San Marcos City Council
June 25, 2024

ATTACHMENT H

RESPONSE TO APPEAL LETTER
AA24-0001
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Responses to Comment Letter Received on the Final EIR
A comment letter from Lozeau Drury LLP on behalf of Supporters Alliance for Environmental Responsibility (“SAFER”) dated April 15, 2024 was received by City staff via email on April 15, 2024; the day of the Planning Commission hearing for the Hughes Circuits Project.

The letter was in response to the Final EIR prepared for the Hughes Circuits Project, Agenda Item 3 at the Planning Commission’s April 15, 2024 meeting.

Lozeau Drury LLP submitted a request for project information and CEQA noticing on April 25, 2022. The City notified Lozeau Drury LLP of the available CEQA notices, including the NOP, scoping meeting and public workshop. Lozeau Drury LLP was not in attendance at the scoping meeting nor the public workshop. During the Draft EIR public review period, Lozeau Drury LLP submitted a comment letter on February 5, 2024 stating that the Draft EIR fails as an informational document and fails to implement all feasible mitigation measures to reduce the project’s significant impacts, and that Lozeau Drury LLP reserves the right to supplement their comment during the review of the Final EIR during public hearings for the project. Lozeau Drury LLP’s February 5, 2024 comment letter is included as Comment Letter O2 to the Final EIR’s Response to Comment document (Appendix K to the Final EIR). Lozeau Drury LLP submitted a 69 page letter to the City regarding the EIR on the day of the Planning Commission hearing for the project, April 15, 2024. Formal responses to the Lozeau Drury LLP April 15, 2024 comment letter are included below.

The City of San Marcos has thoroughly vetted all consultants who prepare the EIR and technical reports. City staff recommended the project for approval to the Planning Commission. Planning Commission approved the proposed project 7-0.

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Response to Lozeau Drury LLP Comment Letter
Supporters Alliance for Environmental Responsibility
April 15, 2024
1-1 This serves as an introductory comment, introducing Supporters Alliance for Environmental Responsibility (“SAFER”), and summarized concerns related to approval of the project, including, the EIR failing to adopt the feasible and environmentally superior reduced -intensity alternative; the EIR relying on impermissibly narrow project objectives; the EIR failing to adequately disclose and mitigate impacts to sensitive biological resources; and the EIR failing to adequately respond to comments from the U.S. Fish and Wildlife Service. Please see Responses to Comments 1-3 through 1-55 below. 1-2 The comment summarizes the project description outlined in Chapter 2 of the EIR. The comment does not include any concerns related to the adequacy of the Final EIR. 1-3 The comment explains legal standards under CEQA and references case laws. The comment does not include any specific concerns related to the adequacy of the Hughes Circuits Final EIR. 1-4 The comment s tates that the City must adopt the environmentally superior Reduced-Intensity Alternative in order to reduce the project’s significant and unavoidable VMT -related impact s. The comment states that the Reduced -Intensity Alternative may not be rejected as infeasible simply because it might not be as fiscally sound or generate as much employment as the proposed project.

In response, under CEQA, the goal of identifying the environmentally superior alternative is to assist decision- makers in considering project approval. CEQA does not require the Lead Agency to select the environmentally superior alternative (CEQA Guidelines Section 15042-15043). Instead, CEQA requires the Lead Agency to consider environmentally superior alternatives, weigh those considerations against the environmental impacts of the proposed project, and make findings that the benefits of those considerations outweigh the harm. “Among the factors that may be used to eliminate alternatives from detailed consideration in an EIR are: (i) failure to meet most of the basic project objectives, (ii) infeasibility, or (iii) inability to avoid significant environmental impacts” (CEQA Guidelines § 15126.6[c]).

CEQA Guidelines, Section 15126.6(f)(1), identifies factors to be taken into account to determine the feasibility of alternatives. The factors include site suitability; economic viability; availability of infrastructure; general plan consistency; other plans or regulatory limitations; jurisdictional boundaries; and whether the applicant can reasonably acquire, control, or otherwise have access to the alternative site.

It has been recognized that, for purposes of CEQA, “feasibility” encompasses “desirability” based on a reasonable balancing of the relevant economic, environmental, social, and technological factors (California Native Plant Society v. City of Santa Cruz [2009] 177 Cal.App.4th 957, 1001). This balancing is harmonized with CEQA’s fundamental recognition that policy considerations may render alternatives impractical or undesirable (California Public Resources Code Section 21081; CEQA Guidelines Section 15126.6[c] and 15364). The ultimate determination as to whether an alternative is feasible or infeasible is made by the lead agency’s decision ‐making body, the San Marcos City Council (see PRC Section 21081[a] [3].)
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As outlined in Chapter 4 of the Hughes Circuits EIR, the Reduced Development Intensity Alternative would be considered the environmentally superior alternative because it would potentially provide a reduced level of impact in some environmental analysis areas including air quality, greenhouse gas, and geology a nd soils. However, such impacts under this alternative would still remain as less than significant, similar to the project. The Reduced Development Intensity Alternative would also result in decreased footprint specific impacts, such as those related to cultural resources, biological resources, and tribal cultural resources. However, mitigation measures would still be required to mitigate impacts to these environmental resources. Under this alternative , significant and unavoidable transportation impacts under the project would be reduced to less than significant, as this alternative would screen out of VMT due to the 21,800 -square-foot building size falling under the City’s Transportation Impact Analysis Guidelines Small Project criteria (i.e., less than 110 daily trips). This alternative would meet all of the project objectives, with the exception of objective 3, as this alternative would not maximize the allowable development footprint on site.

As described in Chapter 2 of the Hughes Circuits EIR, one of the project objectives (Objective 3) is to develop a fiscally sound and employment-generating land use that maximizes the light-industrial zoned area. The proposed project land use would be consistent with the existing General Plan land use designation and Zoning for the site, which is Light Industrial (LI)/(L-I). The purpose of the Light Industrial zoning designation is to “provide for the grouping of light- and medium-intensity industrial and support service uses in a business -supportive setting. Generally, these areas will not include pedestrian - oriented businesses and will serve the loading, delivery, and indoor warehousing needs of light industrial space” (City of San Marcos 2022). The L-I Zone is intended to implement and be consistent with the Light Industrial land use designation of the General Plan (City of San Marcos 2022).

The Reduced Development Intensity Alternative would not allow for the applicant to maximize the allowable development footprint on-site, would not meet the building size required by the applicant to increase the scale of operations needed , and would likely reduce the number of total employees generated in comparison to the project due to the substantial reduction in light industrial use from 67,410 square feet under the proposed project to 21,800 square feet under this alter native.

Development of an alternative layout one-third the size of the proposed project would not be economically feasible for the project applicant , as this alternative development would not meet the existing Hughes Circuits determined needs for increased operations.

