends of La Vina v. County of Los Angeles (1991) 232 Cal App 3rd 1446 (disapproved on other grounds in Western States Petroleum v Superior Court (1991) 9 Cal.4th 559, 570 fn. 2, 576 fn. 6); San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal App4th 656); Eureka Citizens for Responsible Government v.
City of Eureka (2007) 147 Cal.App.4th 357, 369
9. City and LAFCo enter into this Memorandum of Understanding to establish themselves as Co-Lead Agencies for the Airport South Industrial Project and to establish their respective roles and responsibilities relating to the oversight and management of the preparation of the necessary CEQA analysis, findings, and mitigation measures. The purpose of this Memorandum of Understanding is to ensure that the resulting Airport South Industrial Project EIR adequately addresses the environmental issues of the Airport South Industrial Project as a whole and provides both LAFCo and the City with the information each needs to review, consider, and act on the Airport South Industrial Project applications in full compliance with the law.
2 B. Determinations
LAFCo and the City agree to the following:
1. LAFCo and the City may allow the Airport South Industrial Project applicant to select and contract directly with a consultant chosen from a list of qualified consultants, as contained in the "Consultant List" mutually agreed to by LAFCo and City; to prepare the necessary CEQA analysis, findings, and mitigation measures on the Project. The environmental document must include the environmental review of all of the following: the Sphere of Influence Amendment, General Plan amendment, Prezoning, Master Tentative Parcel Map, Development Agreement, Reorganization (annexation and detachments), Planned Unit Development approval and any related issues identified by LAFCo relating to the requirements of the Cortese-Knox-Hertzberg Act. Prior to any commencement of work by such a consultant, the scope of work must be reviewed and approved by responsible staff of each agency. The scope of work must include description of responsibility for preparation of the CEQA Findings of Fact, Statement of Overriding Considerations, if required, and for preparation and circulation of the various documents required by the CEQA process (e.g., Notice of Determination).
2. The City and LAFCo shall cooperate and work collaboratively to ensure that the necessary CEQA analysis, findings, and mitigation measures fully satisfies LAFCo's requirements for conducting a legally adequate environmental review of the Sphere of Influence Amendment in accordance with CEQA, the CEQA Guidelines, the Cortese-Knox-Hertzberg Local Governmental Reorganization Act of 2000 (Gov. Code §56000 et seq.), and LAFCo's locally adopted Policies, Standards and Procedures. The following protocols for preparation of the EIR apply:
2.1. The City, through its staff, shall be the primary contact point for the applicant's CEQA consultant for purposes of generally directing the work of preparing the necessary CEQA analysis, findings, and mitigation measures; transmitting, receiving, and disseminating reports, studies, drafts, and other documents related to the EIR; transmitting, receiving, and responding to questions, comments, requests for clarification or additional information; scheduling meetings; and the like.
2.2. LAFCo, through its Commission staff, and independent consultants, shall have final oversight, review, and approval authority over the content of the environmental document (i.e., administrative draft EIR (ADEIR), the draft EIR (DEIR), and the final EIR (FEIR)) as they each relate to the Sphere of Influence Amendment and shall have Responsible Agency review over the Reorganization (annexation and related detachments). The City, through its staff, shall coordinate and work cooperatively and collaboratively with LAFCo to ensure that LAFCo has sufficient 3 and meaningful opportunity to review, evaluate, and exercise its independent judgment over the content of the EIR as it relates to the Sphere of Influence Boundary Amendment and as a responsible agency over the Reorganization (annexation and related detachments). To this end, LAFCo shall retain the right to approve all studies, reports, drafts, and other documents prepared for or in connection with the environmental document before public release, to edit or request changes to the environmental document (i.e., ADEIR, DEIR, and FEIR), to review and recommend responses to comments submitted on the DEIR, and to request additional work as LAFCo, in the exercise of reasonable judgment and discretion, determines to be necessary to ensure the adequacy and objectivity of the environmental document as needed for LAFCo's action as lead agency for the Sphere of Influence Amendment and as responsible agency for the Reorganization (annexation and related detachments).
The City and LAFCo shall mutually copy ("cc") one another with their CEQA related correspondence (if any) to the CEQA consultant, except those related to solely to contract and billing issues. LAFCo shall receive fair and adequate notice, (not less than 72 hours) and reserve the opportunity to attend all meetings with the environmental consultant.
2.3. City and LAFCo shall each identify and notify the other of their respective staff contacts responsible for implementing this MOU. Staff contacts are as follows:
LAFCo
Executive Officer
(Address/Phone/email)
City of Sacramento
Cheryle Hodge, New Growth Manager
(Address/Phone/email)
2.4 City and LAFCo staffs shall hold regular status meetings, at a mutually agreed to time and location, to discuss the progress of the work in conformance with the agreed upon schedule.
2.5. LAFCo shall schedule and hold at least one public hearing during the DEIR public review and comment period to receive comments on and proposed revisions to the DEIR.
3. City and LAFCo agree that the Project Applicant shall be fully and solely responsible for the costs of the environmental consultant and for the costs incurred by LAFCo for retaining its independent environmental consultant as well as its normal processing fees, including, but not limited to, consultant fees, staff time, and legal review.
4 4. City and LAFCo shall use all reasonable effort and due diligence to process the Project through to the final hearings in a timely fashion to meet City's objective of having LAFCo set for public hearing the SOIA prior to City Council consideration of related entitlements. City and LAFCo agree to work cooperatively with each other, and the project applicant and/or environmental consultants as necessary to develop a project schedule listing key steps and dates to aid in achieving City's objectives, which schedule shall be attached to and become a part of this Memorandum of Understanding.
5. The following is a sequence of actions to be taken to complete processing of the Airport South Industrial Project subject to all LAFCo and City criteria:
5.1. Project scoping, environmental document preparation and circulation (i.e., NOP, ADEIR and DEIR) thru Completion of the final environmental document and submittal to LAFCo.
5.2. LAFCo public hearing(s) and exercise of discretionary action on certification of the final environmental document and Sphere of Influence Amendment.
5.3. If the Sphere of Influence Amendment(s) are approved, a City public hearing and action on the General Plan Amendment, Prezone, Master Tentative Parcel Map, Planned Unit
Development, Development Agreement and LAFCo filing of a Reorganization (detachments and related annexation) will follow .
5.4. If the City approves the items in subsection 5.3 above, a LAFCo hearing and action on the Reorganization (annexation and related detachments) will follow.
Nothing contained in this Memorandum of Understanding is intended, nor shall it be construed, to commit, control, or influence in any manner whatsoever the authority, judgment, or discretion of the LAFCo Commission or the City Council of the City of Sacramento in their respective future hearings on all or any aspect of the Airport South Industrial Project and the ultimate decision of each to approve, modify and approve, approve with conditions, or disapprove the Airport South Industrial Project, in whole or in part, or to require or impose mitigation measures as a result of the environmental review of the Airport South Industrial Project.
5 This Memorandum of Understanding is entered into as of July 30, 2021.
By ?Z,.~ :S. /JacA-
Thomas S. Pace for
Howard Chan, City Manager
City of Sacramento
Approved as to form :
BY . ~C
City ~n~y
Don Lockhart, Executive Officer
Sacramento Local Agency
Formation Commission
Approved as to form ::
6~ By ______ _
Sacramento LAFCo Counsel
6 Airport South Industrial Project Preliminary Schedule May 16, 2021
July 30, 2021
September 27, 2021
October 4, 2021
October 26, 2021
December 13, 2021
January 13, 2022
March 1, 2022
April 15, 2022
May 16, 2022
May 31, 2022
June 30, 2022
August 3, 2022
Airport South Industrial Project Applicant submits
application to Sacramento LAFCo and the City of
Sacramento
LAFCo/City completion of MOU for City & County to serve as co-Lead Agencies for CEQA purposes for the Airport
South Industrial Project
Notice of Preparation (NOP) is made available for a 30-day public review period
NOP Public Scoping Meeting is held
NOP 30-Day Public Review Period Concluded
Administrative Draft Environmental Impact Report is
released
City, LAFCo and applicant comments are delivered to
Environmental Impact Report preparer
Draft Environmental Impact Report is released and
distributed for a 45-day public review period
Draft Environmental Impact Report public comment
period closes
Administrative Final Environmental Impact Report and
Mitigation Monitoring Plan is released
City, LAFCo and applicant comments are delivered to
Environmental Impact Report preparer
Final Environmental Impact Report and Mitigation
Monitoring Plan is released and distributed
Sacramento LAFCo hearing on Sphere of Influence
amendment, certification of the Final Environmental
Impact Report and acceptance of the Municipal Services
Review
7 August 4, 2022
August 16, 2022
September 7, 2022
City of Sacramento Planning and Design Commission
hearing on the Final Environmental Impact Report,
General Plan Amendment, Pre-zone, Planned Unit
Development Establishment, Tentative Master Parcel Map, Development Agreement, Annexation, and any other
necessary items as determined by City staff
Sacramento City Council hearing on the Final
Environmental Impact Report, General Plan Amendment,
Pre-zone, Planned Unit Development Establishment,
Development Agreement, Annexation, and any other
necessary items as determined by City staff
Sacramento LAFCo hearing on the Reorganization
(Detachments & Annexation)
8 August 19, 2025
SENT VIA EMAIL
[email protected]
Board of Supervisors
County of Sacramento
700 H Street, Suite 2450
Sacramento, CA 95814
RE: Comments on August 20, 2025, Board of Supervisors Meeting Agenda Item No. 3, Upper Westside Specific Plan (PLNP2018-00284)
Dear Chair Serna and Members of the Board:
On behalf of Environmental Council of Sacramento (“ECOS”) and Friends of Swainson’s Hawk (“FOSH”), and the Garden Highway Community Association, this letter provides comments regarding the Final Environmental Impact Report (“FEIR”) for the Upper Westside Specific Plan (“Project”). This letter also transmits expert comments by Shawn Smallwood (Exhibit 1), Dan Smith (Exhibit 2) and Ralph Propper and Earl Withycombe (Exhibit 3), which are incorporated by reference.1
I. THE RESPONSES TO COMMENTS AND FEIR FAIL TO REMEDY THE
LEGAL DEFICIENCIES OF THE CEQA ANALYSIS FOR PROJECT
As the CEQA lead agency for the Project, the County of Sacramento (“County”) must evaluate comments on the draft environmental impact report (“EIR”) and prepare written responses in the FEIR. (Pub. Resources Code, § 21091, subd. (d).) The FEIR must include a “detailed” written response to all “significant environmental issues” raised by commenters. As the court stated in City of Long Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889, 904:
The requirement of a detailed written response to comments helps to ensure that the lead agency will fully consider the environmental consequences of a decision before it is made, that the decision is well informed and open to
1 Additional scientific/technical reports and reference materials expressly cited and otherwise supporting our comments and those by the above-referenced experts will be hand-delivered to the County on a flash drive.
Board of Supervisors
County of Sacramento
August 19, 2025
public scrutiny, and that public participation in the environmental review process is meaningful.
The FEIR’s responses to comments must be detailed and must provide a reasoned, good faith analysis. (Cal. Code Regs., tit. 14, § 15088, subd. (c).) Failure to provide a substantive response to comments render the EIR legally inadequate. (Rural Landowners Association v. City Council (1983) 143 Cal.App.3d 1013, 1020). If the public suggests a feasible mitigation measure or alternative, the agency may only decline to implement it if it provides substantial evidence that the mitigation measure or alternative is infeasible. (Covington v. Great Basin Unified Air Pollution Control District (2019) 43 Cal.App.5th 867.)
The responses to comments on a draft EIR (“DEIR”) must state reasons for rejecting suggested mitigation measures and comments on significant environmental issues. “Conclusory statements unsupported by factual information” are not adequate responses. (Cal. Code Regs., tit. 14, § 15088, subds. (b), (c); Cleary v. County of Stanislaus (1981) 118 Cal.App.3rd 348; Environmental Protection Information Center v.
Johnson (1985) 170 Cal.App.3d 604, 628 [“Non-specific, general, or conclusory responses unsupported by empirical information, scientific authorities or explanatory information ‘fail to crystallize issues’”]; People v. County of Kern (1974) 39 Cal.App.3d 830, 841 [Responses to comments must “set forth in detail the reasons why the particular comments and objections were rejected . . . .”].) The need for substantive, detailed response is particularly appropriate when comments have been raised by experts or other agencies. (Berkeley Keep Jets Over the Bay Committee v. Board of Port Commissioners (2001) 91 Cal.App.4th 1344, 1367; People v. Kern (1976) 72 Cal.app.3d 761 [Berkeley Keep Jets].) A reasoned analysis of the issue and references to supporting evidence are required for substantive comments raised. (California Oak Foundation v. Santa Clarita (2005) 133 Cal.App.4th 1219.)
The FEIR fails to meet these legal standards as it is riddled with conclusory and false statements lacking any factual support or analysis. Further, the FEIR repeatedly fails to comply with the duty of good faith by deploying a strategy of piecemealing public comments and the associated responses in order to avoid addressing the overall point of each comment. This is why our letter groups various FEIR responses together for discussion. Another avoidance strategy generally deployed, and explained more fully below, is to not directly respond to individual specific comments by instead directing the reader to either “master responses” or other individual responses that raise related but different issues. This additional avoidance strategy is deployed in an attempt to sweep troublesome problems under the rug.
Board of Supervisors
County of Sacramento
August 19, 2025
• Master Response LU-2 and Responses to Comments 19-34 and 19-35
Whether intentional or not, the DEIR egregiously fails as an informational document by simply ignoring the County’s Land Use Policy LU-127. Rather than comply with CEQA by revising and recirculating a DEIR that properly addresses this critical County environmental and land use policy, the FEIR takes the absurd position that it may ignore LU-127 itself because “The Draft EIR fully evaluates the physical environmental effects . . . including the substantive analysis that the Board may use to inform its consideration of Policy LU-127 criteria related to the physical environmental effects that could result with implementation of the proposed UWSP [Upper Westside Specific Plan].” This attempt to avoid any mention, much less analysis, of consistency with LU-127 is necessarily based on the FEIR’s repeated statement that “CEQA does not consider inconsistency with land use plans and policies to be a physical effect on the environment unless the plan or policy was adopted for the purpose of avoiding or mitigating a significant environmental effect.” (FEIR, pp. 14-1, 14-17, 14-22, 26-537, 26-617, 26-790.)
Tellingly, the FEIR never affirmatively asserts—in Master Response LU-127 or anywhere else—that LU-127 was not “adopted for the purpose of avoiding or mitigating a significant environmental effect.” We can certainly understand why the County would be unwilling to affirmatively make this assertion. The FEIR’s failure to directly analyze LU-127 implicitly means this is the County’s position. Assuming, arguendo, that the County’s position is that LU-127 is not a policy that “was adopted for the purpose of avoiding or mitigating a significant environmental effect,” a reviewing court will very likely disagree—even under a deferential standard of review.
First, the plain language of LU-127 unquestionably demonstrates that its purpose is to avoid environmental impacts from proposed urban sprawl development outside the urban service boundary (“USB”) and urban policy area (“UPA”):
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
Board of Supervisors
County of Sacramento
August 19, 2025
• 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.
(LU-127, emphasis added.)
“In determining intent, we look first to the language of the statute, giving effect to its ‘plain meaning.’” (Kimmel v. Goland (1990) 51 Cal.3d 202, 208-209.) Here, the plain language of LU-127 reveals that its purpose is to avoid significant environmental impacts in the areas of agricultural resources, biological resources, open space, water supply, air quality, and water quality resulting from urban sprawl outside the USB or UPA. To the extent there is any confusion regarding this purpose (there is not), the County’s General Plan itself demonstrates this intention with clarity:
A Sustainable Growth Management Program
The 2030 General Plan continues to pursue the vision of the 1993 General Plan: promote efficient use of land, encourage economic vitality and job growth, reduce urban sprawl and its impacts, preserve habitat and open space, and protect agricultural and rangeland operations. Two growth boundaries are identified to help implement this vision: the Urban Services Boundary (USB) and the Urban Policy Area (UPA). The USB is the ultimate growth boundary for the unincorporated area. The UPA defines the area within the USB expected to receive urban services in the near term.
Together, the UPA and the USB promote orderly growth and the efficient extension of infrastructure and the provision of urban services. They also seek to preserve agriculture and rangelands, critical habitats and natural resources.
(County General Plan of 2005-2030 Executive Summary, p. 12, emphasis added.)
Board of Supervisors
County of Sacramento
August 19, 2025
Third, the effect of LU-127, namely to prevent urban sprawl outside of the USB or UPA that would have significant environmental impacts, is consistent with other County policies that the FEIR contends do have the purpose of mitigating or avoiding significant environmental effects. [Compare LU-127 with County policies listed on FEIR, pp. 14-21 – 22.) As just one example, it is simply nonsensical to contend (as the FEIR implicitly does) that LU-15 [“Planning and development of new growth areas should be consistent with Sacramento County-adopted Habitat Conservation Plans and/or other efforts to preserve and protect natural resources”] has the purpose to avoid or mitigate significant environmental impacts whereas LU-127 does not.
Fourth, the FEIR tellingly provides no analysis or supporting citation whatsoever for its implicit position that LU-127 was not adopted with the purpose of avoiding or mitigating significant environmental effects. Our DEIR comment letter plainly asserted:
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.
(FEIR, p. 26-368, emphasis added [Comment 19-35].)
The FEIR’s Response to Comment 19-35, Response to Comment 19-34, or Master Response LU-127, conspicuously never disputes that LU-127 has this purpose, much less support that disagreement with analysis or supporting authority. This violates CEQA’s mandate for the FEIR to address comments “in detail giving reasons why specific comments and suggestions were not accepted.” (Cal. Code Regs., tit. 14, § 15088, subd. (c).)
In short, the DEIR fails as an informational document regarding the Project’s consistency with LU-127; the FEIR fails to provide the missing analysis and also fails to provide good faith responses for why it need not analyze consistency with LU-127.
• Responses to Comments 19-1 through 19-6, and 19-66
The responses to comments brush aside the concerns and legal errors raised in our comments largely by relying on the assertion that our comments either go to the merits of the Project or that our comments fail to trigger specific conditions for recirculation. (FEIR, p. 26-341.)
Board of Supervisors
County of Sacramento
August 19, 2025
One of the County’s legal errors in its review of the Project is the failure to be objective, and neutral with respect to the Project and provide a clear justification for the Project objectives separate from the Project proponent’s interests. (CEQA Guidelines, § 15124, subd. (b).)2 When a lead agency is committed to or favors an applicant’s proposal before environmental review is complete it commits legal error. (Citizens for Ceres v.
Superior Court (2013) 217 Cal.App.4th 889, 918 [Ceres].)
As we described in our previous comment letter, the Project would require extension of the County’s urban service boundary, which is contrary to County General Plan policy LU-127.3 The master response provided in the FEIR fails to provide any facts making the necessary showing why there is inadequate vacant land within the USB that would be needed to accommodate urban uses equivalent to the Project. (FEIR, p. 26- 20, Master Response LU-2.) Similarly, the master response does not make the alternative showing why the Project would offer “extraordinary environmental, social or economic benefits and opportunities to the County.”4 The Project objectives recited in the FEIR, and referenced in the responses to comments, fail to provide the necessary showing why the Project’s considerable environmental impacts are warranted, considered against the gross inconsistency with LU-127 (FEIR, p. 2-13 [Project objectives]; FEIR, p. 26-343 [discussion of the Project objectives].) These deficiencies, in turn, fail to make the requisite showing why the Project is in the best interests of the County, as required by law. (Ceres, supra, 217 Cal.App.4th at 918.)
