Appendix P
Public Comments and Responses to Comments
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Responses to Comment Letters Received on
the Draft EIR
The Draft EIR was circulated for public review from March 2, 2023, through April 17, 2023, in accordance with Section 15105(a) of the California Environmental Quality Act (CEQA) Guidelines. A total of eight written comment letters were received on the Draft EIR from agencies and organizations, as shown in Table 1. Each of the written comment letters have been assigned an alphanumeric label, and the individual comments within each written comment letter are bracketed and numbered. For example, Comment Letter A1 contains one comment that is numbered A1-1.
The responses to each comment on the Draft EIR represent a good-faith, reasoned effort to address the environmental issues identified by the comments. Pursuant to Section 15088(a) of the CEQA Guidelines, the City of San Marcos (City), as lead agency, is not required to respond to all comments on the Draft EIR, but only those comments that raise environmental issues. In accordance with CEQA Guidelines Sections 15088 and 15204, the City has independently evaluated the comments and prepared the attached written responses to any significant environmental issues raised.
Table 1. Comment letters and Commenters
Comment Letter Commenter Date Received
Agency
A1 City of Carlsbad Public Works Branch/Transportation
Department
April 11, 2023
A2 US Department of Fish and Wildlife April 13, 2023
A3 California Department of Fish and Wildlife April 17, 2023 A4 California Department of Transportation April 17, 2023 Organizations
O1 San Diego County Archaeological Society, Inc. April 3, 2023 O2 California Native Plant Society April 17, 2023
O3 Southwest Mountain States Regional Council of Carpenters April 17, 2023 Individuals
I1 Leslie Kuhn April 26, 2023
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Global Responses
The City has received comments requesting additional information related to the feasibility, anticipated success, and contingency measures for the proposed mitigation for identified impacts to vernal pools containing San Diego fairy shrimp and for San Diego button celery, thread-leaved brodiaea, and Orcutt’s brodiaea. The City has also received comments stating that proposed on-site mitigation for impacts to vernal pools containing San Diego fairy shrimp and for San Diego button celery, thread-leaved brodiaea, and Orcutt’s brodiaea is not adequate to fully mitigate for Project impacts. Responses to these comments are provided below.
Global Response A: The Mitigation in the EIR is Feasible and Performance Standards and Contingency Measures will Ensure Impacts would be reduced to Less than Significant Levels As discussed in the EIR, Section 3.3.5, the proposed project has been designed to minimize impacts to sensitive natural communities to the extent feasible. The proposed project would permanently preserve, restore, and manage
17.94 acres (approximately 54 percent) of the approximately 33.22-acre project site as open space and habitat area. The project design avoids and protects in place just over 80 percent of the on-site population of the federally and state listed endangered thread-leaved brodiaea, over 70 percent of the on-site population of the federally and state listed endangered San Diego button celery, and just under 40 percent of the non-listed but rare, Orcutt’s brodiaea. The project design also avoids 60 percent of vernal pools/basins occupied by San Diego fairy shrimp, including their corresponding watersheds (i.e., the project avoids 11 occupied vernal pools and 1 road rut while impacting 8 occupied basins), and approximately 2/3 of the vernal pool sensitive natural communities onsite (avoiding 0.29 acres and impacting 0.15 acres of vernal pools onsite.) Despite project design to protect in place and minimize impacts to sensitive biological resources onsite, the EIR identifies that the proposed project will result in potentially significant impacts. The proposed project will result in potentially significant impacts related to three special-status plant species (San Diego button celery, thread-leaved brodiaea, and Orcutt’s brodiaea) and one special-status animal species (San Diego fairy shrimp); critical habitat for San Diego fairy shrimp, thread-leaved brodiaea, and spreading navarretia; the sensitive natural communities identified in the EIR at Table 3.3-6, Impacts to Sensitive Natural Communities (including 0.15 acres of vernal pool (Group A) and 14.9 acres of upland habitat); and potential jurisdictional resources.
Mitigation Measures MM-BIO-1 through MM-BIO-8b would ensure consistency with the Multiple Habitat Conservation Program (MHCP) and draft San Marcos Subarea Plan, reduce potential impacts related to special status plants and animals, would reduce potential impacts on sensitive natural communities, and would ensure that the appropriate permits are obtained and that impacts are compensated in accordance with USFWS, CDFW, RWQCB, and/or USACE requirements. These measures outline the comprehensive planning, management, and monitoring for success that is required to occur through consultation with the appropriate agencies to preserve and restore sensitive vegetation communities, provide suitable habitat for special-status species, and mitigate impacts to sensitive fairy shrimp. With implementation of mitigation, project impacts to biological resources would be reduced below a level of significance.
It is anticipated that mitigation will occur onsite through translocation, preservation, creation, expansion, and enhancement. The onsite conceptual biological mitigation and transplantation design proposed by the project is presented on Figure 13 of the Biological Technical Report, EIR Appendix C. The conceptual mitigation plan has been designed to accommodate the anticipated mitigation ratios required by MM-BIO-1 through MM-BIO-8. Onsite mitigation for impacted species is as follows: approximately 0.27-acre existing vernal pool preservation, approximately
0.28-acre of vernal pool creation, approximately 0.18-acre of vernal pool expansion, and approximately 0.02-acre
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vernal pool enhancement, approximately 6.83 acres of existing thread-leaved brodiaea preservation, approximately
2.12 acres of existing Orcutt’s brodiaea preservation, approximately 5.88 acres of thread-leaved brodiaea and Orcutt’s brodiaea translocation, and, approximately 1.99 acres of existing grassland preservation.
This conceptual mitigation design is comprehensive, provides details of the proposed mitigation, and was developed based on field mapping of existing resources, consideration for mitigation suitability, and likelihood of success. For instance, regarding onsite transplantation, the locations on-site that are proposed for transplantation are those where the target species were not found to be present in multiple years of focused surveys. These areas could therefore support the species without disruption or impacting existing populations. In areas found to be occupied by thread-leaved brodiaea and Orcutt’s brodiaea, results of the focused surveys and corresponding quadrat sampling of flowering individuals during the peak blooming period found that the brodiaea density on-site varies widely, from between approximately 16 flowering individuals per square meter (m2) to approximately 91 flowering individuals/m2. This variation in density, as well as the evidence of suitable habitat areas not occupied, would suggest that the site is not at the carrying capacity for the species. The site could likely accommodate additional flowering individuals within areas currently occupied at a low density.
What could not be adequately demonstrated to be mitigated on-site – which is anticipated to consist of approximately 1.09 acres of Diegan coastal Sage scrub -- must be shown to occur off-site through direct preservation, creation, restoration, and/or enhancement, or through the purchase of bank credits. Based on current credit availability, this remaining mitigation for Diegan coastal sage scrub and grassland could be provided through acquisition of credits from mitigation banks such as Brook Forest Mitigation Bank, Cleveland Corridor Conservation Bank, Heights of Pala Mesa Conservation Bank, Manchester Avenue Conservation Bank, Ramona Grasslands Conservation Bank, Red Mountain Conservation Bank, or another location deemed acceptable by the City, USFWS, and CDFW. MM-BIO-1 and MM-BIO-7b also provides this off-site contingency in response to comments from regulatory agencies and the subsequent regulatory process; however, it is anticipated that on-site measures will effectively mitigate for project impacts to vernal pools, San Diego button celery, thread-leaved brodiaea, Orcutt’s brodiaea, San Diego fairy shrimp and habitat, and other sensitive vegetation communities (i.e., grassland). Given the locations on-site and the mitigation quantities proposed, conceptual mitigation will provide sufficient onsite compensation to mitigate the project impacts without needing to rely on an off-site contingency.
Project mitigation measures commit to rare plant and vernal pool mitigation requirements and explain the standards the project must meet. Additionally, please refer to the 2023 Summary Report from Helix (Attachment 1 to this Responses to Comments document), which confirms the capacity of the site to complete on-site translocation. Project mitigation requires that the City and regulatory agencies review and approve the HMMP and PMP prior to issuance of land disturbance, clearing, grubbing, or grading permits for the Project site.
Specifically, Mitigation Measure MM-BIO-1 would preserve or restore sensitive plant species and vegetation communities that provide suitable habitat for these species through a rare plant transplant plan. MM-BIO-1 requires that the City and resource agencies (USFWS and/or CDFW) review and approve a rare plant transplant plan of the target plant species and to achieve establishment success. In addition to direct replacement/relocation of individuals impacted, the proposed mitigation plan will also include salvaging of on-site seed for greenhouse propagation as well as direct dispersal of seeds collected. The mitigation plan also includes several adaptive monitoring and management strategies following installation to provide additional contingency and assurance for success such as additional seed collection/propagation, additional plant distribution, intensifying maintenance, as well as collection and distribution of additional vernal pool inoculum. Implementation of these additional efforts are expected to supplement direct transplanting and provide assurance and compensation/replacement for individuals impacted. The plan will cover an initial establishment period and also to contain contingency/remedial measures
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in case the performance standards prescribed in the approved rare plant transplant plan are not met. Contingency or remedial measures may include supplemental seeding or transplantation of nursery-grown plants, replacing dead plants, improving weed control, or other adaptive management techniques required by the resource agencies (USFWS and/or CDFW). In addition, the resource agencies may require the rare plant transplant plan also include off-site translocation and/or replanting at one of several candidate sites in the City having appropriate soils and habitat for these species. Resource agency verification that transplant plan performance standards have been met is required for the measure to be completed. Planning, mitigation, maintenance and monitoring, contingency measures, and ultimate verification of success will ensure the success of the transplant plan to mitigate project impacts. Given the proposed mitigation to translocate and replant these impacted individuals on-site, as well as plant additional greenhouse propagated individuals and implement contingency or remedial measures as applicable, the project is anticipated to result in an increase of occupied habitat on-site for rare plant species following the completion of mitigation.
MM-BIO-3 requires the Applicant or Developer demonstrate that the required agency consultation has been completed related to adverse effects to San Diego Fairy shrimp, thread leaved brodiaea, and San Diego button celery prior to the issuance of any land disturbance, clearing, grubbing, or grading permits for the project site. This measure also requires that long-term perpetual protection and management of habitat for these listed species be addressed through implementation of a Habitat Mitigation and Monitoring Plan (HMMP) and Preserve Management Plan (PMP), as further set forth in mitigation measures MM-BIO-7a and MM-BIO-7b.
MM-BIO-7a through MM-BIO-7b establish the compensatory mitigation ratios for impacts to sensitive natural communities and species; require implementation of compensatory mitigation on- site or off-site and require the preparation and implementation of a HMMP and PMP. These measures detail the information, mitigation, monitoring, stewardship, and management measures for the preserve area onsite or within any off-site areas. These measures establish mandatory standards, information, and subsequent agency permitting that commits the Applicant or Developer to mitigation and will ensure the plan’s success. A HMMP will include a summary of the project and corresponding mitigation requirements, the existing “baseline” conditions and functions of the proposed mitigation site, the suitability of the target mitigation site, proposed conditions and functions of the mitigation, costs and funding, ownership and other responsible entities, implementation (site preparation, resource salvaging, resource protection) procedures, maintenance and monitoring, reporting, contingencies, and determination of success. The standards for the HMMP and PMP are established by the mitigation measure; however, because condition, modification, and augmentation of the HMMP and PMP requires a consultation process and is subject to regulatory agency review, it is not feasible to provide the details of these plans as part of the mitigation measures. Evidence of agency consultation and approval of an HMMP and PMP must be provided to the City prior to issuance of any land disturbance, clearing, grubbing, or grading permits for the proposed project.
Mitigation Measure MM-BIO-2 requires City and the permit-issuing resource agency review and approval of a vernal pool mitigation plan (VPMP), that provides for the creation/expansion, re-establishment, and/or restoration, as well as maintenance and monitoring of vernal pools and the preservation and restoration of vernal pool areas to mitigate for impacts to this sensitive vegetation community and San Diego fairy shrimp and its habitat. This measure describes that mitigation will occur onsite according to the conceptual mitigation plan for the project. The measure describes that permit-issuing resource agency consultation and approval is required; and describes what shall be included in the VPMP, including creation and restoration methods, performance standards, contingency measures if performance standards are not met, and a resource salvage plan and translocation of fairy shrimp cysts by inoculation into suitable habitat within the preserve areas or created or restored onsite habitat. MM-BIO-2 requires that the Applicant or Developer provide full funding of the approved vernal pool mitigation plan via an endowment
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or other mechanism of the cost estimate approved by the permit-issuing resource agency for financial assurance prior to any clearing, grubbing, grading, or other land disturbance related to the project.
Again, MM-BIO-3 and MM-BIO-7a through MM-BIO-7b mandate agency consultation and the compensatory mitigation ratios for vernal pools. These mandatory standards, requirements, and subsequent regulatory permitting process will ensure the success of mitigation for vernal pool and San Diego fairy shrimp-related project impacts.
Bolstered by a history of similar successfully implemented mitigation programs in the area, the proposed mitigation measures are feasible and support the finding that project impacts to biological resources will be less than significant following implementation of mitigation. For example, the successful implementation of rare plant translocation is supported by thread-leaved brodiaea translocations that have proven successful in the City at the Joli Ann Leichtag Elementary Preserve, Baldwin Preserve, and the Rancho Santalina Preserve. The Joli Ann Leichtag Elementary Preserve (Preserve) served as a receptor site for the translocation of thread-leaved brodiaea individuals that were within the impact footprint of the Elementary School. Subsequently, this Preserve site has also served as receptor location for thread-leaved brodiaea impacts related to the Laurel Creek Condominiums development project. Thread-leaved brodiaea were successfully translocated within an approximate 0.5-acre non-native grassland receptor area within the Preserve, which resulted in a total population of over 60,000 thread-leaved brodiaea in the Preserve. The Rancho Santalina Preserve has also been a receptor site for translocation of threadleaved brodiaea. These sites display similar characteristics as the project site (soil and vegetation types) and are located less than 2 miles from the project site. Each of these sites have completed successful translocation, are protected with conservation easements, and are currently under perpetual management by a Habitat Manager.
The successful implementation of vernal pool preservation, creation, expansion, and enhancement is supported by the nearby Fry’s (i.e. Palomar Station) vernal pool mitigation site, which has been successfully implemented for several decades. Located approximately half a mile from the project, the density of resources at the Fry’s site are similar to that proposed for the project and depicted at Figure 13 of the Biological Resources Report (see EIR Appendix C), which represents the conceptual mitigation plan. The proposed project would also incorporate elements employed at the successful Fry’s vernal pool mitigation site, such as vernal pool CRAM analysis, grading parameters and techniques, plantings, additional native pollinator support, and success criteria. Information summarizing the success of vernal pool mitigation and density of resources at the nearby Fry’s site is included as Attachment 1 to Appendix C of the Final EIR.
Global Response B: Sufficiency of Vernal Pool Mitigation Ratios and Performance Standards To the extent comments were received suggesting additional vernal pool mitigation is needed, the EIR recommends mitigation for vernal pools occur at a 3:1 ratio, which is more than the 2:1 minimum ratio required by the MHCP.
Providing 3:1 means three times the impacted area will be enhanced, restored, and permanently preserved and managed with successful mitigation. Given the amount of disturbance at the site and likelihood that on-site vernal pools and sensitive plant populations would continue to degrade due to the competition of resources and abundance of non-native species, a 3:1 ratio is anticipated to fully compensate for the impacted vernal pool habitat and reduce impacts to less than significant levels. (Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1233 [upholding 2:1 mitigation ratio and noting “mitigation need not account for every square foot of impacted habitat to be adequate. What matters is that the unmitigated impact is no longer significant.”]; Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 495 [upholding 3:1 mitigation ratio for coastal sage scrub].)
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Here, the mitigation ratios proposed were based on rarity or ecological importance of habitat type, distance from the impact site, temporal loss, and the likelihood of a successful mitigation process. As discussed in section 3.3.1, Existing Conditions, of the EIR, while the habitat type is important, it has been subject to continued disturbance due to human influence, including routine dumping of trash, off-highway vehicle recreation, unsanctioned community gatherings, and plant harvesting/poaching. The mitigation program would implement an onsite strategy to mitigate vernal pool impacts at a 3:1 ratio, which mitigation success will be ensured through appropriate creation, reestablishment, restoration, maintenance, monitoring with reporting, perpetual management, and financial assurances.
The standards provided in pertinent regional planning documents, including the MHCP1, the MHCP subarea plans, industry examples of resource agency requirements, and experience in the field and review of successful mitigation in the area support the proposed 3:1 mitigation ratio for vernal pools at the site. Locally, a minimum 2:1 ratio is required by the MHCP and up to 3:1 is required by the City of Encinitas MHCP subarea plan. Within the adopted City of San Diego MSCP, a 2:1 ratio is required for impacts to vernal pools occupied with listed shrimp, a 3:1 ratio is required for pools also occupied by San Diego button celery, and up to 4:1 ratio is required for pools with Spreading navarretia, San Diego mesa mint, California Orcutt grass, and Otay mesa mint. The County of San Diego Biological Mitigation Ordinance states that a 3:1 mitigation ratio is required for impacts to vernal pools. Consistent with these local standards established to ensure adequate mitigation, the project proposes a 3:1 mitigation ratio for all impacted vernal pools both with and without listed shrimp or rare plants (including San Diego button celery).
U.S. Army Corps of Engineers and Regional Water Quality Control Board precedent was also considered. While neither has a standard ratio for impacts to vernal pools, as projects are evaluated on a case-by-case basis, the Corps’ draft mitigation ratio checklist was consulted and verified the proposed 3:1 ratio. Further, the Regional Water Quality Control Board (RWQCB), mitigation at the immediately nearby (approximately 0.5-mile) Fry’s vernal pool site required and completed at a 1.5:1 ratio (0.03-acres of vernal pool establishment to mitigate for a 0.02- acre direct permanent).
For instance, in California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 611, 621- 622, the court upheld a 2-1/1-1 preservation/creation requirement for vernal pool impacts and a 1:1 ratio for impacts to waters of the US. The current project proposes double this ratio at 3:1.
For each of these reasons, the mitigation ratio of 3:1 proposed in the EIR is considered appropriate and sufficient to reduce vernal pool impacts below a level of significance.
Global Response C: Off-Site Mitigation Contingency
Comments questioned the feasibility of using off-site mitigation banks to fully compensate for project impacts.
Based on the analysis of the Biological Resources Technical Report prepared for the project, the current project design proposes mitigation occur onsite via direct preservation, creation, restoration, and/or enhancement. Refer to EIR Appendix C, Biological Technical Report, Figure 13 Proposed Conceptual Mitigation, showing the proposed conceptual areas for onsite mitigation.
The conceptual mitigation plan includes the following onsite mitigation: approximately 0.27-acre existing vernal pool preservation, approximately 0.28-acre of vernal pool creation, approximately 0.18-acre of vernal pool expansion, and approximately 0.02-acre vernal pool enhancement; approximately 6.83 acres of existing threadleaved brodiaea preservation; approximately 2.12 acres of existing Orcutt’s brodiaea preservation; approximately 1 Note, because the City of San Marcos has not approved or adopted their Draft Subarea Plan, the project is not subject to the requirements of the MHCP, though it is recognized and herein as a guide for project site planning considerations.
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5.88 acres of thread-leaved brodiaea and Orcutt’s brodiaea translocation; and, approximately 1.99 acres of existing grassland preservation.
What could not be adequately demonstrated to be mitigated onsite, which would be mitigated off-site, consists of approximately 1.09 acres of poor quality and isolated Diegan coastal Sage scrub. Mitigation for this sage scrub must occur off-site through direct preservation, creation, restoration, and/or enhancement, or through the purchase of bank credits.
Mitigation Measure MM-BIO-7b identifies several conservation banks in the region that are appropriate to provide conservation credits for equivalent or superior sage scrub replacement habitat, including Brook Forest Mitigation Bank, Cleveland Corridor Conservation Bank, Heights of Pala Mesa Conservation Bank, Manchester Avenue Conservation Bank, Ramona Grasslands Conservation Bank, Red Mountain Conservation Bank, or another location deemed acceptable by the City, USFWS, and CDFW. An agency does not need to identify the exact location of offsite mitigation property for an EIR to comply with CEQA where it has committed to mitigation. (Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 279 [upholding mitigation providing for acquisition of offsite property -- or properties -- to meet Quino mitigation acreages], California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 621-622 [upholding proposed off-site vernal pool mitigation measure where no offsite location was identified].) The project is committed to purchase conservation credits prior to any land disturbance, clearing, grubbing, or issuance of grading permits for the project. Based on current credit availability, this remaining mitigation for Diegan coastal sage scrub and grassland could be provided through acquisition of credits from these banks.
As discussed above and in the bio report, on-site mitigation, and off-site mitigation property (or properties) together will mitigate project impacts to less than significant. Implementation will be enforced as the Applicant or Developer must demonstrate compliance with mitigation performance standards identified in EIR Table 3.3-8, Mitigation for Impacts to Sensitive Natural Communities, whether achieved on- or off-site, prior to issuance of permits for land disturbance, clearing, grubbing, or grading permits being issued for the Project (MM-BIO-7b).
In sum, the EIR adequately addresses the proposed project’s potential to significantly impact vernal pools containing San Diego fairy shrimp; San Diego button celery; thread-leaved brodiaea; and Orcutt’s brodiaea, and mitigation has been adopted that would reduce these impacts to less than significant levels.
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Comment Letter A1
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Response to Comment Letter A1
Agency
City of Carlsbad Public Works Branch/Transportation Department April 11, 2023
A1-1 The comment relates to traffic delay or congestion, which is no longer considered a significant impact on the environment pursuant to CEQA. (Pub. Resources Code section 21099(b)(2).) The VMT analysis provided at Section 3.15 and Appendix J of the EIR address the project’s transportation impacts under CEQA. As the comment does not raise an environmental issue within the meaning of CEQA, no further response is required or necessary.
Notwithstanding, in response to the comment related to the Local Transportation Analysis (LTA) prepared to comply with City requirements, LLG has prepared an extended project traffic distribution (attached below), which shows the distribution of trips entering Carlsbad via W. San Marcos Blvd/Palomar Airport Rd. To inform the distribution of trips, LLG has used existing traffic patterns and the location of compatible land uses. Palomar Airport Road, west of Melrose Drive, within the City of Carlsbad, is expected to receive approximately 3% of project traffic. This equates to 81 daily trips, 6 AM peak hour trips, and 7 PM peak hour trips, which is below the City of Carlsbad thresholds for triggering a required Transportation System Management payment of 110 daily trips or 11 peak hour trips. It should be noted that the City of Carlsbad’s jurisdiction over Palomar Airport Road commences approximately 3.5 miles from the project site, such that most project traffic has already distributed to other roadways and locales before reaching the City.
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Comment Letter A2
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Response to Comment Letter A2
Agency
U.S. Fish and Wildlife Service (USFWS)
April 13, 2023
A2-1 The comment provides an introduction to the U.S. Fish and Wildlife’s (USFWS) role and its function. The comment does not raise any specific issues related to the adequacy of the EIR. No further response is required or necessary.