As outlined in Section 3.15 , Transportation, of the Hughes Circuits EIR, the project would develop an industrial building in an infill area, taking advantage of the site’s location near transit, and compatible land uses, consistent with the land use and zoning designation for the project site. The project would be consistent with programs, plans, ordinances and policies addressing the circulation system, including transit, roadway, bicycle, and pedest rian facilities. Implementation of the project would not conflict with any applicable plans or policies addressing circulation, would not increase hazards, and would not result in inadequate emergency access. However, related to VMT, even with implementation of the proposed TDM Program, the resulting 16.36 miles per employee exceeds the 16.07 miles threshold by 0.29 mile. Therefore, since the proposed mitigation measures would not fully reduce the VMT per employee to less than significant levels, the impact is only partially mitigated, and the project is considered to have a significant and partially mitigated impact. The project’s VMT per employee is not anticipated to fall under the significance threshold as the project site is located in an area primarily composed of industrial and commercial land uses where employees travel longer -than-average distances for work compared to the region. A 21,800 square foot building or smaller would be required Responses to Final EIR Comments
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on-site for the industrial land use designation in order to fall under the Small Project criteria (i.e., less than 110 daily trips) and avoid VMT impacts.

Notably, the proposed project would only develop 2.61 acres (25%) of the 10.46-acre project site and would preserve and restore the remaining 7.85 acres (75%) of the project site, at the request of the U.S. Fish and Wildlife Service. As described in Section 2.3.1 of the Biological Resources Technical Report (Appendix C to the EIR), The City of San Marcos Subarea Habitat Conservation Plan/Natural Community Conservation Plan (San Marcos Subarea Plan) (City of San Marcos 2001) has not been finalized or implemented, and the City is no longer an active participant in the Natural Community Conservation Plan program or the subregional MHCP conservation planning effort. However, it is the City’s policy to comply with the conservation policies identified in the draft San Marcos Subarea Plan, which follows the 75% site preservation/25% site development initiative. It is possible that another development application could come in and propose development for more than 25% of the project site.

As outlined in Section 3.3, Biological Resources, of the EIR, proposed on-site habitat restoration would include removal and restoration of invasive species, vernal pool restoration, and development of a habitat restoration plan. As a condition of approval, the applicant would be required to fund an endowment before issuance of grading permits, and the endowment agreement would require approval by USFWS. If the proposed project was not approved, this would not preclude future development on site, as industrial uses would still be allowed under the current Light Industrial land use designation for the site. Other development may not agree to preservation of 75% of the site as the proposed project does. Although the Reduced Development Intensity Alternative would result in similar impacts to biological resources as that of the proposed project and would require similar mitigation measures to that proposed for the project, the applicant’s agreed upon financially responsibilities of the restoration and enhancement of the preserved portion of the project site could differ under the Reduced Development Intensity Alternative.
1-5 The comment states that the project objectives are impermissibly narrow . The comment states that Objective #3 (as outlined in Chapter 2 of the EIR) limits itself to considering a project at least as large as the project’s 67,000 square-feet without considering how less-intensive developments might reduce or eliminate the project’s impacts; and therefore Objective #3 should be revised prior to approval.

In response, in accordance with Section 15124 of the State CEQA Guidelines, an EIR must present a statement of objectives sought by the proposed project. A description of the project’s objectives defines the project’s intent and facilitates the formation of project alternatives. Specifically, Section 15124 (b) of the State CEQA Guidelines states the following requirement:
“A statement of the objectives sought by the proposed project. A clearly written statement of objectives will help the lead agency develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision makers in preparing findings or a statement of overriding considerations, if necessary. The statement of objectives should include the underlying purpose of the project and may discuss the project benefits.” Most development projects have fairly straight-forward objectives that reflect a discrete need fo r the provision of new development, such as a school, a shopping center, or an office building, for example, or the objectives reflect a landowner’s goals for developing or redeveloping their property to the “highest and best use.” In the case of the proposed project, the objectives cover the landowner’s goals for developing Responses to Final EIR Comments
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their property considering allowable uses for the site. The principal project objective is not to operate the project only as proposed, but to maximize the use of the light-industrial zoned area. (See We Advocate Through Environmental Review v. County of Siskiyou (2022) 78 Cal.App.5th 683, 692-693.) Objective #3 does not limit the project nor any alternative projects to considering a project at least as large as the project’s proposed 67,000 square-feet building, as Lozeau Drury states in their comment. “CEQA does not restrict an agency's discretion to identify and pursue a particular project designed to meet a particular set of objectives.” ( California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 276–277). As outlined in Chapter 2 of the EIR, Objective #3 states the following: “Develop a fiscally sound and employment -generating land use that maximizes the use of the light-industrial zoned area.” There are no building size limitations associated with this objective. A lead agency need not consider inland locations where a project objective is to develop an oceanfront resort hotel or a waterfront aquarium. (In re Bay–Delta etc. (2008) 43 Cal.4th 1143, 1166). See also Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 715 (Likewise, a lead agency need not consider lower density housing that would defeat the project objective of providing affordable housing).

Rather, the objective allows for an employee-generating light industrial land use that is consistent with the City’s General Plan land use and zoning designation for the site. Any light industrial use on-site, consistent with the land use designation, would be required to comply with the Light Industrial Zone Development Standards as outlined in Chapter 20.230 of the City’s Municipal Code. The minimum lot area requirement for a Light Industrial zoned site is 20,000 square feet; however, there is no building square footage/site coverage minimum or maximum associated with the Light Industrial zoning. 1-6 The comment states that the EIR fails to adequately disclose and mitigate the project’s impacts on biological resources. SAFER retained Dr. Smallwood to review the EIR and the Biological Resources Technical Report prepared for the project and his comments are included as Exhibit A to the SAFER comment letter. The comment summarizes Dr. Smallwood’s findings that the Biological Resources Technical Report prepared for the project underestimated the diversity of species o n-site; failed to provide substantial evidence of the project’s impacts; failed to assess or mitigate the project’s impacts related to habitat loss, movement impacts, traffic mortality and cumulative impacts; and includes inadequate mitigation measures to reduce impacts.

In response, the applicant team, City staff, and the environmental consultants/biologists who prepared the EIR/BTR have been in coordination with USFWS/CDFW since inception of the project to discuss Wildlife Agency expectations, recommendations, and mitigation for the site. The Wildlife Agencies reviewed the BTR, and additional biological resource surveys completed per their request, prior to release of the public review Draft EIR. The BTR adequately discloses and mitigates for the project’s impacts to biological resources. Please see Responses to Comments 1-24 through 1-55 below. 1-7 The comment states that the EIR underestimates the diversity of species using the project site , and references findings from Dr. Smallwood’s review of the project site and Biological Resources Technical Report prepared for the project. In response, please see Responses to Comments 1-8, 1-9, 1-10, and 1-24 through 1-55.
1-8 The comment states that the Biological Technical Report prepared for the proposed project cannot be relied upon to determine the project’s impacts to biological resources. The comment references Dr.

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Smallwood’s review of the BTR and the biological surveys conducted specific to California gnatcatcher, and how the surveys fell short of the important minimum standards of the available survey protocol , including failing to indicate whether consultation with the U.S. Fish and Wildlife Service had occurred.