• Response to Comments 19-7
The response provided to comment 19-7 recites the points of consistency between the consideration of alternatives and CEQA Guidelines section 15126.6. The response, however, fails to describe why alternatives that do not require extension of the USB, contrary to County General Plan Policy LU-127, were not developed and considered in any detail. (CEQA Guidelines, § 15126.6, subd. (f)(1) [general plan consistency is relevant to the issue of project feasibility].)
2 Title 14 of California Code of Regulations, section 15000 et seq. provides the “CEQA Guidelines.”
3 2022, County of Sacramento, County of Sacramento General Plan, Land Use Element, p. 144.
4 Ibid.
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County of Sacramento
August 19, 2025
• Response to Comment 19-8
Our prior comments identified the County’s deviation from the Natomas Joint Vision Memorandum of Understanding and the County’s commitments to protection of open space and environmental resources. The County’s response simply recites General Plan Policy LU-114 as if that policy supported the County’s consideration of a project that is not warranted based on its environmental consequences and policy inconsistency. (FEIR, p. 26-349.) The plain language of LU-114 contradicts the County’s consideration of a project that would leave only a sliver of agricultural land along the western boundary and bring urban development into close proximity with protected lands, because LU -114 emphasizes that both development and open space preservation occur in a comprehensive and cohesive manner, rather than leaving isolated remnants of farmland as a perfunctory nod to conservation.5 The Project, as proposed, would place low residential and other developed land uses adjacent to lands dedicated to habitat functions immediately to the north and west of the Project and separated only by a thin buffer, which is contrary to LU-114. (FEIR, p. 2-29 [Plate PD-13].)
• Responses to Comments 19-9 and 19-10
The County’s responses to comments 19-9 and 19-10 sidestep discussing or justifying one of the FEIR’s fundamental flaws: the failure to provide a project objective that justifies extension of the USB contrary to County General Plan Policy LU-127.
As previously explained in our DEIR comment letter, a discussion of project objectives should not merely mirror the applicant’s goals or provide a thin justification for why the proposed land uses are “needed,” but should instead describe the underlying objective of the project. (CEQA Guidelines, § 15124, subd. (b).) The project objectives provide a baseless post-hoc rationalization of the project by stating it is necessary to accommodate “the County’s share of future regional population growth.” (FEIR, p. 3-1.) As previously stated in our October 28, 2024 comment letter, this objective is not supported by substantial evidence showing why this Project is needed in this location to further that goal. The County’s responses in Response 19-9 and 19-10 fail to provide any evidence that the Project is necessary to accommodate regional population growth. (FEIR, pp. 26-350 – 26-351.) This, in turn, fails to demonstrate why the Project can be justified under County General Plan Policy LU-127, which only states that the USB shall be extended if it is needed to accommodate Project demand for urban use or there are extraordinary economic, social, or environmental benefits. 6
5 Id., p. 123.
6 Id., p. 144.
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County of Sacramento
August 19, 2025
The County’s response to comment 19-10 states that “[w]hile the question of the capacity of the County to absorb the housing proposed in the UWSP is one that the County will consider, it is not an issue that is required to be addressed in the EIR.” (FEIR, p. 26-352.) The discussion above explains why this response is nonsense since the issue relates directly to (i) whether substantial evidence supports the EIR’s project objective, (ii) the feasibility of offsite alternatives, and the Project’s consistency with the County’s General Plan vis-a-viz Land Use Policy LU-127.
• Responses to Comments 19-11 through 19-30
These comment responses provide a justification of the project alternatives that is not directly relevant to the question the County apparently will not and cannot answer, which is “why do the project objectives amount to a post-hoc rationalization for the project description, contrary to CEQA Guidelines, section 15124?” The comments also provide references to previous and insufficient comment responses that fail to provide facts or clarity regarding the County’s objectives (which should be distinct from t he project applicant’s objectives) in carrying forward the Project.
• Response to Comment 19-31 through 19-32
The County’s response to comment 19-31 fails to justify what “phasing” means when the necessary project approvals are considered. The FEIR states that the necessary project approvals consist of, among other actions, adoption of the specific plan and annexation by the Sacramento Local Agency Formation Commission. (FEIR, p. 2-61.) None of these approvals are limited to any particular set of phases. In addition, the Project depends upon extension of the USB. These approvals apply to the entirety of the Project area. The “phasing” concept thus amounts to a vague justification for a project that grants significant changes in land use designation to the entirety of the Project while deferring analysis for the environmental consequences of these actions.
The County acknowledges, for example, that its project-level biological resource study addresses only a 568.7-acre portion of the Project area. (DEIR Appendix BIO-2, pp. 6, 24 [all surveys were restricted to the 568.7-acre “survey area”]; Appendix BIO-1, p. 20 [detailed or protocol level surveys only conducted in the 568.7-acre “survey area”].) The County has thus deferred project-level biological studies for the balance of the Project area based on a “phasing plan” even though the County would provide project- level land use approvals based upon this EIR. In other words, the vast majority of the Project site would receive project-level land use approvals based only upon a Board of Supervisors
County of Sacramento
August 19, 2025
programmatic-level (i.e., nonexistent) of biological analysis. So-called “phasing” cannot be used to justify improperly deferring project-level analysis for project-level approvals.
Similarly, the County relies heavily on “phasing” to support deferring mitigation necessary to support buildout of constituent parts of the Project. (FEIR, p. 26-366 [future CEQA review would be required to support zoning actions as phases are built out over time].) Again, this language is nonsensical because later “phase” land use entitlements are exactly the same as purported “first phase” entitlements. An example of the comprehensive set of land use changes that apply to the entire Project based on this EIR is found in the Draft Specific Plan document itself, which states that:
“[t]he UWSP establishes land uses for the Plan Area and its primary implementation tool is the Upper Westside Development Standards and Design Guidelines (DS&DGs).”
(Draft Specific Plan, p. 1-16.)
The Draft Specific Plan goes on to state:
“[a]s the primary regulatory tool to evaluate development projects, the DS&DGs take precedence over the County’s Zoning Code with an intent of achieving the vision described by the UWSP.”
(Draft Specific Plan, p. 1-16 [emphasis added].)
Because the Project includes modifying the USB to encompass the entire Project area, and is adopting DS&DGs that apply to the entire Project area that take precedence over the zoning code, the County would be issuing project-level land use approvals for the entire Project site (i.e., including future “phases”) based upon analysis set forth in this EIR and therefore requires project-level CEQA review for the entire Project area. (CEQA Guidelines, § 15161 [project EIR required for project-level approval].)
• Response to Comment 19-33
The County’s response to the comment avoids meaningful engagement with the issue raised in our letter. We previously noted the DEIR’s deficiency associated with revising the countywide policy favoring mitigation of agricultural land loss within the County. This policy change applies to the entire County yet no analysis of impacts outside the Project area is provided.
Board of Supervisors
County of Sacramento
August 19, 2025
A cursory review of Appendix PD-1 reveals that the Project still includes reducing the barrier to use of agricultural mitigation land outside of the County. Where these lands also provide habitat function (as distinct from habitat lands used for mitigation), using lands outside of the County reduces ecological connectivity for affected species. The County’s response to comments simply states that our comment identifies no specific effects, and that agricultural impacts are analyzed in the DEIR. The FEIR agricultural resources section contains no analysis of lost habitat connectivity associated with the use of spatially disparate agricultural lands. The County must analyze all relevant environmental effects, even if those effects are not specifically contemplated in the CEQA Guidelines Appendix G thresholds. (Joshua Tree Downtown Business Alliance v.
County of San Bernardino (2016) 1 Cal.App.5th 677, 689.)
• Response to Comment 19-36
The County provides no substantive response to the issues raised in our comment letter or the comments of the Sacramento County Farm Bureau. The Sacramento County Farm Bureau specifically stated that the agricultural buffer will fail to reconcile incompatible land uses due to its narrow width and provided specific facts that the proximity of a proposed school is inconsistent with typical agricultural practices such as pesticide application. (FEIR, p. 26-159.) The County brushes aside this comment based on an asserted lack of “specific evidence.” (FEIR, p. 26-159.) The master response AR- 2 fails to clarify how agricultural land uses directly west of the proposed school site, occurring on the large parcels in that area, would be reconciled with school operations.
• Response to Comment 19-37
The County’s response fails to engage with the problem raised in the comment.
Our comment specifically flags the potential that buildout of the Project will contribute to combined loss of land in the Natomas Basin that will exceed thresholds at which jeopardy to listed species would occur. Because state and federally listed species occur in the Project area, take authorization will inevitably be required. (FEIR Table BR-2, p. 7-13 [species occurring in the Project area]; Fish & G. Code, § 2080 [take authorization required for state-listed species].)
The failure to analyze and disclose related permitting processes and impacts on resources relevant to those processes is an informational deficiency. (Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, 936 [Banning Ranch].) Our previous comment raises the issue that development in the Natomas Basin exceeding 17,500 acres creates a risk of jeopardy. (FEIR, p. 26-370.) Take may not be authorized under the California Endangered Species Act where the take would cause jeopardy to a Board of Supervisors
County of Sacramento
August 19, 2025
listed species. (Cal. Code Regs., tit. 14, § 783.4, subd. (b).) The responses to comments refer to future permitting processes as the primary reason jeopardy would be avoided in circular logic that fails to engage with the problem that those permits require a showing that the project will not result in jeopardy. (FEIR, p. 26-205; Cal. Code Regs., tit. 14, § 783.4, subd. (b) [permits applications must show why jeopardy would be avoided].)
These responses fail to satisfy CEQA’s requirement that where a project affects environmental resources subject to related permitting processes, the impacts on those resources and the project’s viability under future permitting should be fully described. (Banning Ranch, supra, 2 Cal.5th at 936.) Since the Project would contribute to loss of acreage that is necessary to satisfy the goals of the Natomas Basin Habitat Conservation Plan (“NBHCP”) and avoid jeopardy to listed species, that effect and the impact on the viability of future permitting processes must be disclosed in the EIR. The FEIR utterly fails to correct this flagrant violation of CEQA’s disclosure mandates. The County’s approach to consideration of take authorization for species listed under the federal and California Endangered Species Act consists of simply stating that take authorization will be obtained. (FEIR, p. ES-23 [state and federal take authorization for giant garter snake shall be obtained]; FEIR, p. ES-43 [an incidental take permit “may” be required for the Project for Swainson’s hawk].)
• Response to Comment 19-38 through 19-42
The County’s responses to these comments both fail to substantiate why existing intersections cannot be improved to meet required levels of service (“LOS”), and why new intersections that would be constructed will also fail to meet required LOS, consistent with County General Plan Policy CI-9, which requires LOS E.7
First, in explaining why physical improvements needed to meet required LOS for existing roads cannot be made, the County repeats the conclusory approach of the DEIR, only stating that such improvements would be detrimental to pedestrians or bicycle traffic or would result in downstream “vehicle weaving areas.” (FEIR, p. 26-373.) No studies or analysis are cited in support of these conclusions, contrary to the required content for responses to comments. (League to Save Lake Tahoe v. County of Placer (2022) 75 Cal.App.5th 63, 160; CEQA Guidelines, § 15088, subd. (c) [conclusory information in the response to comments provided in an EIR absent factual support violates CEQA].) As just one example, the FEIR fails to explain what level of “detriment[] to pedestrians or bicycle traffic” results in an “infeasibility” finding. The same is true regarding “vehicle weaving areas.”
7 Sacramento County 2020. Circulation Element, Amended October 6, 2022, p. 23.
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County of Sacramento
August 19, 2025
The FEIR also fails to substantiate why intersections that do not even exist yet will fail to meet LOS. The County provides only a conclusory response to explain why new intersections will fail to meet LOS E, contrary to General Plan Policy CI-9. (DEIR Appendix TR-2, p. 139, Table 21.) The response, 19-41, only refers to other comment responses that “explain” why existing intersections will fail to meet adequate LOS, without even reaching the issue of why new intersections will also perform worse than LOS E. This failure to design new facilities that meet acceptable LOS thus demonstrates a failure to satisfy the County’s duty to mitigate environmental impacts. (Pub. Resources Code, § § 21002.1 [duty to mitigate].)
• Response to Comments 19-43 through 19-47
Our prior comment letter raised the issue of informational sufficiency related to transportation impacts, noting that while the Project assumes the creation of a total of 3,576 transit-based trips, the proposed mitigation measure TR-1b only describes how the project applicant will coordinate with the County and transit providers to “provide the additional transit facilities and services assumed in the transportation analysis” to accommodate the addition of 3,576 additional transit riders per day. (FEIR, p. 18-29 [3,576 transit-based trips per day]; FEIR, p. ES-126 [mitigation measure TR-1b].) The mitigation measure and related analysis of impacts under impact TR-1 fails to describe the nature or effects of the additional facilities and associated improvements. When a mitigation measure will create environmental effects, those effects must be described in the EIR. (CEQA Guidelines, § 15126.4, subd. (a)(1)(d).) The substantial improvements needed to accommodate an additional 3,576 daily transit trips will necessarily create additional environmental impacts that remain unanalyzed and undisclosed in the City’s FEIR. For these reasons, the FEIR still fails as an informational document with respect to disclosing the impacts of mitigation.
• Response to Comments 19-48 through 19-52
Our previous comments noted that the County is not relying on a lawful water supply assessment (“WSA”) as required under Water Code section 10910. The City’s response misstates the applicable law. For projects subject to the duty to prepare a WSA, the lead agency may only rely on the urban provider’s urban water management plan (“UWMP”) if the demand “associated with the proposed project” subject to environmental review was accounted for in the UWMP. (Wat. Code, § 10910, subd. (c)(2).) The County’s response evades this specific analysis and simply states that because the water demand projections in the City of Sacramento’s most recent UWMP can accommodate the total demand of the Project, the WSA is lawful. (FEIR, p. 26-379.) Board of Supervisors
County of Sacramento
August 19, 2025
This is not the same as a showing that the Project specifically included and accounted for the demand of the proposed Project, which is the plain meaning of Water Code section 10910, subdivision (c)(2).
Neither response to comments 19-43 through 19-47 nor response 15-65 make the requisite showing that the UWMP specifically included the Project. The failure to include a lawful WSA is an informational deficiency that constitutes legal error for failing to proceed as required by law that constitutes abuse of discretion. (Pub. Resources Code, § 21168.)
• Response to Comments 19-53 through 19-57
The County’s revisions in the FEIR fail to address the DEIR’s informational deficiencies associated with human health impacts resulting from air emissions. A primary issue that the County fails to characterize correctly is that the health effects associated with ultrafine particles are distinct from and more severe than particles between PM 2.5 and the ultrafine range of particles.8 In addition, concentrations of PM
2.5 are not an adequate proxy for or indicator of ultrafine particle levels. 9 Thus the lumping of ultrafine particles with PM 2.5 analytically fails to account for the levels of ultrafine particles and health effects that the Project would generate, as further explained below. This informational deficiency is similar to, but more egregious than the legal error found when the County of Fresno failed to disclose the health effects that would occur from and could be inferred from ozone levels. Here, the County has failed in the first instance to analyze or disclose ultrafine levels that the Project would generate by instead lumping those emissions with PM 2.5, which is not an adequate proxy. (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 510 [Sierra Club] [County was required to and failed to make disclosures regarding pollutant emissions and health effects].) To the extent that ultrafine levels can feasibly be analyzed and correlated with health impacts the County has a legal duty to describe this information to the public and decisionmakers. (Sierra Club, supra, 6 Cal.5th at p. 510.)
Ultrafine particles have distinct and different health effects than larger particles in the PM2.5 range due to the manner in which these particles navigate and cross the small bronchioles of the lung and enter the body.10 Concentrations of ultrafine particles are
8 See Exhibit 3, expert comments from Ralph Propper and Earl Withycombe; see also Dean E. Schraufnagel. 2020. The Health Effects of Ultrafine Particles.
Experimental and Molecular Medicine, Vol. 52, pp. 311-317 (“Schraufnagel”). 9 Schraufnagel, p. 312 [ultrafine and PM 2.5 levels are not correlated]. 10 Schraufnagel, p. 311.
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County of Sacramento
August 19, 2025
much higher near major road corridors such as Interstate 80, which abuts the Project on one side, than background levels.11 Rural concentrations of airborne ultrafine particles average 2,610 particles per cubic centimeter (cm3), whereas roadside concentrations may be up to 48,180/ cm3 (almost 20 times higher).12 Studies show that whereas PM 2.5 tends to deposit in the terminal bronchioles of the lungs, ultrafine particles cross the lung barrier and enter the human body where they may be transported throughout the body, further reinforcing the conclusion that ultrafine particles cannot be analytically “lumped” with PM 2.5.13 In addition, ultrafine particles induce a stronger inflammatory response, with the response severity increasing with relatively smaller particles. 14 Ultrafine particles may have a greater influence on mortality.15 PM generally induces inflammation and atherosclerosis with recent studies showing that ultrafine particles have a far greater effect than larger particles. Multiple studies also demonstrate an association between ultrafine particles and heart disease.16 Children are particularly susceptible to the health effects of air pollution even while in utero. Mothers with exposure to ultrafine particles show increased risk for low birthweight, especially when they are living within 50 meters (164 feet) of heavy traffic.17 PM is mutagenic and tumorigenic (i.e., causes genetic mutations and tumor growth), with finer particles inducing more severe effects. 18
Thus, CEQA requires a separate analysis of the Project’s ultra fine emissions and resulting human health impacts separate from PM2.5 emissions and health impacts. (Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, 13 [Visalia Retail] [an EIR must analyze every issue for which the record contains substantial evidence supporting a “fair argument” of significant impact]; Protect the Historic Amador Waterways v.
Amador Water Agency (2004) 116 Cal.App.4th 1099, 1109 [Amador Waterways]).
The FEIR makes a few different arguments in its attempt to justify the DEIR’s failure to address ultrafine emissions. All these arguments are contrary to CEQA. First, the FEIR asserts, “the cancer risk associated with the proposed project was found to be significant.” (FEIR, p. 26-383.) But simply labeling the impact as significant and unavoidable does not excuse the agency from meaningfully assessing the severity of the impact. (Berkeley Keep Jets, supra, 91 Cal.App.4th at 1371 [“The EIR’s approach of
11 Schraufnagel, p. 312.
12 Schraufnagel, p. 312.
13 Schraufnagel, p. 312.
14 Schraufnagel, p. 313.
15 Schraufnagel, p. 313.
16 Schraufnagel, p. 314.
17 Schraufnagel, p. 315.
18 Schraufnagel, p. 316.
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August 19, 2025
simply labeling the effect ‘significant’ without accompanying analysis of the project’s impact on the health of [] employees and nearby residents is inadequate to meet the environmental assessment requirements of CEQA”].) Second, and importantly, finding a significant impact to cancer risk is irrelevant since, as explained above, ultrafine emissions have human health impacts that are distinct from cancer.
The FEIR next argues, “[T]he Sacramento Metropolitan Air Quality Management District (SMAQMD), which is the expert air quality agency with jurisdiction in the Project area, does not have established significance thresholds or methods specifically for analysis of PM2.5 concentrations that include ultrafines.” (FEIR, p. 26-383.) However, the law is well settled that the absence of an existing significance threshold does not excuse an agency from analyzing an impact. (Visalia Retail, supra, 20 Cal.App.5th at 13; Amador Waterways, supra, 116 Cal.App.4th at 1108-1109.) Further, a CEQA lead agency is required to determine whether it is feasible to analyze an impact even when one regulatory agency has not adopted a methodology to analyze an impact. (Berkeley Keep Jets, supra, 91 Cal.App.4th at 1370 [agency was required “to do the necessary work to educate itself about the different methodologies that are available”].)