A2-2 The comment provides a summary of the project description and project location and introduces the MHCP. The comment does not raise any specific issues related to the adequacy of the EIR. No further response is required or necessary.
A2-3 The comment describes the biological setting of the project site, including all federally endangered and threatened species on-site. This comment also describes the project site as part of the San Marcos Major Amendment Area identified in the MHCP. The comment restates information contained in the Draft EIR and does not raise any specific issues related to the adequacy of the EIR. No further response is required or necessary.
A2-4 The comment recommends that the EIR include an alternative that develops no more than 25 percent along the southern border of the project site, restricting development to the southernmost third of the project site. The comment states this would minimize impacts to sensitive biological resources, including federally protected species; avoid direct impacts to most of the vernal pools; minimize impacts to the north to south surface water flow across the project site; and avoid significant areas occupied by thread-leaved brodiaea.
In the Draft EIR, as the comment notes, a Reduced Development Footprint Alternative with a 25 percent footprint was considered in Section 4.4.5 in response to prior comments from USFWS. The Reduced Development Footprint Alternative was designed, as requested, to prioritize avoidance of vernal pools and then avoid thread-leafed brodiaea (TLB). This alternative was determined to avoid vernal pools in comparison to the proposed project impacts, but result in a more severe impact to TLB, impacting approximately 53% of TLB and its critical habitat onsite compared to the project’s impact to 19% of TLB.
In response to this comment, an alternate design reflecting a development disturbance footprint that would affect approximately 30 percent of the overall 33.2-acre site, located along the southern border, is considered, and analyzed in Chapter 4 (Section 4.4.6) of the Final EIR. The “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization” included in the Final EIR Alternatives Chapter, considers a variation on the Reduced Development Footprint Alternative previously evaluated in the Draft EIR. Under the “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization”, development would occur only within a reduced development footprint in the southern portion of the project site, resulting in the development of 228 multi-family homes on approximately 10.11 acres of the 33.2-acre project site. The remaining approximately 23.11 acres of the 33.2-acre project site would be preserved and restored as open space and habitat area.
Similar to the Reduced Development Footprint Alternative evaluated in Section 4.4.5 of the Draft EIR, the “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization” would result in
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significant impacts to sensitive biological resources (vegetation, vernal pools, and thread-leaved brodiaea) and would be required to incorporate mitigation to reduce impacts to less than significant.
This “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization” alternative would result in an increased level of significant impacts to a federally and state listed rare plant; approximately 72,158 more thread-leaved brodiaea plants would need translocation by this alternative rather than avoided and protected in-place by the proposed project analyzed in the Draft EIR. This “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization” alternative would also cluster development along and within the southern portion of the site, which would consolidate development potentially reducing the development interfaces/edges to adjacent preservation areas on-site.
Because TLB has been found primarily in the southern portion of the site, this alternative would result in approximately 2.4 times the impact to TLB when compared to the proposed project. Although this alternative will result in increased impacts to TLB a development design along the southern third of the site would avoid direct impacts to most of the vernal pools, including all pools with listed fairy shrimp species. This alternative would result in a benefit to listed fairy shrimp species (i.e., no impacts); consequently, such an alternate design would impact approximately 45 percent of the TLB-occupied areas on-site compared to the project’s impact to 19 percent of TLB-occupied areas.
To the extent the comment states that an alternative developing the southernmost third of the site should be considered to minimize impacts to north-south surface water flows, based on field surveys conducted for the project since 2018, above ground level surface (I.e., overland) water flows typically do not exist onsite. Furthermore, results of the aquatic resources delineation did not identify any natural Ordinary High Water Marks (OHWM) on-site, which is a primary indicator for surface water flow and defined in 33 Code of Federal Regulations Section 329.11 as “that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of the soil; destruction of terrestrial vegetation; the presence of litter or debris; or other appropriate means that consider the characteristics of the surrounding areas.” Overland surface flows were only detected in 2023, which was the largest rainfall year in the region for many decades. Even during this record-breaking rainfall year, overland surface flows were only observed in the southwest corner of the site. Specifically, overland surface flows were observed on-site during the field survey with the U.S. Army Corps of Engineers on March 23, 2023 within the storm drain outfall at Linda Vista Road, as well as the linear swale feature parallel to South Las Posas Road and the vernal pool located immediately to the north of the swale (see Figure 12b of the Biological Resources Technical Report), which is an area designed to be avoided and protected in place by the proposed project. Ultimately, proposing development of the southernmost third of the site as suggested by the commentor would worsen and eliminate this overland surface connection, rather than avoid or minimize impacts to such surface flows compared to the proposed project. No other areas of the site were found to have overland surface flows, including any overland surface flow into or between vernal pools or other depressional features. Thus, these survey observations further validate and confirm that the vernal pools and other depressional features on-site become inundated (i.e., fill with water) as a result of direct precipitation and are independent depressional features in the land that are not hydrologically connected or reliant on each other.
Nonetheless, to address this comment from USFWS, the “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization” alternative has been included in Chapter 4, Section
4.4.6, of the Final EIR under project alternatives considered. Furthermore, as outlined in Section 4.5
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of Chapter 4 of the Final EIR, this “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization” alternative would be considered the environmentally superior alternative as a result of reduction in the development footprint on the 33.2-acre project site and identified significant impacts in comparison to the proposed project, in addition to meeting most of the project objectives.
A2-5 The comment references mitigation measure 7b (MM-BIO-7b) and states that USFWS is not aware of any off-site property or bank that would be appropriate to mitigate impacts to listed species and their critical habitats and that lack of viable off-site mitigation options emphasizes the importance of maximizing on-site avoidance, minimization, and mitigation of impacts.
MM-BIO-7b requires that the project demonstrate compliance with compensatory mitigation for direct permanent impacts to sensitive communities in accordance with ratios identified in MM-BIO-7a. The mitigation ratios in MM-BIO-7a act as minimum performance standards to ensure that adequate mitigation occurs for project impacts and includes that any additional requirements imposed in the approvals (i.e., agency permits) by the USFWS, USACE, RWQCB, and/or CDFW would also be required.
Mitigation proposed for the project is primarily targeted to be on-site within the proposed conservation area, which is presented on Figure 13 of the Biological Resources Report. MM-BIO-7b provides some level of flexibility and presents additional options that such mitigation may occur through one or a combination of: on-site preservation, creation, restoration, and/or enhancement; off-site preservation, creation, restoration, and/or enhancement; or the purchase of off-site conservation credits from a conservation bank in the region. The mitigation thus establishes the performance standards the project must meet and identifies the alternative means to mitigate the identified impacts.
The current proposed project design first avoids and minimizes impacts to sensitive natural communities to the extent feasible. Based on the analysis of the Biological Resources Technical Report prepared for the project, it is anticipated that the current project design would allow for a substantial proportion of the required mitigation may be able to be provided onsite via direct preservation, creation, restoration, and/or enhancement. Refer to EIR Appendix C, Biological Technical Report, Figure 13 Proposed Conceptual Mitigation, showing the proposed conceptual areas for onsite mitigation. The conceptual mitigation proposed includes the following: approximately 0.27-acre existing vernal pool preservation, approximately 0.28-acre of vernal pool creation, approximately 0.18-acre of vernal pool expansion, and approximately 0.02-acre vernal pool enhancement; approximately 6.83 acres of existing thread-leaved brodiaea preservation; approximately 2.12 acres of existing Orcutt’s brodiaea preservation; approximately 5.88 acres of thread-leaved brodiaea and Orcutt’s brodiaea translocation; and, approximately 1.99 acres of existing grassland preservation. What could not be adequately demonstrated to be mitigated on-site (approximately 1.09 acres of Diegan coastal Sage scrub) must be shown to occur off-site through direct preservation, creation, restoration, and/or enhancement, or through the purchase of bank credits. Based on current credit availability, this remaining mitigation for Diegan coastal sage scrub and grassland could be provided through acquisition of credits from mitigation banks (such as Brook Forest Mitigation Bank, Cleveland Corridor Conservation Bank, Heights of Pala Mesa Conservation Bank, Manchester Avenue Conservation Bank, Ramona Grasslands Conservation Bank, Red Mountain Conservation Bank, or another location deemed acceptable by the City, USFWS, and CDFW). The City acknowledges the comment that an off-site property or bank may not currently offer adequate mitigation for the entire acreage set forth at MM-BIO-7a for the applicable listed species and critical habitat impacts at the project site; however, it is anticipated that on-site and off-site mitigation together would be able to satisfy the project’s mitigation requirements. Accordingly,
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it has been demonstrated that this mitigation approach proposed will successfully be implemented to reduce the identified impacts below a level of significance. Where the alternative means of mitigation have been identified and committed to, CEQA does not require that a proposed mitigation site be identified, or the precise details of implementation be identified at this stage. (See, California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 622; Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260.)
A2-6 The comment restates information provided in the DEIR that fairy shrimp surveys were conducted in 2020 and recommends that updated protocol surveys for fairy shrimp be conducted.
Generally, only a single wet and dry season survey is required under the USFWS survey guidelines.
However, if surveys do not adhere to USFWS protocol or if wet season surveys were conducted in year of insufficient rainfall (such as a drought year), the USFWS can consider the surveys invalid or unreliable and require an additional wet season survey.
USFWS-compliant protocol wet and dry season surveys for San Diego fairy shrimp were conducted by Helix across the entire property in 2020 in accordance with the USFWS Survey Guidelines for the Listed Large Branchiopods (USFWS 2017). (DEIR, Appendix C, Biological Technical Report; Survey Guidelines for the Listed Large Branchiopods, available at https://www.fws.gov/sites/default/files/documents/ survey-guidelines-for-large-branchiopods.pdf.). The project’s wet season survey occurred via seven site visits occurring from March 22 to May 4, 2020. The 2020 fairy shrimp survey of the project site was performed in a year recorded to have 68% more rainfall than average years. Following the wet season survey, dry season surveys were conducted. The 2020 wet and dry surveys encompassed features detected on-site in 2020, as well as features previously recorded by others during focal protocol efforts conducted by others in 2002 and 2006.
The wet and dry season surveys identified a total of 99 features (i.e., 46 vernal pools, 38 road ruts, and 15 other depressions) on-site that could support fairy shrimp. Of these features, the surveys found 20 basins (i.e., 16 vernal pools, 2 road ruts, and two other depressions) occupied by San Diego fairy shrimp, 4 basins occupied by versatile fairy shrimp, and 1 basin with unidentified fairy shrimp species.
The remaining 74 features were found unoccupied for fairy shrimp species. Further, based on the results of the 2020 surveys, no features identified as unoccupied in 2002 or 2006 were found in 2020 to be occupied. Corresponding survey reports were submitted to the USFWS and were considered appropriate/acceptable by the USFWS.
Accordingly, the method of analysis in the EIR is supported by substantial evidence and provides a sufficient degree of analysis and complete information to allow the public and decision-makers assess impacts to fairy shrimp.
A2-7 The comment includes concluding remarks. The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR. No further response is required or necessary.
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Comment Letter A3
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INTENTIONALLY LEFT BLANK
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Response to Comment Letter A3
Agency
California Department of Fish and Wildlife (CDFW)
April 17, 2023
A3-1 The comment introduces the California Department of Fish and Wildlife (CDFW) and its role and its function. The comment is an introduction to comments that follow and does not raise any specific issues related to the adequacy of the EIR. No further response is required or necessary.
A3-2 The comment provides a summary of the project description and project location. The comment restates information contained in the Draft EIR. As the comment does not raise any specific issues related to the adequacy of the EIR, no further response is required or necessary.
A3-3 The comment describes the biological setting of the project site, including endangered, threatened, and sensitive species on-site. This comment also describes the project site location within the boundaries of the MHCP. The comment restates information contained in the Draft EIR. The comment does not raise any specific issues related to the adequacy of the EIR, therefore no further response is required or necessary.
A3-4 The comment describes previous coordination with the project Applicant and City. The comment also describes the Wildlife Agencies suggested two alternatives to the proposed project; the first being conservation of the entire project site as is (mitigation bank), and the second being a reduced footprint in which no more than 25% of the site would be impacted by the development footprint.
In response, the comment restates information contained in the Draft EIR and expresses a preference for two alternatives but does not raise any specific issues related to the adequacy of the EIR. Therefore, no further response is required or necessary. Please see Response to Comment A2-4.
To clarify the consideration of the referenced alternatives in the Draft EIR, the Mitigation Bank Alternative proposed was considered but rejected in the Draft EIR as it would not meet any of the basic project objectives, would not provide housing units in an infill area, and would not enhance uses and connectivity in the surrounding area. A Mitigation Bank Alternative is also, in essence, a “No Project Alternative” where the site would remain undeveloped “as-is,” which was considered in Section 4.4.3 of the Draft EIR. The EIR acknowledges that the No Project Alternative would have reduced impacts to biological resources compared to the proposed project; however, the No Project Alternative would not accomplish the basic project objectives. The proposed Mitigation Bank Alternative differs only to the extent it assumes conservation of the site would occur through purchase with grants or mitigation funds from other projects or through the establishment of a mitigation bank. By contrast, the No Project Alternative would not provide preservation of any portion of the project site.
The Reduced Development Footprint Alternative (no more than 25% development) was evaluated in the Draft EIR and identified as the environmentally superior alternative (CEQA Guidelines, § 15126.6(e)(2)). However, while the Reduced Development Footprint Alternative may reduce vernal pool impacts associated with the proposed project, it would result in substantially greater impacts to federally listed threatened and state-listed endangered thread-leaved brodiaea (TLB), impacting approximately 45% of the TLB-occupied areas on-site compared to the project’s impact to 19% of TLB-
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occupied areas. This alternative was further identified to not meet certain project objectives, or to meet them to a lesser extent compared to the proposed project. Specifically, while the Reduced Development Footprint Alternative would develop infill housing on an urbanized site and rezone the site to residential to assist the City to implement its housing goals (project objectives 1 and 2), it would implement less housing compared to the proposed project and less efficiently promote infill development. This alternative would also provide less varied housing compared to the proposed project, including less affordable housing (objective 3). This alternative would meet objective 4 by avoiding vernal pools but would result in greater impacts to thread-leaved brodiaea, such that it would be inconsistent with objective 4. This alternative would not meet project objective 5 because the site would be atypically designed in a manner that does not enhance connectivity. This alternative would also not meet objective 6 to the same extent as the project, as it would not maximize housing density for the City.
It is also noted that, while the Reduced Development Footprint Alternative would lessen biological impacts, the impacts to biological resources and corresponding recommended mitigation measures, the EIR concludes that, with the mitigation measures recommended in the EIR, there are no significant biological impacts of the proposed project.
As described in Response to Comment A2-4 above, a “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization” alternative has been included in Chapter 4, Section 4.4.6, of the Final EIR under project alternatives considered to address comments from USFWS. This alternative considers development of 29% of the site which would occur within a reduced development footprint (as compared to the proposed Project) in the southern portion of the project site. As outlined in Section
4.5 of Chapter 4 of the Final EIR, this “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization” alternative would be considered the environmentally superior alternative as a result of reduction in development area in comparison to the proposed project.
CEQA does not require an agency to select the environmentally superior alternative. (CEQA Guidelines Sections 15042-15043). Rather, the EIR is to analyze a reasonable range of potentially feasible alternatives that would feasibly attain most of the basic project objectives but would avoid or substantially lessen any of the significant effects of the proposed project. (CEQA Guidelines, Section 15126.6.) Decision-makers are thus enabled to weigh the pros and cons of the project and alternatives, considering a broad range of factors including the ability to meet project objectives, practicability, and desirability. The EIR provides the requisite analysis. The City will include the comment as part of the Final EIR for review and consideration by the decision-makers prior to a final decision on the project.
A3-5 The comment restates information contained in the Draft EIR and states that the numbers of individuals of thread-leaved brodiaea (TLB), San Diego button-celery, and Orcutt’s brodiaea that would be impacted was quantified in the Draft EIR, but not the spatial area occupied by those sensitive species that would be lost or the area of the proposed receptor sites on the project property are not provided.
In response, the approximate spatial area occupied by these species that would be impacted by the project are as follows:
▪ 1.62 acres of TLB
▪ 3.88 acres of Orcutt's brodiaea
▪ 0.0003 acres of San Diego button celery
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The proposed receptor sites on the project property are within areas (vernal pools and grasslands) onsite where not found present during focal surveys conducted between 2020 and 2023. These receptor areas comprise approximately 5.88 acres, which would provide a net increase of occupied habitat by these species. Approximately 1.99 acres of additional grasslands habitat located around the receptor sites would provide additional habitat for these species.
A3-6 This comment is an introduction to comment and recommendations to follow. CDFW offers the comments and recommendations herein to assist the City in adequately identifying, avoiding, and/or mitigating the project’s significant, or potentially significant, direct, and indirect impacts on fish and wildlife (biological) resources. The comment does not raise any specific issues related to the adequacy of the EIR, thus, no further response is required or provided.
A3-7 The comment states that proposed on-site mitigation for impacts to vernal pools containing San Diego fairy shrimp and for San Diego button celery, thread-leaved brodiaea, and Orcutt’s brodiaea are not adequate to fully mitigate for permanent loss of occupied habitat acreage. The comment states that project impacts would permanently reduce the acreage of vernal pool habitat and habitat for the three sensitive plant species.
In response, the proposed mitigation program is considered adequate where it is anticipated to result in a net increase of occupied habitat on-site. Implementation and success of the proposed mitigation would not result in a permanent loss off occupied habitat. Specifically, the mitigation proposed would provide approximately 0.38 acres of additional occupied habitat on-site compared to existing habitat on-site occupied by these species, thereby resulting in a net increase and no permanent reduction or loss of occupied habitat. Although occupied habitat for San Diego button celery, TLB, and Orcutt's brodiaea would be temporarily reduced by the project (approximately 5.50 acres), these species would be relocated and inoculated within areas on-site where not currently found present (i.e., non-occupied habitat) during focal surveys conducted between 2020 and 2023. These relocation and inoculation areas comprise approximately 6.36 acres of habitat, which would provide a net increase of approximately 0.86-acre of on-site habitat occupied by these species. Additionally, areas on-site which are currently mapped as disturbed habitat (including unvegetated trails that traverse the mitigation area) would be enhanced to create native grasslands and planted with TLB and Orcutt’s brodiaea where they do not currently exist, which would provide additional acreage of occupied habitat by these species.
A3-8 The comment states that the proposed on-site mitigation may not be biologically viable and therefore not adequate to fully mitigate the loss of biological functions and values as required under CESA. The comment states that impacted species are often at carrying capacity for the habitat, and introduction of transplanted individuals may disrupt the equilibrium of the population and could decrease the onsite vitality of the species. The comment states that the final EIR should address off-site mitigation through acquisition and preservation in perpetuity of existing vernal pools containing San Diego fairy shrimp and/or San Diego button celery, as well as off-site preservation of existing occupied habitat for thread-leaved brodiaea and Orcutt’s brodiaea. The comment states CDFW acknowledges it may not be possible to find one off-site location that supports multiple target species as occurs on the project site.
In response, the biologists from Helix Environmental have investigated the concerns raised by CDFW regarding onsite transplantation and herein describe and support the opinion that onsite transplantation is viable mitigation that will not disrupt the equilibrium of the population or decrease the onsite vitality of the species for several reasons (DEIR, Section 3.3.5). First, the locations on-site
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that are proposed for transplantation are those where the target species were not found to be present in multiple years of focused surveys. These areas could therefore support the species without disruption or impacting existing populations. Second, in areas found to be occupied by thread-leaved brodiaea (TLB) and Orcutt’s brodiaea, results of the focused surveys and corresponding quadrat sampling of flowering individuals during the peak blooming period found that the brodiaea density onsite varies widely, from between approximately 16 flowering individuals per meter square (m2) to approximately 91 flowering individuals/m2. This variation in density, as well as the evidence of suitable habitat areas not occupied, would suggest that the site is not at the carrying capacity for the species.
The site could likely accommodate additional flowering individuals within areas currently occupied at a low density. Thus, reliance on proposed on-site mitigation/translocation of species is not expected to disrupt the equilibrium of the site. Refer to EIR Appendix C, Biological Technical Report, Figure 13, Proposed Conceptual Mitigation, for proposed conceptual locations for onsite transplantation.
Further, due to the potential fluctuation in vegetative/flowering individuals of brodiaea in any given year, additional surveys for brodiaea targeting both vegetative growth and flowering periods were conducted between 2020 and 2023 to verify the previous survey results and mapping of population extents and occupied habitat. Due to the abundant rainfall of 2023 which could in theory result in a larger amount of brodiaea corms to germinate and sprout vegetative growth than observed in previous survey years, additional vegetative surveys were conducted that focused on the proposed mitigation/translocation areas to verify these target locations remain viable for mitigation (i.e., are absent of brodiaea or other listed species). Results of the 2023 survey confirmed that the extents of occupied habitat mapping identified in the EIR remain accurate and the proposed mitigation areas remain suitable for transplantation (I.e., absent of brodiaea or other listed species). The results of these updated surveys, including the identification and analysis related to the carrying capacity and viability of mitigation/transplantation locales onsite, are provided at Appendix C of the Final EIR.
To the extent the comment requests the identification of off-site mitigation through acquisition and preservation in perpetuity of existing vernal pools containing San Diego fairy shrimp and/or San Diego button celery, as well as off-site preservation of existing occupied habitat for thread-leaved brodiaea and Orcutt’s brodiaea, such identification is not deemed necessary in light of the above analysis, based on substantial evidence, which demonstrates that the proposed on-site mitigation is anticipated to be successful. However, the transplantation plan will provide contingency measures in case performance standards are not met, which may include additional seed collection/propagation, additional plant distribution, intensifying maintenance, collection and distribution of additional vernal pool inoculum, performance-based assurance bonds, and off-site mitigation. It should also be noted that, in addition to providing on-site translocation of individuals, MM-BIO-7a and MM-BIO-7b require compensatory mitigation for impacts to vernal pools at a 3:1 ratio. This compensatory mitigation may be secured through on- or off-site habitat establishment, reestablishment, or restoration or conservation credits.
CDFW does not propose, and the City is not aware of, an off-site location that would effectively mitigate the identified impacts to the same anticipated effectiveness as the proposed onsite mitigation and translocation. Thus, an off-site location is not identified as the anticipated mitigation for the Project’s impacts. However, the off-site option but may act as a supplement or as a contingency measure to ensure performance standards are met. See also, Global Response A, and Response to Comment A2-5.
A3-9 The comment states that, for impacts to San Diego button celery and thread-leaved brodiaea, an Incidental Take Permit (ITP) would be required under the Fish and Game Code; that early consultation with CDFW is encouraged; and that revisions to the Fish and Game Code, effective January 1998, may
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require that CDFW issue a separate CEQA document for the issuance of an ITP unless the Project’s CEQA document addresses all Project impacts to CESA-listed species and specifies a mitigation, monitoring, and reporting program (MMRP) that will meet the requirements of an ITP. The comment states that, for these reasons, the take proposed to be authorized by CDFW’s ITP, biological mitigation monitoring, and reporting proposals should be described in detail in the Project’s CEQA document to satisfy the requirements for a CESA ITP.