In response, Coastal California gnatcatcher surveys were conducted based upon 1997 USFWS survey protocol, which is the current protocol to follow. No CAGN were detected. In addition, the site has poor quality habitat for CAGN with minimal coastal sage scrub. The CSS onsite consists of only a few broom Baccharis (Baccharis sarothroides) plants. The few CSS plants are spread out and do not offer nesting potential. The site is surrounded by urban development and therefore has low potential for CAGN to move onto the site . As outlined in Response to Comment 1 -6, the applicant team, City staff, and the environmental consultants/biologists who prepared the EIR/BTR have been in coordination with USFWS/CDFW since inception of the project to discuss Wildlife Agency expectations, recommendations, and mitigation for the site. The Wildlife Agencies reviewed the BTR, and additional biological resource surveys completed per their request, prior to release of the public review Draft EIR.

Please also refer to Responses to Comments 1-24 through 1-55 for direct responses to Dr. Smallwood’s review of the BTR.
1-9 The comment states that the BTR failed to conduct a detection survey for the federally endangered San Diego fairy shrimp.

In response, no vernal pools will be impacted by development of the proposed project, as outlined in the BTR and EIR. The proposed project would preserve and restore the existing vernal pools on-site, as outlined in EIR mitigation measure MM-BIO-2, On-Site Habitat Restoration. As outlined in Response to Comment 1 -6, the applicant team, City staff, and the environmental consultants/biologists who prepared the EIR/BTR have been in coordination with USFWS/CDFW since inception of the project to discuss Wildlife Agency expectations, recommendations, and mitigation for the site. The Wildlife Agencies reviewed the BTR, and additional biological resource surveys completed per their request, prior to release of the public review Draft EIR. Please also refer to Responses to Comments 1 -24 through 1-55 for direct responses to Dr. Smallwood’s review of the BTR. 1-10 The comment states that the BTR improperly screened out many special -status species from further consideration by concluding only a single database (CNDDB ) to characterize the baseline environmental setting at the project site.

In response, the Draft EIR analyzed the Project to determine the potential for special-status species to occur using assessment methods commonly used for assessing development projects pursuant to CEQA, including the review of literature and data bases such as CNDDB re cords. Unlike other species occurrence data bases ( e.g. eBird and iNaturalist), the CNDDB records are a summary of known occurrences that have been 100% confirmed through a scientific review process. The CNDDB query used an appropriate approac h (i.e., selecting all records within the U.S. Geological Survey’s National City and the seven surrounding 7.5-minute quadrangle maps) and all species returned from this query were analyzed for occurrence. Further, the potential for a special-status wildlife species to occur on the project site depends on suitable habitat types and variability, habitat connectivity, site size, and disturbance factors, among other factors. As described in the project’s Biological Resources Technical Report, the habitat onsite that will be impacted is low quality habitat consisting of mostly non -native weeds that will not provide habitat for rare species. The habitat being impacted includes low quality broom baccharis plants, Eucalyptus trees, ice plants (Carpo brotus), small patches of open mulefat Responses to Final EIR Comments
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(Baccharis sarothorides), non -native grasslands without bulb species and tamarisk (Tamarix ramosissima). These plant communities do not provide quality habitat for the listed species. Most of these areas consists of homeless encampments that are also destroying the low quality habitat onsite including tents and large amounts of trash.

As outlined in Response to Comment 1 -6, the applicant team, City staff, and the environmental consultants/biologists who prepared the EIR/BTR have been in coordination with USFWS/CDFW since inception of the project to discuss Wildlife Agency expectations, recommendations, and mitigation for the site. The Wildlife Agencies reviewed the BTR, and additional biological resource surveys completed per their request, prior to release of the public review Draft EIR. Please also refer to Responses to Comments 1-24 through 1-55 for direct responses to Dr. Smallwood’s review of the BTR. 1-11 The comment states that the EIR failed to disclose and mitigate the project’s biological impacts due to habitat loss, wildlife movement, window collisions, and road mortality. Please refer to Response to Comments 1-12 through 1-15.
1-12 The comment states that Dr. Smallwood found that the EIR failed to fully account for the impacts to wildlife from the loss of habitat, which includes the non-native vegetation on site as well as the native vegetation. The comment discusses Dr. Smallwood’s predictions and opinion that the EIR’s proposed mitigation measures only preserve the undeveloped portion of the project site.

In response, the comment’s prediction that the Project site contains 155 species of vertebrate wildlife is derived from a mathematical formula or methodology based on data obtained from wildlife surveys conducted at Altamont Pass, in Northern California. This mathematical formula and methodology used by Dr. Smallwood are not approved methodologies by the Wildlife Agencies; whereas Dudek completed the Biological Resources Technical Report and supporting surveys based on current applicable protocol and methodology. The comment also references a figure and describes revised model predictions of the number of wildlife species detected relative to survey time using data from the commenter’s associates’ survey of the site and the commenter’s survey data, which was not included in the letter, from other, unidentified sites in the South Coast region. It is not clear whether these other sites were comparable to the project site. Therefore, the modeling i s not credible. Moreover, a species use of a site is highly dependent on multiple factors, and detection of a species is not exclusively a factor of survey time. Even assuming, for argument’s sake, that the modeling is accurate, it does not disclose the presence of any candidate, sensitive, or special status species at the Project site.

The mitigation measures as proposed serve the entirety of the project site, including both the proposed developed and undeveloped portions of the site based on project impacts determined as part of the Biological Resources Technical Report prepared for the project. 1-13 The comment states that Dr. Smallwood found the EIR applied improper standards to conclude that the project’s impacts to wildlife movement would not be significant.

Impacts to wildlife movement are addressed in Section 3.3.1.7 of the EIR. The EIR determined that the project site is not identified as a wildlife corridor in the City of San Marcos General Plan (City of San Marcos 2012). The project site is not identified as a preserve, nor are there preserve lands located within 2,000 feet of project site. The project site is not contiguous with any undeveloped land. Given the barrier posed by surrounding development, the site is not expected to serve as a regional wildlife corridor or substantial Responses to Final EIR Comments
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habitat linkage that would be used by large mammals, riparian birds, or migratory birds. Thus, given the project site location immediately adjacent to and surrounded by existing roadways and development within an urban setting, the project site is not considered to serve as a wildlife corridor or habitat linkage, either locally or regionally. Furthermore, implementation of biological monitoring, temporary installation of fencing during construction, and invasive species prohibition would ensure any indirect impacts to habitat connectivity and wildlife corridors would be less than significant. 1-14 The comment states that the EIR fails to address the impacts to wildlife collisions with traffic generated by the project and outlined Dr. Smallwood’s predictions of number of animals per year killed as a result of the project based on the project’s VMT annually.

In response, no new roads are proposed for this Project. The Project is located adjacent to an existing street and is completely surrounded by development. The Biological Resources Technical R eport (Appendix C to the EIR) determined that the Project site does not function as a wildlife corridor due to it being situated within an urban area of the City.

The impacts of this Project on wildlife due to traffic cannot be compared with the study presented in the Dr. Smallwood letter which looked at wildlife mortality along a stretch of road in Contra Costa County in northern California. The comment’s assumptions, opinions and projections regarding potential wildlife mortality due to increased traffic in the Project area are unsubstantiated and do not constitute substantial evidence of a pote ntial significant impact (State CEQA Guidelines § 15384.) Please refer to Response to Comment 1-34 and 1-35.
1-15 The comment states that the EIR improperly concludes that the project’s cumulative impacts to biological resources will not be significant because the project-level impacts will be less than significant.