Third, the FEIR attempts to dismiss the handful of scientific studies transmitted along with our prior comment letter. The FEIR asserts, “For clarification, the studies cited in the comment (presented as Exhibits 12 through 15) appear to be inconclusive and/or demonstrate a correlation between ultrafine particulates and health outcomes like mortality, but they do not offer proof of causation.” This is not a legitimate basis to avoid analysis. The Sierra Club decision does not require “proof of causation.” Rather, our Supreme Court in Sierra Club only requires an EIR to “correlate” air emissions to human health impacts if it is feasible to do so. Here, the FEIR acknowledges that these few studies “demonstrate correlation between ultrafine particulates and health outcomes.” Berkeley Keep Jets requires the County to research whether methodologies are available to study the human health impacts, and Sierra Club requires the County to “correlate” these ultrafine emissions to identified human health impacts unless the FEIR affirmatively shows that it is infeasible to do so. The FEIR has utterly failed to comply with its duty to analyze and disclose serious human health impacts potentially resulting from the Project.
In addition to the DEIR and FEIR’s failure to provide analysis and disclosure of ultrafine particle effects, the mitigation approach fails to adopt feasible mitigation identified in previous comments and fails to account for scientific information relevant to the efficacy of the proposed approach. The FEIR states that for future proposed sensitive land uses within 1,000 feet of I-80, the project applicant shall install, operate and maintain in good working order a central HVAC system or other air intake system in the Board of Supervisors
County of Sacramento
August 19, 2025
building, or in each individual unit, that meets or exceeds a minimum efficiency reporting value of 13 or higher. (FEIR, p. 6-51.) This mitigation approach falls short of what is required.
The ability to capture ultrafine particles in high-exposure environments depends on both the quality of the filter medium,19 and the number of air changes per hour,20 and the degree to which the building envelope is airtight.
The response to comments states that ensuring airtight building envelopes (a design standard necessary to ensure the efficacy of mitigation) would be cost prohibitive and economically infeasible. (FEIR, p. 26-386.) This response provides no factual support or analysis to substantiate this conclusion and thus fails to provide substantial evidence for the conclusion that additional mitigation is not feasible. While ventilation systems in private homes, unlike institutional settings, are operated at the discretion of the occupants, the County could provide advisory information to future residents to encourage compliance.
In addition, relative to standard methods for mitigation of air pollution, there is additional analysis and mitigation that is required. For example, the efficacy of filtration for indoor air quality depends in part on air changes per hour.21 The absence of any analysis using these metrics to ensure that adequate levels of filtration are utilized to protect indoor air quality leaves an information gap regarding additional mitigation that may be required.
In response to our comment 19-56 that mitigation measure AQ-4a is not enforceable, the FEIR purports to revise it. (FEIR, p. 26-387.) However, the revised mitigation measure remains unenforceable because it provides, “The specific plan design guidelines and development standards of the proposed UWSP shall include
19 Parham Azimi, Dan Zhao, Brent Stephens. 2014. Estimates of HVAC filtration efficiency for fine and ultrafine particles of outdoor origin. Atmospheric Environment 98 (2014).
20 United States Environmental Protection Agency. 2025. How Much Ventilation Do I Need in My Home to Improve Indoor Air Quality? Available:
https://www.epa.gov/indoor-air-quality-iaq/how-much-ventilation-do-i-need-my-home- improve-indoor-air-quality [“[H]omes receive 0.35 air changes per hour but not less than 15 cubic feet of air per minute (cfm) per person as the minimum ventilation rates in residential buildings in order to provide IAQ that is acceptable to human occupants and that minimizes adverse health effects.”] [“USEPA, 2025.”] 21 USEPA, 2025.
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August 19, 2025
recommendations in land use siting as applicable using CARB’s ‘Strategies to Reduce Air Pollution Exposure Near High Volume Roadways’ Technical Advisory and the AQMD’s ‘Mobile Sources Air Toxics Protocol’ or applicable AQMD guidance to establish buffer distances.” (FEIR, p. 26-387, emphasis added.) Thus, even the revised mitigation measure only requires the Project planning documents to merely “recommend[s]” the referenced buffer distances; it does not actually require the Project to actually adopt the buffer distances. The mitigation measure remains ineffective and unenforceable.
In summary, the County has thus failed to disclose the unique levels of and substantially more severe health effects of ultrafine particles that will occur from the Project due to proximity to Interstate 80, in violation of CEQA. (Sierra Club, supra, Cal.5th 502 at p. 510 [failure to disclose health impacts or adopt mitigation measures with clear enforceable performance criteria violated CEQA].)
• Response to Comments 19-58 through 19-65
The County provides a lengthy set of responses to issues raised in our previous comments regarding deficiencies in the consideration of alternatives. (FEIR, pp. 26-391 to 26-395.) Notably, the consideration of Alternatives in Section 3 of the FEIR is devoid of any strikethrough indicating text revisions to address previously identified deficiencies. The County’s responses fail to remedy the previously described deficiencies in the consideration of alternatives.
First, the purpose of comparing alternatives is to identify ways to reduce environmental effects. (CEQA Guidelines, § 15126.6, subd. (a).) Second, while there are factors the County may consider when rejecting alternatives based on feasibility, “[n]o one of these factors establishes a fixed limit on the scope of reasonable alternatives.” (CEQA Guidelines, § 15126.6, subd. (f)(1).) CEQA requires thus a balancing of the extent and degree to which alternatives would meaningfully reduce significant impacts relative to the factors that purportedly make an alternative feasible or infeasible as well as their ability to achieve project objectives. The County’s dismissal of alternative locations relies on speculative assertions that are not grounded in any factual discussion of discrete properties or locations or identified resources at those locations.
An example of the factual deficits in the County’s analysis may be found in the bare assertion that alternative sites would potentially have greater air quality and greenhouse gas emissions impacts relative to the Project. (FEIR, p. 3-4.) This assertion is not based on any facts substantiating these impacts nor is grounded in a comparison of how specific alternative locations would fare when all the potential impacts are compared Board of Supervisors
County of Sacramento
August 19, 2025
against the myriad of significant and unavoidable impacts of the Project. In other words, the County has failed to provide a specific comparison of concrete impacts associated with particular alternative locations relative to the many significant and unavoidable impacts acknowledged in the FEIR for the proposed Project.
In a similar fashion, the FEIR, like the DEIR, concedes that alternative locations could feasibly achieve most of the Project objectives, but dismisses these for lack of proximity to a major transportation corridor. (FEIR, p. 3-5.) CEQA requires factual support for a lead agency’s conclusions; “[c]onclusory statements unsupported by factual information will not suffice.” (League to Save Lake Tahoe v. County of Placer (2022) 75 Cal.App.5th 63, 160; CEQA Guidelines, § 15088, subd. (c) [conclusory information in the response to comments provided in an EIR absent factual support violates CEQA].)
One specific example of the FEIR’s failure to provide specific responses to comments concerns the FEIR’s rejection of offsite alternatives based on Mr. Gidaro’s failure to “control” offsite properties. (FEIR, 26-392.) Our prior comment letter questioned the logic of this justification since Mr. Gidaro only controls 1.53 percent of the Project area. (FEIR, 26-393.) We explain:
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.
(FEIR, p. 26-393, emphasis added.)
The FEIR completely ignores this point by asserting it is addressed in a response to another comment. (FEIR, p. 26-393.) It is not. Thus, the FEIR simply ignores how it is reasonable to reject an offsite alternative due to lack of “control” when the project applicant “controls” only 1.53 percent of the Project site. 22
22 We also noted that the DEIR provided no information supporting its assertion that Mr. Gidaro controlled up to 14 percent of the Project area vis-a-viz so-called “participating” properties. (FEIR, p. 26-348) The FEIR failed to provide any explanation or evidentiary support for how Mr. Gidaro “controlled” these “participating” properties, which would bring his control up to 14 percent ownership. (FEIR, pp. 26- 348, 393.)
Board of Supervisors
County of Sacramento
August 19, 2025
While the FEIR disclaims that it rejected offsite alternatives due to “control” by Mr. Gidaro, that is plainly false. (See, FEIR, p. 26-392.) Indeed, the FEIR reiterates that it rejected offsite alternatives from consideration because “planning applications for these lands have already been filed with the City of Sacramento and the County of Sacramento.” (FEIR, 26-348.) This is just another way of rejecting offsite alternatives without consideration because the planning application were not submitted by Mr.
Gidaro. We addressed this very point in our DEIR comments, explaining:
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].)
(FEIR, p. 26-392.)
Yet again, the FEIR completely ignores this important point. (FEIR, p. 26-393.) The only relevant consideration is whether these alternative planning applications would satisfy the stated project objectives and not the identity of the party submitting the application, and the FEIR concedes that certain offsite alternatives “could feasibly achieve many of the project objectives.” (FEIR, p. 26-348.)
Finally, implicitly acknowledging the DEIR’s dismissive treatment of alternative project locations, the FEIR attempts to shore up that inadequacy by referencing purported “8,900 on-site jobs” that would be created by the Project.” (See, e.g., FEIR, pp. 3-5, 3-8.) Setting aside that these jobs are sheer speculation, the FEIR’s attempt to reject alternative locations on this basis violates CEQA because the EIR’s project objectives do not require the creation of 8,900 jobs. (FEIR, pp. 2-13 – 14.) The FEIR’s attempt to bolster the DEIR’s flawed alternatives analysis therefore fails.
In sum, the EIR’s analysis of alternatives violates the “rule of reason,” which is the standard that a reviewing court will employ when assessing the FEIR’s analysis of alternatives, and the FEIR’s wholesale failure to address this critical issue violates CEQA’s mandate to provide a good faith response.
II. THE DEIR’S PROJECT DESCRIPTION IS DEFICIENT
The CEQA Guidelines unambiguously require that an EIR identify the major components of the project, including any “supporting public service facilities.” (CEQA Board of Supervisors
County of Sacramento
August 19, 2025
Guidelines, § 15124, subd. (c).) This content in turn supports the EIR’s function as an “informational document” that informs the public and decisionmakers of the significant effects of the project. (CEQA Guidelines, § 15121, subd. (a).)
The stability and accuracy of the project description is in turn necessary to support the analysis of means of minimizing environmental effects, consistent with the requirements of CEQA. (Pub. Resources Code, § § 21002.1; CEQA Guidelines, § 15121, subd. (a).) CEQA case law reinforces this rule. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 442 [Vineyard] [when a lead agency relies on information that is not clearly presented in an EIR in support of a decision it fails to proceed as required by law].)
At a recent meeting of the Sacramento County Planning Commission, staff for County stated that a “backup” water supply for the Project would be provided by Natomas Mutual Water Company if the City of Sacramento cannot provide water to the Project. The only reference to Natomas Mutual Water Company in the FEIR occurs in a comment stating that Natomas Mutual Water Company does not supply water suitable for municipal use due to arsenic contamination and that the State of California has not approved that entity for supplying domestic users. (FEIR, p. 26-624.) The City’s only response regarding water supply is to reaffirm the belief that the City of Sacramento will in fact supply the Project. (FEIR, p. 26-625.)
Because the treatment plant needed to support the contingency in which Natomas Mutual Water Company supplies the Project is not described in the EIR, the EIR’s project description and attendant analysis of environmental impacts is legally deficient.
It fails to put both the decision makers and public on notice regarding the nature and effects of the Project and also fails to satisfy the duty of the County to mitigate environmental consequences. (Pub. Resources Code, § 21002.1; CEQA Guidelines, § 15121, subd. (a); Vineyard, supra, 40 Cal.4th at 442.)
III. VIOLATIONS OF THE PLANNING AND ZONING LAW
The Project’s patently gross inconsistency with County General Plan Policy LU- 127 and LU-120 constitutes a violation of California’s Planning and Zoning law, and CEQA, as described below. (Pub. Resources Code, § 21000 et seq.; Gov. Code, § 65000 et seq.) The County has yet to identify the Project’s inconsistency with County General Plan Policy LU-127 in any impact discussion in the FEIR. The FEIR only identifies this issue in response to comments. (FEIR, p. 26-20.) The failure to disclose this impact and put the decision makers and public on notice regarding this policy inconsistency remains Board of Supervisors
County of Sacramento
August 19, 2025
an informational deficiency that constitutes an abuse of discretion due to a failure to proceed as required by law. (Sierra Club, supra, 6 Cal.5th at 510.)
California law also requires that each city and county adopt a general plan that governs long term planning. (Gov. Code, § 65300.) No specific plan may be adopted unless it is consistent with the general plan. (Gov. Code, § 65454.) The adoption or amendment of a general plan is a legislative act that is reviewable under section 1085 of the California Code of Civil Procedure. (Gov. Code, § 65301.5 [Section 1085 provides for a traditional writ of mandate as a means of compelling compliance with California law].) The FEIR acknowledges that a General Plan amendment to extend the UPA and USB would be required. (FEIR, p. 2-14.) Under Sacramento County General Plan Policy LU-120 an extension of the UPA must meet ten criteria, PC-1 through PC-10.23 PC-9 requires consideration of consistency with local planning efforts including habitat conservation plans.24
The County is not currently a permittee under the NBHCP.25 The Project is also outside the NBHCP “Permit Area”—i.e., the area in which permitted entities may engage in take of state of federally listed species.26 Previous comments have flagged the issue that development outside the permit area has dire consequences for the efficacy of the NBHCP. (FEIR, p. 26-183, Comment 15-20, citing National Wildlife Federation v.
Norton, Civ-S-04-0579 DFL JFM (E.D. Cal. Sep. 8, 2005) [pg. 30 of the decision states development in the Natomas Basin outside the 17,500-acre permit area would significantly impact efficacy of the NBHCP and covered species and would potentially result in jeopardy].) The County’s master response to this question fails to provide a meaningful analysis of the potential for jeopardy caused by additional development the Project would cause outside the permit area. (FEIR, p. 26-11 to 16-12.) This in turn means that the County is not making the required showing to satisfy County General Plan Policy LU-120 and the requirements of PC-9 [consistency with adopted plans].) The County is thus building a record for adoption of the Project that demonstrates
23 2022. Sacramento County. Sacramento County General Plan, Land Use Element, p. 132.
24 Schraufnagel, p. 136.
25 Natomas Basin Conservancy. 2003. Natomas Basin Habitat Conservation Plan, Plan Implementation, p. VI-1. Available: https://natomasbasin.org/wp- content/uploads/natomas-basin-habitat-conservation-
plan/8nbhcpplanimplementation2006_a11y.pdf.
26 Natomas Basin Conservancy. 2003. Figure 2. Land Use Agencies Permit Areas. https://natomasbasin.org/wp-content/uploads/2014/05/fig02_hcp.pdf Board of Supervisors
County of Sacramento
August 19, 2025
inconsistency with the General Plan, in violation of Government Code section 65454, which requires that specific plans be consistent with the General Plan.
* * *
The DEIR remains woefully inadequate as an informational document, and the FEIR now compounds the County’s violations of CEQA by failing to provide good faith responses to public comments highlighting the DEIR’s numerous defects. Further, the Project flagrantly violates numerous County policies designed to avoid or mitigate the significant environmental impacts from the urban sprawl manifested by the Project.
Thank you for the opportunity to comment.
Very truly yours,
SOLURI MESERVE
A Law Corporation
By:
Patrick M. Soluri
cc (via email):
County of Sacramento Board of Supervisors:
Phil Serna, Chair, District 1, [email protected] Patrick Kennedy, District 2, [email protected] Rich Desmond, District 3, [email protected]
Rosario Rodriguez, Vice Chair, District 4, [email protected] Pat Hume, District 5, [email protected]
County of Sacramento, Department of Community Development Planning and Environmental Review Division, [email protected]
Attachments:
Exhibit 1, Comments from Shawn Smallwood, Phd
Exhibit 2, Comments from Daniel T. Smith Jr., P.E.
Exhibit 3, Comments from Ralph Propper & Earl Withycombe
Flash drive with additional scientific/technical reports and reference materials to be separately transmitted to County
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
16 August 2025
RE: Upper Westside Specific Plan DEIR
Dear Ms. Newton,
I write to reply to the County of Sacramento’s responses to my 25 October 2024 comments on the DEIR prepared for the proposed Upper Westside Specific Plan project.
In my replies below, I further separate some responses by letter. I do this for responses to multiple comments or issues under one response number.
Response 19-67a: ...The environmental setting in the UWSP meets the requirements of CEQA and was based on the best available data at the time the Draft EIR was written.
Sources are outlined on pages 7-2 and 7-3 and noted in Table BR-2: Special-Status and NBHCP and MAP HCP Covered Species Evaluated for Potential Occurrence in the UWSP Area in the UWSP Draft EIR. This approach is consistent with the requirements of CEQA Guidelines Section 15125.
Rebuttal: If the environmental setting is inaccurately described, then it might do more harm than good to the CEQA process. The DEIR insinuates that the project area is of low value to wildlife, which is an inaccurate and misleading characterization of the environmental setting. Furthermore, the DEIR does not provide its supporting survey details needed to fully interpret survey findings, and it does not qualify its insinuation of low habitat value, especially in light of the fact that its supporting surveys detected 103 species of vertebrate wildlife.
Response 19-67b: ...Table 1 indicates that the commenter’s biologist recorded species that were observed in surveys conducted by Bargas and/or Helix in support of the Draft EIR, as well as a few species that were observed by the commenter but not observed in the Bargas and/or Helix surveys.
Rebuttal: Sixteen species is more than a “few species,” especially considering that four of these 16 species were special-status species. One of these species was the California Threatened tricolored blackbird. That the Applicant’s consultants failed to detect tricolored blackbirds is not an insignificant miss.
2 The County’s dismissive responses in Response 19-67 and Response 19-93 prompted me to return to the project site for another survey. I initiated a visual-scan survey on Radio Road at 18:56 hours, and I continued the survey into the night by switching to use of a Petterson M500 acoustic bat detector that was cabled down a 30-foot pole to my computer. On my computer was Sonobat Live, which identifies species of bats detected by their sonograms. My daylight visual-scan survey lasted 1.15 hours, and my nocturnal survey lasted 2.18 hours. The sky was clear with 8 mph south winds, and the starting and ending temperatures were 87 and 71 F.
I detected 22 species of vertebrate wildlife that I had not previously detected, bringing my total on the project site to 95 (Table 1). Of these 22 species, 6 or 7 were special- status species, the uncertainty of the 7th depending on whether I truly detected pallid bat. Pallid bat was identified as possibly present, but Sonobat Live did not obtain a sufficiently clear sonogram to confirm the identity. These latest detections bring my total detections of special-status species to 23 or 24 on the project site (e.g., Figures 1-6).
In my second survey effort I detected another 16 species of vertebrate wildlife that had not been detected by the Applicant’s consultants. This doubles my total to 32 species that I detected but the consultants did not. Most of the species I detected but the consultants did not were nocturnally active species including a barn owl and seven or eight species of bats, the number depending on the veracity of the pallid bat identification. The Applicant’s consultants obviously did not survey for wildlife at night.
My rate of species detections in the daylight portion of the evening exceeded the upper bound of the 95% confidence interval estimated from evening surveys I have completed at 12 other sites in the Sacramento Valley (Figure 7). This finding is consistent with my higher rate of species detections I realized during my morning survey on 23 October 2024 (see Figure 1 in my 25 October 2024 comment letter). And although I detected seven or eight bat species in my nocturnal survey, a nonlinear model fit to my data predicts I would have detected 13 species of bats with an increased survey effort on the night of 14 August 2025 (Figure 8). I need to add that the bat activity I detected on the project site. I detected 106.3 bat passes per hour on the project site. Compared to 23 other sites where I measured bat passages, the bat passages I measured at the project site was the second highest behind a site in Goleta, California, where I measured 140 bat passages/hour while stationed next to stream with riparian vegetation. The passage rate I measured at the project site far exceeded the mean 19.8 bat passes/hour measured elsewhere, and it also far exceeded the upper bound of the 95% confidence interval, which was 32.8.