The comment provides background information and restates information provided in the Draft EIR. The comment does not raise any specific issues related to the Draft EIR, such that no further response is required. The project's EIR, as well as the Biological Resources Report, Appendix C, address project impacts to CESA-listed species, and specifies a corresponding mitigation program for those species potentially requiring an ITP. The mitigation outlines the elements that must be incorporated into a successful plan, including no loss of these plant species and establishment success. Consistent with the identified mitigation in the EIR, which includes standards for monitoring and reporting, comprehensive draft mitigation plan identifying proposed mitigation, monitoring, and reporting program for the project are in the process of being prepared for review by CDFW and USFWS. Prior to issuance of a grading permit for the project, the Applicant or Developer must demonstrate that it has obtained the appropriate ITP (if required) and that CDFW and USFWS have reviewed and approved the proposed mitigation plan. Refer to MM-BIO-1 through MM-BIO-3, MM-BIO-7b, and see Global Response A.
To ensure the mitigation monitoring and reporting proposals are described in the Project’s CEQA document, as requested by the commenter, MM-BIO-1, MM-BIO-2, and MM-BIO-7b have been modified (shown in strikeout/underline) within the EIR Errata (Section 3.3 Biological Resources) to clarify that monitoring and associated reporting will be provided in accordance with timing and frequencies prescribed in the HMMP.
The FEIR includes sufficient information and mitigation criteria to enable CDFW to rely on the EIR in its role as responsible agency. The EIR identifies the estimated number of these plants that would require an ITP: 33,714 (19%) individuals of thread-leaved brodiaea and 47 individuals of San Diego button leaved celery. MM-BIO-1 establishes performance standards for these plants and outlines the requirements of the transplant plan to meet those standards. Similarly, MM-BIO-7 establishes mitigation ratios that must be met for impacts to sensitive natural communities and outlines the required contents of an HMMP. The mitigation ratios for vegetation communities establish performance standards that satisfy CEQA and provide the criteria such management and transplantation programs must meet. In addition, the EIR has shown such mitigation is feasible onsite, see Figure 13 and Global Response A.
Because CDFW will ultimately issue the ITP after the City’s process is complete, and will impose its own requirements, conditions, and mitigation, more specific details of these plans cannot be provided or committed to at this time. Numerous cases have upheld deferring the specifics of mitigation (including planting plans) where, as here, the EIR requires regulatory agency review, identifies the methods considered for mitigation, and identifies the expected outcome. E.g., Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, 237. Moreover, additional CEQA review would not be triggered by future CDFW action as the responsible agency where this in-depth review has occurred, the project has committed to adequate mitigation, and the EIR has shown the mitigation to be feasible.
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A3-10 The comment states that the areas proposed as mitigation lands should be protected in perpetuity with a perpetual biological conservation easement (CE), financial assurance, and dedication to a qualified entity for long-term management and monitoring. The comment provides further processes and recommendations related to the CE, and states that there should be no provision for public trails in the CE areas. In response, the proposed mitigation areas would be perpetually protected with a CE or restrictive covenant that follows a CDFW and/or USFWS-approved template. Refer to MM-BIO-7b.
Financial assurance of mitigation installation/implementation, as well as monitoring and maintenance to achieve success criteria sign-off to ensure that the impacted functions and services are restored would be provided. The management funding amount and mechanism would be based on a Property Analysis Record (PAR) or similar cost estimation method, likely covering more than 100% of the estimated costs. An itemized cost estimate would be provided to the applicable permit-issuing resources agency for review and approval. The draft CE or restrictive covenant, including financial assurance estimates and documentation, would be provided to the Wildlife Agencies at least 60-days prior to project impacts and the final CE would be provided within 60-days following draft approval, unless otherwise required by the Wildlife Agencies. No public trails are proposed in the mitigation areas, and none would be included in the areas protected by the CE. Rather, as discussed at MM-BIO-7b, the Preserve Management Plan for the proposed site will include preserve barriers and fencing and public awareness as two actions to prevent public intrusion in the preserve areas.
A3-11 The comment states that the Project Applicant should implement a Habitat Management Plan to cover perpetual management, maintenance, and monitoring of the biological CE areas. The comment states that the Applicant should also establish a non-wasting endowment for an amount approved by the Wildlife Agencies. The comment also provides further processes for HMP submittal and content to be included in the HMP.
In response, the Applicant or Developer will prepare a Habitat Mitigation Monitoring Plan (HMMP) as well as a Preserve Management Plan (PMP), which will be provided to the City and applicable resource/wildlife agencies for their review and approval. Mitigation measure MM-BIO-7b, outlined in Section 3.3 of the EIR, requires that a HMMP and a PMP be prepared and implemented to ensure the perpetual management, maintenance, and monitoring of the biological CE areas. See Global Response A for additional information. As requested in the CDFW comment, the management funding amount and mechanism would be based on a Property Analysis Record (PAR) or similar cost estimation method, as set out in MM-BIO-7b. An itemized cost estimate would be provided to the City and Wildlife Agencies for review and approval. MM-BIO-7b will be modified (shown in strikeout/underline within the EIR Errata) to clarify that funding, as approved by the City and Wildlife Agencies will be provided in accordance with the PMP.
MM-BIO-7b Compensatory Mitigation for Permanent Impacts to Sensitive Natural Communities. Prior to the issuance of and land disturbance, clearing, grubbing, or grading permits for the project, the Applicant or Developer shall demonstrate to the satisfaction of the City, and applicable permit-issuing resource agency (i.e., USFWS, USACE, RWQCB, and/or CDFW) that compensatory mitigation for direct permanent impacts to sensitive natural communities (e.g., Diegan coastal sage scrub, native grassland, non-native grassland, mixed grassland, and vernal pools) has been adequately provided in
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accordance with the ratios described in mitigation measure MM-BIO-7a and secured through one or a combination of the following mechanisms:
▪ Implementation of on-site and/or off-site habitat preservation, creation/expansion, restoration, and/ or enhancement
▪ Purchase of off-site conservation credits from a conservation bank in the region (such as Brook Forest Mitigation Bank, Cleveland Corridor Conservation Bank, Heights of Pala Mesa Conservation Bank, Manchester Avenue Conservation Bank, Ramona Grasslands Conservation Bank, Red Mountain Conservation Bank, or another location deemed acceptable by the City).
CompensatoryPrior to issuance of land disturbance, clearing, grubbing, or grading permits for the project site, compensatory mitigation areas proposed on- and/or off-site through habitat creation/expansion, enhancement, and/or restoration shall be required to prepare and implement a Habitat Mitigation Monitoring Plan (HMMP) and a Preserve Management Plan (PMP), which shall be subject to City and applicable permit-issuing resource agency (i.e. USFWS, USACE, RWQCB, and/or CDFW) review and approval prior to the issuance of any permits for the proposed project. Because the rare plant transplant plan and vernal pools mitigation plan (see MM-BIO-1 and MM-BIO-2 above) ultimately prescribes actions resulting in grasslands and vernal pool establishment/expansion, re-establishment, enhancement, and/or restoration, such plans shall suffice as the HMMP provided the pertinent information prescribed below is incorporated.
The HMMP shall prescribe the on-/off-site mitigation actions of creation/establishment/expansion, re-establishment, restoration, enhancement, and/or preservation. The HMMP shall include the location of any creation/establishment, re-establishment, restoration, enhancement, and/or preservation site(s), requirements for site preparation, soil amendments, temporary irrigation, native plant palettes, installation methods, maintenance, and performance monitoring, as appropriate. The HMMP shall include graceful tarplant into the native habitat planting seed palette, where appropriate. The HMMP shall also include information pertaining to any specific rare plant translocation plans (see MM-BIO-1) or vernal pool resources mitigation plans (see MM-BIO-2) as required by MM-BIO-1 and MM-BIO-2. The HMMP shall require that all mitigation (except for preservation areas not restored) be subject to a monitoring with specific performance standards to ensure that the impacted functions and services are restored. A protective instrument, such as a conservation easement or restrictive covenant, shall be recorded over the mitigation areas where such a protective instrument does not already exist. All the mitigation areas shall be subject to longterm management as outlined by the approved PMP for the project.
The PMP for the proposed project shall prescribe the on-/off-site actions of stewardship and perpetual management of the preserve areas and include at a minimum: (a) the location and description of the mitigation area(s); final plans for the mitigation area(s); (b) the responsible entities for the mitigation area(s); (c) the management funding amount and mechanism, based on a Property Analysis Record
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(PAR) or similar cost estimation method approved by the City approved by the City and applicable permit-issuing resource agency (i.e., USFWS, USACE, RWQCB, and/or CDFW); (d) specific habitat and monitoring management directives including such as: vegetation monitoring, sensitive species monitoring, water pollution, and control and treatment of non-native invasive/exotic plant species; (e) specific success criteria; (f) public awareness programs/initiatives; (g) preserve barriers, or fencing management, and signage to prevent human intrusion and control illegal dumping; (h) monitoring and reporting schedules; and (i) adaptive management recommendations for the preserve area. Implementation of long-term management shall be provided by a qualified entity approved by the City approved by the City and applicable permit-issuing resource agency (i.e., USFWS, USACE, RWQCB, and/or CDFW) with experience in managing preserve lands.
Prior to issuance of land disturbance, clearing, grubbing, or grading permits for the project a protective instrument, such as a conservation easement or restrictive covenant, shall be recorded over the mitigation areas where such a protective instrument does not already exist (including all on-/off-site conservation areas), and in-perpetuity management shall be provided by a qualified manager in accordance with the PMP, which would be funded by an endowment or other acceptable funding mechanism.
The draft HMMP and PMP, including the endowment estimate and documentation, shall be provided to the City and applicable permit-issuing resource agency (i.e., USFWS, USACE, RWQCB, and/or CDFW) at least 60-days prior to project impacts.
The HMMP and PMP shall be approved by the City and applicable permit-issuing resource agency (i.e., USFWS, USACE, RWQCB, and/or CDFW) prior to the issuance of land disturbance, clearing, grubbing, or grading permits for the project.
Implementation of the HMMP and PMP shall be fully funded by the Applicant via an endowment or other funding mechanism, as approved by the City and pertinent permit-issuing resource agency prior to any land disturbance for the project.
A3-12 The comment states that all off-site mitigation areas, including mitigation banks, should be agreed to by the Wildlife Agencies and the City. The comment states that evidence that off-site mitigation has been purchased and/or placed within a biological open space CE should be provided to the Wildlife Agencies and City prior to impacts occurring on the Project site.
In response, as discussed above, it is intended that a substantial portion of project mitigation (if not all) occur onsite within identified conservation/transplantation areas. For off-site mitigation, MM-BIO7b and MM-BIO-7b require that, prior to the issuance of any permits for land disturbance at the site, the Applicant or Developer demonstrate to the satisfaction of the City and the Wildlife Agencies that any off-site mitigation area for the project (including conservation credits from an existing or future conservation bank in the region) have been secured in accordance with the required mitigation ratios and a protective instrument is recorded over such mitigation areas where one does not already exist.
Thus, prior to project impacts, the project Applicant or Developer is required to demonstrate that offsite mitigation has been acquired and a CE/restrictive covenant has been recorded; and/or lands are within an existing biological open space conservation area subject to a CE/restrictive covenant.
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A3-13 The comment provides a summary of CEQA and the California National Diversity Database. The comment is noted. The comment does not raise any specific issues related to the adequacy of the EIR, thus no further response is required or provided.
A3-14 The comment provides a summary of filing fees payable upon filing of the Notice of Determination. The comment is noted. The comment does not raise any specific issues related to the adequacy of the EIR; no further response is required or provided.
A3-15 The comment includes concluding remarks. The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR. No further response is required or provided.
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Comment Letter A4
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Response to Comment Letter A4
Agency
California Department of Transportation (Caltrans)
April 17, 2023
A4-1 The comment provides an introduction to comments that follow. The comment does not raise any specific issues related to the adequacy of the EIR. No further response is required or provided.
A4-2 The comment asks for clarification where, according to the Synchro tables for location 3 SR-78/Via Vera Cruz, there is no change in traffic volumes for the eastbound off-ramp for 2050 and 2050+ (both AM and PM) table.
The comment relates to traffic delay or congestion, which is no longer considered a significant impact on the environment pursuant to CEQA. (Pub. Resources Code section 21099(b)(2).) As the comment does not raise an environmental issue within the meaning of CEQA, no further response is required or necessary.
Notwithstanding, LOS is required to be analyzed for consistency with the City’s General Plan. The City provides the following clarification related to the Local Transportation Analysis (LTA) prepared to comply with City requirements. Table 10-1a of the Local Transportation Analysis (Appendix K to the EIR) presents the results for Via Vera Cruz / Grand Avenue / SR-78 EB in the Long-Term Without Project scenario as “greater than” 80.0 seconds of average delay and the project-related increase in average delay as “greater than” 2.0 seconds. Accordingly, the analysis does show a change in delay from the project of greater than 2.0 seconds in the Long-Term + Project scenario. The Synchro software cannot provide greater specificity when the intersection is over capacity. The Synchro output sheets can be found in Appendix K and Appendix M to the Local Transportation Analysis (Appendix K to the EIR).
A4-3 The comment states that a Vehicle Miles of Travel (VMT) analysis should be prepared for the project. A report was prepared for the project pursuant to CEQA and is included as Appendix J to the EIR. The VMT analysis methodology is consistent with the City of San Marcos Transportation Impact Analysis Guidelines, such that the project was evaluated using a VMT per resident metric and an impact threshold 15 percent below the existing countywide average. The commenter is referred to the EIR Section 3.15 and Appendix J.
A4-4 The comment states the Traffic Impact Study may also need to identify the project’s near-term and long-term safety or operational issues, on or adjacent to any existing or proposed State facilities.
Section 3.15, Transportation, of the EIR evaluates safety related transportation issues under Threshold Nos. 3 and 4, which address whether the project would substantially increase hazards or result in inadequate emergency access. The EIR finds the project would result in less than significant impacts on the safety-related transportation issues. Further, a Local Transportation Analysis (Appendix K to the EIR) was prepared consistent with the City of San Marcos Transportation Impact Analysis Guidelines, which analyzes the effects of the project on the local street system and on State facilities, including SR78 / Las Posas Road interchange, SR-78/ Via Vera Cruz, and Via Vera Cruz / Grand Avenue / SR-78 EB ramps. Refer to EIR Section 3.15, Transportation, and Appendix K, Local Transportation Analysis, for more information. The comment does not raise any specific issues related to the adequacy of this analysis, such that no further response is required or provided.
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A4-5 The comment refers to complete streets and mobility, and states that Caltrans supports transit, pedestrian, and transit improvements. The comment states that Caltrans looks forward to potential opportunities to coordinate with the City to meet multi-modal mobility needs and reduce GHG emissions. The comment states that maintaining bicycle, pedestrian, and transit access during project construction is in accordance with Caltrans’ goals and policies.
The comment does not raise any specific issues related to the adequacy of the EIR. The commenter is referred to Section 3.15.4, Project Impact Analysis, of the EIR, Threshold 1, which discusses the transit, bicycle, and pedestrian facility impacts. As described therein, Class II bike lanes are provided on Las Posas Road, from SR-78 to San Marcos Boulevard (both sides); Grand Avenue, from Rancho Santa Fe Road to Las Posas Road (both sides); Linda Vista Drive, from Rancho Santa Fe Road to Pacific Street (north side); and San Marcos Boulevard, from Pacific Street to Via Vera Cruz (both sides). Pedestrian sidewalks are generally provided throughout the area, with pedestrian crossings located at intersections surrounding the project site. The site is also served by existing transit. The following transportation improvements would ensure adequate pedestrian, bicycle, and transit facilities are provided consistent with City policies and guidelines:
1. Provide a 6-foot sidewalk and Class II buffered bike lane along the project’s frontage on Pacific Street.
2. Provide a 12-foot urban trail (shared use path) along the project’s frontage on Linda Vista Drive.
3. Provide a 12-foot urban trail (shared use path) along the project’s frontage on La Mirada Drive.
4. Provide transit stop amenities including bench, shelter, and trash can at the southbound stop at the intersection of Las Posas Road/La Mirada Drive located on the southwest corner of the intersection. Provide a bus turnout for this stop along the project frontage.
Further, as described in Section 3.15.4, all proposed circulation improvements would be designed in accordance with the City’s roadway design standards to ensure proper safety requirements are met.
For any potential construction related activities in the public right-of-way during the construction period, applicable City regulations and policies require two-way traffic to be maintained, which would accommodate pedestrians, bikes, and transit. Additionally, as concluded in Section 3.7, Greenhouse Gas Emissions, and Section 3.15, Transportation, of the EIR, the project would result in less than significant impacts related to GHG emissions and traffic and circulation.
A4-6 The comment addresses land use and smart growth, and states that there is a strong link between transportation and land use and the City should continue to coordinate with Caltrans to implement improvements where there is joint jurisdiction.
The City acknowledges this comment. The comment does not raise any specific issues related to the adequacy of the EIR. The commenter is referred to Section 3.15.4, Project Impact Analysis, of the EIR, Threshold 1, which discusses that the project is located on an infill site in an area with moderately high employment density, an adjacent and walkable commercial area to serve the project’s shopping and dining needs, and nearby schools, parks, and other facilities within walkable/bikeable distance from the site. The project thus aligns with “smart growth” type land use planning and policies.
A4-7 The comment states that Caltrans welcomes the opportunity to be a Responsible Agency under CEQA.
The comment states that an encroachment permit would be required for any work within the Caltrans right-of-way and recommends that the project identify and assess all impacts within the Caltrans right of way and address any impacts from avoidance or mitigation measures in the CEQA document.
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The City acknowledges this comment. The comment does not raise any specific issues related to the adequacy of the EIR such that no further response is required. The commenter is referred to Section
3.15, Transportation, and Appendices J and K of the EIR, which address transportation impacts of the project and identify avoidance and improvement measures. Please also refer to Section 3.3 of the EIR which addresses project impacts on the natural environment.
A4-8 The comment states that Caltrans recognizes that teleworking and remote learning reduces impacts of traffic, which reduces VMT and GHG emissions. The comment states that reliable high-speed broadband is a key component in reaching the state’s transportation and climate action goals.
The City acknowledges the comment, which does not raise any specific issues related to the adequacy of the EIR. The commenter is referred to Section 3.17, Utilities and Service Systems, of the EIR, which identifies that telecommunications services to the project site may be provided by various distributors including AT&T and Cox Communications. The project connection to telecommunications services is facilitated by existing lines that surround the site.
A4-9 The comment states that perpetuation of survey monuments by a licensed land surveyor is required, if they are being destroyed by any construction. No survey monuments are anticipated to be destroyed during project construction. However, if proposed street improvements contemplate the removal of existing survey monuments, they shall be replaced in conformance with Business and Profession Code 8771.
The comment also states that any work performed within Caltrans’ right-of-way will require discretionary review and approval by Caltrans and an encroachment permit will be required for any work within the Caltrans’ right-of-way prior to construction. The City acknowledges this comment. The comment does not raise any specific issues related to the adequacy of the Draft EIR. Refer to Response to Comment A4-7.
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Comment Letter O1
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Response to Comment Letter O1
Organization
San Diego County Archaeological Society, Inc.
April 3, 2023
O1-1 The comment states that the Environmental Review Committee of the San Diego County Archaeological Society has reviewed the cultural resource aspects of the Draft EIR, agrees with the impact analysis that indicates a low likelihood of encountering cultural resources, and deems acceptable the proposed mitigation measures and the impact analysis conclusions detailed in the Draft EIR.
The comment does not raise any specific issues related to the adequacy of the EIR. No further response is required.
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Comment Letter O2
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Response to Comment Letter O2
Organization
California Native Plant Society (CNPS)
April 17, 2023
O2-1 The comment introduces the California Native Plant Society (CNPS) and its San Diego Chapter (CNPSSD). The comment does not raise any specific issues related to the adequacy of the Draft EIR.
No further response is required.
O2-2 The comment provides an introduction to comments that follow. The comment does not raise any specific issues related to the adequacy of the Draft EIR. No further response is required.
O2-3 This comment states that the proposed biological mitigation measures are problematic and insufficient. This comment provides an overview of proposed mitigation measure MM-BIO-1. Please refer to Global Responses A, B, and C above. The comment is an introduction to comments that follow. No further response is required.
O2-4 This comment states the commenter’s concerns with the Rare Plant Transplant Plan and states that they rarely work as intended.
In response, it has been the experience of the Applicant biological (rare plant, vernal pool, and mitigation) consultant at Helix Environmental Planning, with approximately 65 years of cumulative experience working with rare plants (including translocation plans), vernal pools, and habitat/plant mitigation projects in the region, that rare plant transplant plans are successful and do work as instructed/intended. Several Helix biologists have contributed to the project, including three key specialist staff: include Mr. Jason Kurnow, Mr. Peter Tomsovic, and Mr. Thomas Liddicoat. Mr. Kurnow is a Senior Scientist II with approximately 23 years of experience and holds a USFWS 10(a)(1)(A) recovery permit for several listed species, including listed fairy shrimp. Mr. Kurnow also holds a California Rapid Assessment Method (CRAM) certification for vernal pools. He has successfully completed vernal pool and rare plant projects throughout southern California. Examples include:
Miramar National Cemetery Vernal Pool Creation/Restoration and Long-Term Maintenance and Monitoring, MCAS Miramar MV-22 P178/180 and P-1045 Vernal Pools Projects, Camp Roberts San Luis Obispo Vernal Pool Project, Cousins Market Vernal Pool Maintenance and Monitoring, Robertson’s Otay Mesa Vernal Pools, Fort Rosecrans Vernal Pool Creation/Restoration Project, MCB Camp Pendleton Vernal Pool Creation/Restoration Project, Hemet Valley Vernal Pool project, Robinhood Ridge Vernal Pool Preserve Creation/Restoration Project, the Fox Miller Brodiaea Preserve, Eastlake Tarplant Restoration Preserve, Santee Riverview Rare Plant Translocation and Monitoring, and the Salk Open Space Brodiaea Preserve.
Mr. Tomsovic is a Senior Construction Manager with approximately 25 years of experience in developing and successfully implementing habitat creation and restoration projects, including vernal pools and rare plant translocation across California. Some examples of Mr. Tomsovic’s experience include: the Stonridge Development Vernal Pools, Jonas Salk Elementary School Vernal Pools Restoration, Maintenance and Monitoring Project, Lone Star Vernal Pool Creation/Restoration Mitigation Preserve, MCB Camp Pendleton Wire Mountain Vernal Pool Restoration Program, Pacific Commons Vernal Pool and Rare Plants Project, Dennery Canyon Vernal Pool Preserve Restoration, Antelope-Pardee Rare Plant
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Restoration Project, Calabasas Rare Plant Restoration Project, Peninsular Rare Plant Salvage and Restoration Project, MCB Camp Pendleton Thread-Leaved Brodiaea Project, and MCAS Miramar Mounds National Natural Landmark Vernal Pool and Rare Plants Project.