Specifically, the comment asserts that the Draft EIR relies on existing plans and policies for mitigation without explaining how implementing the plans and polices would minimize, avoid, or offset the Project’s contribution to cumulative impacts.

The Biological Resources Technical Report prepared for the project (Appendix C) determined that implementation of the proposed project would result in impacts or potential impacts related to special status vegetation com munities and wildlife species , as well as impacts to jurisdictional aquatic resources. However, implementation of MM-BIO-1 through MM-BIO-13 would reduce impacts to a less than significant level.

Like the project, all cumulative projects would be required to conform to existing regulations with respect to avoidance, minimization, and mitigation of impacts to special-status plant and animal species; sensitive natural communities; and jurisdictional waters and wetlands; achieving no-net-loss of wetlands and like/kind replacement for impacts to sensitive habitat that cannot be avoided. The regulatory permitting process ensures that every project with unavoidable impacts on jurisdictional resources implements required avoidance, minimization, and compensatory mitigation measures and obtains the appropriate permits. Projects in the region are required to meet a no-net-loss standard for both function and spatial area of wetland and non -wetland resources. Cumulative projects would be required to mitigate their individual impacts to sensitive vegetation communities through either on-site preservation/restoration and/or off-site habitat acquisition, typically at a 2:1 or 3:1 ratio. Cumulative projects would be required to mitigate impacts by avoiding the grading or clearing of suitable habitat for sensitive wildlife during the breeding season, or by conducting pre -construction surveys to avoid Responses to Final EIR Comments
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sensitive species if construction would occur during the breeding season. Furthermore, all cumulative projects within the City of San Marcos would be required to be consistent with the conservation policies in the Draft San Marcos Subarea Plan and goals and policies in the City of San Marcos General Plan related to the protection of biological resources. Impacts wo uld be assessed on a regional basis and mitigated pursuant to CEQA, and those projects within the City’s jurisdiction would be reviewed by the City during the project review and approval process. Therefore, with proposed mitigation incorporated, the project would not contribute to cumulative impacts related to biological resources. 1-16 The comment states that the EIR’s proposed mitigation measures for biological resources are inadequate, as they do not ensure that the project impacts would be less than significant. The comment states that Dr. Smallwood’s review of the biological mitigation measures found that the measures do not ensure impacts would be reduced to a less than significant level and should be revised. The comment does not provide reasoning as to why the proposed mitigation measures are found to be inadequate. Please refer to responses 1-17 through 1-22, and 1-24 through 1-55. 1-17 The comment states that the conservation of the 8.07 acres through mitigation measure MM -BIO-1 does nothing to reduce the impacts to the 2.61 acres impacted by project development.

For clarification, as part of the Final EIR, a memorandum was provided to the City on April 4, 2024, clarifying the slight discrepancy in development/preservation area acreage identified between the BTR/EIR and the civil plans. After confirming the proper values between the ATLA survey and civil plans, it has been confirmed that the development footprint is 2.61 acres (unchanged from the EIR), and the preservation area acreage is 7.85 acres (previously called out as both 7.85 acres and 8.07 acres in the BTR/EIR). Additionally, the BTR/Biological Resources EIR Section identified the total site acreage as being both 10.86 acres and 10.46 acres; 10.46 acres is correct and has been revised as part of the Final EIR as approved by the Planning Commission on April 15, 2024.

In response to this comment, and considering the revisions made to the Final EIR as part of the clarification of area acreage explained above, as outlined in Section 3.3 of the EIR, of the approximately

10.46 acres within the project, site, approximately 2.61 acres will be permanently impacted on-site.

Specifically, the western portion of the parcel will be impacted by proposed development, resulting in permanent impacts to 1.09 acres of wetland communities, 0.69 acres of coastal sage scrub and 0.84 acres of “other lands.” Direct permanent impacts to native wetland and coastal sage scrub communities would be considered significant absent mitigation. The project will result in the preservation of 7.1 acres of sensitive upland vegetation communities and 0.75 acres of wetland vegetation communities (including

0.02 acres of restored wetland vegetation) (MM-BIO-1). Implementation of MM-BIO-1 will provide for the required 1:1 mitigation for impacts to coastal sage scrub and the preservation of 0.75 acres of native wetlands and vernal pools will provide partial mitigation for impacts to wetland vegetation communities.

To compensate for the loss of wetland vegetation communities the project will implement invasive species removal and restoration as well as vernal pool restoration (MM-BIO-2). Implementation of MM-BIO-1 and MM-BIO-2 would reduce potential direct, permanent impacts to less than significant. The project would result in the direct loss of 1.10 acres of wetland habitat that could be used by least Bell’s vireo as well as

0.89 acres of habitat that could be used by coastal California gnatcatcher. Direct impacts to these species would be mitigated through the implementation of MM -BIO-1 and MM -BIO-2 which provides for the preservation of 7.85 acres of high value habitat. To further reduce potential direct impacts on coastal California gnatcatcher and least Bell’s vireo during initial clearing/grubbing the project will implement MM-BIO-4 to MM -BIO-13, which includes temporary construction fenci ng, e nvironmental awareness Responses to Final EIR Comments
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training, breeding season avoidance, best management practices for construction and nesting bird surveys and avoidance measures. There are no direct impacts to special-status plant species as a result of project development.

It is true that the sensitive habitats and species are already present in the 7.85 acres to be preserved.

It is the primarily reason that the area has been left out of the development footprint. However, this habitat has been degraded over time from off -road activities, homeless encampments, ground disturbances, substantial weed invasion, and other disturbance factors. The sensitive species are still present, but the habitat has suffered, and its ability t o support these sensitive species has declined.

While preserving the 7.85 acres in perpetuity is the first priority, the subsequent habitat restoration and enhancement will not only maintain this current status but will expand the habitats and sensitive species occurrences on site. The mitigation program will convert the degrad ed areas into high quality habitat that will more extensively and more sustainably support these sensitive biological resources, not just preserve them, which equals full mitigation to impacts to the wetland vegetation. 1-18 The comment states that MM -BIO-13 merely requires the project to adhere to the permitting requirements of USACE, RWQCB, and CDFW. In response, MM-BIO-13 includes the following:
“Prior to impacts occurring to U.S. Army Corps of Engineers (USACE), Regional Water Quality Control Board (RWQCB), and California Department of Fish and Wildlife (CDFW) (collectively, the Resource Agencies) jurisdictional aquatic resources, the project applicant or its designee shall obtain the following permits: USACE 404 permit, RWQCB 401 Water Quality Certification, and CDFW Fish and Game Code 1600 Streambed Alteration Agreement. The project applicant will consult with the U.S. Fish and Wildlife Service and get approval of the mitigation plan to ensure that it does not impact listed species.”
The underlined portion of this mitigation measure MM-BIO-13 was included as part of the Final EIR for clarification and to address USFWS comments on the Draft EIR. 1-19 The comment states that MM-BIO-6 (Breeding Season Avoidance) and MM-BIO-12 (Nesting Bird Survey) rely on an incorrect range of dates (February 15 to August 31) for bird nesting/breeding se ason; and that these mitigation measures should be revised to reflect CDFW’s recognized avian breeding season of February 1 to September 15.