The consultants’ surveys and mine combined, we have detected 135 species of vertebrate wildlife on the Specific Plan area, including 34 or 35 special-status species. But these 135 species are not the only species that occur on the project area. Applying my daylight detections of wildlife species to the same analytical bridge to a larger research site that I made use of on pages 17-18 of my 25 October 2024 comment letter, my predicted number of diurnally active species on the site increases to 279. Adding the 13 species of bats predicted in Figure 8, and the number of wildlife species predicted to occur on the 3 site is 292. But there are more species yet, and these could be detected through additional survey efforts including trapping.
Figures 1 and 2. Example sonograms of big brown bat (top) and little brown bat (bottom) on the project site, 14 August 2025, as recorded by a Petterson M500 bat detector and identified to species by Sonobat Live.
4 Figures 3 and 4. Example sonograms of silver-haired bat (top) and Yuma myotis (bottom) on the project site, 14 August 2025, as recorded by a Petterson M500 bat detector and identified to species by Sonobat Live.
5 Figures 5 and 6. Example sonograms of Mexican free-tailed bat (top) and western red bat (bottom) on the project site, 14 August 2025, as recorded by a Petterson M500 bat detector and identified to species by Sonobat Live.
The survey evidence, if processed and analyzed appropriately, reveals that an exceptionally rich wildlife community is present on the Specific Plan area. If the fields were not disked as frequently and if the canal banks were managed to allow more vegetation growth, the species richness and overall wildlife abundance would be much greater. But if any of the NBHCP’s conservation strategy was to extend to the Specific
6 Plan area through land protection as mitigation or as additional reserves or enhanced connectivity, the positive effects on wildlife would be explosive. The capacity is very high for conserving wildlife in this area by restoring habitat.
Response 19-67c: Such variability is to be expected in random surveys as seasonality of species activity and survey methods are reasonably expected variables. Such variability does not invalidate the surveys upon which the environmental setting was based.
Rebuttal: The response misrepresents my comments, and I disagree that any of the surveys were “random.” In no way did I suggest that the consultants’ surveys should be considered invalid. I asserted that they were incompletely reported, and their findings were incompletely and misleadingly interpreted.
Response 19-67d: Furthermore, the potential to occur tables in the EIR are not based solely on observations, but on habitat suitability and geographic range of species as well.
Rebuttal: This response seems out of place. Regardless, it perpetuates a fundamental error of the DEIR. The error is in using a California Natural Diversity Data Base (CNDDB) query to screen out of the analysis of occurrence likelihoods every species that lacks occurrence records within whatever distance from the project site the query extended (the spatial extent of the query is not recorded). Because these species that did not come up in the CNDDB query would have been immediately omitted from further consideration, they unlikely underwent habitat assessment. There is no evidence in the DEIR that these species were considered for the presence of habitat and geographic range overlap with the project. And as an aside, the term habitat suitability is redundant because there is no such thing as unsuitable habitat. If a place provides a species with habitat, how can the habitat be unsuitable?
Response 19-67e: Most of the species that were observed by the commenter, but which were not identified in the surveys conducted by Bargas and/or Helix were common species that are not considered sensitive, such as Northern shoveler, raccoon, coyote and striped skunk.
Rebuttal: To be exact, 12 of the 16 species I detected in addition to those detected by the consultants were not special-status species. To characterize these species as “common” is misleading as well as unqualified. Perhaps the County meant to characterize these species as not assigned special status, but characterizing these species as “common” is misleading, as some of the species are common while many others are rare. The response also implies that these species are irrelevant to environmental review, but they are not.
7 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 (X) and again for 3.33 hours starting at 18:56 hours on 14 August 2025 (XX).
Common name Species name Status1 Bargas Helix KSS Notes American bullfrog Lithobates catesbeianus Non-native XX 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 XX
Wild turkey Meleagris gallopavo X
Ring-necked pheasant Phaianus colchicus Non-native X
Pied-billed grebe Podilymbus podiceps X XX
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
Virginia rail Rallus limicola XX Just off site
Black-necked stilt Himantopus mexicanus X Just off site Killdeer Charadrius vociferus X X
Whimbrel Numenius phaeopus X
Short-billed dowitcher Limnodromus griseus BCC XX
Greater yellowlegs Tringa melanoleuca X Just off site Caspian tern Hydroprogne caspia XX
8 Common name Species name Status1 Bargas Helix KSS Notes 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
Green heron Butorides virescens XX
Great blue heron Ardea herodias X X X
Great egret Ardea alba X X X
Snowy egret Egretta thula X X X
White-faced ibis Pledagis chihi TWL X Hundreds
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
American barn owl Tyto furcata BOP XX
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
9 Common name Species name Status1 Bargas Helix KSS Notes 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
Violet-green swallow Tachycineta thalassina X
Northern rough-winged
swallow Stelgidopteryx serripennis
X XX
Barn swallow Hirundo rustica X XX
Cliff swallow Petrochelidon pyrrhonota X XX
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 10 Common name Species name Status1 Bargas Helix KSS Notes 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 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 XX
Mexican free-tailed bat Tadarida brasiliensis WBWG:L XX Big brown bat Episticus fuscus WBWG:L XX
Silver-haired bat Lasionycteris noctivagans WBWG:M XX Yuma myotis Myotis yumanensis WBWG:LM XX
Western red bat Lasiurus blossevillii
SSC,
WBWG:H
XX
California myotis Myotis californicus WBWG:L XX
Canyon bat Parastrellus hesperus WBWG:L XX
Little brown bat Myotis lucifugus WBWG:M XX
11 Common name Species name Status1 Bargas Helix KSS Notes Pallid bat Antrozous pallidus
SSC,
WBWG:H
XX
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
California vole Microtus californicus XX
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. 12 Figure 7. Actual and
predicted relationships
between the number of
vertebrate wildlife species
detected and my elapsed
survey time during the
daylight portion of my
evening survey on 14 August
2025.
Figure 8. Actual and
predicted relationship
between the number of bat
species detected and my
elapsed survey time during
the nocturnal portion of my
evening survey on 14
August 2025.
Most environmental reviews pursuant to the California Environmental Quality Act (CEQA) focus on special-status species because CEQA’s Checklist Evaluation of Environmental Impacts specifies that such evaluation includes potential impacts to 0 50 100 150 200 250 300
Minutes into survey
0 2
4 6
8 10
Cumulative number of bat species detected
r2 = 0.97
0 50 100 150 200 250 300
Minutes into survey
0 10
20 30
40 50
60 70
80 90
Cumulative number of wildlife species detected
Model prediction; r2 = 0.98
95% CI of visual-scan
surveys 2019-2025
Actual count of species
13 special-status species. However, an important policy of CEQA is “to prevent the elimination of fish or wildlife species due to man’s activities, insure that fish and wildlife populations do not drop below self-perpetuating levels, and preserve for future generations representations of all plant and animal communities and examples of the major periods of California history.” Pub. Res. Code § 21001(c). This policy is not restricted to special-status species, but applies to wildlife populations and plant and animal communities. In fact, the CEQA Guidelines Section 21155.1 defines wildlife habitat as “the ecological communities upon which wild animals, birds, plants, fish, amphibians, and invertebrates depend for their conservation and protection.” This definition is consistent with the scientific definition of habitat, which is that portion of the environment that is used by members of a species for survival and reproduction (Hall et al. 1997). An essential portion of the environment used by any special-status species is composed of the collection of other species of plants and wildlife, because these species are forage, provisioners of refugia and nest substrates, and ecological mutualists; no special-status species can exist in a vacuum of other wildlife. The CEQA Checklist Evaluation assigns priority to special-status species to balance information and cost, but it does not exclude the need to evaluate environmental impacts to other species, which, after all, are members of the very communities within which special- status species inter-depend for survival and reproduction.
Response 19-67f: The commenter indicates that s/he observed two special status species that were not identified in the surveys conducted for the Draft EIR;
Rebuttal: There were four species: western gull, white-faced ibis, peregrine falcon, and tricolored blackbird.
Response 19-67g: each of these species, however, was identified as a potential species and addressed in the Draft EIR impact analyses. Tricolored blackbird is identified in Table BR-3 as having suitable habitat present. Potential impacts to special status bird species were addressed in Draft EIR Impact BR 5 and measures that would avoid or reduce the magnitude of impacts to insignificance include Mitigation Measures BR-1, BR-2a, and BR-5.
American peregrine falcon, a protected raptor, was observed by the commenter but not in the Bargas or Helix surveys. Nevertheless, similar to Tricolored blackbird, potential impacts to special status bird species were addressed in Draft EIR Impact BR-5 and measures that would avoid or reduce the magnitude of impacts to insignificance include Mitigation Measures BR-1, BR-2a, and BR-5.
Rebuttal: The response is inaccurate and misleading. Western gull is not identified in the DEIR as potentially occurring.
Whereas the DEIR and Bargas (2022) assign moderate occurrence potential to white- faced ibis, Helix (2024) concludes it is not expected to occur. As I reported, white-faced ibis does occur.
14 The DEIR assigns peregrine falcon only a low likelihood of occurrence, which is obviously inaccurate.
Whereas the DEIR and Bargas (2022) assign moderate occurrence potential to tricolored blackbird, Helix (2024) says it “may occur.” All these occurrence likelihoods are inaccurate, especially that of Helix (2024). Peregrine falcon, like the three preceding species, certainly occurs on the project site.
The response adds that certain mitigation measures would result in less-than-significant impacts, anyway, as if to suggest that these measures can cover for any mistakes in the habitat assessments. However, this is a poor foundation for environmental review. If the baseline study is inaccurate in its characterization of the wildlife community, then its basis for predicting impacts and formulating mitigation measures is unsound.
Response 19-67h: These examples demonstrate that while the surveys that were undertaken to characterize the environmental setting have a to-be-expected degree of variability, the analysis of impacts was based on the types of habitats that exist and the types of species that would be expected to be present in those habitats, and not just observed species. This methodology is conservative and protective of biological resources that could be adversely affected by the implementation of the proposed project. The evidence provided in this comment validates and reinforces the adequacy of the assessment of impacts to biological resources presented in Chapter 7, Biological Resources, of the Draft EIR.
Rebuttal: The exact opposite is true. Speculated occurrence likelihoods repeatedly under-estimate the likelihoods of occurrence of special-status species. Observations from greater survey effort have proven this to be the case, and not just for these four special-status species but also for double-crested cormorant. I also detected multiple special-status species on the project site that the DEIR omitted from its occurrence likelihood analysis due to its misuse of the CNDDB. These species include oak titmouse, yellow-billed magpie, turkey vulture, red-tailed hawk, great horned owl, Nuttall’s woodpecker, and American kestrel. The most effective method of habitat analysis is survey to detect as many of the species as reasonably possible, because detections bring certainty to habitat determinations. Unless detection survey protocols were followed or unless reconnaissance surveys were repeated so many times as to be exhaustive, the absence of detections leaves the analyst uncertain about whether the site provides habitat. Where there is this uncertainty, the prudent assessment is to assume presence, consistent with the precautionary principle in risk analysis involving rare or precious resources (National Research Council 1986).
To further make my point, I updated Table 2 from my 25 October 2024 comment letter, adding species detections following my 14 August 2025 survey. The update reveals 36 or 37 special-status species documented on the project site. This revised number includes one species – little brown bat – that not even I considered likely to occur, but this goes to show the need to actually survey for wildlife rather than to speculate. Nineteen of these species did not survive the DEIR’s screening of species with its inappropriate use of the CNDDB, and three were assigned occurrence likelihoods that were proven wrong. 15 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
16 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
17 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; On
site
Western screech-owl Megascops kennicotti BOP Very close Great horned owl Bubo virginianus BOP On site
18 Common name
Species name
Status1
Occurrence potential
Bargas
2022
Helix 2024
DEIR
Data base
records,
Site visits
Burrowing owl Athene cunicularia BCC, SSC2,
BOP
Moderate May occur /
Habitat present
Moderate On site
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
19 Common name
Species name
Status1
Occurrence potential
Bargas
2022
Helix 2024
DEIR
Data base
records,
Site visits
Grasshopper sparrow Ammodramus
savannarum
SSC2 Won’t occur Low Nearby
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 On site
Small-footed myotis Myotis ciliolabrum WBWG: M In range Little brown bat Myotis lucifugus WBWG:M On site
Canyon bat Parastrellus hesperus WBWG:M On site2
Silver-haired bat Lasionycteris
noctivagans
WBWG:M Low On site
Hoary bat Lasiurus cinereus WBWG:M Low Nearby
Western red bat Lasiurus blossevillii SSC, WBWG:H On site Townsend’s big-eared
bat
Corynorhinus
townsendii
SSC, WBWG:H In range
20 Common name
Species name
Status1
Occurrence potential
Bargas
2022
Helix 2024
DEIR
Data base
records,
Site visits
Pallid bat Antrozous pallidus SSC, WBWG:H May occur /
Habitat present
Moderate Possibly on
site3
American badger Taxidea taxus SSC Won’t occur Not expected In region 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, WL = CDFW’s Taxa to Watch List, and BOP = protected by Birds of Prey (CFG Code 3503.5), and WBWG = Western Bat Working Group with priority rankings, of low (L), moderate (M), and high (H).
2 Species identification is probable, according to Sonobat Live. 3 This bat was indefinite in its species identification by Sonobat Live, so it possibly occurs on site.
21 Response 19-67i: The fact that the comment includes a survey approach and statistical analysis that differs in some fashion from the approach undertaken for the Draft EIR does not invalidate the analysis in the Draft EIR. CEQA Guidelines section 15151 states that “[d]isagreement among experts does not make an EIR inadequate,” and “courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” The discussion of the environmental setting for biological resources in the Draft EIR meets this standard.
Rebuttal: My comments go to “…adequacy, completeness, and a good faith effort at full disclosure.” To meet these standards, the DEIR needs to disclose the survey methods that the reader needs to appropriately interpret the survey findings. The DEIR also needs to report the survey findings in a manner that the reader needs to understand the implications. The reader needs to understand the limitations of the surveys, and whether more species could have been found had the surveys started earlier in the day or had they lasted longer. Recording the time into the survey of each new species detection gives the reader the means to assess how many more species could have been detected with more biologists or longe survey duration. A comparison of survey findings to the findings of surveys completed elsewhere can provide context for interpreting the survey findings. Are the survey outcomes at the project site unusual? The same as everywhere? This is why my survey results include confidence intervals, which are based on surveys at the same time of day at other sites in the region. The consultants’ surveys are not reported with any of this; they are missing essential methodological details, details about results that are needed for interpreting the results, and context. Without these attributes, there is no way the DEIR’s supporting surveys meet the standards of adequacy, completeness, and good faith effort at full disclosure
Response 19-68: The survey findings, as presented by Bargas (2020) and Helix (2024), along with other best available existing data on special-status species (including species occurrence data within the CNDDB and an analysis of habitat suitability), was used to establish the biological setting and to form the basis of the analysis of species’ potential to occur in the UWSP area, as described under the Special-Status Species discussion on pages 7 10 to 7-12 of the Draft EIR. This meets the requirements of CEQA.
Please also see Response 19-67 above.
Rebuttal: The response skips over my comments, and it is conclusory. My comments pointed out the lack of disclosure of baseline study limitations, the lack of reporting of essential survey methodological details, no explanation over why or how Helix (2024) detected so many fewer species than did Bargas (2022), and the lack of a coherent description of the wildlife community including a list of the species that compose the community. I also commented on the DEIR’s insinuation that the project site provides only low habitat value to wildlife.
Response 19-69a: CEQA does not require any particular method of characterization of the environmental setting, and does not require or recommend presence/absence surveys be conducted in support of the Biological Resources Environmental Setting discussion.
22 Rebuttal: The CEQA requires an EIR to determine whether any of the following conditions would be significant: “(1) The project has the potential to: substantially degrade the quality of the environment; substantially reduce the habitat of a fish or wildlife species; cause a fish or wildlife population to drop below self-sustaining levels; threaten to eliminate a plant or animal community; substantially reduce the number or restrict the range of an endangered, rare or threatened species…” One of CEQA’s primary objectives is that the environmental review be informative of the current environmental setting and potential project impacts. Another objectives is for the lead agency to publicly disclose potential environmental impacts of a proposed project so that decision-makers and the public can make more informed decisions over whether and how to proceed with a proposed project. (Another is to consider public comment for the purpose of identifying issues and feasible alternative mitigation measures.) The primary CEQA objective regarding biological resources is to analyze potential project impacts to special-status species and their habitats. At §15147, the CEQA Guidelines require “The information contained in an EIR shall include summarized technical data, maps, plot plans, diagrams, and similar relevant information sufficient to permit full assessment of significant environmental impacts by reviewing agencies and members of the public.”
Over decades of environmental review pursuant to the CEQA, the resource agencies, the scientific community, and the courts have worked out methods for most efficiently developing the information needed to meet the CEQA’s requirements and objectives.
The methods developed thus far remain far from perfect with respect to wildlife, partly because it has been understood that information value must be balanced by cost, but there are affordable methods that are more scientific and that are more effective than others, and considering the CEQA’s requirements and objectives, the more effective methods are the methods that need to be used. Certainly, CEQA discourages speculation, so any method that minimizes the need for speculation and remains affordable is preferable. And certainly, the CEQA’s flexibility over survey methods does not condone the misuse of the CNDDB to screen many special-status species from further habitat assessment.
My comments go to inappropriate conclusions of low habitat value that were drawn from cursory surveys that could not have possibly achieved anywhere close to representing the species inventory of the wildlife community. My comments go to determinations of species absences or of low likelihoods of occurrence that could not be supported by protocol-level detection surveys because no such surveys were completed.
My comments go to the DEIR’s misuse of the CNDDB, which the response does not address directly. Nor does the response address my comments that special-status species occurrence likelihoods are inconsistent among Bargas (2022), Helix (2024) and the DEIR, and they often fail to comport with the evidence in survey outcomes and the proximities of occurrence records.
Many of the questions that need to be answered to achieve the CEQA’s requirements and objectives start with the question of whether a particular special-status species is present, and there are two ways to address this question. One is to assume presence in the face of uncertainty consistent with the precautionary principle. The other is to 23 perform surveys to determine presence/absence; these surveys are known as detection surveys. In the case of some special-status species, reconnaissance surveys can detect the species and hence confirm presence without incurring more cost. For this reason, I recommend conducting multiple reconnaissance-level surveys at day and night to detect as many of the species as reasonably feasible. In the case of other special-status species, protocol-level detection surveys are needed. The resource agencies have formulated detection survey protocols for many of these species, and lead agencies are expected to use them when needed. In the cases of listed species and species that are candidates for listing, detection surveys are necessary for the purpose of obtaining an incidental take permit.
If for any special-status species whose geographic range overlaps the project site and for which environmental conditions at the site are plausibly consistent with conditions where the species is found, then an EIR that concludes it is absent or of low likelihood to occur without having first conducted a detection survey is at risk of losing credibility. It is widely known to consulting biologists that detection survey protocols are available and the experts who formulated the protocols expect the protocols to be used. The CDFW has posted many of the protocols on its website: https://wildlife.ca.gov/ Conservation/Survey-Protocols. The alternative for maintaining credibility is to refrain from concluding that a special-status species is absent or of low likelihood to occur without having completed a detection survey. The CEQA does not require that absence of evidence needs to be misinterpreted as the absence of the species.