Mr. Liddicoat is a Senior Biology Project Manager with 18 years of experience. He also holds a FWS 10(a)(1)(A) recovery permit for listed fairy shrimp and has worked on vernal pools and rare plant projects throughout southern California. Some examples of Mr. Liddicoat’s experience with vernal pools and rare plants include multiple Newhall Land Rare Plant Villages Projects, several Otay Ranch Villages Vernal Pool Projects, Fry’s Vernal Pool Mitigation Preserve, Laurel Creek Condominiums Brodiaea Project, MCAS Miramar Housing Vernal Pools and Rare Plants Project, and the Joli Ann Leichtag Elementary School Brodiaea Mitigation Preserve Project.
With regard to the focal rare plants on-site, two local examples of thread-leaved brodiaea translocation success are the Joli Ann Leichtag Elementary Preserve and the Rancho Santalina Preserve. The Joli Ann Leichtag Elementary Preserve (Preserve) served as a receptor site for the translocation of threadleaved brodiaea individuals that were within the impact footprint of the Elementary School. This site has also served as receptor site for impacts related to the Laurel Creek Apartments development project. Thread-leaved brodiaea were successfully translocated within an approximate 0.5-acre nonnative grassland receptor area within the Preserve, which resulted in a total population of over 60,000 thread-leaved brodiaea in the Preserve. The Rancho Santalina Preserve has also been a receptor site for translocation of thread-leaved brodiaea. Both sites have completed successful translocation, are protected with conservation easements, and are currently under perpetual management of a Habitat Manager. MM-BIO-1 requires that the City and resource agencies review and approve a transplantation plan to provide for no loss of the plant species and to achieve establishment success. In addition to direct replacement/relocation of individuals impacted, the proposed mitigation plan will also include salvaging of on-site seed for greenhouse propagation as well as direct dispersal of seeds collected.
Implementation of these additional efforts are expected to supplement direct transplanting and provide assurance for no loss of individuals impacted. The plan is also to contain contingency measures in case the performance standards are not met. Resource agency (USFWS and CDFW) verification that success criteria is met is required for the measure to be completed. Planning, mitigation, maintenance and monitoring, contingency measures, and ultimate verification of success will ensure the success of the transplant plan to mitigate project impacts. Refer also to Response to Comment A3-8.
O2-5 This comment expresses concerns with the Rare Plant Transplant Plan and states that the Draft EIR proposes plans that do not yet exist or have not been released for review.
Initially, the conceptual mitigation proposed for the project is presented on Figure 13 of the Biological Resources Report, Appendix C to the EIR. MM-BIO-1 identifies the detailed information that must be included in the Rare Plant Transplant Plan and identifies a performance standard of no loss of the plant species that the Plan must meet. The need to defer the specifics of the Rare Plant Transplant Plan arises in light of subsequent regulatory processes, during which agency consultation and approval will occur after the EIR is completed. Here, the City and the resource agencies (USFWS and CDFW) are required to review and approve the Rare Plant Transplant Plan2 , before issuance of land disturbance, clearing, grubbing, or grading permits for the site. During this review process, comments provided by 2 The City notes the Rare Plant Transplant Plan may be incorporated into a Habitat Management and Monitoring Plan or similar document detailing the elements of rare plant transplantation, rather than appear in a standalone document.
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the agencies would be addressed and incorporated into the Rare Plant Transplant Plan or HMMP as part of the approval process. Public review of such plan is not industry standard and not necessary.
The mitigation type and techniques to be incorporated into the project transplant plan are based on acceptable industry standards and previously approved plans in the region that were completed successfully. The proposed mitigation techniques would be subject to resource agency review and approval, which are consistent with techniques that have been proven successful. Refer also to Global Response A and Response to Comments O2-4 and A3-8.
O2-6 This comment states that transplantation methods are different for different species, and states the commenters concerns with factors that contribute to the stress and loss of plants during plant transplantation. The commenter questions what becomes of a transplantation plan that is not satisfactory to the City of San Marcos and the reviewing agencies.
In response, as discussed above in Responses to Comments O2-4 and O2-5, MM-BIO-1 identifies the information that must be included in the Rare Plant Transplant Plan and identifies a performance standard of no loss of the plant species that the Plan must meet. The illustrative plans identify some manners/methods that are anticipated to be included in the projects Transplant Plan. Such plans have been approved and implemented successfully for other similar sites.
Because approval of the Transplant Plan is required prior to any physical project impacts and as part of regulatory permitting that follows the CEQA and City land use entitlement process, if the Transplant Plan is not approved, then project permits needed for development would not be issued. The project Applicant or Developer would work with the City and Agencies to prepare an acceptable plan to meet the no loss performance standard. It is required that project Applicant or Developer to approval of the transplant plan as well as obtain CDFW/USFWS verification of its success. Based on these factors, the City has determined that MM-BIO-1 is anticipated to be successful at reducing impacts to less than significant, together with the other biological resource mitigation measures.
O2-7 The comment expresses concerns related to species Brodiaea Fili folia and Brodiaea Orcutt to co-occur on the project site. The commenter questions how there shall be any metric proposed to establish the difference of natural hybridization of these two plant species from those that are meant to be propagated and planted which hybridization may be a direct result from human mediated activities.
Throughout multiple years (2020-2023) of focused surveys of the brodiaea on-site, no hybrids were detected. Based on the 100,000's of individuals on-site, the Applicant’s biologists at Helix Environmental expected that hybrids of brodiaea species would likely have been detected, if present, and in a representative amount of the population. According to available literature from CNPS (Brodiaea filifolia taxon report), it is suggested that hybridization of brodiaea is generated by a non-native pollinizer -- the European honeybee. Natural hybridization is not known and, based on observations onsite to date, unlikely. Further, according to the San Diego Management and Monitoring Program and current literature published by the American Journal of Botany (i.e., A phylogenetic evaluation of a biosystematic framework: Brodiaea and related petaloid monocots {hemidaceae]), Filifolia and B.
Orcuttii have several similarities, but they have different physical reproductive characteristics; Hybridization between these two species is unlikely (Pires, J.C. and K.J. Sytsma. 2002). According to the USFWS 5-year review for the species, hybrids at the project site have been reported via personal communication in 2007; however, there have been no definitive studies to verify or determine the genetic identity, parentage, or distribution of supposed hybrids (USFWS 2009). Overall, hybridization
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was not observed, is considered to be rare and speculative, and is biologically unlikely to occur at the site; and therefore, hybridization was not discussed in the Draft EIR.
A metric related to hybridization between these species on-site is not necessary. The proposed project mitigation for brodiaea on-site is not expected to encourage, deter, nor facilitate hybridization of the species beyond any naturally occurring, low likelihood.
O2-8 This comment cites concerns with proposed mitigation measure MM-BIO-1. The commenter questions at what benchmark can the City of San Marcos consider the contingency measures to a Transplantation plan failure applicable.
In response, MM-BIO-1 requires that the proposed mitigation plan outline success criteria for the initial establishment period as well as maintenance and monitoring during subsequent years, to achieve performance standards. MM-BIO-1 provides that contingency measures are included “in case performance standards are not met … to ensure success.” The mitigation plan also includes several adaptive monitoring and management strategies following installation to provide additional contingency and assurance for success such as additional seed collection/propagation, additional plant distribution, intensifying maintenance, collection and distribution of additional vernal pool inoculum, performance-based assurance bonds, and off-site mitigation. Based on the site’s existing condition, which includes suitable soils, habitat, and appropriate topography contiguous across the site, and the prolific presence of the target species on-site, is it anticipated that by removal of concentrated areas of non-native herbaceous species and replacement with target native species translocation, along with regular monitoring and maintenance control of non-native species on-site, transplant would be achieved. Refer also why it is anticipated that the transplantation onsite will be successful. The determination of success would be evaluated and accomplished as set forth by performance standards prescribed by the final transplant plan (i.e., HMMP) approved by the applicable permit-issuing resource agency (i.e., USFWS, USACE, RWQCB, and/or CDFW). Performance standards would focus on occupied habitat area and specific density count of individuals.
Relating to the commenter’s question regarding the timing of the bond, MM-BIO-1 has been revised and requires that the Applicant or Developer fully fund the approved transplant plan via an endowment or other funding mechanism prior to any clearing, grubbing, grading, or other land disturbance related to the project. Ultimately, the financial assurance of the mitigation plan must be reviewed and approved by the City and pertinent permit-issuing Resource Agency (i.e., USFWS, CDFW, etc.) prior to project impacts.
O2-9 This comment states concerns with proposed mitigation measure MM-BIO-1, and references comments from CDFW recommending that a “no development” conservation alternative and 25% development alternative be evaluated. The comment states that CDFW’s comments were ignored.
The commenter is referred to Response to Comments A2-4 and A3-4. As discussed therein, a conservation alternative was considered but rejected in the EIR for failing to meet basic project objectives. A conservation alternative is also essentially a repeat of the “No Project Alternative” for purposes of analyzing project impacts, as the site would remain undeveloped. The “No Project Alternative” was considered in Section 4.4.3 of the Draft EIR. The EIR acknowledges that the No Project Alternative would have reduced impacts to biological resources compared to the proposed project; however, the No Project Alternative would not accomplish the basic project objectives.
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A conservation alternative is also practically infeasible. Per discussions between the Applicant, CDFW, USFWS, and the City, this private property is unavailable for purchase for conservation. Conservation of the site is highly unlikely and infeasible in light of this unavailability, as well as the continued and increasing degradation of the site, and difficulty in obtaining adequate grants, mitigation funds, or setting up a mitigation bank for its conservation.
A Reduced Development Footprint Alternative (no more than 25% development) was evaluated in the Draft EIR and identified as the environmentally superior alternative (CEQA Guidelines, § 15126.6€ (2)).
However, while the Reduced Development Footprint Alternative may reduce vernal pool impacts associated with the proposed project, it would result in substantially greater impacts to federally listed threatened and state-listed endangered thread-leaved brodiaea (TLB), impacting approximately 45% of the TLB-occupied areas on-site compared to the project’s impact to 19% of TLB-occupied areas. This alternative was further identified to not meet certain project objectives, or to meet them to a lesser extent compared to the proposed project. Specifically, while the Reduced Development Footprint Alternative would develop infill housing on an urbanized site and rezone the site to residential to assist the City in implementing its housing goals (project objectives 1 and 2), it would provide less housing compared to the proposed project and less efficiently promote infill development. This alternative would also provide less varied housing compared to the proposed project, including less affordable housing (objective 3). This alternative would meet objective 4 by avoiding vernal pools but would result in greater impacts to thread-leaved brodiaea, such that it would be inconsistent with objective 4. This alternative would not meet project objective 5 because the site would be atypically designed in a manner that does not enhance connectivity. This alternative would also not meet objective 6 to the same extent as the project, as it would not maximize housing density for the City.
It is also noted that, while the Reduced Development Footprint Alternative would lessen biological impacts, based on the analysis of the impacts, and recommended the mitigation measures from the Biological Technical Report (Helix 2023), the EIR concludes that, with the mitigation measures recommended in the EIR, there are no significant biological impacts of the proposed project.
As described in Response to Comment A2-4 above, a “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization” alternative has been included in Chapter 4, Section 4.4.6, of the Final EIR under project alternatives considered to address comments from USFWS. This alternative considers development of 29% of the site which would occur only within a reduced development footprint in the southern portion of the project site.
In sum, the EIR did not ignore CDFW comments on the NOP of a DEIR for the project but incorporated and analyzed a “No Project Alternative” and “Reduced Project Footprint” alternative, as requested.
It is further notable that the project Applicant has worked early and continuously (including on-site meetings) with CDFW and USFWS during the planning stages of the project to design a project that reflects substantial avoidance of several species of rare plants and vernal pools, and takes a balanced approach to preserving, mitigating, and managing rare plants on-site and their habitats. During early site planning discussions and on-site meetings with CDFW and USFWS, the Applicant was informed that the top (#1) resource that should be avoided to the extent feasible was the thread-leaved brodiaea.
Project plans reflect this stated preference, while avoiding to the extent possible impacts to vernal pools and other species and mitigating those impacts that are unavoidable. Thus, the project plans and
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proposed mitigation demonstrate a commitment to respecting the sensitive biological resources onsite and mitigating, preserving, and managing them in perpetuity.
O2-10 This comment expresses concerns with proposed mitigation measure MM-BIO-2, specifically that all vernal pools are occupied by fairy shrimp under existing conditions. The comment states the plan is not available for review and questions the effectiveness of vernal pool mitigation.
In response, see Global Response A. In addition, the commenter is incorrect that all vernal pools are occupied by fairy shrimp under existing conditions. Based on the results of the focused wet-season and dry-season survey efforts conducted between March to August of 2020, many (nearly 75%) of the depressions/pools on-site were found (via sampling of ponded pools for shrimp and soil sampling microscopy for shrimp cysts) to not be occupied by fairy shrimp. The Biological Technical Report, Appendix C to the EIR, evaluated the depressions/pools individually on their uniqueness, which is presented on Figure 12b, Vernal Pool Features and Biological Value, of Appendix C to the EIR. The depressions/pools intended for on-site mitigation (including creation and enhancement) are presented on Figure 13 of Appendix C to this EIR.
MM-BIO-7a and MM-BIO-7b require compensatory mitigation for impacts to vernal pools at a 3:1 ratio.
Figure 13 shows where this mitigation is likely to be effectively implemented onsite. However, compensatory mitigation may be secured through on- or off-site habitat establishment, reestablishment, or restoration and/or conservation credits, or some mix of these options. Refer to MM-BIO-7a and MM-BIO-7b. MM-BIO-2 outlines the mandatory components of the Vernal Pool Mitigation Plan, which will ensure the success of vernal pool mitigation through creation, reestablishment, restoration, monitoring, contingency measures, and verification upon successful completion. Ultimately, the Vernal Pool mitigation plan for the project would be reviewed by the City and the resource agencies. Review and approval would be required prior to any land disturbance, clearing, grubbing, or grading of the project site. These elements will ensure the effectiveness of vernal pool mitigation.
O2-11 This comment voices concerns over proposed vernal pool enhancement and proposed mitigation. The comment states that it is not acceptable to enhance a vernal pool while creating a larger vernal pool around it. The comment also states it seems unlikely the site can support a higher density of rare plants and vernal pools.
In response, please refer to Global Responses A, B and C. The proposed mitigation plan would describe and quantify the differences between depression/pool enhancement, creation, and expansion to ensure that vernal pools are appropriately mitigated at a 3:1 ratio. The proposed expansion of existing depressions/pools and new pool creation considers existing topography contours on-site, existing depressions/pools, and the potential watersheds for these features. The plan does provide for restoration/enhancement of resources that have been lost on-site due to off-road vehicular damage, trespassing, unauthorized poaching of plants, spread of non-native species, and unauthorized dumping/filling.
The site was also thoroughly investigated for appropriate opportunities to implement vernal pool mitigation. Based on the density of other vernal pool complexes in the region, including the nearby Fry's site which is nearly 1/4 the size of the proposed project, the proposal to expand, create, and enhance,
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vernal pools on-site are appropriate. Information summarizing the success of vernal pool mitigation and density of resources at the nearby Fry’s site is included as Attachment 1 to Appendix C of the Final EIR.
Accordingly, vernal pool enhancement, creation, and expansion has been implemented in the region successfully for several decades, including on a site (Fry’s vernal pools) approximately 0.5 miles of the proposed project site. The proposed project would incorporate elements employed at the successful Fry’s vernal pool mitigation site, such as vernal pool CRAM analysis, grading parameters and techniques, plantings, additional native pollinator support, and success criteria. It is anticipated that the proposed onsite mitigation areas can accommodate the proposed vernal pool mitigation. There is no literature available to suggest that the site is at max capacity or indicate that global climate change would decrease the site's capacity or ability to support these vernal pool and rare plant resources. Refer also to Response A3-8.
Regarding the densities of rare plants, survey results and quadrat sampling found that the rare plant density widely varies. This variation in density, as well as the evidence of suitable habitat areas not yet occupied, would suggest that the site is not at carrying capacity. Refer to Response to Comment A3-8 for additional information.
O2-12 The comment asks why the DEIR does not include a complete Biological Resource Management plan.
In response, because it is anticipated that further regulatory agency review may identify details and conditions related to these plans it is preferred that drafting the plans occur during the agency review process that occurs after the EIR is completed. At this time, the mitigation is sufficient where performance standards are identified, regulatory review is required, and the elements of the plans are outlined. The proposed mitigation in the EIR commits that the project will satisfy established performance standards (e.g., no loss of plants and 3:1 vernal pool mitigation) and details the information which must be included in any acceptable mitigation plan to ensure that significant impacts will in fact be mitigated. The final biological mitigation plans are subject to agency review, modification, and approval after the City makes a decision on the project’s land use entitlements and prior to issuance of and any land disturbance, clearing, grubbing, or issuance of grading permits for the proposed project. The EIR also outlines the conceptual mitigation design at Figure 13 of the Biological Technical Report, EIR Appendix C. The project Applicant is currently preparing a draft conceptual mitigation plan based on the conceptual design presented on Figure 13 of the Biological Resources Technical Report; after which the appropriate management plans would also be prepared based on the mitigation plan. Both the mitigation plan and management plan would be reviewed and approved by the City and applicable resource agencies (CDFW and USFWS) prior to permit issuance or project impacts. Feasibility, viability, and effectiveness of the proposed plans would be confirmed by the City and resource agencies against the performance standards. Because no approval equals no project development, it is in the highest interest of the project Applicant to obtain approval of such plans, which will ensure that performance criteria are satisfied. Also refer to Global Response A.
O2-13 The comment states that resource management plans often cause impacts of their own and asks what substantial evidence makes the Project proponents believe that their HMMP and PMP will be impact free.
In response, the DEIR identifies and analyzes the sensitive resources across the site. Based on the biological surveys conducted for the DEIR between 2018 and 2022 as well as subsequent surveys conducted between March through May of 2023, the proposed mitigation plan targets resources to be placed and/or created in places to not impact federally or state listed sensitive species as well as in areas
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that do not substantially impact other sensitive resources/species (i.e., less rare species that do not warrant mitigation). It is uncommon that implementation of mitigation and management cause detrimental impacts to sites. Typically, if impacts occur by mitigation and management activities, they are temporary, do not result in permanent loss of native habitat or species, and are considered by the Resource Agencies to outweigh and off-set such impacts (i.e., self-mitigating efforts) by ultimately uplifting the area compared to the pre-mitigation/management condition. The mitigation and management plans factor the on-site resources and includes a several avoidance and minimization techniques (e.g., preconstruction surveys and species location demarcating, seasonal timing of work, using hand tools, and using rubber tire or rubber-tracked vehicles), as well as adaptive contingency measures (e.g., additional seed collection and distribution, additional plantings and inoculation, more intense weed control, and seeding of known pollinator plants) to ensure inadvertent impacts would not occur. If mitigation occurs off-site similar techniques would be employed to ensure impacts would be avoided.
O2-14 The comment expresses concern regarding the biological surveys conducted on-site and questions whether species were missed.
The Applicant’s biological consultant from Helix Environmental have reviewed their field notes and conducted additional botanical inventory surveys at the site this year (2023) in April and May, due to the exceptional rainfall year. The results of these additional survey efforts are provided in Appendix C to the Final EIR. The plant surveys have been updated and are provided in Appendix C to the Final EIR and included as Attachment 2 to this Response to Comments document.
O2-15 The comment states that no CRPR listed bryophytes, lichens, or mosses were surveyed for at all. The comment states the lack of information in the report indicates a glaring oversight and potential loss of such species as Geothallus tuberosus or Sphaerocarpos drewei (both CNPS 1B.1), the latter of which was found recently near the Palomar College campus about a mile away.
In response, the records searches for documented rare plants encompassed a 2-mile radius, which is considered appropriate for infill sites surrounded by existing development. Species recorded within 2- miles of the site were searched for during field surveys. There is very little bare ground and no rock outcroppings or other suitable on-site to support bryophytes, lichens, or mosses occurs on-site. Where bare ground is present, it is due to urbanized trails or roadside edges. Additional botanical inventory surveys were conducted at the site in April and May of 2023 due to the exceptional rainfall year; bryophytes, lichens, and mosses were recorded if found present. The results of these efforts are included in Appendix C to the Final EIR.
O2-16 The comment states that both the Spreading Navarettia and small flowered microseris can be difficult to locate. It states that simply not observing these species when historical observations on the site have been made as recently as 2009 for the navarretia and 2017 for the microseris cause the commenter to question the veracity of the statement that these species are absent. The comment asks how the commenter can trust they are in fact absent when multiple plant biological surveys missed a 60’ tall Eucalyptus tree.
In response, focused vernal pool surveys and rare plant surveys were conducted. Extra attention was given to species with known historical presence on-site. These species were not previously identified.
However, due to the abundant rainfall this year (2023), additional botanical inventory surveys were conducted at the site in April and May. The results of these efforts are provided in Attachment 2 to this
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Response to Comments document. Small flowered microseris was detected in the southwest portion of the site in areas to be avoided by the project development. Spreading Navarettia was not observed on-site and would have been detected if present.
O2-17 The comment states that given that only a fraction of existing corms within the soil have been shown to flower in any given year, even in wet years, the B. Filifolia population numbers estimated in the project’s BTR are likely significantly lower than the actual numbers onsite.
In response, the focused brodiaea surveys and counts onsite reflect an estimate, which was quantified by number of flowering individuals. Based on the brodiaea flower count sampling, the density of plant varies throughout the site. To evaluate the brodiaea populations on-site, several focused brodiaea surveys were conducted by Helix biologists from 2018-2022, including vegetative (pre-flowering) surveys to ensure vegetative plants not go undetected. The data presented in the DEIR reflects the results of these surveys. Refer to Appendix C, Biological Technical Report, Sections 2.2.1 and 2.2.3 for additional information.
As discussed above, additional surveys were performed in April and May 2023, a wet year. Vegetative surveys for brodiaea were conducted across the site, with additional focus on the proposed mitigation areas, to verify mapping extents of brodiaea presented in the EIR as well as confirm the proposed mitigation areas are absent of brodiaea (i.e. are viable as a receptor area for brodiaea translocation).
As the comment notes, more plants flower in wet years versus dry years, which may make for better detection. The most current 2023 survey findings closely resemble the past data sets/counts on-site, confirming that the estimates in the Draft EIR accurately represent the existing extent of brodiaea onsite. 2023 Surveys are appended at part of Appendix C to the Final EIR.
O2-18 The comment discusses the total Brodiaea numbers, and states that hundreds of thousands of individual Brodiaea will be impacted by this Project that cannot be mitigated as suggested in the Draft EIR except by avoidance. The project was designed to minimize impacts to sensitive brodiaea species; specifically, just over 80 percent of the on-site population the federally and state listed endangered thread-leaved brodiaea would be avoided and just under 40 percent of the non-listed but rare, Orcutt’s brodiaea, would be avoided. Given the proposed mitigation to translocate and replant these impacted individuals on-site, as well as plant additional greenhouse propagated individuals, impacts to these species are considered temporary, and would result in an increase of occupied habitat on-site for these species, following successful completion of the mitigation. Please also refer to Global Response A, and Response to Comment O2-17 and A3-8.