In response, the February 15 to August 31 date range used is the USFWS presence/absence survey protocol for Coastal California Gnatcatcher (CAGN). CAGN was the only listed species of concern that surveys were conducted for. USFWS is the reviewing agency for the project and that is why these dates of February 15 to August 31 are used. These dates are expected to overlap with the general nesting bird survey season. The breeding season of the coastal California gnatcatcher extends from February 15 through August 30, with the peak of nesting activity occurring from mid -March through mid -May (https://www.fws.gov/sites/default/files/documents/survey-protocol-for-coastal-california- gnatcatcher.pdf).
1-20 The comment states that nest avoidance and pre -construction surveys for California gnatcatcher and other species under MM-BIO-11 and MM-BIO-12 would only mitigate the direct loss of species during construction of the project and would not mitigate impacts from loss of habitat and breeding capacity.

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In response, as outlined in Response to Comment 1-19, CAGN was the only listed species of concern that surveys were conducted for. As outlined in Section 3.3 of the EIR, no CAGN were detected. In addition, the site has poor quality habitat for CAGN with minimal coastal sage scrub. The CSS onsite consists of only a few broom Baccharis (Baccharis sarothroides) plants. The few CSS plants are spread out and do not offer nesting potential. The site is surrounded by urban development and therefore has low potential for CAGN to move onto the site. However, pre-construction surveys would still take place prior to ground disturbance, per mitigation measure MM-BIO-12. 1-21 The comment states that the EIR’s mitigation measures for biological resources should be revised to ensure that impacts would be less than significant and the EIR should also consider additional mitigation measures.

In response, proposed mitigation has been reviewed and commented on by the Wildlife Agencies and City staff , and all Wildlife Agency/City staff provided comments have been incorporated into the proposed mitigation. The mitigation measures as proposed, in addition to the endowment agreement and mitigation plan to be approved by USFWS, would ensure identified impacts would be reduced to a less than significant level.
1-22 The comment states that the Final EIR fails to adequately respond to comments from the U.S. Fish and Wildlife Service.

As outlined in the response to USFWS’ February 12, 2024 comment letter on the Draft EIR (included in Appendix K to the Final EIR), USFWS acknowledges correspondence with the applicant and City and the measures implemented by the City to avoid impacts to vernal pools and native grassland occupied by federally listed species. City staff met with USFWS staff, the applicant representatives, and environmental consultants on the project site in May 2023 for a site visit and to review biological resource findings. At that site visit, USFWS requested completion of additional California gnatcatcher and brodiaea surveying as a result of the wet winter/spring season that had occurred. A 2023 focused California gnatcatcher survey report was completed for the site on June 29, 2023, and was submitted to USFWS for review at that time. This June 2023 report found that no coastal California gnatcatchers were observed during any survey. Thirty-eight species of wildlife were detected during the surveys and are provided in Appendix A of the subject report. No rare species were detected within the impact area, and the report re-confirmed that the impact area on site is highly disturbed compared to the rest of the site, which is consistent with the findings of the BTR prepared for the project.

In USFWS’ February 12, 2024 letter, they recommended the applicant establish a non -wasting endowment for an amount approved by the Service based on a Property Analysis Record , and that ongoing funding needs to be secured for the perpetual management, maintenance, and monitoring of the biological conservation area by an agency, non -profit, or other entity approved by the service. In response to this recommendation, the City confirmed that a PAR-like analysis will be completed and the cost for an endowment wi ll be developed as part of the Mitigation Plan. The following text was added to MM-BIO-2 under Habitat Restoration Plan in Section 3.3 of the Final EIR, to address USFWS’ recommendation: As part of the mitigation planning, a PAR-like cost evaluation will be developed and approved by USFWS to help determine long term costs in the endowment required to support those costs. The applicant is required to fund the endowment before the issuance of grading permits , and the endowment agreement shall be approved by USFWS.

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Additionally, mitigation measures MM-BIO-2 and MM-BIO-13 have been modified in Section 3.3 of the Final EIR to address USFWS comments related to vernal pools and fairy shrimp . MM-BIO-2 has been modified to include the following language under Vernal Pool Restoration: Any recontouring will avoid impacts to existing vernal pools and existing sensitive species and is intended to develop new pools or to expand pools from existing locations. Mitigation measure MM-BIO-13 has been modified to include the following language: The project applicant will consult with the U.S. Fish and Wildlife Service and get approval of the mitigation plan to ensure that it does not impact listed species. 1-23 This comment is a conclusionary summary of those outlined in 1 -1 through 1-22. Please refer to the responses to comments above and those that follow (1-24 through 1-55). 1-24 The comment states the purpose of the letter and provides Shawn Smallwood’s education and professional background. The comment does not include any concerns related to the adequacy of the Final EIR.
1-25 This comment describes the site visit by Noriko Smallwood on March 16th, 2024. The comment includes a description of site conditions and a list of bird species detected, including a few common mammal species that were also detected during her surveys. The comment does not include any concerns related to the adequacy of the Final EIR.
1-26 The comment state s that Dr. Smallwood applied a statistical model to the wildlife occurrence data collected by Noriko Smallwood.

In response, no reference is provided for the use of this model, so it is unclear whether this is a model developed by Dr. Smallwood or others. The comment’s prediction that the Project site contains 1 55 species of vertebrate wildlife is derived from a mathematical formula or methodology based on data obtained from wildlife surveys conducted at Altamont Pass, in Northern California. These mathematical formulas and methodology used by Dr. Smallwood are not approved methodologies by the Wildlife Agencies; whereas Dudek completed the Biological Resources Technical Report and supporting surveys based on current applicable protocol and methodology. The comment also references a figure and describes revised model predictions of the number of wildlife species detected relative to survey time using data from the commenter’s associates’ survey of the site and the commenter’s survey data, which was not included in the letter, from other, unidentified sites in the South Coast region. It is not clear whether these other sites were comparable to the Project site. Therefore, the modeling is not credible. Moreover, a species use of a site is highly dependent on multiple factors, and detection of a species is not exclusively a factor of survey time. Even assuming, for argument’s sake, that the modeling is accurate, it does not disclose the presence of any candidate, s ensitive, or special status species at the Project site.
1-27 The comment describes the process for characterizing the existing environment al setting as part of analysis of project impacts. This includes a discussion of the steps typical for the analysis, which include surveys for biological resources and review of literature and approved databases. The comment states that these steps were inadequate in the EIR.

In response, the Draft EIR analyzed the project to determine the potential for special-status species to occur using assessment methods commonly used, and accepted by the Wildlife Agencies, for assessing development projects pursuant to CEQA, including the review of literature and databases such as Responses to Final EIR Comments
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CNDDB records. Unlike other species occurrence data bases (e.g. eBird and iNaturalist), the CNDDB records are a summary of known occurrences that have been 100% confirmed through a scientific review process. The CNDDB query used an appropriate approach (i.e., selecting all records within the U.S. Geological Survey’s National City and the seven surrounding 7.5-minute quadrangle maps) and all species returned from this query were analyzed for occurrence. As outlined in Response to Comment 1-6, the applicant t eam, City staff, and the environmental consultants/biologists who prepared the EIR/BTR have been in coordination with USFWS/CDFW since inception of the project to discuss Wildlife Agency expectations, recommendations, and required surv eys for the site. The Wildlife Agencies reviewed the BTR, and additional biological resource surveys completed per their request, prior to release of the public review Draft EIR.
1-28 The comments provide a summary of the CEQA process for analysis of potential environmental impacts for a proposed project . The comment states that the Dudek rare plant surveys failed to meet the minimum standard of the CDFW guideline for reconnaissance surveys directed toward plants.