Response 19-69b: Table BR-2: Special-Status and NBHCP and MAP HCP Covered Species Evaluated for Potential Occurrence in the UWSP Area (PTO Table) incorporates all species included in the Bargas and Helix PTO tables, as well as NBHCP and MAP HCP Covered Species, and the NBHCP Area Biological Effectiveness Monitoring Report 2022 Annual Survey Results. As described under the Special-Status Species discussion on pages 7-10 to 7-12, the Draft EIR incorporates, but does not adopt, the results of the Biological Resources Assessments written by Bargas (2020) and Helix (2024) in the analysis of which species have potential to occur in the Draft EIR study area. This approach is consistent with CEQA Guidelines section 15125.
Rebuttal: I do not know what this part of the response has to do with my comments.
Response 19-69c: If approved, the proposed UWSP would be built in phases over perhaps several decades. Prior to construction, implementation of pre-construction surveys (BR-1, BR-2c, BR-3, BR-4, BR-5, BR-6, BR-7, BR-8, BR-9, BR-10a) will be conducted to assess presence of sensitive biological resources and inform the implementation of Avoidance and Minimizations Measures as needed.
Rebuttal: The response implies that preconstruction surveys would make up for any deficiencies of the reconnaissance surveys and desktop review and for not having completed any detection surveys. However, preconstruction surveys are unlike any of these other types of investigation, as preconstruction survey is a mitigation measure while the other investigations are intended to aid in accurately characterizing the 24 wildlife community as the basis for predicting impacts and formulating mitigation strategies.
Response 19-69d: Please also see Response 19-67 above.
Rebuttal: Why see Response 19-67?
Response 19-70: Please see Master Response 1: Conflict with the Natomas Basin Habitat Conservation Plan and Metro Air Park HCP.
Rebuttal: According to Master Response BR-1, “The Draft EIR carefully considered existing approved developments, their mitigation strategies, and the regional conservation context through a comprehensive analysis of the effects of the proposed UWSP. This included evaluating whether the proposed UWSP would conflict with the ability for the TNBC to implement the overall Conservation Strategy under the NBHCP and MAP HCP.” If this summary was true, then I would not have commented on the DEIR’s analysis. As I reminder, I commented that the DEIR lacks the analysis of whether the Specific Plan would require a reevaluation of the NBHCP and new incidental take permits (ITPs) issued with a new conservation strategy. I shared a quote from a letter from County Staff: “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.” I noted that development was frontloaded in the NBHCP, and that only 5,185.78 acres of mitigation land remained available in the Natomas Basin as of 2023. I also noted that the numerical trend of the giant gartersnake is predictive of extirpation from the Natomas Basin within 20 years, and that the Upper Westside Specific Plan’s elimination of the capacity to pursue the NBHCP’s conservation strategy would hasten extirpation. These issues would warrant a re-evaluation of the NBHCP’s conservation strategy because these issues jeopardize its success.
Master Response BR-1 speculates that by incorporating Alleghany Reserve into the project’s agricultural buffer, and by the adjacency of Cummings Reserve to the agricultural buffer, the NBHCP’s conservation strategy would be unimpeded. However, the response fails to address my point that the project would eliminate the capacity for the NBHCP conservation strategy to acquire more mitigation land needed to fulfil its requirement. The response also fails to address my point that there is no more room for mistakes regarding giant gartersnake; this species is clearly headed towards extirpation.
The project’s potential interference with the NBHCP warrants more that wishful speculation that the agriculture buffer would avoid interference. The agricultural land that would compose the agricultural buffer already exists, and the giant gartersnake is declining despite the existence of this land. Designating this land an agricultural buffer would add no conservation benefit to giant gartersnake while the project would eliminate the capacity for the NBHCP’s conservation strategy to establish reserves in this part of the Basin.
25 Master Response BR-1 addresses the question of whether NBHCP covered species would persist despite the project going forward. The Response lists resources that were put to use in the desktop review in support of the DEIR. However, the review of these resources does not qualify as an analysis in itself, and as I have commented, these resources were misused and misinterpreted. The Response then explains how the County determines whether covered species are present on the project area, but again I commented at length about how these determinations are flawed and inaccurate.
Specifically, the County has misused species occurrence records to determine absences and low likelihoods of occurrences simply because occurrence records were unavailable.
Moreover, in the cases of multiple NBHCP-covered species, the Response reiterates that the DEIR reports their absence due to lack of habitat, but this is a condition that the NBHCP’s conservation strategy intends to reverse with the acquisition of mitigation lands and the establishment of connectivity between them. Again, the project would eliminate the capacity for the NBHCP’s conservation strategy to do this.
Master Response BR-1 continues on to claim that mitigation measures BR-1, BR-2a, and BR-5 would reduce impacts to less than significant levels for any NBHCP-covered species determined in the DEIR to have a moderate likelihood of occurrence. However, worker awareness surveys, baseline preconstruction surveys and the establishment of no-disturbance buffers around bird nests would provide very little conservation benefit to NBHCP-covered species, and they would not avoid the permanent destruction of 1,532 acres of habitat. Furthermore, the mitigation language of mitigation measure BR-5 allows a single individual to make a subjective decision, outside the public’s view, to determine the no-disturbance buffer area for any given species. This measure lacks objective criteria, and it would be unenforceable.
Response 19-71a: Please see Master Response 1: Conflict with the Natomas Basin Habitat Conservation Plan and Metro Air Park Habitat Conservation Plan.
Rebuttal: Please see my rebuttal argument to Response 19-70, which also applies to Master Response BR-1.
Response 19-71b: Draft EIR Chapter 7, Biological Resources, Table BR-2, page 7-20, notes that “[c]anals in the UWSP area provide marginally suitable habitat that is connected to higher quality habitat. Recent trapping surveys in the UWSP area entailing 40,703 total trap days yielded no giant garter snake captures (HELIX 2024). Canals in the UWSP area likely support the species on a transitory basis based on positive eDNA samples for the species at one location in the study area and three locations in ditches surrounding the study area over two years (HELIX 2024).” Draft EIR Impact BR-3 acknowledges a potentially significant impact on giant garter snake habitat. As noted in the EIR, proposed mitigation for giant garter snake contained in Mitigation Measures BR-2a and BR-3, are consistent with CDFW and USFWS guidelines, including securing authorization from the USFWS and CDFW for the incidental take of giant garter snake, avoidance and minimization of impacts on giant garter snake, and compensatory mitigation within the American Basin Recovery Unit for permanent impacts on giant garter snake habitat. Implementation of these measures would reduce the potential impact to giant garter snake habitat to insignificance. 26 Please also see Master Response 3: Impacts on Giant Garter Snake Habitat, and Response 15-26. Please also see Response 19-67 above regarding disagreement among experts.
Rebuttal: The response, including Master Response BR-3, merely repeats the analysis of the DEIR. The response does not directly address my comment that the West Drainage Canal has been identified as giant gartersnake habitat and likely important to the NBHCP’s conservation strategy, nor does it say anything about the population trend depicted in Figure 4 of my 25 October 2024 comment letter. The only new argument is that the project’s 1:1 mitigation ration would be greater than the NBHCP’s 0.5:1 ratio, but this conclusion ignores the context of the NBHCP’s planning scope versus the project’s localized scope, and only speculates that the doubled mitigation ratio would yield net conservation benefits. As I commented, the declining population of giant gartersnakes in the Natomas Basin leaves no room for mistakes. Wishful speculation is prone to mistakes. What would be needed is a re-evaluation of the NBHCP and the issuance of new ITPs with a new conservation strategy.
Response 19-72a: The commenter opines that the reproductive capacity of Swainson’s hawk in Natomas Basin may have been reached and is limited by the availability of forage, rather than the availability of nesting sites/territories, and that build-out of the proposed UWSP will result in nearby breeding Swainson’s hawks foraging near breeding pairs in other areas of the Basin.
Rebuttal: I concluded that the Swainson’s hawk’s productive capacity has been reached in the Natomas Basin. The monitoring data combined with my knowledge of Swainson’s hawk territory maintenance clearly reveals that productive capacity has been reached (see Figures 5 through 7 of my 25 October 2025 comment letter). Nest productivity has declined 36% over 25 years, and will soon reach a decline of 50%, while the number of unsuccessful nests has begun to oscillate wildly. Given the conditions available in the Natomas Basin, breeding capacity has been exceeded not by the limitations of nest substrate but by the limitations of forage, and as evidenced by the wild oscillations of the number of unsuccessful nests.
Response 19-72b: The commenter also states that more habitat is needed within and outside of the Basin, especially San Joaquin County and Yolo County. As described in Response 15-27 and Master Response BR-4: Impacts on Swainson’s Hawk Zone, Mitigation Measure BR-7b will be modified accordingly (added text underlined):
“…Prior to the approval of either grading permits or building permits, whichever is first, project applicants for each construction phase shall compensate for permanent loss of foraging habitat through the preservation of foraging habitat. This compensatory mitigation shall be at a ratio of at least 1:1 (mitigation habitat to permanently lost habitat). Mitigation sites shall be located outside, and within 10 miles of, the Natomas Basin Mitigation sites shall be located outside, and within 10 miles of, the Natomas Basin. Compensatory mitigation located at mitigation sites within 1 mile of the Sacramento River or Feather River shall be at a ratio of at least 0.75:1 (mitigation 27 habitat to permanently lost habitat). Compensatory mitigation for mitigation sites greater than 1 mile from the Sacramento River and Feather River shall be at a ratio of at least 1:1 (mitigation habitat to permanently lost habitat), or of equal or greater ecological value as established in separate authorizations or permits by the USFWS and/or CDFW.
By establishing foraging habitat mitigation on sites outside, and within 10 miles of, the Natomas Basin, the mitigation sites would be expected to remain within the foraging habitat range of breeding Swainson’s hawk nesting pairs that could be currently foraging within the UWSP project area. Furthermore, the compensatory mitigation ratios in the revised mitigation measure incentivize siting Swainson’s hawk foraging habitat mitigation lands within one mile of suitable nesting habitat along the Sacramento and/or Feather rivers.
In addition, the opportunities for compensatory mitigation under Mitigation Measure BR 7b, Compensate for Permanent Impacts on Swainson’s Hawk Foraging Habitat, as amended above, include more than 8,000 acres of highest quality foraging habitat (i.e., alfalfa, pasture, field crops, wheat, grain and hay, truck crops, young perennial, and annual grassland) outside, and within 10 miles of, the Natomas Basin. This acreage includes lands near the Sacramento River and Feather River.
Rebuttal: The response, including Master Response 4, fails to address my comment on mitigation measure BR-7b. It only slightly changes the mitigation ratio to incentivize protection of foraging habitat within 1 mile of the River, but which ultimately protects less habitat than did the original measure. Moreover, no site is identified where this measure would apply, and it remains speculative whether the acreage needed to fulfil the measure could be protected.
Response 19-72c: The comment also addresses the commenters’ observations and analysis of the effectiveness of the NBHCP. An HCP is a plan for avoiding legal jeopardy to a species over time as a result of actions of the permittee parties. An HCP can be distinguished from EIR which is an evaluation of the potential significant impacts of a particular proposed project and includes measures that can avoid or reduce to insignificance the potential project-level and cumulative significant impacts of that project. Beyond the specific impacts of a project, a relevant question under CEQA is whether a proposed project would conflict with an adopted HCP. In the Draft EIR that question is addressed in Impact BR-14 as well as in the cumulative impact analysis presented in Chapter 22, Cumulative Impacts. In each case, the Draft EIR concludes, based on substantial evidence in the record, that the proposed project would not have a significant adverse impact on the NBHCP or the MAP HCP. Please also see Master Response 1: Conflict with the Natomas Basin Habitat Conservation Plan and Metro Air Park HCP.
Rebuttal: The response fails to address my comments. It discusses purported differences between an HCP and an EIR, but this has nothing to do with the issues I raised.
28 Response 19-73: Please see the Master Response 1: Conflict with the Natomas Basin Habitat Conservation Plan and Metro Air Park Habitat Conservation Plan.
Rebuttal: Master Response BR-1 does not address my comments. Master Response BR-1 does not even mention the wildlife species or the groups of wildlife species at issue in my comments.
Response 19-74a: As described in the Draft EIR, Chapter 7, Biological Resources, environmental setting section for biological resources, protection of movement corridors and habitat linkages are tied to reducing the adverse effects of habitat fragmentation. Analysis of the effects of development of the UWSP area on wildlife movement, in particular that of giant garter snake and migratory birds, is addressed in the Draft EIR under Impact BR-12. In summary, the Draft EIR identifies potential impacts to wildlife movement of both types of wildlife, and concludes that the impacts would be mitigated to a less-than-significant level through implementation of Mitigation Measures BR-2a (Worker Environmental Awareness Program), BR-3 (Compensate for Permanent Impacts to Giant Garter Snake Habitat), and BR-6 (Avoid and Minimize Impacts on Nesting Birds).
Rebuttal: This part of the response seems out of place, as it has nothing to do with my comments at issue.
Response 19-74b: The comment addresses potential effects on nesting birds. An analysis of potential impacts to nesting birds is included in the Draft EIR under Impacts BR-5, BR-6, and BR-7, focuses on bird species identified as candidate, sensitive, or special status in local or regional plans, policies, or regulations, by the CDFW or USWFS. The analyses in the Draft EIR determined that impacts to special status bird species, including burrowing owl and Swainson’s hawk, birds protected by the Migratory Bird Treaty Act, and Nesting Raptors would be potentially significant. With implementation of Mitigation Measures BR-5, BR-6, BR-7a, BR-7b, and BR-7c, the Draft EIR concluded that all of these impacts would be reduced to less than significant.
Rebuttal: The response simply repeats the findings of the DEIR, but otherwise fails to address my comments.
Response 19-74c: While the comment includes an alternative method of examining the question of effects of the project on habitat fragmentation and associated wildlife movement, the comment does not present evidence that the analysis in the Draft EIR is inaccurate or that the mitigation measures identified would be inadequate. Please also see Response 19-67 above regarding disagreement among experts.
Rebuttal: The response is misleading. I did not present evidence that the analysis in the DEIR is inaccurate, because the DEIR presents no analysis of the number of birds that would no longer be produced on the project site. The proposed mitigation measures could not possibly offset the loss of production of 52,055 birds per year.
29 Response 19-75a: The analysis of potential impacts to well-understood wildlife corridors, such as the Pacific Flyway and waterways, and species movement was addressed in the Draft EIR under Impact BR-12, which analyzes substantial interference with movement of wildlife species utilizing the network of agricultural ditches and with established migratory corridors (e.g., the Pacific Flyway). The analysis explained that
Construction-related direct impacts on migratory birds could result from the removal of vegetation while an active bird nest is present. In addition, earthmoving, operation of heavy equipment, and increased human presence could result in noise, vibration, and visual disturbance. These conditions could indirectly result in nest failure (disturbance, avoidance, or abandonment that leads to unsuccessful reproduction), or could cause flight behavior that would expose a migratory adult to predators. These activities could cause birds that have established a nest before the start of construction to change their behavior or even abandon an active nest, putting their eggs and nestlings at risk for mortality.
This analysis concluded that without mitigation, the impact on wildlife movement could be significant. As required under CEQA, all feasible mitigation measures were identified, including Mitigation Measures BR-2a, BR-3, and BR-5. These measures include implementation of a Worker Environmental Awareness Program training to avoid construction impacts to special status species, avoidance and minimization measures for nesting birds, and compensatory mitigation for long-term impacts to giant garter snake habitat. With the implementation of these measures, the potential impacts would be less than significant. Please also see Response 19-67 above regarding disagreement among experts.
Rebuttal: The reproduced paragraph only supports the issues I raised in my comment letter. The paragraph does not address potential project impacts to wildlife movement in the region. The appearance of the term “migratory” in “migratory birds” does not make the paragraph about wildlife movement in the region, but rather refers to a type of bird of which most birds in California are included. The paragraph is about direct impacts to nesting birds. My comments stand; the DEIR provides no analysis of potential project impacts to wildlife movement in the region. There was no field investigation or program of observation directed toward characterizing how wildlife move across the project site, or to determine how important the project site is to wildlife movement in the region.
Response 19-75b: Project phasing is described in the Project Description and a Preliminary Phasing Plan is shown on Plate PD-22. Phase I would primarily be developed in the southern portion of the UWSP and includes the build-out of backbone systems supporting water delivery for the entire UWSP area. Irrespective of construction phasing, the UWSP includes an agricultural buffer between the Sacramento River, which is a very likely movement corridor for volant and terrestrial wildlife, and the western edge of UWSP.
Rebuttal: This part of the response is only speculative.
30 Response 19-76a: The comment raises concerns about adverse effects of domestic cat predation on wildlife. The urban development on the UWSP project site would result in a corresponding increase in the presence of domestic animals in an area where few currently exist. Dogs and cats, as well as urban adapted wildlife species (e.g., raccoons) can disturb nesting or roosting sites and disrupt the normal foraging or movement activities of wildlife. Feral cats and house cats can cause substantial damage to the species composition of natural areas, including the populations of special‐status species, through predation. A recent article published in the Frontiers of Veterinary Science (Turner, 2022) concluded that “published studies purporting to show that cats are a main culprit for the disappearance of endemic wildlife on the species level, on the continents as opposed to small oceanic islands, should be questioned.” The article indicated that the studies that have pointed to domestic cats were not sufficient to draw conclusions about effects of domestic cat predation on native habitat. Key points included: …
Rebuttal: I was able to find Turner (2022) despite the response having provided no reference for it. What the response does not report is that Turner’s paper is an opinion piece that is identified by the journal as an “OPINION article.” It is not based on a study or on data or on anything other than the author’s opinions. It was reviewed by a political scientist.
According to Turner (2022), “Among the various studies they [Loss et al. 2014, which is the paper I relied on in my comment letter] considered many lacked a correction for prey eaten or left when away from home, different methods of gut analysis, no control for habitat where the data were collected (suburban, city, farmland), or other causes of prey decimation (e.g., habitat destruction).” None of these purported problems would have lessened Loss et al.’s (2013) estimate of cat depredation of wildlife. Turner (2022) then levels the following criticism: “But the most serious criticism of all such studies is that none of them even mentions a rough estimate of the total population size of a prey species (supposedly being threatened by cat predation) or of the yearly reproduction and replacement of lost individuals.” But again, the total population size of affected prey species has nothing to do with Loss et al.’s (2013) estimate of cat depredation. And I add that this final criticism is misdirected at Loss et al. (2013), who did indeed contextualize the depredation estimates by total population size; one just needs to examine the Supplemental Materials Table S3 to see this consideration of total population size.
In concluding remarks, Turner (2022) writes “The author does not deny that free- ranging cats affect wildlife populations and it is important that field researchers continue to monitor their effect.” Turner then explains that the author’s principal concern was how the news media reacted to Loss et al. (2013), but this concern is not a scientific concern. Loss et al. (2013) was rigorously prepared and peer reviewed. Having co-authored a paper with Loss, I can attest to his cautious approach, and I concur with his follow-up paper (Loss et al. 2018) that Loss et al. (2013) was conservative in estimating cat depredation rates on wildlife. I note, also, that Turner did not cite Loss et al. (2018), which was titled, “Responding to misinformation and criticisms regarding United States cat predation estimates.”