O2-19 This comment expresses questions and concerns about the possibility to achieve on-site mitigation. In response, using available scientific data and on-site survey information, the conceptual mitigation plan shown in Figure 13 of EIR Appendix C proposes to effectively mitigate for project impacts to biological resources on-site. Given the amount and location of sensitive resources on-site, the proposed plant translocation/planting and vernal pool creation/expansion incorporates a minimum 5-foot buffer from existing resources, which is to be avoided. As stated previously, the plant count quadrat data varied greatly and suggests the site is not at max carrying capacity but, rather, can accommodate the translocation of rare plants to other areas of the site. The proposed mitigation efforts are focused on areas of the site that were found to be absent of these species, which was verified during the April 2023 survey effort. To accommodate the mitigation ratio anticipated to be imposed by the Agencies, the conceptual mitigation proposed for vernal pools would result in three times more vernal pool area
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than impacted by the project. The conceptual rare plant translocation plan requirements focus on utilizing nearly the same (not smaller) and larger size areas for mitigation as those impacted; thus, not squeezing the resources into a smaller area (as suggested by the comment). Therefore, the density of plant areas with mitigation will be similar to those areas under existing conditions that will be impacted by the project. Refer also to Response to Comment A3-8.
O2-20 This comment asks for references to scientific literature to support findings made in the Draft EIR and Biological Technical Report and expresses questions and concerns on the sufficiency of proposed mitigation and mitigation banks.
In response, please refer to Responses to Comments O2-19 and A3-8. Substantial evidence supports the determination that the areas of the site could support more brodiaea where few/none occur currently, sufficient to meet the project’s mitigation requirements.
The created and expanded vernal pools would have a sufficient watershed. The pool creation and design would incorporate the findings from the vernal pool watershed analysis for the site, conducted by Tory Walker Engineering in September 2022, which found that the existing pools have a watershed approximately 3 times larger than the pool ponding area. Thus, the created and expanded pools would be constructed to have a watershed at least 3 times larger than the pooling surface area to ensure sufficient watershed would be provided. Vernal pool creation and expansion has been completed successfully throughout San Diego County. The pools on-site, which are similar to most vernal pool complexes, are filled by direct rainfall and are not filled by run-on.
Given the project proposal, public access would be restricted as part of the preservation plan. The project would include installation of a fenced boundary around the entire periphery of the preserve mitigation area. Locked gates suitable for on-foot access only by the maintenance management personnel to the site would be provided. The project does not include trails or trailheads and there would be no public access allowed into the mitigation site.
The creation and expansion of vernal pools is not expected to result in a substantial loss of grassland.
The pools/depressions on-site when not inundated, reflect a native grassland. Overall, the mitigation for potential loss of grassland by creation and expansion of vernal pools would be provided by the onsite grassland preservation and restoration efforts as well as purchase of grassland bank credits.
The Applicant is currently preparing a mitigation plan and as part of developing the plan details will be obtaining specificity on mitigation bank credits.
O2-21 The comment questions the site choice for residential development in comparison to other available sites and asks why the parcel with such a unique biological inventory has to be the site where this development is worth their degradation and potential destruction.
In response, Chapter 4 of the Draft EIR analyzes alternatives to the proposed project. An alternative location was considered but ultimately rejected for the following reasons. Pursuant to Section 15126.6(f)(2) of the CEQA Guidelines, the City considered the potential for alternative locations to develop the proposed project. There are sites within the City that are already zoned for residential use under the General Plan that could be developed or redeveloped with a residential project. However, the project Applicant does not control another site within the City of comparable land area that is
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surrounded by existing infrastructure and near existing transit. One of the factors for feasibility of an alternative is “whether the proponent can reasonably acquire, control or otherwise have access to the alternative site.” Because the City is highly urbanized and is largely built out, obtaining another site of a similar size in a similar location is not considered feasible. It should also be noted that the project site is surrounded on all sides by development and considered an infill site in an urban area.
Furthermore, the site left unchecked has been deteriorating over time and is expected to continue to deteriorate without the funding from the development to preserve and protect the site’s preserve areas in perpetuity. The preservation plan and restoration, as well as the long-term endowment under the project, will ensure the long-term viability of all sensitive species on site. As such, an alternative location was ultimately rejected from further analysis in the EIR.
To the extent the comment suggests specific locations at 1100 San Marcos Blvd or where Linda Vista Drive meets Grand Avenue, the project Applicant does not own or control these sites. They are not of comparable size, at approximately 2-acres (1100 San Marcos Blvd) and 4.6-acres (vacant parcel south of Linda Vista Drive and Grand Avenue), respectively, compared to the project’s approximately 33.2-acre site. The location at Linda Vista Drive and Grand Avenue is proximate to SR-78 and industrial uses, which may present air quality health risk concerns. If the commenter is referring to the approximately 12-acre vacant/demolished property north of Linda Vista Drive/south of Grand Avenue, the project Applicant does not own or control this site and separate development plans are already proposed for this site. Thus, the alternative sites are infeasible and are not considered further.
O2-22 The comment states that the Project site is within the proposed North County Multiple Species Conservation Plan ("NCMSCP"). The comment states that, while the NCMSCP is not yet adopted, the Project does not appear to be consistent with the goals of the NCMSCP within its current form. The comment states that preserving this site now will allow San Marcos to keep good faith in the eventual passage of the NCMSCP.
In response, the project is located in the incorporated limits of San Marcos and is under the City’s jurisdiction and is not part of the NCMSCP. The NCMSCP pertains to unincorporated areas within the County's jurisdiction, not areas within the City.
The EIR evaluates project consistency with the MHCP and the City’s Draft San Marcos Subarea Plan at Section 3.3.5, Threshold 6. As described therein, the subject property is not a part of the adopted MHCP baseline and is identified as a major amendment area. Thus, the project is not subject to the MHCP. Further, the City does not have an adopted subarea plan. However, the project would not conflict with the provisions of the MHCP with mitigation incorporated to minimize impacts to species and critical populations to the extent practicable. Refer to the EIR analysis of MSCP consistency for additional information.
O2-23 The comment includes concluding remarks and repeats comments previously made. The comment does not raise any additional specific environmental issues related to the adequacy of the Draft EIR that are not responded to above. No further response is required.
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Comment Letter O3
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-151
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-152
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-153
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-154
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-155
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-156
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-157
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-158
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-159
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-160
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-161
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-162
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-163
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-164
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-165
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-166
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-167
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-168
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-169
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-170
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-171
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-172
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-173
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-174
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-183
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RESPONSE TO COMMENTS FOR THE CITY OF SAN MARCOS PACIFIC SPECIFIC PLAN PROJECT 13170 MAY 2024 RTC-184
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Response to Comment Letter O3
Organization
Southwest Mountain States Regional Council of Carpenters April 17, 2023
O3-1 The comment provides an introduction to comments that follow. The commenter requests to be notified of any notices referring to or related to the project. The comment is noted, and the commenter will be added to the notification list for the project. The comment does not raise any specific issues related to the adequacy of the Draft EIR, thus no further response is required.
O3- 2 The comment states that the City should require that the project be built using local workers. The comment expresses the opinion of the commenter on economic, social, or political issues, and does not raise any specific issues related to the adequacy of the Draft EIR. No further response is required because the comment does not raise an environmental issue.
O3-3 The comment states that the potential benefits of hiring local workers may include reducing length of trips, GHG emissions, economic benefits, and air pollutant reductions. The comment does not raise any specific issues related to the adequacy of the Draft EIR. Thus, no further response is required or provided.
O3-4 The comment states that locating jobs closer to a residential area can lead to people being more likely to take transit, walk, or bike, and reduces VMT. The comment further states that local hire and workforce policies as a condition of approval for development permits are critical to VMT reductions.
The comment does not raise any specific issues related to the adequacy of the Draft EIR. Thus, no further response is required or provided.
O3- 5 The comment includes information about the Affordable Housing and High Road Jobs Act of 2022 and affordability and labor requirements. The comment further expresses the opinion of the commenter that the City should consider utilizing local workforce to mitigate GHG emission, air quality, and transportation impacts. As discussed in the DEIR, all project impacts have been reduced to less than significant levels and no further mitigation is required. To the extent that the comment expresses the opinion of the commenter on economic, social, or political issues, no further response is required because the comment does not raise an environmental issue.
O3-6 The comment states that the City should impose training requirements to prevent the spread of Covid -19 and other infectious diseases. The comment further states that construction sites have been identified as being sources of community spread and then lists recommendations for safe construction site work practices.
Public Resources Code section 21083(b)(3) and CEQA Guidelines section15065(a)(4) provide that a project may have a significant effect on the environment if the project will cause substantial adverse effects on human beings, either directly or indirectly. COVID-19 is not an environmental effect of the project – it is already present in the population and unrelated to the proposed development. CEQA generally does not require analysis of an impact caused by the existing environment on the project. As such, no analysis is required. Public health in connection with COVID-19 is addressed by workplace health and safety laws other than CEQA. This comment does not require any revisions to the EIR.
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O3-7 The comment states the United Brotherhood of Carpenters and Carpenters International Training Fund and the Southwest Mountain State Carpenters have developed training programs. The comment further states that the City should require COVID-19 training before construction activities begin. The comment does not raise any specific issues related to the adequacy of the Draft EIR. Refer to Response to Comment O3-6.
O3-8 The comment acts as an introduction to comments to follow. The comment provides background information concerning EIRs and CEQA, including requirements regarding EIR recirculation. The comment does not raise any specific issues related to the adequacy of the Draft EIR. However, as supported by the DEIR and these Responses to Comments, EIR recirculation is not warranted as no new significant environmental impacts are identified. Under CEQA, a lead agency is required to recirculate an EIR, or portions of an EIR, when significant new information is added to the EIR after notice is given of the availability of the Draft EIR for public review, but before certification. As used in section 15088.5 of the State CEQA Guidelines, the term “information” can include changes in the project or environmental setting as well as additional data or other information. New information added to an EIR is not “significant” unless the EIR is changed in a way that deprives the public of meaningful opportunity to comment upon a substantial adverse environmental effect of the project, or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that the project's proponent has declined to implement. As part of the Final EIR, a “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization” alternative and a “Reduced Pacific Specific Plan Project Alternative” have been included under project alternatives considered. However, recirculation is not required simply because new information is added to an EIR.
In response to comments received from USFWS, the FEIR considers a variation on the Reduced Development Footprint Alternative evaluated in the Draft EIR. Under the “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization”, development would occur only within a reduced development footprint in the southern portion of the Project site, resulting in the development of only 229 multi-family homes. The “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization” is designed to avoid most vernal pools across the site and achieve a 30% maximum building footprint on the site. However, while impacts to vernal pools would be reduced, this Alternative would cause a more severe significant impact to the federally listed threatened thread-leaved brodiaea. It would also reduce the scope and mix of housing compared to the Project. The City can consider this additional alternative and certify the EIR without recirculating for additional public review. This is because once a draft EIR has been circulated for public review, CEQA does not require any additional public review of the document before the lead agency may certify the EIR except in circumstances requiring recirculation. Recirculation is only required where “significant new information” is added to an EIR after the draft EIR has been circulated for public review. (Pub. Resources Code, § 21092.1; Guidelines, § 15088.5, subd. (a).) Where information added to a Final EIR consists of a new suggested project alternative or mitigation measure, recirculation is only required where all the following criteria are met it Is feasible, it is considerably different from the alternatives or mitigation measures already evaluated in the EIR, it would clearly lessen the Project’s significant impacts, and it is not adopted. (Laurel Heights Improvement Assn. v. Regents of the Univ. of Cal. (1993) 6 Cal.4th 1112; South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 330.) Recirculation is not required for consideration of the “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization” as the alternative is a variation upon, and not considerably different from, the Reduced Development Footprint Alternative evaluated in the Draft EIR. Accordingly, because this alternative is not considerably different from the Reduced
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Development Footprint Alternative, recirculation is not required for City consideration of this “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization”. (North Coast Rivers Alliance v.
Marin Municipal Water Dist. Bd. Of Directors (2013) 216 Cal.App.4th 614, 654 [new alternative did not trigger recirculation because it was not considerably different from alternatives already evaluated and was not feasible.]) The City will consider the feasibility and desirability of this, and other alternatives evaluated in the EIR after receiving public comment to the DEIR and prior to making its ultimate decision on the Project. (Pub. Resources Code, § 21081(a)(3).)
Furthermore, the Project Applicant has prepared two additional alternatives in response to comments received from CDFW/USFWS during the public comment period. The “Reduced Pacific Specific Plan Project Alternative” included in Chapter 4 of the Final EIR is intended to reduce impacts to biological resources including vernal pools, native grassland, Diegan coastal sage scrub, mixed grassland, and non-native grassland. The reduction in the scale of development would result in similar (or slightly reduced) effects on all other environmental resource areas analyzed in the EIR. Recirculation is not required for incorporation of this alternative in the Final EIR in response to agency comments, as described above. That is because the “Reduced Pacific Specific Plan Project Alternative” would reduce the severity of some environmental impacts.
O3-9 This comment states that the Draft EIR fails to consider a reasonable range of alternatives. The comment states there is no explanation as to why an even more reduced alternative was not considered.
In response, please see Responses to Comments A2-4, A3-4, and O3-8.
Chapter 4 of the Draft EIR considered but rejected two alternatives (an alternative location and mitigation bank alternative) and analyzed three alternatives including the No Project Alternative, Existing Land Use Designation Alternative, and the Reduced Development Footprint Alternative. The range of alternatives evaluated in an EIR is governed by the “rule of reason,” which requires the EIR to set forth alternatives adequate to permit a reasoned choice by decision makers and limited to alternatives that “would avoid or substantially lessen any of the significant effects of the project.” An EIR need not consider an alternative whose effects cannot be reasonably ascertained and whose implementation is remote and speculative (Section 15126.6[a] of the CEQA Guidelines).
The Reduced Development Footprint Alternative was developed in response to comments from the Wildlife Agencies and would reduce the development footprint at the site to just 25% of the site, from
15.28 acres to 8.3 acres, and would reduce the number of residential units developed from 449 to 321 units. This alternative would be constructed to avoid all vernal pools and wetlands mapped across the site, including pools/basins found not to support vernal pool branchiopods (fairy shrimp). However, it would impact thread-leafed brodiaea to a greater extent compared to the project.
As part of the Final EIR, two additional project alternatives were included to address USFWS and CDFW comments. The “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization”, considers a variation on the Reduced Development Footprint Alternative evaluated in the Draft EIR.
Under the “Reduced Development Footprint Alternative – Vernal Pool Impact Minimization”, development would occur only within a reduced development footprint in the southern portion of the Project site, resulting in the development of only 229 multi-family homes. The reduced development consists of 229 residential units, including a mix of rowhomes and villas on approximately 9.7 acres of the 33.2-acre project site. The remaining approximately 23.5 acres of the 33.2-acre project site would
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be preserved and restored as open space and habitat area. This alternative would not include any affordable housing units. This alternative would reduce project impacts to vernal pools but cause a more severe significant impact to the federally listed threatened thread-leaved brodiaea.
Additionally, in response to comments received from USFWS and CDFW on the Draft EIR, the “Reduced Pacific Specific Plan Project Alternative” analyzed in the Final EIR considers a variation on the proposed project layout. The “Reduced Pacific Specific Plan Project Alternative” consists of 299 residential units, including a mix of rowhomes, villas, and affordable units on approximately 13.3 acres of the 33.2-acre project site. Forty-five (45) of the 299 total units (15% of the total) would be designated as deedrestricted affordable units (alternatively, the project reserves the option to contribute to the affordable housing fund by paying the in-lieu fee). The remaining approximately 19.9 acres of the 33.2-acre project site would be preserved and restored as open space and habitat area.
These two alternatives considered as part of the Final EIR would not meet all project objectives as they would provide a reduced number of housing units on the infill site and would not assist the City to implement its housing goals and efficiently promote infill development to the same degree as the proposed Project. It should be also noted that any development proposed for the site would result in biological impacts and require mitigation, such that a smaller alternative would not avoid identified impacts.
O3-10 The comment acts as an introduction to comments to follow about the project’s compliance with electric vehicle (EV) parking charging stations and solar system installation.
As discussed in the DEIR, the project’s GHG impacts would be less than significant such that no mitigation is required. Refer to EIR Section 3.7.4.
Notwithstanding, note that the Project will be required to comply with the version of Title 24 that is current upon issuance of building permits. Title 24 presently establishes building standards that include rooftop solar generation and electric-vehicle ready requirements. The EIR, Section 3.7, Greenhouse Gas, identifies that EV charging stations would be provided for a minimum 5% of the project’s parking spaces or as required by CalGreen, whichever is greater. Solar PV would be required to comply with Title 24. The EIR, Section 3.7.2, Regulatory Setting, describes Title 24 standards and that they would apply to the project.
O3-11 The comment states that although the DEIR notes that the project would include a total of 927 parking spaces and would equip a minimum of 5% of spaces with “EV charging stations”, it fails to specify whether such stations would be equipped with level 2 EV supply equipment (EVSE), as required by Section 4.106.4.2 of the 2022 Green Building Code.
In response, there are two different residential unit types in this project, townhouses with private garages and multi-family flats with common garages and open parking spaces. In the current 2022 CA building code, townhouses with private garages have different EV requirements per CBC 4.106.4.1.
Each two-car garage is required to have its own 40-amp 208/240-volt circuit. Level 2 operates on 208/240 volt. There are 418 private garage spaces proposed in this project. Currently, per CalGreen Code requirements, it is estimated that 5% of the total number of parking spaces shall be equipped with Level 2 EVSE. All garage and parking spaces will be required by law to meet the current building codes in existence when construction begins.
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Further, the project’s Specific Plan (Appendix M to the EIR) Section 3.3.2. E, requires compliance with CalGreen and/or the CAP whichever is stricter:
E. Electric Vehicle Parking and Charging
The following standards implement the project’s Specific Plan Objectives #3 and #4 and Measure T-2 of the Climate Action Plan to support and promote the use of electric vehicles:
1. A minimum of five percent (5%) of the guest parking spaces required shall be equipped with EV charging stations or as otherwise required by CalGreen, whichever is more stringent. Calculations for the required number of spaces shall be rounded up to the nearest whole number.
2. Garages shall be equipped with electric vehicle charging infrastructure in accordance with CalGreen.
3. Charging stations/spaces shall not interfere with on-site parking or pedestrian circulation.
4. Charging stations/spaces shall be maintained in functioning order in all respects.
5. Final EV stall locations will be determined at submittal of building plans.
6. EV charging station calculations shall apply to both garage/covered parking as well as uncovered and/or guest parking.
Neither the EIR nor entitlement approval would allow a project to deviate from current building codes when a project begins construction. The project would perform to code minimum compliance.
O3-12 The comment states that the DEIR fails to specify whether the project would designate 10% of their parking spaces as EV capable and equip 25% of the parking spaces with low power level 2 EV charging receptable as required. As outlined in the previous Response to Comment O3-11, the project is required to conform to the current building codes when construction begins.
O3-13 The comment states that the DEIR fails to specify whether the project would be compliant with Section 140.10 of the 2022 Energy Efficiency Standards, identifying the minimum installation of photovoltaic and battery systems. In response, the project is required to conform to the current building codes when construction begins. As outlined in Chapter 2 Project Description, and Section 3.5 Energy of the Draft EIR, in accordance with current Building Code, all buildings would be equipped with photovoltaic panels to provide solar energy to the homes. In addition, proposed homes would include energy conservation features such as spray foam insulation, thermal breaks, low-e windows, advanced thermostats, energy star appliances, and sealed insulated ducts. Proposed homes would be Energy Star Certified to meet U.S. Environmental Protection Agency standards.
O3-14 The comment acts as a conclusion to comments about the project’s electric vehicle (EV) and solar PV systems. Refer to Comments O3-10 through O3-13. The comment does not raise any specific issues related to the adequacy of the Draft EIR; no further response is required.
O3-15 This comment describes requirements under CEQA and states the Draft EIR’s Biological Resource findings and analysis are insufficient. This comment is an introductory comment to comments that
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follow. The comment does not raise any specific issues related to the adequacy of the Draft EIR; no further response is required.
O3-16 This comment states that the DEIR’s characterization of the existing environmental setting as one with a “high level of anthropogenic disturbances” is not supported by substantial evidence, rendering it speculative.
The commenter is referred to the EIR, Section 3.3.1, Existing Conditions, and Section 3.1 of the Biological Technical Report (Appendix C to this EIR), which describes the evidence of the anthropogenic disturbances onsite, supported by both aerial imagery evaluation and field surveys over the course of many years (1978 to present).
O3-17 The comment states that the biological analysis is insufficient because surveys conducted fail to comply with standard reporting standards and protocols. The comment states the surveys failed to identify who performed the surveys, failed to note when the surveys began and how long they lasted, and failed to comply with the latest survey protocols for burrowing owl and California gnatcatcher. The comment states that the surveys must be reconducted to be protocol- and standard-compliant.
In response, Section 2.2 of the Biological Technical Report (Appendix C to the EIR) provides names of the surveys as well as dates surveys were conducted. The surveys for burrowing owl and California gnatcatcher were conducted per the currently accepted protocols, which are discussed in Section 2.2.3 of the report. Thus, no revision to the EIR is needed.
O3-18 The comment states that the DEIR surveys also fail to detect a number of species of wildlife identified in a “single limited survey conducted by Smallwood’s associate,” including species with special status.
The comment states that the biological surveys made insufficient use of available databases of wildlife species occurrence, resulting in significant contradictions between the surveys and databases.
In response, based on the field surveys conducted for the site since 2018, the biological resources found on the site are accurately reflected in the DEIR. The site is entirely surrounded by development.
The several species mentioned in the comment are birds that may fly over the site, but not use the site.
Double-crested cormorant occurs in open water habitats, which does not occur on-site. Flyovers of this species may occur, same goes for seagull or other flying birds (cooper's hawk, burrowing, owl, California gnatcatcher, ravens, etc.), but that does not indicate that such species utilize the site. Refer to Responses to Comments O3-19 and O3-20 for specific responses to Smallwood’s “limited survey.” O3-19 The comment states the DEIR also fails to adequately analyze a number of important potential biological impacts. Specifically, the DEIR fails to adequately analyze the status and trends of vernal pools at the Project site (Exhibit D at 23-26), the Project site’s capacity to support wildlife and the Project’s contribution to habitat fragmentation (id. at 29-30), the Project’s interference with wildlife movement in the region (id. at 30-31), the Project’s collision bird fatality rate (id. at 31-34), the Project’s traffic impacts to wildlife (id. at 34-38), and the Project’s cumulative impacts (id. at 38-40). Thus, the DEIR must be revised to thoroughly analyze such impacts. In response, Section 3.1 Biological Technical Report (Appendix C to the EIR) discusses the status and degrading trend of the biological resources onsite. Furthermore, Section 3.8 of the report discusses wildlife use and movements of the site. Because of the surrounding development the project is not considered a steppingstone or used as a regional corridor for wildlife movement; thus, development of the site would not adversely result in habitat
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fragmentation. The project proposes contiguous development that would not create fragmented habitats on-site. Bird collision mortality is not expected because the project proposes residential development at a site that is surrounded by existing development. Additional response information on potential traffic impacts to wildlife and cumulative impacts are provided following the specific comments referred to above and seen below under comments O3-38, O3-39, and O3-42.