In response, the rare plant surveys were conducted in coordination with the wildlife agencies, including CDFW. All methods and results for these surveys were not only vetted with CDFW but also reviewed and approved by CDFW.

The comments claim that the wildlife surveys, as well as the focused coastal California gnatcatcher surveys were inadequate.

In response, the c oastal California gnatcatcher surveys were conducted based upon 1997 USFWS survey protocol required by USFWS , which is the most current methodology used (the 1997 protocol was rewritten for clarity with minor edits in June 2019). They approved the surveys and survey methods.

No CAGN were detected. In addition, the site has poor quality habitat for CAGN with minimal coastal sage scrub. The CSS onsite consists of only a few broom Baccharis (Baccharis sarothroides) plants.

The few CSS plants are spread out and do not offer nesting potential. The site is surrounded by urban development and therefore has low potential for CAGN to move onto the site.

The comments suggest that surveys should have been conducted for fairy shrimp even though the project is avoiding impacts to the vernal pools where the shrimp occur. The comments suggest that the absence of shrimp surveys provides potential take of shrimp in the project footprint, as well as within the proposed preserve areas.

In response, no vernal pools will be impacted by development of the proposed project, as outlined in the BTR and EIR. The proposed project would preserve and restore the existing vernal pools on-site, as outlined in EIR mitigation measure MM-BIO-2, On-Site Habitat Restoration. As outlined in Response to Comment 1 -6, the applicant team, City staff, and the environmental consultants/biologists who prepared the EIR/BTR have been in coordination with USFWS/CDFW since inception of the project to discuss Wildlife Agency expectations, recommendations, and mitigation for the site. The Wildlife Agencies reviewed the BTR, and additional biological resource surveys completed per their request, prior to release of the public review Draft EIR. In coordination with USFWS, it was agreed that protocol fairy shrimp surveys would be unnecessary since the vernal pool will not be impacted, and it is assumed that the pools have the shrimp in them. With this assumption, On -Site Habitat Restoration Plan will include measures to protect the shrimp from impacts during the process of restoration implementation, including limits to ground disturbance , weed control, or other potential impacts from the Responses to Final EIR Comments
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implementation. This On-Site Habitat Restoration Plan must be reviewed and approved by USFWS to ensure that fairy shrimp impacts are avoided, before any habitat restoration implementation occurs.

As described in response to 1-22, MM-BIO-2 has been modified to include the following language under Vernal Pool Restoration: Any recontouring will avoid impacts to existing vernal pools and existing sensitive species and is intended to develop new pools or to expand pools from existing lo cations.

Mitigation measure MM -BIO-13 has been modified to include the following language: The project applicant will consult with the U.S. Fish and Wildlife Service and get approval of the mitigation plan to ensure that it does not impact listed species.

The comments claim that the presence of ground squirrel s should have warranted burrowing owl surveys. In response, a burrowing owl habitat assessment was conducted and the burrows onsite are too small for burrowing owl. In addition, during protocol level surveys approved by USFWS no burrowing owl sign, pellets or whitewash were observed (please see the Biological Technical Report, Appendix C to the EIR).
1-29 The comments state that Dudek failed to recognize two species as special status because they are only listed by CNPS and are not considered special status under CEQA.

In response, while Mr. Smallwood personally disagrees with this conclusion, the wildlife agencies did not. It should also be noted that while the two species of concern were not treated as special status in the EIR, the two species will not be impacted by the project and will be included in the preserved portion of the site and subject to the habitat improvemen ts associated with the habitat mitigation implementation.

Additionally, the comments state that the Dudek rare plant surveys did not follow appropriate survey methodology or adequate survey finding.

In response, all rare plant surveys were conducted in coordination with the USFWS and CDFW. The surveys were completed per the Wildlife Agencies standard protocol methods; the surveys were reviewed by USFWS and CDFW; and no additional Wildlife Agency comments were received regarding the adequacy of the surveys. It should be noted that all of the rare plant occurrences documented on the site, historically or based on Dudek’s surveys, will be included in the project’s preservation areas and subject to the habitat improvement associated with the habitat mitigation implementation.

The comments states that Dudek’s methods for wildlife habitat assessment was not specifically defined.

In response, surveys were conducted based upon USFWS protocols and CDFW protocols of which the habitat assessment is also described within the USFWS protocols . Habitat assessment is first conducted with a vegetation map which is thoroughly described in the document. Based upon the vegetation, community types surveys are conducted for individual wildlife species . Notification, coordination and approval with USFWS took place for all wildlife surveys. These protocols were followed and approved. Biologists who conducted the surveys have over 20 years of experience conducting these protocol level surveys. In addition, these surveys have already been approved by the agencies. 1-30 The comments state that Dudek and the EIR misused the CNDDB database and failed to utilize other data sources for the determination of potential to occur on the project site.

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In response, in California, the CNDDB is the industry standard source , and accepted by the Wildlife Agencies, for a database on the occurrences of sensitive wildlife and plant species. This database includes all data submitted on positive identification of sensitive species from qualified biologist. Of course, the database does not include non-occurrence data, just positive identification from qualified biologist. If a source is deemed questionable, the data is not included in the CNDDB. Unlike the CNDDB, the other sources that are suggested for use in the comments, eBird and iNaturalist, are not recognized industry standard databases, and are not accepted by the Wildlife Agencies. While databases like eBird and iNaturlaist have data from qualified biologists, they also have numerous entries from amateur naturalist and other individuals who ’s training and knowledge is unknown and suspect. Some of the entries in eBird and iNaturalist have been confirmed by biological experts as accurate, but many have not. CNDDB is a 100% technical peer reviewed database, eBird and iNaturalist are not. For this reason, the wildlife agencies do not require the formal review of these amateur based databases, or the use of occurrence models to predict species occurrence in the absence of observation data.

While the Dudek assessment of potential to occur on the project site included the information from the CNDDB, it also included information and assessment of the site conditions (soils, vegetation, landform, disturbance factors, etc.) to determine poten tial to occur. The CNDDB is only one factor in the determination of potential to occur.
1-31 The comment provides a summary of the methods producing a biological impact analysis. The comment does not include any concerns related to the adequacy of the Final EIR. Please refer to Responses to Comments 1-32 through 1-35.
1-32 The comment states that the DEIR presents a flawed analysis of potential impacts to plants and wildlife, including a general discussion of the importance of habitat productivity and fragmentation, as well as comments about the “impacts” of the habitat restoration proposed.