31 Response 19-76b: Other studies have suggested that the movement range of domestic cats depends on the health of the coyote population in the surrounding area and that, where coyotes are present, cats are still likely to cause impacts on wildlife within 100 to 200 feet of the urban/wildland edge. Cats that range farther than 100 to 200 feet from the urban edge are more likely to be killed by coyotes than those that stay close to residential yards. It is worth noting that the commenter’s own observations of the study area indicated the presence of coyote, bobcat, and fox, all of which are known to predate on domestic cats when given the opportunity. Thus, given the evidence of populations of coyote, fox and bobcat in the project area, it is not unlikely that such predators would predate on domestic cat populations.
Rebuttal: What studies? This part of the response looks like a lot of speculation, and it is highly unlikely that the speculated predators of cats would alter the findings of Loss et al. (2013) in any way.
Response 19-76c: Further, in Sacramento County owners of cats over the age of 4 months must spay or neuter their cat. Sacramento County Code section 8.24.030(b) states
No owner shall possess or harbor within the county any dog or cat over the age of four (4) moths that has not been sterilized, unless such person holds an unaltered license, unaltered license with reduced fee, or is otherwise exempted as set forth in Section 8.08.030 or 8.24.030(m). Upon written certification of a veterinarian that a dog or cat has been surgically sterilized, the amount of license fee shall be one-half or less than the fee established for intact dogs or cats.
This regulation has a positive effect in reducing the number of feral cats that live in urban areas.
Rebuttal: Similar code is presumably in place at all locations where the studies that Loss et al. (2013) relied upon were conducted; that is, the response does not make the case that there is anything special about Sacramento County’s Code that would reduce the number of cats relative to the cat populations where Loss et al.’s studies were conducted.
Response 19-76d: The analysis put forth in the comment is not based in any evidentiary-based analysis that could tie cat predation to effects on the species that are the focus of the analyses in the EIR. To the extent that domestic cats may predate in the future on common local urban species, it would not constitute a significant impact. To conclude that cats in the future UWSP would predate in a material way on special status species is entirely speculative.
Rebuttal: This part of the response claims that the issue I raise is only speculative because I bring no evidence that house cats have killed any of the special-status species at issue. In my comment letter, based on Loss et al.’s (2013) conservative estimate of depredation rates, I predict the project’s 11,254 new cats would kill 1,373,027 vertebrate wildlife per year. It is not reasonable to assume that none of these 1,373,027 wild 32 animals would be special-status species. In a position statement, The Wildlife Society (2011) writes: “Extensive popular debate over absolute numbers or types of prey taken by feral and free-ranging cats is not productive. The number of cats is undeniably large.
Even if conservative estimates of prey taken are considered, the number of prey animals killed is immense. The supplemental feeding of cats does not deter them from killing wildlife; often they do not eat what they kill.” And “but negative individual impacts clearly occur in an extremely wide range of species.” But all this said, it is well known that house cats have been predated burrowing owls in the Bay Area. Miller (2024:89, 120) identifies cat predation as one of the primary factors affecting the viability of burrowing owl populations in California. Special-status species of birds potentially vulnerable to cat predation, and which would be at issue in west Sacramento County, have been identified as Double-crested Cormorant, California gull, Mountain Plover, willet, long-billed curlew, marbled godwit, burrowing owl, willow flycatcher, loggerhead shrike, yellow-breasted chat, vesper sparrow grasshopper sparrow, and song sparrow (would apply to Modesto song sparrow) (Blancher 2013).
Response 19-77a: As is discussed on Draft EIR page 7-1, the UWSP project area is located within the Pacific Flyway, one of the four major bird migration routes in North America. ... In the context of extensive habitat areas to the west, north and south, neither the UWSP project area nor the adjacent developed, urbanized portions of the Sacramento region provide important habitat for migrating birds in the Pacific Flyway.
Rebuttal: According to this part of the response, the project site as located within one of the greatest bird migration routes in North America, but it lacks important habitat for migrating birds. This characterization, however, does not comport with observation. For example, on 14 August 2025, I saw and photographed a large flock of white-faced ibises (Photo 1). The white-faced ibis is listed on CDFW’s Taxa to Watch List, and it is migratory. In this one flock I estimate 300 white-faced ibises, and it was one flock of several that flew onto the project area in the last hour of daylight on 14 August 2025.
In another example, on 14 August 2025, I estimated between 60 and 80 bushtits along 335 m of one of the farm roads. This many bushtits in such a short space must be one of the highest densities of bushtits I have ever encountered. I saw a large flock of band- tailed pigeons, which are migratory, and I saw hundreds of mourning doves, which are migratory. Many of the bats I detected were likely migratory, especially the one little brown bat (Myotis lucifugus), which I did not expect to find there. In fact, this species is so far out of its normal range, or at least the range that biologists have assumed for it, that I did not initially include it in my list of special-status species with potential to occur on the site (see Table 2 of my 25 October 2024 comment letter). It is likely that little brown bat migrates through the area, but it certainly occurs on the project site.
The response is inaccurate.
33 Photo 1. A flock of about 300 white-faced ibises on the project site, 14 August 2025, with the fore of the flock in the upper photo, the middle of the flock in the center photo, and the tail end of the flock in the lower photo.
Response 19-77b: Draft EIR Impact BR-5, on pages 7-52 through 7-54, addressed potential impacts of the proposed project on special-status bird species that have the potential to nest and/or forage in the UWSP area including tricolored blackbird, loggerhead shrike, song sparrow (“Modesto” population), purple martin, yellow warbler, yellow-headed blackbird, American white pelican, norther harrier, and white-tailed kite.
The analysis further considered the effects of the proposed project on active nests and nesting birds protected by the Migratory Bird Treaty Act, or MBTA, and California Fish and Game Code, or CFGC, that have potential to occur in the UWSP area, including species like Cooper’s hawk, osprey, white-faced ibis, and many other species of songbirds, waterbirds, and waterfowl. Impact BR-5 concluded that with the implementation of Mitigation Measures BR-2a and BR-5 the proposed project would not have a substantial adverse effect, either directly or through habitat modifications, on special status bird species, birds protected by the Migratory Bird Treaty Act, and nesting raptors.
Rebuttal: This part of the response does not address bird-window collision mortality, and therefore does not address my comments.
Response 19-77c: As such, following a thorough description of the biological characteristics of the project site, and a detailed analysis of potential impacts of the
34 proposed project on biological resources, including avian species, the Draft EIR concluded that there would be no significant impacts on bird species as a result of the construction and operation of the proposed project.
Rebuttal: This part of the response does not address bird-window collision mortality, and therefore does not address my comments.
Response 19-77d: In addition, the Draft EIR addresses the effects of project construction activities on wildlife movement, including those of migratory bird species.
The analysis concludes that removal of vegetation during earthmoving could result in the removal of vegetation while an active bird nest is present. In addition, the analysis notes that increased human presence could result in noise, vibration and visual disturbance to such species.
Rebuttal: This part of the response does not address bird-window collision mortality, and therefore does not address my comments.
Response 19-77e: The comment provides information related to effects on birds of urban buildings with windows based on studies that have been undertaken over the last 35 years that document bird mortality associated with collisions with the built environment. The studies cited in the comment, along with many other available studies, document the frequency of bird mortality from window collisions. The data provided by the commenter is general in nature, and is not calibrated to the location and conditions of the project area, the species of birds that are in documented to be in the area, or the specific designs of structures that would be developed within the project area.
Rebuttal: This part of the response characterizes the data I presented in my comments as over-generalized and uncalibrated to the project site. However, the breadth of locations and conditions from where the data originated is an positive attribute because it increases the robustness of my bird-window collision mortality prediction. The response insinuates that the project’s built structures would differ from the range of buildings that have been measured for bird-window collision mortality, but the insinuation is nothing more that that, as the response provides no evidence that the project’s structures would differ.
Response 19-77f: The most recent study cited in the comment reported on a study in northern California. This study is unique among the cited studies in that it examined bird strikes in the Pacific Flyway. Among other things, that study validated that migratory species were more likely than local resident species to be involved in fatal bird-window collisions. It also validated that there were more bird-window collisions in large windows than smaller windows, stating that in the study “large paned windows have almost 17 times higher strike rate per unit glass than small paned windows.” Similar results from multiple studies are also cited by the American Bird Conservancy.
Based on this information, the construction of new buildings with reflected glazed surfaces (e.g., windows) could increase the potential for bird-window collisions and 35 related mortality of birds, including potentially special status species and birds protected under the Migratory Bird Treaty Act.
As such, the following text below is added to Impact BR-12 and a new mitigation measure, Mitigation Measure BR-12, would avoid and minimize potential impacts associated with bird-window collisions in the proposed UWSP project.
Draft EIR, Chapter 7, Impact BR-12, page 7-75, the first full paragraph is revised to read:
The UWSP area is within the Pacific Flyway, and as such supports some migratory bird species. Construction-related direct impacts on migratory birds could result from the removal of vegetation while an active bird nest is present. In addition, earthmoving, operation of heavy equipment, and increased human presence could result in noise, vibration, and visual disturbance. These conditions could indirectly result in nest failure (disturbance, avoidance, or abandonment that leads to unsuccessful reproduction), or could cause flight behavior that would expose a migratory adult to predators. These activities could cause birds that have established a nest before the start of construction to change their behavior or even abandon an active nest, putting their eggs and nestlings at risk for mortality. Without mitigation, this impact on migratory birds is potentially significant.
The development of new buildings with glazed surfaces and night-lighting could result in operational impacts on movement of migratory birds. Although it is not possible, and would be speculative, to accurately predict the precise number or species of birds affected, recent studies in other locations, including studies within the Pacific Flyway, support the conclusion that there would be an increase in bird-window collisions as a result of development of buildings with large glazed surfaces and/or high visibility night lighting near dark areas in the UWSP project area. It is possible that some of the affected birds could be special status species or birds protected under the Migratory Bird Protection Act.
Despite the current lack of certainty of nest locations or the propensity of special status birds to strike windows, or ability to predict whether the effects on such species would be substantial, for the purposes of this EIR without mitigation this impact would be considered a potentially significant.
Draft EIR, Chapter 7, Impact BR-12, page 7-75, the second full paragraph is revised to read:
Previously identified Mitigation Measures BR-2a and BR-5 would reduce the potential impact on nesting birds by requiring the provision of environmental training for construction personnel; limiting construction to the non-nesting season when feasible or, if avoiding the nesting season is not feasible, conducting pre-construction surveys for nesting birds and establishing no disturbance buffers around any active nests to ensure they are not disturbed by construction; 36 and repeating the pre-construction surveys when work resumes after being suspended for seven days.
In addition, Mitigation Measure BR-12 would ensure that new structures built in close proximity to agricultural lands that may be attractive to nearby resident or migratory bird populations are designed to avoid the potential for significant bird-window collisions and that highly visible up lighting is prohibited in these areas. In addition, buildings with large-scale uninterrupted glazed surfaces include treatments that increase their visibility to birds. These measures would minimize the potential for bird window collisions.
As a result, with the implementation of these mitigation measures, the impact on migratory birds would be less than significant.
Rebuttal: This part of the response, as implemented in the FEIR, would be an improvement over the DEIR, but only so long as the word “shall” is inserted into the sixth line to read, “”In addition, buildings with large-scale uninterrupted glazed surfaces shall include treatments …,” and only if the dimensions of large-scale uninterrupted glazed surfaces are specified, and only if the measure is applied to all new structures built in the project. As written to this point, this added measure lacks objective criteria, and it would be unenforceable.
Response 19-77g: Draft EIR, Chapter 7, Impact BR-12, page 7-75, the following is added after Mitigation Measure BR-5:
BR-12 Implement Standards for Bird-Safe Buildings
• Except as provided for residential buildings below, all buildings within 300 feet of land designated on the General Plan Land Use Diagram as General Agriculture, Agricultural Cropland, Natural Reserve, Agricultural Urban Reserve, or Recreation, apply bird-safe building treatments to glazed segments of the façade facing the designated land-use up to 60 feet from grade.
o For glazed segments measuring less than 24 square feet, 90% of the surface shall be treated.
o For uninterrupted glazed segments 24 square feet or larger, 100% of the surface shall be treated.
• Bird-Safe Glazing Treatment may include fritting, netting, patterned window films (but not decals or tape which are not permanent), frosted glass, exterior screens, physical grids placed on the exterior of glazing or UV patterns visible to birds. To qualify as Bird-Safe Glazing Treatment, vertical elements of window patterns should be at least 1/4 inch wide at a maximum spacing of 4 inches or horizontal elements at least 1/8 inch wide at a maximum spacing of 2 inches.
• Residential buildings that are less than 45 feet in height and have an exposed facade facing the designated land use comprised of less than 50% glass are exempt from facade glazing requirements. Bird-Safe Glazing 37 Treatment, including permanent exterior screens, may be used to reduce the amount of untreated glass to less than 50% for purposes of satisfying this measure.
• Residential buildings that are less than 45 feet in height but have a facade facing the designated land use with surface area composed of more than 50% unscreened glass, shall provide Bird-Safe Glazing Treatments as described below for 95% of all large, unbroken glazed segments that are 24 square feet and larger.
• In buildings within 300 feet of land designated on the General Plan Land Use Diagram as General Agriculture, Agricultural Cropland, Natural Reserve, Agricultural Urban Reserve, or Recreation minimal lighting shall be used. Lighting shall be shielded. No uplighting shall be used.
Several communities around the country have adopted standards based on the best practices of the USFWS Division of Migratory Bird Management. Example cities in northern California include San Francisco, San Jose, Cupertino, Mountain View, Alameda, Oakland, Richmond, and others. Outside of California, such bird-safe standards have been adopted in New York City, Highland Park (Illinois), Madison (Wisconsin), Portland (Oregon), Washington D.C., and others.
The provisions of Mitigation Measure BR-12 are generally consistent with the Standards for Bird-Safe Buildings adopted in the City of San Francisco in 2000, and area consistent with the LEED Bird Collision Deterrence credit system, and the USFWS Division of Migratory Bird Management best practices. Implementation of Mitigation Measure BR-12 would reduce the potential for operational impacts on resident or migratory bird species to less than significant.
Rebuttal: The County needs to explain how the measures of BR-12 would be consistent with the implementation of bird-safe window prescriptions. The prescriptions of BR-12 would apply to a small subset of windows in the project – those that face the agricultural buffer and those that face any reserves, and only those larger 24 square feet. The County only speculates that birds are at risk of collision mortality at windows that face designated open spaces, and it relies too much on the findings of one study. I suggest adopting the totality of bird-safe recommendations and not just the portions that minimize cost to the project. If the project was to go forward with BR-12 as written, then I recommend adding a monitoring component to the mitigation strategy to measure collision mortality at treated versus untreated windows. Measurement of impact of untreated windows should be tied to additional mitigation such as additional window treatments or compensatory mitigation.
Response 19-77h: The addition of clarifying and amplifying language in the discussion of Impact BR-12 and the addition of Mitigation Measure BR-12 do not require recirculation of any part of the Draft EIR. Pursuant to Public Resources Code section 21092.1 and CEQA Guideline section 15088.5 establish that recirculation is only required where “significant new information” is added to the EIR after circulation of the Draft EIR. Pursuant to Guidelines section 15088.5, the following would constitute significant new information:
38 1. A new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented.
2. A substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance.
3. A feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the environmental impacts of the project, but the project’s proponents decline to adopt it.
4. The draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded. (Mountain Lion Coalition v. Fish and Game Com. (1989) 214 Cal.App.3d 1043).
The added language enhances the discussion of effects of the proposed UWSP on migratory birds that already exists in the discussion of Impact BR-12. The mitigation measure BR-12 would be adopted if the proposed project is approved. Because none of the conditions outlined in Guideline section 15088.5 would occur, there is no requirement to recirculate the Draft EIR.
Rebuttal: The project is very large, and it would add a very large area of windows to a portion of the Sacramento Valley that is very important to a great number of birds. The impact of bird-window collision mortality was not addressed in the DEIR, and the FEIR adds BR-2, which would improve the safety of a very small proportion of the project’s windows. Unfortunately, the response fails to better inform the public about just how many windows would be added to the environment, and in what size distribution. The EIR remains so fundamentally and basically inadequate as to prevent a prediction of bird-window collision mortality with anything other than an assumed mean area of windows per residential unit.
Response 19-78: The comment opines that the Draft EIR is inadequate because it does not address the impacts to wildlife from animal-vehicle collisions. The comment includes an analysis of animal-vehicle collisions based on a study of animal mortality on Vasco Road, which connects the cities of Brentwood and Livermore through rural Contra Costa County. Vasco Road through most of its length, is a high-speed two-lane road carrying high levels of traffic and is surrounded by open wildlands. It has few, if any, street lights and a speed limit of 55 miles per hour over a majority of its length.
Conversely, the new roads that would be developed within the proposed UWSP would be a combination of local thoroughfares, arterials, arterial/collectors, and residential streets. In all cases, these streets would be built to urban standards, as described in the draft UWSP, including sidewalks, street lights, and would be largely in an urbanized setting with typical speed limits of 20-35 miles per hour. To the extent that additional traffic would be travelling on existing arterial streets such as El Centro Road and San Juan Road, these roads exist today, but in some ways similar to Vasco Road, are largely unlit and travel through open lands. With the additional improvements to El Centro Road shown in Figures 4-4 to 4-6 and 4-10 of the draft UWSP, it is likely that animal- vehicle collisions may decrease.
39 The data and methodology in the comment is not relevant to evaluation of streets planned to be part of an urban community. Further, any attempt to tie animal-vehicle collisions to the thresholds of significance in the EIR is speculative. It is impossible to predict any increase in mortality rates of special status or other protected species as a result of collisions with vehicles. As such, any assessment of the significance of impacts associated with animal-vehicle collisions would be entirely speculative.
Rebuttal: It is not impossible to predict collision mortality resulting from project- generated traffic. Proof that it is not impossible is in my 25 October 2024 comment letter, in which I made a prediction. My prediction might be inaccurate, which is a possibility my comment letter acknowledges, but it is certainly possible to predict wildlife collision mortality, and it is better than not predicting any sort of impact from project-generated traffic. Ironically, the DEIR makes many predictions of project impacts on wildlife that would be less than significant, and all the DEIR’s predictions are based on speculation; not one of them points to evidence of that similar predictions proved accurate at other similar projects.
Environmental review is intended to provide the foundation for predicting a project’s potential impacts on the environment, and then for actually making the predictions.
Predictions are necessary because measuring the impacts directly could not happen until after the impacts occur, and this type of measurement would prevent the formulations of avoidance and minimization strategies that are prioritized by the CEQA.
Simply put, impact predictions are necessary and expected as part of the environmental review. The accuracy of the predictions of impacts and their significance ultimately relies on the degree of accuracy in the characterization of the existing environmental setting (Figure 9).
Figure 9. General flow of information from the gathering stage through the Assess species occurrence likelihoods
1. Desktop review
a. Species geographic range overlap or database occurrence records b. Crosswalk habitat associations with mapped ground cover
2. Reconnaissance survey/Habitat assessment
3. Detection surveys for special-status species
Outcomes
5. Predict impacts
6. Formulate mitigation strategy
7. Determine significance of impacts
Characterize wildlife community
4. Lists of species detected and of those expected but
not yet detected, and any known trends
Note: Impact predictions and
significance determinations have
been of unknown accuracy in the
absence of experimental
measurement
40 characterization of the existing environment to predictions of impacts and their significance.