O3-20 The comment states that the DEIR fails to implement all feasible mitigation measures or explain why such mitigation is infeasible. For example, the DEIR fails to include measures specifying that the Project should be built with a design which minimizes bird collisions, that the Project should avoid using certain rodenticides, avicides, and poison bait stations, and that the Project will provide compensation for road mortality and includes an exhibit (Exhibit D at 46-47). Lastly, the comment states the DEIR mitigation measures must be revised to include all feasible mitigation. In response, the mitigation measures of the DEIR were generated based on significant impacts anticipated by the project. There is no indication that the project proposal to develop residential housing would result in a significant impact to bird collisions. There are no sensitive small mammals on or expected to occur at the project site; no impacts would occur. Thus, a requirement to use certain rodenticides and poison bait stations is not applicable.
The use of avicides is also not proposed or expected; thus, not applicable to the project. Regarding road mortality, the site is currently surrounded on all four sides by existing roads and does not propose additional roads. Due to the lack of adjacent native habitats and lack of wildlife movement on the site, wildlife road mortality is not expected; thus, corresponding mitigation is not required.
O3-21 The comment states that the City should consider implementing local workforce policies to benefit the local economy, and mitigate greenhouse gas, air quality, and transportation impacts. This comment is noted and forwarded to the City’s decision-makers for their consideration; however, the comment does not raise any specific issues concerning the adequacy of the EIR, and no further response is required.
O3-22 The comment from Soil Water Air Protection Enterprise (SWAPE) is an exhibit (Exhibit A) to comment letter O3 and explains the significance of worker trips in relation to greenhouse gas emissions using CalEEMod. This comment serves as a general advisory document and does not raise any specific issues concerning the adequacy of the EIR. It is further noted that the comment is outdated and does not use current emissions factors or accepted protocols to quantify GHG emissions related to worker trips.
O3-23 The comment describes default worker trip length and trips and calculations provides an explanation on how urban worker trip lengths tend to be shorter. The comment does not raise any specific issues concerning the adequacy of the EIR. No further response is required.
O3-24 The comment alleges to provide an example to demonstrate how local hire provisions reduce construction-related worker trip lengths and could reduce greenhouse gas emissions associated with construction worker trips. The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR. No further response is required.
O3-25 This comment includes a disclaimer for the technical preparer, SWAPE, and explains that the exhibit may contain informational gaps, inconsistencies, or otherwise be incomplete due to the unavailability or uncertainty of information obtained or provided by third parties. This comment also includes three attachments (Attachment A, CalEEMod default rural and urban worker trip lengths by air basin; Attachment B, Evaluation of local hire; and Attachment C, GHG emission estimations based on local
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hire). The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR. No further response is required.
O3-26 This comment from Soil Water Air Protection Enterprise (SWAPE) is an exhibit (Exhibit B) to comment letter O3. This document was prepared by Dr. Paul Rosenfeld and provides his education, professional experience, and references. The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR. No further response is required.
O3-27 This comment from Soil Water Air Protection Enterprise (SWAPE) is an exhibit (Exhibit C) to comment letter O3. This document was prepared by Matthew F. Hagemann and provides his education, professional experience, and references. The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR. No further response is required.
O3-28 This comment from Dr. Shawn Smallwood is an exhibit (Exhibit D) to comment letter O3. This document was prepared by Dr. Smallwood and provides introductory statements on the project location, the Biological Technical Report, and his qualifications and professional experience. This comment is an introductory to comments that follow. The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR. No further response is required.
O3-29 This comment provides introductory remarks states that Noriko Smallwood walked the perimeter of the Project site for 2.83 hours on the morning of March 17, 2023. The comment states that Ms. Smallwood recorded wildlife on and off the site, including animals whose identity was uncertain. The comment provides several photographs and a table of species the commenter states were observed on and offsite or by fly-over, including common and non-native species. The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR. No further response is required. The commenter is referred to Appendix C of the EIR, Biological Resources Memorandum, which addresses Animal Species Observed or Detected onsite at its Appendix B, as well as Special Status Animal Species Observed or with Potential to Occur at its Appendix D.
O3-30 This comment discusses the commenter’s opinion on how to characterize existing environmental setting for a site. The comment states that methods typically include (1) surveys of the site for biological resources, and (2) reviews of literature, databases, and local specialists for documented occurrences of special-status species. The comment states that, “In the case of this project, these essential steps remain incomplete and misleading”. The comment also states that the DEIR “appears biased in favor of the project” by speculating that the degraded condition of the environmental setting would worsen into the future.”
In response, Section 2.1 and 2.2 of the Biological Technical Report, EIR Appendix C, provides a discussion of the project literature reviews, database reviews, and Project site surveys undertaken by the biologists at Helix to accurately characterize the existing setting for biological purposes. This is consistent with the comment. With regards to the comment about ongoing degradation of the site being “speculative” or demonstrating bias, Section 3.1 of the Biological Technical Report provides evidence of the historic and continued degradation of the site, as shown by online satellite imagery and field observations at the site between 2018 and 2022. Thus, the discussion of the ongoing trend of disturbance at the site is accurate, and the statement that ongoing disturbance would likely continue in the future is not speculative but reasonably foreseeable based on historic trends and evidence in the Biological Technical Report.
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O3-31 First, the comment states that the DEIR prepared for the Pacific Specific Plan inaccurately characterizes the wildlife community as part of the existing environmental setting, and it fails to fully disclose and to rectify the limitations of the surveys that were implemented to sample the species composing the wildlife community. The comment states that the number of species that were not detected but which “truly occur on the project site” was not estimated. The comment states that Helix also repeatedly determines special-status species are not expected to occur, have no potential to occur, or have low likelihood of occurrence based on the species having not been detected during Helix’s surveys; and that Helix’s surveys failed to detect many species of wildlife, including species with special status.
In response, it is acknowledged that biologists are unlikely to observe all species that occur on a site through site surveys alone. Survey limitations are discussed in Section 2.3 of the Biological Technical Report (refer to EIR Appendix C). To address these limitations, the Biological Technical Report follows accepted practice to evaluate the potential for species to occur onsite by undertaking site surveys and creating a list of species not observed but considered to have potential to occur based on onsite resources; habitat types and vegetation communities; historic observations, species extents, geographic range, population sizes, and distribution, etc. Consistent with the applicable CEQA significance criteria, the focus of the analysis is on special status species – rather than common or non-native species – known to occur onsite or recorded in close proximity (usually less than 5-miles for sites surrounded by development) of the site. For the Project, a list of Special Status Animal Species Observed or with Potential to Occur at the site was generated and a discussion of additional species not observed but with potential to occur is presented in Section 3.6.3 of the Biological Technical Report.
Refer to EIR Appendix C, Biotechnical Report, and its Appendix D, Special Status Animal Species Observed or with Potential to Occur.
Second, the comment states that the Biological Technical Report did not include survey details, such as when the survey started, how long it lasted, or who performed them, and the report fails to meet most of the reporting standards of both survey protocols. The comment states that it is unknown whether the Helix biologists were qualified to survey for burrowing owls or California gnatcatchers, and it is unknown whether the surveys were consistent with the other standards on the conduct of the surveys, such as the minimum time intervals between surveys, survey start times, and specific methods. The comment states that the surveys completed by Helix were not in accordance with the available survey protocols for burrowing owl and California gnatcatcher, and therefore Helix’s negative findings cannot support absence determinations, nor can they lend much support to determinations of low likelihoods of occurrence.
In response, Section 2.2, Biological Surveys, of the Biological Technical Report provides information regarding when site visits were conducted, where the surveys were conducted (onsite plus certain offsite areas), and what protocols were followed. Additional information sought by the commenter is outlined in Table 1a, which will be appended to Appendix C, Biological Technical Report, in the Final EIR (Appendix E to the Biological Technical Report). Table 1a provides further details on when each survey started/ended, how long it lasted, and who performed each survey. The survey protocols that Helix biologists followed are outlined in Section 2.2, Biological Surveys, of the Biological Technical Report. More specifically, protocols and guidelines followed for focused Species Surveys, including for burrowing owl, coastal California gnatcatcher, and San Diego fairy shrimp are detailed and referenced in Section 2.2.3 of the Biological Technical Report. For the commenter’s information, these
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protocols/guidelines are available online with the links provided in the References Section of the Biological Technical Report (EIR Appendix C).
The survey reports for burrowing owl, California gnatcatcher, and Fairy Shrimp are also being provided as Appendix G to the Biological Technical Report, Appendix C to the Final EIR. As shown, contrary to the comment, qualified biologists conducted the species surveys pursuant to CDFW and USFWSestablished protocols/guidelines. The EIR’s determination that burrowing owl and coastal California gnatcatcher have a low likelihood of occurring onsite are well supported by the results of these surveys.
The EIR did not rely on the surveys alone but also evaluated the species’ potential to occur onsite based on population extent and/or distribution, historic observations, suitable habitat (e.g., site conditions, vegetation communities, soils, elevation) and related factors considered in the EIR and Biological Technical Report. (Refer to Appendix C, Section 2.2 and 3.6.) For instance, burrowing owl was not observed and has not been detected onsite for over 30 years, since 1991, which, together with negative survey results, supports its low potential to occur onsite. For gnatcatcher, in addition to negative survey results, habitat onsite for gnatcatcher (coastal sage scrub) is marginal/limited, and there is no suitable habitat immediately surrounding or contiguous to the site. Thus, its potential to occur onsite was also deemed low (refer to Appendix D of EIR, Appendix C, Biological Technical Report and EIR Section 3.3).
Third, the comment states that despite Helix completing more surveys than usual on at least 15 days by multiple biologists, the commenter’s “empirical model” prediction and single survey by Ms. Noriko Smallwood suggests that significantly more vertebrate species should have been detected or otherwise occur onsite. The comment also states that off-site detections should be included in survey results because offsite wildlife can readily move on site, and most likely do so frequently, but also because Helix (2023:3) reports having also surveyed for species in the “immediately surrounding areas.” The comment states that Helix’s reports do not contain information about wildlife detected, their location, abundance, and what they were doing. The comment states that the DEIR lacks the basis needed for concluding that impacts to wildlife would be less than significant, even with mitigation.
In response, as discussed above, it is acknowledged that biologists are unlikely to observe all species that occur on a site through site surveys alone. Thus, the Biological Technical Report follows accepted practice to evaluate the potential for species to occur onsite by undertaking site surveys and creating a list of species not observed by considered to have potential to occur based on onsite resources; habitat types and vegetation communities; historic observations, species extents, geographic range, population sizes, and distribution, etc.
The comment’s suggestion that the survey limitations should be rectified by instead estimating the number of additional species using the commenter’s model is not an accepted practice or appropriate methodology for several reasons. The commenter’s model likely greatly overstates the number of species that may occur on the site as it does not account for site resources; habitat types and vegetation communities (including soils, elevations, plants, etc.); historic observations, species extents, geographic range, population sizes, and distribution; urbanization; and other limitations to site use by wildlife. The commenter’s extrapolation of site-specific modeling that worked at one rural location in Northern California (the Altamont Pass Wind Resource Area) cannot accurately be extrapolated for use elsewhere in the context of biological resources because the potential for species to occur is species and habitat specific.
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In response to the comment that the biological survey did not detect certain wildlife species, identified by Ms. Noriko Smallwood, the comment is misleading and does not accurately characterize the site.
More than 1/3 of Ms. 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. Flyovers, unless observed the bird is observed hunting, foraging, perching, or preening, are generally not included in the list of avian species that inhabit a site.
Similarly, the off-site observations are misleading. Biological surveys are generally limited to the subject project site (i.e., property) only and what can be seen from the site or public property because permission to access, survey, and formally document resources on adjacent properties under separate ownership is generally not available. Furthermore, surveying and incorporating results or findings from adjacent properties with resources, habitats, and species that are not on the subject project site can be misleading and give false representation of the study site and project site analysis; thus, such is typically considered inappropriate. In general, the information on species provided in the comment and referenced table is misleading. However, it is notable that no additional special status species were observed inhabiting the Project site compared to what was evaluated in the EIR.
In any event, the EIR proposes mitigation to reduce potential impacts to nesting birds and raptors should they use the site. MM-BIO-4 provides for nest avoidance by requiring that construction occur outside of the breeding season and, if the breeding season cannot be avoided, but setbacks from next locations of 300 feet for passerine birds and 500 feet for raptors.
O3-32 First, this comment states that insufficient use was made of the available databases of wildlife species occurrences, and that no use was made of eBird and iNaturalist. Additionally, the comment states that Helix selected 30 special-status species of wildlife for their potential to occur at the site, and states that the commenter’s assessment would include 153 species located “near enough to the site to be analyzed for occurrence potential.” The comment states that this demonstrates inappropriate and misuse of the California Natural Diversity Data Base (CNDDB) to estimate occurrence likelihood. The comment provides a table, Table 2, of these 153 species and states that sufficient survey effort should be directed to the site to either confirm species in Table 2 use the site or to support absence determinations. The comment states, “Reconnaissance level surveys are not designed to support absence determinations for any of the species in Table 2.” In response, 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, and vetted by specialists, and provide site- and observation-specific location information.
Public websites such as eBird and iNaturalist may be referred to as secondary resources. However, the information on these sites may not be credible as they are citizen-science projects. They are not considered by the City to be credible as a primary resource. Any member of the public can record an unverified observation, which may or may not be accurate. These observations from non-professional contributors may therefore be unreliable as to species and locational information. Further, 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. eBird and iNaturalist usually provide general information on a regional scale dataset map, whereas the State and Federal databases provide site-specific observation information that can be very useful when analyzing a specific property.
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The identification of special status species with the potential to occur at the Project site was selected using the comprehensive list generated by CNDDB and USFWS database queries and utilizing a 2- mile search radius from the Project site. This evaluation process is industry-standard common practice used by professional biologists in determining the distribution of special-status species in the vicinity of an urban project site as part of CEQA review. The use of the CNDDB and USFWS database queries and 2-mile radius are appropriate in this area of San Diego County, because it has been surveyed and studied extensively.
The commenter’s statement that the commenter identified 153 special-status wildlife via eBird, iNaturalist, other databases as occurring up to 30-miles away is misleading and irrelevant to the species that may occur on the Project site. Just because a species has been reported as occurring “in region” does not mean that they have a potential for presence at the Project site, which would depend on whether suitable habitat is present. Using credible databases, reasonable distances, onsite habitat types and elevations, and various database tools, the biologists at Helix focused the Project analysis to those species with the reasonable potential to occur onsite. This is standard technique purposely used to screen out species unlikely to occur in the target survey study area.
To the extent the comment requests that surveys of the site be implemented to confirm presence or support absence determinations for the 153 species presented in Table 2 of the comment letter, no further detailed surveys for sensitive biological resources were considered necessary by the City’s independent biological consultant in completing the CEQA review of the proposed Project. Helix conducted surveys at the site between 2018 and 2023, including focused surveys for special-status wildlife, where appropriate. Where focused survey protocols are not available or where specific habitat preferences are identified by other surveys, reconnaissance surveys are adequate to support absence determination. One example, coastal cactus wren (Campylorhynchus brunneicapillus sandiegensis) was determined to be absent due to the lack of suitable cactus habitat. Where information generated by credible database reviews and during reconnaissance efforts at the site identified no possibility of species’ occurrence, it was determined there was no need to conduct focused surveys or other additional analysis. There is no requirement or reasonable need to undertake the exhaustive survey effort suggested by the comment. This approach and technique to evaluate species presence/absence applies to the species listed throughout the commenter’s Table 2.
Second, the comment questions the determination that western spadefoot toad is not expected to occur at the Project site, asserting protocol-level surveys are needed to confirm absence of the species.
In response, focused surveys for vernal pool branchiopods (i.e., fairy shrimp) were conducted at the site which include rigorous investigations of ponded areas. These ponded areas would be the only suitable breeding habitat for western spadefoot toad or other toads and frog species. Throughout the surveys, no evidence of frogs or toads occurring onsite were encountered, including no detection of frogs, toads, or egg masses. In addition, the nearest occurrence record of spadefoot toad is over 2- miles away. Because the site is entirely surrounded by development due to its location in an urbanized infill area, it is highly unlikely that spadefoot toad could travel to the site. (Biological Technical Report, Appendix D, Special Status Animal Species Observed or with Potential to Occur for the Pacific Development.) Given this evidence, the biologists at Helix determined that western spadefoot toad is not expected to occur at the project site. By contrast, the commenter provides no evidence that western spadefoot toad may occur onsite. Further surveys are therefore unlikely to yield helpful information and are not required or appropriate.
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Third, the comment states that the determination of low potential for orange-throated whiptail occurrence is flawed. Citing the Biological Technical Report, the comment states that the fact that there are “ ‘no records of this species occurring onsite,’” that the species was not detected “ ‘during biological surveys in 2018, 2020, 2021, or 2022,’” and that the species “ ‘has limited mobility to travel to the site from offsite habitats (nearest record of the species is approximately 2-miles away)’” is not evidence of its absence onsite. The comment states that the arguments provided for other special-status species are also flawed.
In response, the determination that orange-throated whiptail has a low potential to occur on-site is appropriately based on facts, evidence, and the opinion of the biologists at Helix. This evidence includes that there are no records in credible databases of orange-throated whiptail occurring on the Project site; no field observations of the species occurred onsite in biological surveys conducted over a 4-year span; there is no on-site habitat suitable for orange throated whiptail; there is no proximity and connectivity to suitable habitat for orange throated whiptail; and the nearest recorded occurrence of the species was more than 2 miles away. The species has limited mobility to travel to the Project site from off-site habitats 2-miles away in this urbanized infill area. (Biological Technical Report, Appendix D, Special Status Animal Species Observed or with Potential to Occur for the Pacific Development.) Thus, substantial evidence supports the EIR’s finding that orange-throated whiptail has a low potential to occur on the Project site.
By contrast, the commenter provides no evidence that orange-throated whiptail has a greater potential to occur onsite or has been observed onsite. Further surveys are therefore unlikely to yield helpful information and are not required or appropriate.
The comment also states that the Biological Technical Report is in error in stating that Cooper’s hawk is not expected on-site but may forage on-site. The comment states, “At minimum, Cooper’s hawk forages on the site, but considering the time of year Noriko saw a Cooper’s hawk on site, Cooper’s hawks are likely breeding either within the trees that occur on the site’s southeast corner or very nearby.”
In response, the finding that the Cooper’s hawk is not expected to occur onsite is well supported in the Biological Technical Report. As explained in the Biological Technical Report, Cooper’s hawk occurs in “oak groves, mature riparian woodlands, and eucalyptus stands or other mature forests” and is a “[r]elatively common bird in urban San Diego County.” Cooper’s hawk is not expected to occur onsite as:
Suitable woodland and stands of trees are not present in the project site. This species may forage in the project site, but suitable breeding habitat not present. This species has not been recorded in the immediate vicinity of the project site and was not detected during project surveys.
(Biological Technical Report, Appendix D, Special Status Animal Species Observed or with Potential to Occur for the Pacific Development.)
Thus, although that species may forage at the Project site, Cooper’s hawk is not expected to occur/remain on site. It is possible that Cooper’s hawk may be nesting nearby the site, potentially along the riparian corridor of San Marcos Creek where riparian forest/woodlands occur. However, it is unlikely
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that Cooper’s hawk nests or may nest at the Project site. This is because Cooper’s hawk is more territorial and susceptible to human presence than many urbanized raptor species. Based on Helix’s experience, nesting of this species usually occurs within dense tree canopy cover and in a tree located away from continuous human activity. Given the low density and open structure of the eucalyptus trees on-site, itis unlikely Cooper’s hawk would nest at the Project site. Further, a raptor nest would be easily visible at the site; however, no such nests have been identified present in the trees on-site.
Fifth, concerning the Biological Technical Report’s finding that peregrine falcon is not expected to occur onsite, the comment states that that Peregrine falcons do not require cliff faces for breeding and that the distinction between breeding habitat and other types of habitat presented in the Biological Technical Report is false because “foraging opportunities are no less important than breeding substrate for successful breeding by peregrine falcon or for any other species.” In response, for Peregrine falcon (Falco peregrinus anatum), the Biological Technical Report explained that “Few nest sites are known anecdotally for southern California mostly at coastal estuaries and inland oases.” Peregrine, “[i]nhabits a large variety of open habitats including marshes, grasslands, coastlines, and woodlands” and “[t]ypically nest[s] on cliff faces in remote rugged sites where adequate food is available nearby.” However, “the species can also be found in urbanized areas nesting on manmade structures.” (Biological Technical Report, Appendix D, Special Status Animal Species Observed or with Potential to Occur for the Pacific Development.) With respect to the Project site, the Peregrine would not be expected because:
Suitable grasslands [are] present in the project site but [are] relatively small for foraging given the site is entirely isolated and surrounded by development. Also, cliff faces and structures for breeding do not occur on-site. There are no records of this species occurring on-site, the species was not detected during biological surveys in 2018, 2020, 2021, or 2022; the nearest record of species is approximately 27-miles away. (Biological Technical Report, Appendix D, Special Status Animal Species Observed or with Potential to Occur for the Pacific Development.)
Thus, contrary to the comment, the Biological Technical Report does not assert that Peregrine requires cliff faces for breeding but acknowledges they “typically” nest on cliff faces in remote rugged sites but may also “be found in urbanized areas nesting on manmade structures.” Further, contrary to the comment, the determination that Peregrine is unlikely to occur onsite is not premised solely upon the absence of breeding habitat/cliff faces. Rather, the Biological Technical Report describes that few Peregrine nest sites are known in Southern California; that there are no manmade structures or cliff faces providing for onsite nesting; that the site is small for foraging, isolated, and surrounded by development; that there are no records of species occurrence onsite; that Peregrine was not detected onsite in 4 years’ worth of surveys; and that the nearest detection records are distant at 27-miles away.
The finding that Peregrine is not likely to occur onsite is thus supported by substantial evidence in the Biological Technical Report. The commenter provides no substantial evidence to the contrary showing that Peregrine Falcon has a greater potential to occur onsite.
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Sixth, the comment provides a table listing the occurrence “likelihoods” for certain species to occur onsite based on the commenters asserted review of eBird and iNaturalist records.