In response, this comment is based on Dr. Smallwood's opinion on habitat loss. Dr. Smallwood's relies on "[t]wo study sites in grassland/wetland/woodland complexes within agricultural matrices …"In addition to studies being from 1948 and 1982, they are wildlife and ecology resources of general applicability addressing "agricultural matrices" that are not related to the specific Project site. (Newberry Springs Water Ass'n v. County of San Bernadino (1984) 150 CA3d 740, 750).

Dudek concludes that the project will not significantly impact any biological resources because it was specifically designed to avoid impact to sensitive species and the habitats that support them, including 100% connectivity of the remaining sensitive habitats. The project footprint is specifically located in one corner of the si te, where it will not impact any sensitive vegetation or sensitive species. In the project proposal, 100% of the sensitive habitat and sensitive species will be preserved without a ny additional sensitive habitat fragmentation. Within the area to be preserved, habitat restoration will be conducted to not only maintain the sensitive habitats and species, but also rebuild and restore their presence and sustainability. The restoration and management plans will provide measures to ensure there is no impacts from restoration and management, and t he wildlife agencies will have to review and approve these plans prior to any implementation. Yes, there will be impacts to the biological resources from the restoration program, including the weed control efforts. These very positive impacts will be the basis for the recovery and sustainability of the sensitive biological resource in perpetuity.

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1-33 The comment states that the DEIR ’s analysis of whether the project would interfere with wildlife movement in the region is flawed.

In response, the project site is not an identified wildlife corridor in the MHCP and/or City’s Open Space and Conservation Element of the General Plan. The project will not significantly impact a ny wildlife movement because the project site is already surrounded by development and does not currently have connectivity to any identified wildlife corridors. Any habitat movement (other than avian) is primarily movement onsite, and the program of preservation and habitat restoration will improve and buffer that movement. Avian movement that exists currently, will not be altered by the project and will also be bolstered by improved habitat refugia for wildlife species, especially sensitive wildlife. 1-34 The comments provide a discussion of the threat of traffic impacts to wildlife with an example study from Contra Costa County. This comment relies on Dr. Smallwood's opinion which is based on a study conducted on "a 2.5-mile stretch of Vasco Road in Contra Costa County, California." Contra Costa is a rural county in Northern California with characteristics that are unlike the Proj ect. The Project is bounded by development on all sides and is access ed via surface streets with slower moving traffic unlike Vasco Road in most all regards. The comment does not include any concerns related to the adequacy of the Final EIR.
1-35 The comments state that the project traffic impacts to wildlife would be significant. In response, the project site is currently almost completely surrounded by roads or other development, and the proposed project does not include any additional roads that would increase wildlife impacts above the current levels. Implementation of the project would not result in a threat to wildlife than what currently exists within the area . W ith the proposed preservation , habitat restoration, and fencing along the en tire adjacent roadways, threat to wildlife will be similar to existing conditions, or better. 1-36 The comments state the DEIR does not explain specifically how the proposed mitigation achieves the conservation objectives of the MHCP and would interfere with those objectives.

In response, as the DEIR discusses, all of the MHPA species and habitats that occur on the site will not only be preserved in perpetuity, but will be restored, and then managed and monitored in perpetuity, fulfilling the primarily goal of the M HCP, as well as the goals of the wildlife agencies. As described in response to comment 1-4 above, and as outlined in Section 2.3.1 of the Biological Resources Technical Report (Appendix C to the EIR), the City of San Marcos Subarea Habitat Conservation Plan/Natural Community Conservation Plan (San Marcos Subarea Plan) (City of San Marcos 2001) has not been finalized or implemented, and the City is no longer an active participant in the Natural Community Conservation Plan program or the subregional MHCP conservation planning effort. However, it is the City’s policy to comply with the conservation policies identified in the draft San Marcos Subarea Plan, which follows the 75% site preservation/25% site development initiative. It is possible that another development application could come in and propose development for more than 25% of the project site. 1-37 The comments state the DEIR presents a flawed analysis of cumulative impacts, including to biological resources.

In response, the project site is currently surrounded by development, with the sensitive habitats and wildlife corridors limited by this existing development. The project will not create cumulative impacts to any biological resources because it was specifically designed to avoid impact to sensitive species and Responses to Final EIR Comments
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the habitats that support them, including 100% connectivity of the remaining sensitive habitats. The project footprint is specifically located in one corner of the site, where it will not impact any sensitive vegetation or sensitive species. In the project proposal, 100% of the sensitive habitat and sensitive species will be preserved without any additional sensitive habitat fragmentation. Within the area to be preserved, habitat restoration will be conducted to not only maintain the sensitive habitats and species, but also rebuild and restore their presence and sustainability. The restoration and management plans will provide measures to ensure there is no impacts from restoration and management, and the wildlife agencies will have to review and approve these plans prior to any implementation. The project will result in positive impacts to the site such as recovery and sustainability of the sensitive biological resource in perpetuity, and as part of the greater biological resources found in the City of San Marcos. 1-38 The comments state that 8.07 acres proposed for preservation is already present, and the only benefit of the mitigation program will be the formal establishment of preservation. Please see response to comment 1-17.

In response, it is true that the sensitive habitats and species are already present in the 7.85 acres to be preserved. It is the primarily reason that the area has been left out of the development footprint.

What is not noted is that this habitat has been degraded over time from off -road activities, homeless encampments, ground disturbances, substantial weed invasion, and other disturbance factors. The sensitive species are still present, but the habitat has suffered, and its ability to support these sensitive species has declined. While preserving the 7.85 acres in perpetuity is the first priority, the subsequent habitat restoration and enhancement will not only maintain this current status but will expand the habitats and sensitive species occurrences on site. The mitigation program will convert the degraded areas into high quality habitat that will more extensively and more sustainably support these sensitive biological resources, not just preserve them.
1-39 The comments state that prior to the development of a habitat restoration plan, surveys are needed to determine which special -status species are supported by habitat on the project site. It would be scientifically indefensible and reckless to proceed with habitat restoration without first learning which species’ habitat is present.

In response, Dudek conducted the review of existing data, conducted biological surveys, and determined the sensitive species and habitats on site. Dudek has coordinated with the wildlife agencies to determine survey needs, conduct these surveys, and then report of the data collected. The information required to scientifically defend and carefully proceed with the habitat restoration is provided in the biological studies conducted, the DEIR, and approval and feedback from the wildlife agencies. 1-40 The comments state that none of the text in MM-BIO-2 identified the species of which habitat would be restored, nor does it mention that monitoring would be directed towards the performance of those species.

In response, the project’s mitigation program that will be developed as part of MM -BIO-2 will include restoration of all of the sensitive species and habitats that have been extensively documented on the project site. The detailed mitigation plan will include not only habitat restoration, but also a detailed plan for monitoring the sensitive species that occur, including protocol fairy shrimp monitoring, detailed rare plant monitoring, and general wildlife and vegetation monitoring , along with other ecologi cal factors (hydrology, etc.). These monitoring methods and protocols will be developed in cooperation with, Responses to Final EIR Comments
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and reviewed by, the wildlife agencies before implementation of any habitat mitigation. Additionally, please refer to mitigation measure MM-BIO-13.
1-41 The comments state MM-BIO-3 would be more informative if plants used in landscaping were identified to better assess the species selected to minimize irrigation, fertilizers, and pesticides.