Impact predictions can derive from speculation or from some level of experience (Figure 10). Speculation is repeatedly discouraged in the CEQA Guidelines, and for good reason because prediction accuracy improves with experience. But the experience that can be brought to bear on impact predictions ranges from anecdotes to careful use of scientific inference. Any type of experience is usually better than relying on speculation, but careful scientific inference, especially inference drawn from experiments, has proven most effective. An analogy would be predicting the boiling temperature of water at a certain place with a known atmospheric pressure after having measured it hundreds of times at other places under various atmospheric pressures. The experience of measuring the boiling temperature at all these other places would certainly result in a more accurate prediction of the boiling point as compared to a speculative prediction. We know that use of inference in this example is more predictive, and not potentially more predictive, because we have a long successful history with the application of this type of experimentation to draw predictive inference.
Figure 10. A framework for arriving at predicted project impacts based on experience with other project sites. Ideally, there is a pool of similar projects in similar circumstances where predicted impacts were compared to realized impacts, and into which the proposed project can also contribute to experience.
The County’s assertion that “any assessment of the significance of impacts associated with animal-vehicle collisions would be entirely speculative” conflates scientific inference with speculation. As illustrated in Figure 10, inference is drawn from Inference
Project site
Preconstruction
study
Predict
project impacts
Preconstruction
studies
Post-construction
studies
Pool of experience
Post-construction
study
Test predictions
41 experience, and there has been ample experience with animal-vehicle collisions to support the use of inference. I surveyed for wildlife mortality on roads since 1989, including along roads north of the Upper Westside Specific Plan area, and for four years I surveyed the same Vasco Road transect as the Mendelsohn et al. (2009) study and roads between there and Davis, California. In the urban environment of Davis, I am one week away from completing one year of near-daily pedestrian searches of 2.7 km of urban roads for wildlife fatalities. This transect is linked to a larger City-wide pedestrian search for road fatalities, and the findings of these searches are calibrated to the findings along the core 2.7-km road transect. Along the 2.7-km core transect, I have so far found 317 fatalities representing 31 species of vertebrate wildlife. Many of the victims are very small, including Sierran treefrogs, deer mouse, western fence lizards and other species whose carcasses quickly disappear from the roadway. To estimate mortality from the found fatalities will require large adjustments for the proportions of fatalities never found due to removals of carcasses by scavengers (American crows and wild turkeys patrol the roads every morning) and by the tires of cars and trucks. I have yet to estimate mortality from this study, but it looks like the overall wildlife-vehicle mortality will be about 20% of the estimate from Vasco Road in Contra Costa County. Besides my study there are many others, and everywhere these studies have been conducted, fatalities have been found. One does not need to speculate to assess the significance of impacts associated with animal-vehicle collisions.
Response 19-79a: The comment oversimplies and confuses the analysis of cumulative impacts related to biological resources, and the commenter’s conclusion that the Draft EIR does not provide mitigation for the proposed project’s contribution to cumulative impacts on biological resources is incorrect.
Rebuttal: The response fails to explain how I oversimplified and confused the DEIR’s analysis of cumulative impacts related to biological resources
Response 19-79b: The cumulative effect on biological resources is discussed Draft EIR pages 2-20 and 2-21, wherein it states that
Cumulative development within the Natomas Basin (see Table CI-1 and Plate CI- 1) would result in the permanent loss of annual grasslands, annual croplands, and other upland habitat that serve as habitat for a range of special status species found in the Natomas Basin and broader Sacramento region, including Swainson’s hawk, giant garter snake, and northwestern pond turtle.
Rebuttal: The excerpted statement is not much of an analysis. It is highly generalized.
There is no contextualization of the permanent habitat loss, such as how much of the annual grasslands have been lost and at what rate. There is no tabulation of other projects that are taking, or are planned or foreseen to take, additional annual grassland in the Natomas Basin. All it does is acknowledge cumulative environmental impacts.
Response 19-79c: The cited plans and regulations relevant to the proposed UWSP’s potential impacts to sensitive biological resources, including the Sacramento County General Plan, Sacramento County’s Swainson’s Hawk Impact Mitigation, as well as the 42 relevant State and federal regulations, permits and requirements are described in detail in the Regulatory Setting Section of the Draft EIR. Discussion of the potential for these plans, policies, and regulations to mitigate the effects of cumulative development does not mean that the Draft EIR assumed that their presence would avoid any impacts. In fact, the Draft EIR cumulative analysis goes on to state that
the implementation of previously approved and reasonably foreseeable future development projects listed in Table CI-3 are expected to result in permanent conversion of annual grasslands, agricultural areas, and other biologically significant upland habitat within the Natomas Basin. As shown in Table CI-3, more than half of the 53,537-acre footprint of the Natomas Basin is either already developed or approved for development. Furthermore, reasonably foreseeable future projects listed in Table CI-3 are anticipated to result in approximately 7,600 acres of development in the Natomas Basin, including annual grasslands and agricultural areas that are potentially existing suitable habitat for special status species such as Swainson’s hawk. The cumulative impact of the development within the Natomas Basin summarized in Table CI-3 on special status species would be potentially significant.
Rebuttal: This part of the response fails to seriously address my comments, which summarizes the results of a study (Smallwood and Smallwood 2023) that measured the direct and cumulative impacts of recent development projects on wildlife species richness and abundance. Discussing cumulative impacts in terms of acreage is not equivalent to discussing them in terms of species persistence, numerical abundance or any other term that is meaningful to wildlife impacts. Again, I provided the County with the means to draw inference from scientific experience, but the County merely repeats its shallow analysis that appears in the DEIR. What do the 7,600 acres of development mean in terms of cumulative effects on wildlife? Would giant gartersnake continue to exist? Swainson’s hawk? The County needs to disclose to the public what this acreage means to wildlife.
Response 19-79d: Pursuant to CEQA Guidelines section 15130(a), “[a]n EIR shall discuss cumulative impacts of a project when the project’s incremental effect is cumulatively considerable.” The term “cumulatively considerable” is defined in CEQA Guidelines section 15065(a)(3), which states: “‘Cumulatively considerable’ means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” Finally, CEQA Guidelines section 15130(a)(3) states that “An EIR may determine that a project’s contribution to a significant cumulative impact will be rendered less than cumulatively considerable and thus is not significant.”
Rebuttal: This part of the response cites the CEQA Guidelines without explaining how it supports the County’s lack of analysis of the project’s potential contribution to cumulative impacts on wildlife.
Response 19-79e: The Draft EIR describes the nature and significance of the proposed project’s cumulative impact on biological resources, … 43 Rebuttal: No, the DEIR projects 7,600 acres of cumulative development, but acres carry very different meaning to different species. An acre can support entire populations of some species and compose a tiny portion of the home range of others. And some acres are more important than others to wildlife, as exemplified by my comparison of bat passage rates on the project site as compared to 23 other sites I surveyed around California and Arizona. The DEIR comes nowhere close to describing the nature and significance of cumulative impacts on wildlife.
Response 19-79f: … the analysis on pages 22-21 through 22 24 addresses the extent to which the mitigation measures that are identified in Chapter 7, Biological Resources, Mitigation Measures BR1 through BR-9b would reduce the proposed project’s contribution to the cumulative impact. This discussion is consistent with the impact and mitigation discussions provided in Chapter 7 under Impacts BR-1 through BR-14 that describe how each mitigation measure would avoid, minimize and compensate for the project’s impacts on sensitive biological resources. In some cases, implementation of the mitigation would avoid impacts. Mitigation Measures BR-3 and BR-7b would compensate for impacts to giant garter snake and Swainson’s hawk, respectively; these measures would offset losses of habitat for those species resulting from development of the UWSP area. In some cases, compliance with State or federal regulations and permit requirements are an articulated component of a mitigation measure, but the measures do not defer to the State or federal government the responsibility for mitigating the contribution of the proposed UWSP to cumulative impacts; under CEQA that is the responsibility of the County and is contained in the language of the mitigation measures cited above. The conclusion of the analysis is that “[w]ith implementation of these mitigation measures, the proposed UWSP’s contribution to cumulative impacts to special-status species would not be cumulatively considerable, and the cumulative impact associated with the proposed UWSP with respect to special status species would be less than significant.”
Rebuttal: The County only speculates on the outcome of its mitigation strategy. The response fails to cite any examples of where mitigation measures BR-1 through BR-9b, or BR-1 through BR-14, would reduce impacts to less than significant levels. The County’s assertion that these measures would be effective follows the same unfounded assertions that preceded the development projects studied by Smallwood and Smallwood (2023), and which nevertheless resulted in measured impacts that were very substantial and significant. If the project goes forward, a worker environmental awareness program ought to be implemented per mitigation measure BR-2a, but the County should refrain from claiming that this measure is going to minimize the project’s direct impacts on wildlife, let alone cumulative impacts.
The response argues that the mitigation measures in the DEIR would minimize, reduce and compensate cumulative impacts, but they are only intended to mitigate the project’s direct impacts. Assuming for the sake of argument that the project is able to fully mitigate its direct impacts on wildlife, it would still fall short of mitigating its contributions to cumulative impacts. The DEIR includes no specific measures to mitigate the project’s contributions to cumulative impacts. My comment letter of 25 44 October 2024 included recommended mitigation measures that could mitigate the project’s contribution to cumulative impacts, especially the measures on landscaping with native vegetation and committing to no use of pesticides, but the County’s responses to them were dismissive in the vein of “comment noted.”
Response 19-80: The project would be built in phases, likely over decades, during which time conditions are reasonably expected to change from the conditions described in the environmental setting whether or not the project is approved and constructed. As such, the Draft EIR reflects the County’s understanding that the presence or absence of any particular species at the time of surveys in support of the preparation of the Draft EIR is insufficient to properly mitigate the proposed project’s effects on biological resources. Mitigation Measure BR-1 ensures that sensitive biological resource baseline information for each development phase is current and appropriately informs implementation of the subsequent avoidance and minimization measures (BR-2 through BR-14).
The Draft EIR does not improperly defer mitigation. The mitigation measures in Chapter 7, Biological Resources, are described in detail, including concrete implementation and verification as part of the building permit review process. Under CEQA, where a significant impact of the proposed project is identified, the EIR is required to “describe feasible measures which could minimize significant adverse impacts.” CEQA Guidelines section 15126.4(a)(1)(B) states that “[f]ormulation of mitigation measures shall not be deferred until some future time,” but:
The specific details of a mitigation measure, however, may be developed after project approval when it is impractical or infeasible to include those details during the project’s environmental review provided that the agency (1) commits itself to the mitigation, (2) adopts specific performance standards the mitigation will achieve, and (3) identifies the type(s) of potential action(s) that can feasibly achieve that performance standard and that will be considered, analyzed, and potentially incorporated in the mitigation measure.
Mitigation Measure BR-1 requires that a pre-construction Baseline Biological Resources Report be prepared for each phase of development 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 relating to any of the subsequent mitigation measures in the Biological Resources chapter. The County would not deem phase-specific development applications complete until it receives the Baseline Biological Resources Report. The specific performance standard the measure achieves is the documentation of any biological resources that would trigger implementation of any mitigation measure described in the Final EIR. The potential action that would feasibly achieve the performance standard is the pre construction survey that would inform the Baseline Biological Resources Report.
Rebuttal: Thank you for the explanation, which clarifies the intent of the mitigation measure BR-1. I would just add that there is nothing preventing the implementation of an adequate baseline study at this stage of the planning of the Upper Westside Specific 45 Plan. In fact, completing an adequate baseline study at this initial stage would greatly increase the capacity of baseline studies performed for each future stage of development. An adequate study now would provide comparative context to next-phase studies in terms of which species occurred where, and how many of each species existed.
Nothing in the CEQA Guidelines discourages an adequate baseline study for the Specific Plan area at this time, and the CEQA’s objectives only encourage it.
The studies completed to date remain inadequate. Each time I visit the project area for a simple reconnaissance survey, I find many additional wildlife species that had not previously been detected, similar to the patterns of accumulating species detections I experienced at a site in Rancho Cordova along the American River (Figure 11). At the Rancho Cordova site, it took me about 20 hours to accumulate the same numbers of species as had been tallied by the applicant’s consultants on the Upper Westside Specific Plan area, but more surveys produced detections of substantially more species. I note that I have accumulated detections of 95 species of wildlife in only 7.16 hours of survey time. My rate of accumulation of wildlife species detections on the Upper Westside Specific Plan area has been two to three times faster than depicted in Figure 11. An adequate baseline study effort needs to be completed on the Upper Westside Specific Plan area.
Figure 11. Cumulative numbers of all wildlife species (left graph) and special-status species of wildlife (right graph) detected by sequential surveys totaling 41 surveys at a site in Rancho Cordova, California, 2021-2024. The arrows point to the same number of species detected by the consulting biologists who surveyed for wildlife on the Upper Westside Specific Plan area. The consultants did not report the time it took them to detect this many species, but it took me about 20 person-hours on the Rancho Cordova site.
Hours of survey
Cumulative number of wildlife species detected
0 20 40 60 80 100 120 140 160 180
0 20
40 60
80 100
120
140
160
Model prediction
r2 = 0.98, loss = 461
Actual count of species
0 20 40 60 80 100 120 140 160 180
0 5
10 15
20 25
30 35
40 Hours of survey
Cumulative number of special-status
species of wildlife detected
Model prediction
r2 = 0.98, loss = 51.3
Actual count of species
All vertebrate wildlife species Special-status wildlife species Equal to the basis of the DEIR
Equal to the basis of the DEIR
46 Response 19-81: The comment is an opinion and does not raise specific issues pertaining to the adequacy, accuracy, or completeness of the Draft EIR’s analysis of the proposed UWSP. The comment will be included as a part of the record and made available to the decision makers prior to a final decision on the proposed project.
Rebuttal: My comment is indeed an opinion, but it is much more likely to be accurate than the County’s opinion that a worker awareness program would mitigate project’s permanent impacts affecting hundreds of thousands and likely millions of wild animals.
Worker awareness programs are common, and they undoubtedly were implemented in many of the projects of which my co-investigator and I measured very substantial impacts on wildlife (Smallwood and Smallwood 2023). I once trained workers to be aware of an endangered species at issue in a construction project, but regardless of my training the workers had to destroy the species’ habitat. The only member of the species salvaged was one I trapped and relocated, but it still lost its home range and its habitat.
In my experience, construction workers need to be focused on their work, because their work is often hazardous. Construction workers operate heavy machinery and work where other machines are moving. The County should not expect that workers made aware of the species at issue are going to pay any attention to these species. Workers need to remain focused on the effectiveness and safety of their work.
It is hard to imagine how a worker environmental awareness program, which would apply only to workers engaged with the project’s brief periods of construction, would avoid or minimize the annual loss of production of a predictable 52,055 birds per year, a predictable bird-window collision mortality of 23,253 per year, and the predictable animal-vehicle collision mortality of somewhere between 10,000 and 100,000 vertebrate animals per year. It is hard to imagine how a worker environmental awareness program would offset the project’s interference with wildlife movement in the region and with the Natomas Basin HCP’s conservation strategy.
Response 19-82: The comment is an opinion and does not raise specific issues pertaining to the adequacy, accuracy, or completeness of the Draft EIR’s analysis of the proposed UWSP. The comment will be included as a part of the record and made available to the decision makers prior to a final decision on the proposed project.
Rebuttal: The County’s opinion is that pulling weeds is going to mitigate the project’s impacts on wildlife. The County has not explained the basis of its opinion, but mine is based on having seen this mitigation measure required for other projects where I measured substantial declines in wildlife species richness and abundance (Smallwood and Smallwood 2023).
Response 19-83: The CDFW (2018) rare plant survey guidelines are the standard survey protocol used for pre-construction rare plant surveys to determine whether rare plants are present and where to inform subsequent avoidance and minimization steps as outlined in BR-2c, and is an effective method to detect and therefore minimize impacts to rare plants.
47 Rebuttal: The response is inaccurate. I suggest that County Staff read CDFW (2018), the first paragraph of which states the following: “The purpose of these protocols is to facilitate a consistent and systematic approach to botanical field surveys and assessments of special status plants and sensitive natural communities so that reliable information is produced and the potential for locating special status plants and sensitive natural communities is maximized. These protocols may also help those who prepare and review environmental documents determine when botanical field surveys are needed, how botanical field surveys may be conducted, what information to include in a botanical survey report, and what qualifications to consider for botanical field surveyors.
These protocols are meant to help people meet California Environmental Quality Act (CEQA)1 requirements for adequate disclosure of potential impacts to plants and sensitive natural communities.”
CDFW (2018) was not formulated to serve as a preconstruction survey protocol; it is a protocol for characterizing the existing environmental setting and for publicly disclosing potential project impacts.
Response 19-84: The Draft EIR is not required to, nor does it, evaluate past effectiveness of the NBHCP. ...
Rebuttal: As I commented in my letter of 25 October 2024, this is a major failing of the DEIR. The efficacy of mitigation measures BR-3 is speculated, as it is based on no assessment of how the measure has performed at other projects or as part of the NBHCP. To ignore experience is assured an inadequate environmental review (see Figures 9 and 10). And this is a serious shortfall of the DEIR because the giant gartersnake is rapidly declining in the Natomas Basin with extirpation predicted by 2045.
Response 19-85: As described in the EIR, if present in the UWSP area, suitable northwestern pond turtle nesting habitat would be limited to the periphery of irrigation ditches, and would be of limited quantity and quality relative to the aquatic and associated upland mitigation habitat required under Mitigation Measure BR-3 for giant garter snake. The comment will be included as a part of the record and made available to the decision makers prior to a final decision on the proposed project.
Rebuttal: The response is inaccurate. Northwestern pond turtles are not limited to the periphery of irrigation ditches as breeding sites. This species is known to travel up to 400 m into upland areas to deposit eggs in cavities such as ground squirrel or pocket gopher burrows (Buskirk 2002). Furthermore, pond turtles travel over upland areas to reach water bodies after the water bodies they inhabited dry down. The County pigeon- holes this species into an unrealistically narrow portion of its habitat, and it simultaneously treats my comment as “comment noted.”
I thought the CEQA’s caselaw established that “comment noted” is no longer acceptable, and that the lead agency must address expert comments with facts and good-faith analysis including reasons why the comment is rejected. 48 Response 19-86: Mitigation Measure BR-5 does not ignore the habitat of ground- nesting special-status bird species. The measure requires pre-construction surveys for “suitable habitat” of “any active passerine” and “any active raptor nests”. The pre- construction survey would be triggered by ground disturbance and tree work associated with construction of development within the proposed UWSP. Because some of the relevant species are ground-nesters, the required surveys would necessarily include surveying for active nests of ground nesting birds.
Rebuttal: The very first bullet of measure BR-5 defines the circumstances under which the measure applies as the removal of trees and vegetation. My comment points out that some birds nest on bare ground. The response says that BR-5 would apply to ground- nesters, but this is not what BR-5 states.
Furthermore, the mitigation language of mitigation measure BR-5 allows a single individual to make a subjective decision, outside the public’s view, to determine the no- disturbance buffer area for any given species. This measure lacks objective criteria, and it would be unenforceable.
Response 19-87: Bird behaviors vary substantially from species to species and individual to individual. For example, some individual birds are highly sensitive to urban noise, and other individuals can be readily observed foraging or nesting within the immediate vicinity of major freeways and high-volume throughfares. Rather than assuming a singular behavior pattern within a species or category of birds, which could be over- or under protective, Mitigation Measure BR-5 requires that a qualified wildlife biologist use their observations of a particular bird or nest, and based on their professional experience and scientific understanding of the species’ life history requirements and tolerance for human disturbance, recommend site-specific measures to protect nesting birds.
Mitigation Measure BR-5 includes clear performance criteria based on which the County can determine whether or not the measure has been fully and properly implemented. As an example, the measure:
• Specifically identifies the timeframe for implementation of the survey: within 7 days of start of construction during the established breeding season of February 1 through August 31;
• No construction activities within the established no-disturbance zone.