In response, as detailed above, these websites are not considered by the City to be credible for the purpose of acting as a primary source of information. Any member of the public can record an observation, which observation may be wrong, not species or sub-species specific, and/or not location specific. Using credible databases (CNDDB and USFWS) and reasonable distance, habitat types, elevations, and similar database tools, the Applicant’s biologists at Helix focused the Project analysis to identify which species have confirmed occurrences nearby the site. This record review was just part of the analysis that occurred to determine whether a species is likely to occur at the site. Refer to Biological Technical Report, Appendix D, Special Status Animal Species Observed or with Potential to Occur for the Pacific Development.
Seventh, concerning the Biological Technical Report’s finding that osprey is not expected to occur onsite, the comment states this is a “false argument” because the commenter has “recorded osprey far from any bodies of water.”
In response, the commenter cites no fact, evidence, or other support for the comment. The comment is also unclear as to how distant the commenter considers to be “far” from bodies of water. Further, the commenter provides no substantial evidence showing that osprey has a greater potential to occur on the Project site than disclosed in the EIR.
As explained in the Biological Technical Report, osprey is widely seen on the coast, with only “rare transients” observed in the interior portions of southern California (i.e., where the Project site is located). Ospreys are generally “[r]estricted to large water bodies such as rivers, lakes, and reservoirs supporting fish with suitable nesting habitat such as rocky pinnacles or large trees and snags.” “Suitable bodies of water are not present in the project site.” Because birds fly, disperse, and migrate, they are quite often observed during these movement periods.
Thus, the Biological Technical Report acknowledges that osprey could fly over the site: “[t]he species could potentially disperse across the project site, but suitable habitat for residence or breeding does not occur.” This does not mean they are expected onsite. (Biological Technical Report, Appendix D, Special Status Animal Species Observed or with Potential to Occur for the Pacific Development.) In sum, the Applicant’s biologist conclusion that osprey is not expected at the site was supported by fact and evidence, and the EIR adequately disclosed the potential for osprey to disperse across the site. No revision in the analysis is warranted by the comment.
Eighth, the comment states that the determination that large-billed savannah sparrow have no potential to occur onsite because “[s]uitable shoreline habitats [are] not present in the project site” is weak and possibly wrong as there is nothing known about stopover habitat between breeding and wintering sites.
In response, the Biological Technical Report bases the determination that large-billed savannah sparrow (Passerculus sandwichensis rostratus) is not present at the Project site, based on several published references, one of which is the San Diego Bird Atlas. The San Diego Bird Atlas states that although savannah sparrow winters and migrates in several habitats in San Diego County, the large-
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billed subspecies is strictly a coastal species tied to jetties, beaches, and salt marshes. Thus, because “suitable shoreline habitats are not present in the project site,” there is no potential for this species to occur at the Project site. (Biological Technical Report, Appendix D, Special Status Animal Species Observed or with Potential to Occur for the Pacific Development.) Finally, the comment states that that “the desktop review completed by Helix (2023) is flawed in multiple substantial ways that lead to an inaccurate characterization of the existing environmental setting.” The City acknowledges the comment and notes it provides concluding remarks to the prior comments that do not raise new or additional environmental issues concerning the adequacy of the Draft EIR. For that reason, the City provides no further response to this comment.
O3-33 The comment first provides an introduction to further comments below and states that the commenter analyzes several impacts “likely to result from the project, a few of which are not analyzed in the DEIR.” The City acknowledges the comment as an introduction to comments that follow. Please refer to the responses below. This comment is included in the Final EIR for review and consideration by the decision-makers prior to a final decision on the project. No further response is required.
The comment then recites information in the Draft EIR related to vernal pools. The comment restates some information contained in the Draft EIR, which does not raise an environmental issue within the meaning of CEQA. To the extent the commenter suggests that vernal pool complexes or mima mounds were not fully considered in the EIR, the commenter is referred to the EIR, Section 3.3.1, Existing Conditions, under the “Vernal Pools (44000)” subheading. This section discusses vernal pool characteristics, including mima mounds, low depressions, soils, and indicator species, both in a general sense and as were observed on the Project site under existing conditions.
The comment provides general information describing vernal pool ecology and provides photographs from vernal pools in Sacramento. The comment states that “assessments of the status and trends of vernal pools at the project site include monitoring efforts that are larger in scope than for making presence/absence determinations of special-status branchiopod species” and that “ [m]onitoring of vernal pool geochemistry is also needed, along with composition and cover of both hydrophytic and upland plant species, spatial distributions of fossorial mammal species and symbiotic species of terrestrial arthropod and avian species.” The comment then provides a list of species that the commenter asserts have the “potential to occur at the project site and [are] also known to use or rely on California’s vernal pools.”
In response, the comments providing information and photographs concerning vernal pool ecology and species that may make use of vernal pool complexes do not raise specific environmental issues related to the adequacy of the Draft EIR. For the vernal pools at the Project site, credible databases (CDFW CNDDB, CalFlora, and USFWS) and reasonable distance, habitat types, elevations, and similar database tools, were employed to focus review of species with the potential to occur onsite. The EIR and Biological Technical Report then considered the likelihood of each species occurring onsite in the Biological Technical Report, Appendix D, Special Status Animal Species Observed or with Potential to Occur for the Pacific Development.
The commenter’s “Table 2” identifies species the commenter asserts may make use of vernal pool complexes based on two 1996 publications related to western spadefoot toad in coastal central
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California, Riverside, and San Luis Obispo (Morey) and avian species (Silveira), as well as the commenter’s own observations. The commenter provides no evidence of these species occurring at the Project site or area or occurring in the last 27 years. Further, most of the species are identified as using vernal pool complexes for foraging, flyovers, or resting, not as habitat for breeding, nesting, or other needs.
Further, some of the species listed in the commenter’s “Table 2” were considered in the EIR, including western spadefoot toad, white-faced ibis, and burrowing owl. See also Response to Comment O3-32 above, related to western spadefoot toad and Peregrine falcon.
The commenter’s opinions on what adequate monitoring and other efforts are necessary to evaluate trends of vernal pools are noted. Given the observations on-site and trends observed via satellite imagery, the DEIR’s conclusion that the vernal pools on-site are degrading presents an accurate evaluation of existing onsite conditions. Refer to Responses to Comments O3-16 and O3-30. In regard to the commenter’s statements regarding the management of vernal pools and their associated flora and fauna at the site, the Project will permanently preserve and enhance the habitat functions over
17.94 acres of the Project site. Vernal pools would be preserved, enhanced, restored, created, and permanently protected through the various mitigation measures including Mitigation Measures, MMBIO-2 Vernal Pool Mitigation Plan, MM-BIO-5, Construction Work Limits Fencing, MM-BIO-6, Biological Construction Monitoring, MM-BIO-7a through 7b, Compensatory Mitigation, MM-BIO-8a, Regulatory Permitting, and MM-BIO-8b, Compensatory Mitigation for Impacts to Jurisdictional Resources. See also, Responses to Comments A2-5, A3-8 through A3-12, and O2-20. Permanent management of the preserve area will include monitoring, management, and adaptive management to ensure the success of the vernal pools and species. See MM-BIO-7a through 7b.
O3-34 First, the comment states that DEIR fails to analyze the site’s capacity to support wildlife. The comment states that the project would contribute further to habitat fragmentation by “the loss of one of the region’s last patches of naturally covered open space.” The comment states that the “DEIR expresses no concern over the project’s contribution to habitat fragmentation,” “uses the existing advanced level of habitat fragmentation as its basis for speculating that multiple special-status species have low occurrence potentials,” and “repeatedly points out that the project site is surrounded by development.” In response, the comment restates information in the Draft EIR concerning the fact that the project site is an infill development largely surrounded by development. Based on the location in an urbanized area, low diversity of habitats, and the low plant cover on-site, the site’s capacity to support wildlife is considered limited.
The commenter’s statement about the site being one of the last- patches of naturally covered open space in the region is incorrect. There are much larger and more expansive open space areas in the City and unincorporated north County San Diego within 5-miles and beyond, which are also contiguous with other naturally covered habitats. See, for example, Draft EIR Figure 2-7, Cumulative Project Map, and the City’s General Plan, Figure 4-2, Wildlife Corridor and Linkage, and Figure 4-3, Open Space Areas, which are incorporated herein by reference. (available at https://www.san-marcos.net/home/ showpublisheddocument/8478/636597348039500000)
The surrounding development condition at the site is a major factor in the evaluation of the site’s ability to support wildlife. Given the limited number of wildlife species observed on the site and as discussed
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in Section 3.1 (Wildlife Corridors/Core Wildlife Areas) of the DEIR, the site is not expected to serve as a habitat linkage for terrestrial mammals or riparian migratory birds. The site supports limited habitat for some birds, reptiles, small mammals, and vernal pool invertebrates.
The site is currently isolated and presents a fragmented habitat under existing conditions. Development of the site would not increase fragmentation, where the site is currently surrounded by existing roadways and development in an urban setting. Further, the project proposes to conserve and rehabilitate over half (approximately 54%) of the naturally covered areas of the site which would retain habitats for birds, reptiles, small mammals, and vernal pool invertebrates.
Second, the comment states that no effort was directed to find and record all of the bird nests on site – an effort that would be extraordinarily difficult due to the size of the project area, the numbers of birds likely to nest there, and the skill of birds at hiding their nests. The comment cites a 1948 (Young) and 1982 (Yahner) study of sites in “grassland-wetland-woodland” complexes and states that, assuming the 15.02-acre project footprint supports about 80% of the total nesting density of the abovereferenced study sites, one can predict a loss of 412 bird nests. The comment states that the loss of 412 nest sites would qualify as a significant project impact to birds that has not been quantitatively addressed in the DEIR. The comment also states that the project would prevent the production of 1,195 fledglings per year and 1,360 birds per year based on productivity in Young’s (1948) study site. The comment states that the DEIR needs to be revised to appropriately analyze the project’s impacts to wildlife caused by habitat loss and habitat fragmentation.
In response, over the course of the field reconnaissance surveys conducted at the site in 2018, 2020, 2021, and 2022, biologists observed trees, structures, shrubs, and other vegetation for nesting activity by bird species. The focus of field surveys was on the potential presence of nesting by special-status species, not more common bird species. No nests of special-status species were observed onsite.
Despite not observing nests onsite, the Draft EIR evaluated impacts to nesting birds and found that the Project has the potential to result in impacts to nesting birds if construction were to occur during the nesting season. The Draft EIR proposed mitigation to reduce such impacts below significance consistent with the Migratory Bird Treaty Act and California Fish and Game Code. Specifically, the Draft EIR states:
The project site contains trees, shrubs, and other vegetation that provide suitable nesting habitat for common birds, including raptors, protected under the MBTA and CFGC.
Construction of the proposed project includes vegetation clearing, which could result in direct impacts to nesting birds if the removal or trimming of vegetation occurs during the bird nesting season (January 15 through September 15). Such impacts to nesting birds would be in violation of the MBTA and CFGC and would be significant, especially if the activities would impact the nesting of candidate, sensitive, or special status species.
Additionally, construction activities could result in indirect impacts through disturbance to nesting from noise, dust, and physical presence, such that the disturbance results in nest abandonment or nest failure. These indirect impacts would also be considered significant.
Implementation of mitigation measure MM-BIO-4 would require preconstruction surveys prior to impacts and construction fencing and biological monitoring measures MM-BIO-5 and MM-BIO-6 would reduce potentially significant impacts on nesting birds, including raptors, to less-than-significant levels. (Draft EIR, p. 3.3-25.)
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MM-BIO-4 requires that:
[A]ny project construction activities requiring the removal and/or trimming of vegetation suitable for nesting birds (including clearing, grubbing, trenching, grading, or any land disturbances) shall occur outside of the breeding season for general birds, including raptors (January 15 to September 15). The City may waive this condition, provided that the following additional avoidance measures are taken. If the construction activities cannot avoid the bird breeding season, a qualified biologist shall be retained to conduct a preconstruction nesting bird survey within 7 days prior to the activities to confirm the presence or absence of active bird nests. If no active bird nests are found by the qualified biologist, then the activities shall proceed with the reassurance that no violation to the MBTA and CFGC would occur. If an active bird nest is found by the qualified biologist, then vegetation removal and/or trimming activities at the nest location and within 300 feet for passerine birds and 500 feet for raptors shall not be allowed to occur until the qualified biologist has determined that the nest is no longer active. Buffers may be reduced only at the discretion of the qualified biologist, depending on the bird species and construction/vegetation removal activities required in the vicinity of the active nest.
MM-BIO-5 and MM-BIO-6 provide for construction work limits, fencing and biological construction monitoring, which would appropriately delineate the construction boundaries and provide for retention of a qualified biologist to ensure avoidance of sensitive biological resources (including nests) throughout Project construction.
Further, the Project proposes to conserve and rehabilitate over half (approximately 54%) of the naturally covered areas of the site, which would retain habitats (including any nesting areas) for birds. Thus, the potential for the Project to impact nesting birds has been appropriately evaluated and mitigated in the EIR. A focal nesting bird inventory survey is not typical for preparing biological technical studies at this stage of the CEQA process. The quantitative analysis requested by the commenter is unlikely to provide additional or helpful information needed to evaluate or mitigate for Project impacts.
The commenter’s argument to the contrary extrapolates from studies that have no relation to the Project site. Based on the limited and low density of plant cover to support nests, as well as the relatively low number of birds observed within habitat on-site during the various field surveys of the site, the likelihood the site would support 412 bird nests per year is unlikely, speculative, and unsupported by substantial evidence. The Young (1948) survey cited by the commenter considered nesting birds at a single park with a pond in Madison, Wisconsin over 76 years ago. (See, https://sora.unm.edu/sites/default/files/journals/wilson/v061n01/p0036-p0047.pdf) The plant communities and bird species were significantly different than those occurring in the Project area.
Similarly, the Yahner (1982) survey looked at avian nest densities at seven farmstead shelterbelts (i.e., plantings of rows of shrubs and trees) at the University of Minnesota’s Rosemount Agricultural Experiment Station in Dakota Co., Minnesota. (See, https://sora.unm.edu/sites/default/files/ journals/wilson/v094n02/p0156-p0175.pdf). These surveys’ limited observations in tree-heavy areas of the Midwest cannot reasonably be extrapolated to this site in an infill area of San Marcos, California.
The habitat is not comparable to the grassland that dominates the Project site.
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Further, the mathematical analysis used by the commenter to extrapolate bird nests and reproductive success for a particular site is misleading and inaccurate. Speculation of future impacts based on an unknown number of bird nests based on habitat removal, based on outdated or inapplicable surveys, is inappropriate, and such speculation is typically not part of an effective project impact analysis under CEQA.
Third, the comment states that similar to birds, the DEIR should also estimate the site’s capacity to support other species. The comment states that CDFW recommended a 25% project alternative, and, if the project goes forward development should be constrained to the southern aspect of the Project area. The comment states that the proposed project footprint would take 22 (61%) of the 36 vernal pools depicted on DEIR Figure 3.3-2, as well as 9 (69%) of 13 depressions, “most of the Orcutt’s brodiaea, nearly all of the graceful tarplant, and all of (sic) the Diegan coastal sage scrub.” The comment states that the DEIR needs to be revised to analyze and disclose this impact.
In response, related to wildlife and vegetation species, the Draft EIR evaluated the existing condition of the site based on desktop data review accompanied with field surveys, including focused surveys, where considered appropriate based on reconnaissance efforts, are standard practice for documenting and evaluating species abundance for a given site. Refer to Section 3.3.1, Existing Conditions, of the EIR.
The EIR also qualitatively considered the effect to biological resources that would occur if the Project was not developed in the analysis of the “No Project Alternative,” Section 4.4.3 of the EIR. The EIR considered a 25% Alternative in the analysis of the “Reduced Development Footprint Alternative,” in Section 4.4.5 of the EIR. Refer also to Response to Comment A2-4 and A3-4, addressing an additional reduced footprint alternative analyzed in the Final EIR, located solely in the southern 29% of the site.
The EIR fully evaluated and disclosed potential impacts to vernal pools, brodiaea, graceful tarplant, and Diegan coastal sage scrub. Refer to Section 3.3.1, describing existing conditions and Section 3.3.5, evaluating project impacts. The comment does not identify any specific issues with the EIR analysis.
Accordingly, no further response is provided.
Regarding impacts and the site’s productive capacity, this analysis is speculative and based on assumptions of a future conceptual site condition rather than analysis and observed evidence of the existing condition. The proposed impacts to biological resources existing on-site are already presented in Section 3.3.5 (Project Impact Analysis) of the DEIR as well as DEIR Appendix C, Biological Technical Report.
O3-35 This comment discusses wildlife movement at the site and states that the EIR assumes wildlife could only travel to the site by direct terrestrial linkage. The comment states the project would cut wildlife off from one of the last remaining stopover and staging opportunities in the project area, forcing volant (flying) wildlife to travel even farther between remaining stopover sites. The comment states this impact would be significant and unmitigated.
The comment is incorrect that the EIR did not consider use of the site by flying (bird, bat, arthopod) species. Please see refer to Response to Comment O3-34 for additional information. Refer also to the Draft EIR, p. 3.3-12, which explains that:
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.
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Given the barrier posed by surrounding development, the site is not expected to serve as a regional wildlife corridor or substantial habitat linkage that would be used by large mammals, riparian birds, or migratory birds.
Figure 4-2 of the City of San Marcos General Plan further demonstrates that no wildlife corridors or linkages are located on or near the site. In any event, flying species could continue to use the preserved portion of the site as a stopover between offsite habitat areas.
O3-36 This comment states that the DEIR neglects to include a large portion of habitat at the site that is essential to many species: the aerosphere. The comment states that “Compared to other residential projects I have seen proposed in recent years, the residential structures of the Pacific Specific Plan would pose lower risk of bird-window collision mortality” “because there would be less glass on the facades of the buildings.” The comment provides a summary of various example studies of bird collisions, states that windows and glass-façade buildings “kill many birds” and states the commenter’s opinion that the proposed project would still result in many collision fatalities of birds.
In response, the comment provides background information concerning bird fatalities, but, as the comment notes, the Project would be designed in a manner that would not result in substantial bird fatalities from collisions. Specifically, the Project would be designed to minimize glare, reflective materials, and finishes, as discussed in the EIR’s Aesthetics chapter, Section 3.1.4, under Threshold No. 4:
The project developer would be required by the City’s Municipal Code Section 20.300.080, Light and Glare Standards, to minimize use of reflective building materials and finishes, as well as reflective lighting structures and metallic surfaces to the extent feasible to impede any potential-generated glare. As shown in the project renderings (Figures 2-6a through 2- 6d in Chapter 2 of this EIR), the proposed development would incorporate materials and finishes that would minimize the potential for glare, including set back windows, window awnings, and neutral colors for building facades.
The comment does not evidence that the Project will result in a significant impact pursuant to the applicable thresholds of significance. Further, the studies cited by the commenter show variable fatality results, from 1-2 birds/building/year to more than 84 birds/building/year, occurring in numerous locations across the US (Washington State, New York, San Francisco, Illinois, Oregon, etc.). The comment provides no evidence that the Project would cause a significant number of bird fatalities in this infill area of San Marcos; and indeed, the commenter seems to acknowledge that it would not.
Finally, the discussion and evaluation of impacts to the aerosphere as it relates to wildlife habitat is not typical for a CEQA analysis of a relatively small-scale residential development project.
O3-37 This comment discusses bird collision studies and states that the DEIR does not directly disclose the extent of glass windows on the proposed new buildings. Averaging the deaths per square meter of glass in the studies cited in comment 03-36 and estimating window sizing by the commenter’s own calculus, the comment predicts that the project would result in 516 annual bird deaths by collisions with building windows. The comment states that the majority of bird-window collision deaths would be of birds protected under the Migratory Bird Treaty Act and under the California Migratory Bird Protection Act, thus causing significant unmitigated impacts. The comment states that the DEIR should be revised to appropriately analyze the impact of bird-glass collisions that might be caused by the project.
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Refer to Response to Comment O3-36. As discussed therein, the commenter fails to support the extrapolation and averaging of data from the studies cited. The studies show variability depending on location, building size, materials, the spatial extent of glass, orientation, whether glass was marked or otherwise visible. Here, the Project would be designed to minimize glare and minimize the use of reflective building materials and finishes. Glass would not be continuous, unlike, e.g., the glass walkway that resulted in bird mortality at Washington State University in 1976 referenced in comment O3-36.
The Project would be typical of multi-family residential housing development and is located on an urbanized infill development site among similarly sized buildings. Further, the project site does not provide suitable habitat as a corridor for bird migration where waves of numerous birds fly would through the site. The statement that the Project would result in 516 annual bird deaths via collisions with building windows – more than 1 bird per day – is speculative, based on assumptions, and not supported by substantial evidence. Furthermore, this impact and magnitude are not known; to presume such a significant impact is inappropriate. The fatality rates presented by the commenter are not supportable by professional standards. No additional analysis or mitigation is needed in response to the comment.
O3-38 This comment states that “wildlife must…cross roads used by the project’s traffic” and that the DEIR neglects to address wildlife mortality and injuries caused by project-generated traffic. The comment states that a study of traffic-caused wildlife mortality is needed of whether increased traffic generated by the project site would similarly result in local impacts to thousands of wildlife individuals. The comment provides various photos of animal road crossings that were not taken on or near the Project site (from Imperial County, Solano County, and other undisclosed locations).
In response, wildlife mortality as a result of collisions with vehicle traffic is a known risk and will not be exacerbated by the Project. The Project would not widen the size of existing off-site roads and no new off-site roadways would be constructed (Refer to DEIR Appendix K). Further, the Project is located in an urbanized infill area surrounded by development and there is no contiguous habitat to the site.
Quadruped movement to and from the site is likely low, based on the surrounding development and lack of adjacent habitat. It is not considered a wildlife corridor, and there is little expectation that wildlife would cross the roads used by Project traffic in this area due to a lack of connection to habitat offsite.
The project site is entirely bounded by existing development, not contiguous with native habitats, and is outside of areas where wildlife movement opportunities do occur (along undeveloped open space habitat corridors). Refer to Section 3.3 of the EIR.
The comment cites the “nearest” study undertaken in Contra Costa County in Northern California on Vasco Road, an extremely dangerous rural highway. (https://en.wikipedia.org/wiki/Vasco_Road) Applying mortality data from a study conducted along a rural stretch of a road in Contra Costa County and using it to formulate an estimate of wildlife loss from project-generated traffic is conjecture and not supportable by standard CEQA review practices. Given the project’s minimal contribution to existing roadway volumes, there would be no substantial adverse effect to protected and more common wildlife species. No additional analysis is necessary in response to the comment.
O3-39 This comment further discusses traffic mortality and, citing the Contra Costa study, makes a prediction that 1,054 wildlife fatalities would occur per year at the project site. The comment asserts this is a significant unmitigated impact, and that mitigation is needed.
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Refer to Response to Comment O3-38. Relying on the Contra Costa study and applying it to the site is nothing more than conjecture and speculation. Further, the commenter estimates at mortality rates per vehicle miles traveled based on unsubstantiated inputs; these mortality rates are not supportable by professional standards. There would be no substantial adverse effect to protected or more common wildlife species, and no additional analysis is necessary in response to the comment.