In response, the detailed final landscaping plans, including plant palettes, are included in the final plan submittals to the City, which will be subject to review by the City consistent with the City’s Water Efficient Landscape Ordinance and the City’s landscape manual and guidelines. 1-42 The comments concur with the implementation of the lighting restriction in the developed area, but suggest the benefits are trivial in comparison to the project’s impacts to wildlife.

In response, the lighting restrictions may seem trivial in comparison to the preservation of 100% of the sensitive wildlife habitat and species, but those lighting re strictions will provide valued benefit to the wildlife and habitats that are being preserved in perpetuity. 1-43 The comments concur with the implementation of temporary fencing during project construction, but suggest the benefits are trivial in comparison to the project’s impacts to wildlife.

In response, the implementation of temporary fencing during construction may seem trivial in comparison to the preservation of 100% of the sensitive wildlife habitat and species, but those requirements will help to protect the sensitive habitat and species against construction disturbances and impacts.
1-44 The comments concur with the implementation of an environmental awareness training program, but suggest the benefits are trivial in comparison to the project’s impacts to wildlife.

In response, the implementation of an environmental awareness training program may seem trivial in comparison to the preservation of 100% of the sensitive wildlife habitat and species, but that program will help to protect the sensitive habitat and species against construction disturbances and impacts. 1-45 The comments state that the avian breeding season now recognized by CDFW is February 1st through September 15th and the DEIR should be revised accordingly.

In response, the February 15 to August 31 date range used is the USFWS presence/absence survey protocol for Coastal California Gnatcatcher. As outlined in Response to Comment 1-19, CAGN was the only listed species of concern that surveys were conducted for. USFWS is the reviewing agency for the project and that is why these dates of February 15 to August 31 are used. These dates are expected to overlap with the general nesting bird survey season. The breeding season of the coastal California gnatcatcher extends from February 15 through August 30, with the peak of nesting activity occurring from mid -March through mid -May (https://www.fws.gov/sites/default/files/documents/survey - protocol-for-coastal-california-gnatcatcher.pdf).
1-46 The comments concur with the implementation of a daytime limit to work hours, and specific measures if nighttime work is required, but suggest the benefits are trivial in comparison to the project’s impacts to wildlife.

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In response, the limit of work hours to the daytime may seem trivial in comparison to the preservation of 100% of the sensitive wildlife habitat and species, but that limit will help to protect the sensitive habitat and species against construction disturbances and impacts. 1-47 The comments concur with the implementation of construction BMP s, but suggest the benefits are trivial in comparison to the project’s impacts to wildlife.

In response, the implementation of construction BMPs may seem trivial in comparison to the preservation of 100% of the sensitive wildlife habitat and species, but those BMPs will help to protect the sensitive habitat and species against construction disturbances and impacts. 1-48 The comments concur with the implementation of construction BMPs, but suggest the benefits are trivial in comparison to the project’s impacts to wildlife. Comments also suggest that the final biological monitoring report be provided to the public at the same time as the City.

In response, the implementation of biological monitoring and reporting may seem trivial in comparison to the preservation of 100% of the sensitive wildlife habitat and species, but that monitoring and reporting will help to protect the sensitive habitat and species against construction disturbances and impacts, and report on any issues so they can be addressed appropriate ly. The final biological monitoring report will be provided to the City and wildlife agencies for review. 1-49 The comments state that coastal California gnatcatcher protocol-level detection surveys need to be completed to the minimum standards of the USFWS in support of a revised DEIR. If the DEIR is certified, then MM-BIO-10 needs to be implemented.

In response, protocol-level detection surveys for the coastal California gnatcatcher have been performed, reviewed by the USFWS, and approved by the USFWS. Prior to construction or the project, MM-BIO-10 will be implemented.
1-50 The comments state that if the project goes forward, the commentor agrees with the California Gnatcatcher Nest Avoidance and M inimization Measure. Comments also state that if a coastal California gnatcatcher nest is lost to construction, mitigation of the lost nest should be required.

In response, no CAGN were detected at the site. In addition, the site has poor quality habitat for CAGN with minimal coastal sage scrub. The CSS onsite consists of only a few broom Baccharis (Baccharis sarothroides) plants. The few CSS plants are spread out and do not offer nesting potential. The site is surrounded by urban development and therefore has low potential for CAGN to move onto the site.

Qualified biologist s will survey for nests if work is being done during the bird breeding season. If a nest is found, a 500 foot buffer is put up around the nest and typical noise monitoring is completed during construction .

As outlined in Response to Comment 1 -6, the applicant team, City staff, and the environmental consultants/biologists who prepared the EIR/BTR have been in coordination with USFWS/CDFW since inception of the project to discuss Wildlife Agency expectations, recommendations, and mitigation for the site. The Wildlife Agencies reviewed the BTR, and additional biological resource surveys completed per their request, prior to release of the public review Draft EIR. Please also refer to Responses to Comments 1-24 through 1-55 for direct responses to Dr. Smallwood’s review of the BTR.

Responses to Final EIR Comments
Hughes Circuit Project Final Environmental Impact Report 13383 May 2024 91
1-51 The comments state the General Pre-Construction Survey measures are misleading by suggesting the surveys would avoid take of birds. In response, the General Pre-Construction Surveys will be conducted to identify both birds and nesting for avoidance so that the construction will not result in the take of an individual bird or their nest during nesting season. If birds or nesting is detected, construction will avoid those birds/nest until all birds have dispersed or nesting season has ended. 1-52 See Response to Comment 1-45 and 1-50.
1-53 The comments state that the commentor agrees with the Nesting Bird Survey mitigation measure as stated, but in the commentors experience, the majority of the bird nest would not be found by biologists assigned to the survey. In response, the Nesting Bird Survey will be conducted by a biologist with knowledge and training to survey for all types of nests, including ground nests. 1-54 The comments state obtaining the necessary permits is an administrative step and should not be included as a mitigation measure in the DEIR. In response, please see Response to Comment 1-18. 1-55 The comments state that the project should commit to minimal use of rodenticides and avici des. It should commit to no placement of poison bait stations outside the buildings. In response, the project would commit to minimal use of rodenticides and avicides, if any use at all.

Additionally, t he comment s state that compensatory mitigation is needed for the increase wildlife mortality and suggest this mitigation is directed toward funding research to identify patterns of wildlife fatality and effective reduction measures. In response, please see Response to Comment 1 -35. The applicant is not responsible for compensatory mitigation toward funding research to identify patterns of wildlife fatality. The applicant has committed to the proposed conservation easement and funding the endowment as part of the Mitigation Plan.

The comments state that compensatory mitigation should include funding contributions to wildlife rehabilitation facilities to cover the cost of injured animals. In response, the applicant is not responsible for compensatory mitigation towards funding wildlife rehabilitation facilities . The applicant has committed to the proposed conservation easement and funding the endowment as part of the Mitigation Plan. These commitments are outlined in the Conditions of Approval. Additionally, please refer to mitigation measure MM-BIO-2.

Responses to Final EIR Comments
Hughes Circuit Project Final Environmental Impact Report 13383 May 2024 92

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