This approach is appropriate under CEQA.
Rebuttal: The response assumes a skill set that no individual biologist possesses in the face of the variation among species and induvial birds that the response acknowledges.
More than a lifetime of experience would be needed to understand how each species responds to construction-related disturbances. As written, BR-5 would be vulnerable to egregious errors of judgment that to nesting attempts could prove fatal. A more appropriate approach would be to disallow construction during the breeding season. If 49 this approach is unacceptable, then the appropriate approach would be to err on the side of caution by requiring no-disturbance buffers that likely exceed the distances at which construction disturbances would affect any bird. This buffer could be established by consulting behavioral ecologists who specialize on birds.
Response 19-88: Mitigation Measure BR-5 is a standard measure that CDFW regularly approves to minimize impacts to the species. Please also see Response 19-87 above. The comment is an opinion and does not raise specific issues pertaining to the adequacy, accuracy, or completeness of the Draft EIR’s analysis of the proposed UWSP.
Rebuttal: My comment is not just an opinion. It is based on many years of research experience involving birds. The County’s opinion is based on a fantasy over why birds attempt to breed amid construction activity. Scientists know why this happens, and it is because of nest site fidelity. There exists a large scientific literature on nest site fidelity, but I cannot recall any literature in support of the notion that birds attempt to nest among construction activities because they habituated to it.
As for what CDFW regularly approves, CDFW recommends specific no-disturbance buffers around raptor nest sites and the nest sites of other birds. For example, see CDFW’s own standards for no-disturbance buffers for specific species and groups of species at https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=73979 or at https://ia.cpuc.ca.gov/environment/info/ panoramaenv/fulton-fitch/Application/ Appendix_E_Birds.pdf
Response 19-89: Mitigation Measure BR-5 requires that a qualified wildlife biologist use their professional knowledge, experience, observations, and understanding of the species’ life history requirements and tolerance for human disturbance to protect nesting birds, whose behaviors vary substantially from species to species and individual to individual. This is a common approach to protecting nesting birds during construction projects. The measure would be enforceable as articulated under the third bullet of BR-5, which requires that the surveying biologist submits the findings of the pre-construction survey to the County for review and approval prior to initiation of construction within the no disturbance zone during the nesting season.
If the proposed UWSP is approved, the implementation and enforcement of mitigation measures would be overseen and recorded by the County pursuant to an approved Mitigation Monitoring and Reporting Program that is required by Public Resources Code 21081.6(a)(1) and CEQA Guideline section 15097. Please also see Response 19-87 above.
Rebuttal: See my rebuttal comments to Response 19-87. Also see Smallwood and Smallwood (2023), which reports on measured reductions in species richness and abundance following the construction of many projects that likewise required qualified biologists use their professional knowledge to judge construction disturbance effects on birds. I have seen no evidence that this measure is effective. If the County has evidence, then it should cite it.
50 Response 19-90: Appendix D of CDFW’s Staff Report on Burrowing Owl Mitigation (Staff Report), published March 7, 2012, is the standard protocol for conducting burrowing owl preconstruction surveys that are required under Mitigation Measure BR-
6. Under CEQA, there is no requirement that protocol-level surveys are required to characterize the environmental setting for biological resources. CEQA Guidelines section 15125(a) states that “[a]n EIR must include a description of the physical environmental conditions in the vicinity of the project.” It goes on to qualify the level of detail required by stating that “[t]he description of the environmental setting shall be no longer than is necessary to provide an understanding of the significant effects of the proposed project and its alternatives.” The level of detail required is addressed in CEQA Guidelines section 15151, which states that “[a]n evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible,” and that “[t]he courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” The surveys and other research upon which the environmental setting for biological resources is established and documented are sufficient and meet the requirements of CEQA.
The second part of this comment raises neither new significant environmental issues nor specific questions about the analyses or information in the Draft EIR that would require response pursuant to CEQA Guideline section 15088. The comment will be included as a part of the record and made available to the decision makers prior to making a final decision on the proposed project.
As described under Response 3-5, the burrowing owl’s listing status has been amended in Table BR-2: Special-Status and NBHCP and MAP HCP Covered Species Evaluated for Potential Occurrence in the UWSP Area, and Mitigation Measure BR-6 has been amended to include the potential need for an incidental take permit for burrowing owl.
Rebuttal: The response misrepresents the survey protocol of CDFW (2012), and in particular misrepresents App. D of CDFW (2012). There are three types of surveys recommended and described in the CDFW’s (2012) survey and mitigation guidelines: (1) Habitat assessment, (2) Detection surveys, and (3) Preconstruction survey. The habitat assessment is intended to evaluate the likelihood that the site supports burrowing owls, and to decide whether detection surveys should be performed. The detection surveys, otherwise described as either or both breeding-season or non-breeding-season surveys, are intended to detect whether the site actually does presently support burrowing owls, and if so where and how many. The preconstruction survey, otherwise known as a take- avoidance survey, is intended to determine whether burrowing owls immigrated to the site since completion of the detection survey, or whether they returned to the site since passive or active relocations were performed as mitigation. The three types of survey carry distinct but inter-related purposes, and they are to be completed in chronological order.
The first two types of survey support impacts analysis, whereas the third type of survey is a mitigation measure. Burrowing owls can be determined absent based on evidence derived from the habitat assessment or detection survey, but only if the surveys achieved 51 the minimum standards of CDFW (2012). Whereas an absence determination naturally follows from the negative findings of properly performed detection surveys, the following three questions must be answered negatively to determine absence based on the habitat assessment:
A) Are there occurrence records nearby the project site? B) Is the site’s vegetation cover and height typical of where burrowing owls are found? C) Are there fossorial mammals present which typically construct burrows useable by burrowing owls, or are there surrogate cavities that can serve as nest sites?
If the answers to these questions are compellingly negative, then detection surveys are not necessary, but they could be implemented to make certain the site is absent of burrowing owls. If the answers to these questions are affirmative or not compellingly negative, then it should be assumed that burrowing owl habitat exists on the site until detection surveys prove otherwise.
To question A, there are burrowing owl occurrence records very close to the project site.
To question B, the vegetation on site is typical of the area, and is typical of vegetation often used by burrowing owls. To question C, ground squirrels are known to occur on the project site. Ground squirrels construct burrows used by burrowing owls, and these two species mutually alarm-call for predators and survive better together (K. S.
Smallwood, unpublished data). The answers to all three questions are affirmative.
Therefore, breeding-season detection surveys are needed, and these surveys are not to be confused with preconstruction take-avoidance surveys. Breeding-season detection surveys are needed to publicly disclose potential impacts on the burrowing owl, which is a candidate for listing under the California Endangered Species Act.
Due to its candidate status, the survey guidelines of CDFW (2012) need to be implemented. Moreover, to meet the CEQA’s objectives, which I cited earlier, the survey guidelines of CDFW (2012) need to be implemented.
Response 19-91: The comment expresses an opinion of concurrence with Mitigation Measure BR-71. Please see the Master Response BR-1: Conflict with Natomas Basin Habitat Conservation Plan and Metro Air Park Habitat Conservation Plan, and Master Response BR-4: Impacts on Swainson’s Hawk Zone.
Rebuttal: It is my opinion, and my reasons for standing by it are detailed in my comment letter of 25 October 2024. The productivity of Swainson’s hawk in the Natomas Basin has been declining for 25 years.
Response 19-92: Please see the Master Response BR-1: Conflict with Natomas Basin Habitat Conservation Plan and Metro Air Park Habitat Conservation Plan, and Master Response BR-4: Impacts on Swainson’s Hawk Zone.
Rebuttal: See my rebuttals to Response 19-70 and Response 19-72.
52 Response 19-93: A draft EIR should usually include a description of the physical environmental conditions at the time the Notice of Preparation was filed. The Environmental setting in the UWSP meets the requirements of CEQA and was based on the best available data at the time the Draft EIR was written. Please also see Response 19-90 above.
Rebuttal: No bat surveys were conducted at the time when they were needed, and that was prior to the public circulation of the DEIR. The County needs to disclose potential project impacts to bats. Because no surveys were completed, I conducted my own brief bat survey. Within two hours I accumulated 232 bat passes within about 30 feet of one acoustic bat detector, and these passes represented seven or eight species, including a possible detection of palled bat. Special-status species of bats now known to occur on the project site include western red bat, silver-haired bat, little brown bat, Yuma myotis, and canyon bat. Based on my survey outcome, it is my opinion that the project site hosts an exceptionally rich and abundant bat community, and it needs to be understood.
Postponing the needed bat surveys to preconstruction periods is inappropriate, and doing so fails to achieve the CEQA’s objectives.
Response 19-94: In response to the comment regarding translocations/plantings of elderberry shrubs, BR-9b is amended as follows, consistent with the Bay Delta Conservation Plan Conservation Guidelines for the Valley Elderberry Longhorn Beetle (1999) and the USFWS Framework for Assessing Impacts to the Valley Elderberry Longhorn Beetle (2017b).
BR-9b Transplant Elderberry Shrubs
• If elderberry plants cannot be avoided, or if project activities will result in the death of stems or the entire shrub, they shall be transplanted during the dormant season (November 1 to February 15) to an area protected in perpetuity and approved by the USFWS.
• Exit-hole surveys shall be completed immediately before transplanting. The number of exit holes found, GPS location of the plant to be relocated, and the GPS location of where the plant is transplanted shall be reported to the Service and to the California Natural Diversity Database (CNDDB). • A qualified biologist shall be on-site for the duration of transplanting activities to assure compliance with avoidance and minimization measures and other conservation measures.
• The elderberry shrub will shall be cut back 3 to 6 feet from the ground or to 50 percent of its height (whichever is taller) by removing branches and stems above this height. The trunk and all stems measuring 1 inch or greater in diameter at ground level will be replanted. Any leaves remaining on the plant will be removed.
• A hole will shall be excavated of adequate size to receive the transplant. • The elderberry shrub will shall be excavated using a Vermeer® spade, backhoe, front-end loader, or other suitable equipment, taking as much of the root ball as possible, and will be replanted immediately. The plant will only be moved by the root ball. The root ball will be secured with wire and wrapped 53 with damp burlap. The burlap will be dampened as necessary to keep the root ball wet. Care will be taken to ensure that the soil is not dislodged from around the roots of the transplant. Soil at the transplant site will be moistened prior to transplant if the soil at the site does not contain adequate moisture. • The planting area shall be at least 1,800 square feet for each elderberry transplant. The root ball should be planted so that its top is level with the existing ground. Compact the soil sufficiently so that settlement does not occur. As many as five (5) additional elderberry plantings (cuttings or seedlings) and up to five (5) associated native species plantings (see below) may also be planted within the 1,800 square foot area with the transplant. The transplant and each new planting shall have its own watering basin measuring at least three (3) feet in diameter. Watering basins shall have a continuous berm measuring approximately eight (8) inches wide at the base and six (6) inches high.
• The soil shall be saturated with water. Fertilizers or other supplements shall not be used, nor shall the tips of stems be painted with pruning substances since the effects of these compounds on the beetle are unknown. • Transplanted shrubs shall be monitored to ascertain if additional watering is necessary. If the soil is sandy and well-drained, plants may need to be watered weekly or twice monthly. If the soil is clayey and poorly-drained, it may not be necessary to water after the initial saturation. However, most transplants require watering through the first summer. A drip watering system and timer is ideal. However, in situations where this is not possible, a water truck or other apparatus may be used.
• Trimming shall occur between November and February and shall minimize the removal of branches or stems that exceed 1 inch in diameter. • Replacement seedling plants shall 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 shall be provided for each transplanted elderberry shrub or every five elderberry seedling plants.
In response to the comment regarding wildlife movement corridors, Mitigation Measure BR-12 has been amended to include avoidance and minimization of impacts on birds related to building collisions, as described in Response 19-77.
Rebuttal: The mitigation language related to elderberry shrubs is improved. However, there is still no requirement to assess efficacy of the measure in terms of the Valley elderberry longhorn beetle. As I commented, translocations of occupied shrubs do not necessarily result in successful translocation of the beetle. The status of the beetle needs to be monitored, and any failures of the translocations need to be followed by alternative mitigation prescriptions.
Response 19-95: Please see the Master Response BR-1: Conflict with Natomas Basin Habitat Conservation Plan and Metro Air Park Habitat Conservation Plan.
Rebuttal:
54 Response 19-96: Please see Response 19-75 above. The comment is a recommendation that does not raise specific issues pertaining to the adequacy, accuracy, or completeness of the Draft EIR’s analysis of the proposed UWSP. The comment will be included as a part of the record and made available to the decision makers prior to a final decision on the proposed project.
Rebuttal: See my rebuttals to Response 19-70 and Response 19-72.
Response 19-97: Draft EIR, Impact BR-1 and Mitigation Measure BR-1, page 7-40, require pre construction surveys prior to construction-phase development applications are complete. Regarding the suggestion that a revised Draft EIR be recirculated, please see Response 19-1 above which explains why there is no significant new information that has been added to the Draft EIR and thus there is no requirement for recirculation of a revised Draft EIR.
The comment is a recommendation that does not raise specific issues pertaining to the adequacy, accuracy, or completeness of the Draft EIR’s analysis of the proposed UWSP.
The comment will be included as a part of the record and made available to the decision makers prior to a final decision on the proposed project.
Rebuttal:
Response 19-98: Please see the discussion of Conservation Strategy for Upland Habitat in Draft EIR Impact BR-14 and Master Response BR-1: Conflict with Natomas Basin Habitat Conservation Plan and Metro Air Park Habitat Conservation Plan for discussion of compensatory mitigation and requirements for 1:1 mitigation ratios.
Regarding mitigation for wetland habitats, please see Mitigation Measure BR-11, Draft EIR pages 7-71 to 7-74, as well as Mitigation Measure BR-3, which provides for inclusion of upland habitat for giant garter snake in creation, restoration, enhancement, or preservation and management-related mitigation or compensatory mitigation.
The comment is a recommendation that does not raise specific issues pertaining to the adequacy, accuracy, or completeness of the Draft EIR’s analysis of the proposed UWSP.
The comment will be included as a part of the record and made available to the decision makers prior to a final decision on the proposed project.
Rebuttal: Of course my comment is a recommendation, but it does raise specific issues pertaining to the adequacy, accuracy, or completeness of the Draft EIR’s analysis.
Detection surveys are needed to accurately characterize the memberships of special- status species as part of the wildlife community. The occurrences of special-status species on the project site need to be appropriately disclosed to the public and decision- makers.
Response 19-100: Please see Response 19-76 above. The comment will be included as a part of the record and made available to the decision makers prior to a final decision on the proposed project.
55 Rebuttal: Please see my rebuttal argument to Response 19-76.
Response 19-101: Please see Response 19-77 above.
Rebuttal: Please see my rebuttal argument to Response 19-77.
Response 19-102: Please see Response 19-78 above.
Rebuttal: Please see my rebuttal argument to Response 19-78.
Response 19-103: The comment is a recommendation that does not raise specific issues pertaining to the adequacy, accuracy, or completeness of the Draft EIR’s analysis of the proposed UWSP. The comment will be included as a part of the record and made available to the decision makers prior to a final decision on the proposed project.
Rebuttal: My comment does raise specific issues pertaining to the adequacy, accuracy, or completeness of the Draft EIR’s analysis. The DEIR includes no requirement to fund the wildlife rehabilitation facilities in the region which are inevitably going to receive inured animals for care as a result of this project, should the project go forward as currently planned.
Response 19-104: The comment is a recommendation that does not raise specific issues pertaining to the adequacy, accuracy, or completeness of the Draft EIR’s analysis of the proposed UWSP. The comment will be included as a part of the record and made available to the decision makers prior to a final decision on the proposed project.
Rebuttal: My comment does raise specific issues pertaining to the adequacy, accuracy, or completeness of the Draft EIR’s analysis. The DEIR includes no requirement to mitigate the project’s contributions to cumulative impacts on wildlife, should the project go forward as currently planned.
Thank you for your attention,
______________________
Shawn Smallwood, Ph.D.
REFERENCES CITED
Blancher, P. 2013. Estimated Number of Birds Killed by House Cats (Felis catus) in Canada Estimation du nombre d’oiseaux tués par les chats domestiques (Felis catus) au Canada. Avian Conservation and Ecology 8(2): 3. http://dx.doi.org/10.5751/ ACE-00557-080203
Buskirk, J. 2002. The western pond turtle, Emys marmorata. Radiata 11(2):3-30. 56 CDFW. CDFW’s Conservation Measures for Biological Resources That May Be Affected by Program-level Actions.
https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=73979
Loss, S. R., T. Will, and P. P. Marra. 2013. The impact of free-ranging domestic cats on wildlife of the United States. Nature Communications 2380. DOI:
10.1038/ncomms2380
Loss. S. R., T. Will. T. Longcore. And P. P. Marra. 2018. Responding to misinformation and criticisms regarding United States cat predation estimates. Biological Invasions (2018) 20:3385–3396. https://doi.org/10.1007/s10530-018-1796-y
Mendelsohn, M., W. Dexter, E. Olson, and S. Weber. 2009. Vasco Road wildlife movement study report. Report to Contra Costa County Public Works Department, Martinez, California.
Miller, J. 2024. Petition Before the California Fish and Game Commission to list California populations of the Western Burrowing Owl (Athene cunicularia hypugaea) as Endangered or Threatened Under the California Endangered Species Act. Center for Biological Diversity, Defenders of Wildlife, Burrowing Owl Preservation Society, Santa Clara Valley Audubon Society, Urban Bird Foundation, Central Valley Bird Club, San Bernardino Valley Audubon Society.
National Research Council. 1986. Ecological knowledge and environmental problem- solving: concepts and case studies. National Academy Press, Washington, D.C.
Smallwood, K. S., and N. L. Smallwood. 2023. Measured effects of anthropogenic development on vertebrate wildlife diversity. Diversity 15, 1037. https://doi.org/10.3390/d15101037.
The Wildlife Society. 2011. Final Position Statement: Feral and Free-Ranging Domestic Cats. Bethesda, MD.
Turner, D. C. 2022. Outdoor domestic cats and wildlife: How to overrate and misinterpret field data. Front. Vet. Sci. 9:1087907. doi:
10.3389/fvets.2022.1087907
EXHIBIT 2
August 19, 2025
Mr. Patrick Soluri, Esq.
Soluri Meserve
510 Eighth Street
Sacramento, CA 95814
Subject: Upper Westside Specific Plan FEIR Comment
P24005
Dear Mr. Soluri:
Per your request, I reviewed the Final Environmental Impact Report (the “FEIR”) 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. I previously reviewed and commented on the Draft Environmental Impact Report (the “FEIR”) for the Project in a letter dated October 25, 2024. My letter is attached in your own letter of comment that the FEIR now labels Comment Letter 19.
My qualifications to perform this review are thoroughly documented in my letter of October 25, 2024 and my professional resume is attached thereto.
My comments on the FEIR follow.
Master Response TR-1: Transit
Master Response TR-1 begins with a sketchy overview of regional transit service in the Sacramento area but diverts to a seriously misleading characterization of the Project area as being similar to the Oak Park neighborhood southeast of downtown Sacramento. The sole element of truth in this characterization is the fact that the two highly different areas are similarly distant from downtown Sacramento (or as stated in public hearings, the linear distance from City Hall.
Otherwise, there is absolutely no resemblance. Oak Park was developed in the late 1800s and early 1900s and has evolved as a vibrant neighborhood with mixed uses in the community. It has a history of transit service dating back to the Mr. Patrick Soluri
Soluri Meserve
August 19, 2025