O3-40 This comment discusses dog ownership and states that the future residents of the project would treat the on-site habitat as a dog park. The comment states that the DEIR fails to analyze potential impacts to wildlife that could result from off-leash dogs’ use of the habitat preserve.
In response, EIR Appendix C, Biological Technical Report (see Section 5.0) discusses the exclusionary fencing proposed by the project. Specifically, the Project includes installation of security fencing which provides a physical barrier around the entire boundary of the on-site habitat preserve area. Thus, there would be no ability for future residents to use the on-site habitat as a dog park. This fencing would be chain-link or similar with small openings, which would function to preclude any off-leash dogs from entering the on-site habitat. The Project does not include trails or trailheads within the on-site habitat.
There would be no public access allowed into the conservation/mitigation area. Although the Project is residential and would generate an increase of human presence and associated pets on-site, such activities would be restricted to the developed areas only.
O3-41 This comment discusses domesticated house cat ownership and impact to wildlife. The comment states that 355 new cats would be introduced to the site by the project, which would kill 43,266 wildlife species at the site per year. The comment discusses downstream loading of Toxoplasma gondii. The comment states the project would result in significant unmitigated impacts, and that it would be prudent of the project to consider constraints on house cat ownership such as requiring cats to remain indoors, or to explore alternative project sites where free ranging cats would cause fewer wildlife fatalities, or to fund the City to manage free-ranging house cats to check their number.
In response, using an assemblage of studies on bird predation by house cats and then applying them to estimate the number of vertebrate wildlife killed as a result of future residents of the site with pet cats is speculative and not supportable by professional standards. The prediction that 355 new cats would be introduced by the Project and these cats would kill over 118 animals on-site every day is speculative and inappropriate. Further, as discussed in the EIR Appendix C, Biological Technical Report (see Section 5.0), the project would provide security barrier fencing along the entire periphery of the on-site habitat preserve area. As stated in response to comment 03-40above, the fencing would limit the size of openings or gaps in order to preclude entry by domesticated pets, which also applies to house cats.
Similarly, using research on the parasite Toxoplasma gondii, which can infect domesticated cats, and inferring that pet house cats from the proposed residences on the site would contribute to downstream loading is speculative and further analysis is not warranted under standard professional practices. No additional analysis or mitigation is considered necessary in response to the comment.
O3-42 This comment concerns the DEIR’s cumulative impact analysis at DEIR pp. 3.19-8 to 3.19-9. The comment repeats statements from NOP letters in the DEIR from USFWS and CDFW. The comment states the Cooper’s hawk, the red-tailed hawk, and other species at the site will be unable to survive as a result of the Project’s contribution to habitat fragmentation. The comment states the reasoning is
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based on the “false premises that (1) regulations determine mitigation measures, and (2) no-net-loss of wetlands is achieved after each project.” The comment states there is no evidence that construction grading outside the breeding season effectively mitigates for impacts to nesting birds. The comment states that without a regional monitoring program to monitor cumulative impacts, there is “no evidence” of the efficacy of mitigation related to cumulative projects. The comment states that “[i]ndividually mitigated projects do not negate the significance of cumulative impacts” and states “the DEIR effectively provides no cumulative effects analysis.” The comment states that, “[t]he DEIR provides no explanation of how the project’s compliance with the MHCP would ensure the project’s contributions to cumulative impacts to special-status species of wildlife or to wetlands would be satisfactorily mitigated.” The comment restates prior comments concerning asserted animal mortality.
In response to Dr. Smallwood’s comment that the listed species on-site are one or a few projects away from regional extirpation is false. Note that there are several properties in the range of these species, including preserve lands, that support these species and protect them from extirpation. The project would also cumulatively contribute to perpetual protection of more than half the Project site, supporting these species.
On the effectiveness of Mitigation Measure MM-BIO-4 avoidance of nests by constructing outside the nesting season or establishing a construction buffer from active nests, this measure would mitigate impacts to nesting birds by not physically destroying nests and by minimizing the noise, dust, and physical presence from construction activities that may result in nest abandonment or failure. (See Draft EIR p. 3.3-25.) A nest avoidance buffer 300 feet for passerine and listed bird species and 500 feet for raptors is generally recommended by CDFW and biologists. MM-BIO-4 implements these recommendations.
In response to the comment regarding the reasoning for finding cumulative impacts to wetlands not cumulatively considerable, as noted in the EIR, projects in the region are required by regulation to meet a no-net-loss standard for both function and spatial area of wetland and non-wetland resources by state and federal regulatory agencies. Mitigation measures are imposed by lead agencies, which are presumed to comply with the law. The DEIR’s statement that it is presumed that all reasonably foreseeable cumulative projects would be required to conform to existing regulations with respect to avoidance, minimization, and mitigation of impacts to sensitive habitat, achieving no-net-loss of wetlands and like/kind replacement for impacts to sensitive habitat that cannot be avoided is thus reasonable and supported. Refer also to mitigation measures MM-BIO-8a and 8b, which provide measures to reduce project impacts on jurisdictional resources to less than significant.
Further, a Mitigation Monitoring and Reporting Program (MMRP) will be prepared for the project as part of project approval to comply with Public Resources Code Section 21081.6(a)(1), which requires public agencies to adopt such programs to ensure effective implementation of mitigation measures. Other cumulative projects subject to CEQA would be subject to the same requirements to ensure mitigation is effectively monitored and enforced.
For the same reason, mitigation is effective without a “regional monitoring program.” The City would ensure enforcement of cumulative project mitigation through appropriate, individualized monitoring and reporting. In addition, where appropriate, the regulatory permitting process would provide a further enforcement mechanism applicable to the Project and cumulative projects. Here, Project mitigation requires preparation, approval, and implementation of a monitoring plan (i.e., Habitat
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Mitigation and Monitoring Plan [HMMP]) as well as a perpetual management plan (i.e., Preserve Management Plan [PMP]), which would both be reviewed and subject to approval by the City and applicable resource agencies.
Consideration of individual project impacts and adoption of mitigation would effectively address cumulative effects related to biological resources. This is because potential impacts of cumulative development on biological resources tends to be site specific, and the overall cumulative effect would be dependent on the degree to which significant vegetation and wildlife resources are protected on each property.
It is further notable that the City's General Plan balances planned development with open space preservation. Under the General Plan, the Project site is designated for infill development, not for protection as open space.
Regarding compliance with the MHCP, responding to the threshold question whether the Project, together with cumulative projects, would “[c]onflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan,” (Draft EIR p. 3.3-21), the EIR explained that the Project would not conflict with the requirements and policies of the MHCP and San Marcos Subarea Plan (Draft EIR p. 3.19-9, see also Draft EIR pp. 3.3-29 to 3.3-30.) For example, because the proposed project site is excluded from the species and habitat conservation estimates of the MHCP, impacts at the site would not affect the MHCP. Conversely, any conservation of species or habitat at the project site would add and contribute positively to the regional elements to protect and conserve sensitive biological resources of the MHCP. The project also proposes to adhere to the MHCP narrow endemic species policies to the extent practicable and ultimately would result in no loss of narrow endemic species. In fact, implementation of the project’s HMMP and PMP are anticipated to result in an increase of such species on-site, as well as provide perpetual protection. Further, although not required, the project proposes to mitigate for species and habitat in accordance with the standards and mitigation ratios prescribed in the MHCP.
Because cumulative projects would also be required to comply with relevant MHCP and Natural Community Conservation Plan policies, cumulative impacts would be less than significant. The comment misstates the analysis, which was appropriate in light of the threshold question and supported by analysis in the EIR.
With regard to wildlife collisions and kills, please see the responses to comments 03-37, -38, -39, -40, and -41.
O3-43 This comment relates to the proposed rare plant transplantation under MM-BIO-1. The comment questions whether rare plants can effectively be transplanted to elsewhere on the Project site. The comment recommends that a new EIR be prepared to more carefully consider the use of translocation as a mitigation measure and goes on to cite California Native Plant Society to advocate for avoidance and to summarize CNPS (1998) mitigation recommendations and CDFW’s (1997) expectations for mitigation. The comment recommends that the security deposit for the mitigation should greatly exceed 120% of the estimated cost of the transplants “[g]iven the history of poor success” and that the security deposit should “be large enough to cover the cost of additional compensatory mitigation should some portion of, or all of, the transplants fail.”
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Refer to Response to Comment O2-18, which details that the project was specifically designed to minimize impacts to these rare plant species; and Response to Comments A3-8 and A3-11, which address the capacity of the mitigation area to accommodate translocation, the details of translocation plans, and the security deposit. See also, the 2023 Summary Report from Helix (Attachment 1 to these Response to Comments), which confirms the capacity of the site to complete on-site translocation.
Project mitigation requires that the City and regulatory agencies review and approve the HMMP and PMP prior to Project construction. These plans will factor in the existing on-site resources and include avoidance and minimization techniques (e.g., pre-construction surveys and species location demarcating, seasonal timing of work, using hand tools, and using rubber tire or rubber-tracked vehicles) as well as adaptive contingency measures (e.g., additional seed collection and distribution, additional plantings and inoculation, more intense weed control, and seeding of known pollinator plants) to ensure inadvertent significant impacts would not occur.
On the effectiveness of translocation, contingency planning, and the security deposit, please refer to Responses to Comments O2-4 through O2--8. Two local examples of brodiaea translocation success are at the Joli Ann Leichtag Elementary Preserve and the Rancho Santalina Preserve. Due to the distribution of rare plants at the site, full avoidance is not possible, and mitigation of rare plants would be required. The translocation approach is a method that is typically effective and acceptable to mitigate impacts to rare plants when done appropriately.
As requested by CDFW, the management funding amount and mechanism would be based on a Property Analysis Record (PAR) or similar cost estimation method, as set out in MM-BIO-7b. The deposit would cover contingency planning, which is set forth in the HMMP to ensure mitigation success.
Ultimately, the project would be required to adhere to the dollar amount prescribed by the resource agencies during approval and permitting for the Project.
O3-44 This comment refers to MM-BIO-2 Vernal Pool Mitigation Plan and states that creation of vernal pools where they do not currently exist would require the destruction of the complex of soil, plants, and wildlife at the creation sites. The comment states the prudent thing is to leave vernal pools undisturbed. The comment states compensatory mitigation is commonly required by U.S. Army Corps of Engineers (USACE) and other regulatory agencies where vernal pools will be adversely affected or destroyed by a project, but compensatory mitigation has limited efficacy.
Refer to Responses to Comments O2-9 through O2-11, which discuss the Project alternatives, vernal pool mitigation, and anticipated success. As discussed, Project mitigation provides for the enhancement, creation, and expansion to ensure that impacts to 0.44 acres of vernal pools are appropriately mitigated at a 3:1 ratio. The mitigation plan for vernal pools would be reviewed and approved by the USACE and other resource agencies as applicable. This comment is informational and does not raise specific issues related to the adequacy of the Draft EIR.
O3-45 This comment concerns MM-BIO-3 Listed Species Conservation Measures and the required consultations with the USFWS and CDFW regarding San Diego fairy shrimp, thread leaved brodiaea, and San Diego button celery. The comment states that the DEIR should be withdrawn and revised with descriptions of viable mitigation options for these species and states that, in the commenter’s opinion, impacts would be unmitigable and would cause irreparable impacts.
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Refer to Responses to Comments A3-7 through A3-12. As discussed therein, the proposed mitigation for these species are as follows: approximately 0.27-acre existing vernal pool preservation, approximately 0.28-acre of vernal pool creation, approximately 0.18-acre of vernal pool expansion, and approximately 0.02-acre vernal pool enhancement; approximately 6.83 acres of existing thread-leaved brodiaea preservation; approximately 2.12 acres of existing Orcutt’s brodiaea preservation; approximately 5.88 acres of thread-leaved brodiaea and Orcutt’s brodiaea translocation; and, approximately 1.99 acres of existing grassland preservation; refer also to EIR Section 3.3, Biological Resources. The comment provides no factual basis for the assertion that impacts would be unavoidable or inadequately mitigated. The commenter’s opinion is noted.
O3-46 This comment concerns MM-BIO-4 Avoidance of Nesting Birds and Raptors. The comment states that nesting detection surveys should be completed to inform both an EIR and the preconstruction surveys.
The comment states that MM-BIO-4 would not reduce impacts to less-than-significant levels because the project would destroy the productive capacity of the birds that breed on the project site.
Refer to Responses to Comments 03-34 and O3-42 regarding nest detection inventory surveys, productive capacity, and the effectiveness of mitigation.
O3-47 This comment concerns MM-BIO-5 Construction Work Limits Fencing. The comment states that a construction fence would contain the damage that would be caused by construction grading but would destroy the productive capacity of the birds that breed on the project site.
Refer to Responses to Comments 03-34 and O3-42 regarding nest detection inventory surveys, productive capacity, and the effectiveness of mitigation. The intent of MM-BIO-5 fencing is to prevent inadvertent impacts to sensitive biological resources beyond the approved work limits. Construction fencing is intended to work in conjunction with setbacks (MM-BIO-4) and biological monitoring (MMBIO-6) to reduce construction related impacts to nesting birds (and other sensitive species) to less than significant levels. The commenter’s opinion that the Project would “destroy the productive capacity of birds that breed on the project site” is, as discussed in prior responses, unsupported and speculative.
O3-48 This comment concerns MM-BIO-6 Biological Construction Monitoring. It states that the measure “should be implemented” but “would not avoid impacts to wildlife as claimed in the DEIR.” The comment states the biological monitor should have the authority to rectify situations that pose threats to wildlife and that the events associated with construction monitoring need to be summarized in a report that is subsequently made available to the public.
Refer to Response to Comment O3-47. MM-BIO-6 is intended to be implemented as part of the broader mitigation program discussed in the EIR to routinely evaluate project implementation, minimize construction impacts, and document project compliance with the biological requirements. MM-BIO-6 does allow the biologist to implement corrective measures as necessary, and to promptly report any non-compliance to the City:
If items of non-compliance are identified, the biologist shall notify the on-site construction superintendent immediately to discuss and implement corrective actions. Issues of noncompliance that result in additional impacts to sensitive biological resources shall be documented and provided to the City within 72 hours of identification. Mitigation for
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unauthorized impacts shall adhere to the applicable measures in the Biological Resources Technical Report prepared for the project.
Further, the other mitigation measures grant the biologist this authority. See, for example, MM-BIO-4, provides the biologist shall establish nest buffers and provide no vegetation removal or trimming activities occur within the buffer until the nest is no longer active; MM-BIO-5, provides the biologist shall survey fencing and determine the need for additional inspections or monitoring during construction, etc.
Members of the public are able to request reports made to the City under the California Public Records Act.
O3-49 This comment refers to MM-BIO-7a, MM-BIO-7b, and MM-BIO-8b and states that mitigation ratios proposed are based on acreages, which fail to mitigate the project’s impact to the number of vernal pools that would be lost. The comment states that, on an acreage basis, the project would take 34% of the vernal pools, whereas on the basis of the number of vernal pools, the project would take 61% of the vernal pools. The comment states the mitigation approach adopted in the DEIR assumes that larger vernal pools are more valuable than smaller vernal pools, but the DEIR cites no evidence that value grades with vernal pool size. The comment states the proposed mitigation does not offset impacts of degradation of the vernal pools that would be left on the project site. The comment states remaining vernal pools would be vulnerable to even more intrusion from people and dogs and cats and more accumulation of litter with the addition of 1,399 new residents to the site. The comment states typical mitigation ratios should not apply to this project and asserts the commenter’s opinion that potential Project impacts are unmitigable.
In response, it is the commonly accepted practice and industry standard that impacts to vegetation types, including vernal pools, be mitigated according to acreage. Mitigating by acreage at a 3:1 ratio, as required here, will improve, restore, and create vernal pool habitat at 3 times the acreage of vernal pools impacted by the project. Further, MM-BIO-2 outlines the mandatory components of the Vernal Pool Mitigation Plan, which will ensure the success of vernal pool mitigation through creation/ expansion, re-establishment, restoration, monitoring, contingency measures, and verification upon successful completion. Ultimately, the Vernal Pool mitigation plan for the project would be reviewed by the City and the permit-issuing resource agency for the project. Review and approval would be required prior to any land disturbance, clearing, grubbing, or grading of the project site. These elements will ensure the effectiveness of vernal pool mitigation.
For clarification, the Draft EIR does not assume larger pools are more valuable than smaller pools. The mitigation is based on the typically acceptable approaches, as mentioned above.
Vernal pools remaining onsite would not be degraded by the Project, but would be preserved, enhanced, restored, created, and permanently protected through the various mitigation measures and permanent conservation of the habitat area. Refer to Mitigation Measures, MM-BIO-2 Vernal Pool Mitigation Plan, MM-BIO-5, Construction Work Limits Fencing, MM-BIO-6, Biological Construction Monitoring, MM-BIO7a through MM-BIO-7b, Compensatory Mitigation, MM-BIO-8a, Regulatory Permitting, and MM-BIO-8b, Compensatory Mitigation for Impacts to Jurisdictional Resources. See also, Responses to Comments A2-5, A3-8 through A3-12, and O2-20.
As discussed in Responses to Comments 03-40and -41, intrusion into on-site habitat preserve by people, dogs, and cats is not expected in light of the inclusion of preserve barriers and fencing
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management, monitoring, and reporting. Additionally, public signage would be installed around the preserve to inform the public of the biological preserve and that trespassing is not allowed.
The commentor’s opinion that typical mitigation ratios should not be applied is noted. The comment will be included as part of the Final EIR. No further response is necessary.
O3-50 The comment concerns MM-BIO-8a and states that regulatory permits are not a mitigation measure, and that the measure should be removed from the current DEIR, and it should not appear in a recirculated DEIR.
In response, “a condition requiring compliance with regulations is a common and reasonable mitigation measure and may be proper where it is reasonable to expect compliance.” (Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 906.) Impacts to aquatic resources under regulation by state or federal agencies must adhere to mitigation prescribed by those agencies, which is presented in the form of the applicable permit. Thus, obtaining additional permits or consulting with agencies is appropriately discussed in mitigation measures, as identified in the EIR.
O3-51 Summarizing the commenter’s letter, the comment provides opinions regarding additional protocollevel surveys and recommendations of additional mitigation measures related to pest control, cats, bird-window collisions, road mortality, funding wildlife rehabilitation facilities, and landscaping.
In response, the comment provides concluding remarks and recommends mitigation based on the commenter’s prior opinions. Please refer to prior responses to this comment letter, which explain that no additional protocol-level detection surveys are warranted, and that no new significant impacts have been identified as a result of these comments that would require mitigation. The comments regarding protocol level surveys do not consider the geography, habitat, and credible observations at and around the site. As stated previously, the comments concerning cats, bird-window collisions, and road mortality are considered to be speculative and are unsupported by evidence.
With respect to landscaping, the commentor’s opinion is noted. The comment will be included as part of the Final EIR. No further response is necessary.
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Comment Letter I1
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Response to Comment Letter I1
Individual
Leslie Kuhn
April 26, 2023
(LATE LETTER)
The City notes this comment letter was received after the close of the CEQA public comment period. Although CEQA does not require the City to provide written responses to late letters submitted after the noticed public comment period (Pub. Resources Code, §§2109l(d) and 21092.5(c); CEQA Guidelines, §15088), the City County has elected to provide the following response to this late letter without waiving its position that no such written response is required by CEQA or any other law or regulation.
I1-1 This comment is an introductory comment providing the project location and citing initial concerns for development of the project site. The comment states that the sign onsite has been destroyed. In response, due to the length of time the sign has been posted, vandalism, and weather, it is acknowledged that the sign was destroyed. However, the City confirms that the sign was replaced onsite on May 24, 2023. The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR.
I1-2 This comment is an introductory comment describing the commenter’s professional background and work efforts. The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR. No further response is required.
I1-3 This comment describes vernal pool work of the commenter, students, and a Professor Armstrong. This comment provides a link to a document titled San Marcos Vernal Pool Checklist, prepared by W.P.
Armstrong on May 22, 2011, and states that Armstrong and his students have documented rare and endangered plants and the federally endangered San Diego fairy shrimp in the San Marcos vernal pools.
In response, in contrast to the link provided which is at least 12 years old and references even older data (e.g., a burrowing owl sighted in 1979), Section 3.3 of the Draft EIR describes the rare/endangered plants and fairy shrimp on-site under existing conditions. Helix Environmental Planning, Inc has conducted numerous focused surveys on the property for sensitive species onsite from 2018 to the present, consistent with currently accepted methods/protocols. These surveys have been used to assist the Applicant with project design in consultation with the City and Resource Agencies (CDFW and USFWS) and have been used in analyzing and proposing mitigation for the project’s impacts to biological resources (please refer to Appendix C of the EIR). The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR. No further response is required.
I1-4 This comment describes existing resources in the City of San Marcos and states that this project site is more important than other resources in the City due to the unique wetland habitat and rare vernal pools, as well as rare wildflowers. The City acknowledges the comment and will include the comment for review and consideration by decision-makers prior to a final decision on the project. Please refer to the EIR, Section 3.3, Biological Resources, and the Biological Technical Report prepared for the project (Appendix C to the EIR), which outlines preservation areas and mitigation measures for biological resources on-site. The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR. No further response is required.
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I1-5 The comment states that there is a remarkable opportunity at the site for the City of San Marcos to conserve the site. The comment also states that the site presents a great opportunity to engage knowledgeable members of the community in restoring the vernal pools and upland mima mounds by removing trash, invasive species, and damage recently inflicted by unauthorized offroad vehicles, and creating engaging interpretive information online.
The City acknowledges the comment does not raise specific issues related to the adequacy of the Draft EIR. The City will include the comment for review and consideration by decision-makers prior to a final decision on the project. Note that the property is privately owned land, and the proposed project design would preserve over half of the site in perpetuity. Areas targeted for conservation are those with sensitive biological resources, including vernal pool mima mound complexes, rare vernal pool species, and rare plant species. The areas to be conserved on the property would undergo restoration to remove trash, non-native species, and remediate the damage inflicted by illegal off-road activities on-site. The efforts proposed within the on-site conservation area are anticipated to provide an uplift to the biological resources on-site as well as perpetual protection of the resources on-site, compared to the existing condition. The entire conservation area would be protected with a conservation easement (or equivalent) and managed in perpetuity by an entity approved by the City, USFWS, and CDFW.
Installation of fencing around the periphery of the conservation area as well as public awareness/ interpretive signage at the site would be included as part of the project.
I1-6 This comment states that photos are attached, that were taken from the road crossing at the “Las Posas vernal pool” site and another site in Miramar. The comment is noted. It does not raise any specific environmental issues related to the adequacy of the Draft EIR, such that no further response is required.
I1-7 The comment includes concluding remarks and inquiries about project status and evaluation. In response, the current status of the project is that it is undergoing California Environmental Quality Act (CEQA) and land use entitlement processes. A Final EIR is being prepared for the project, after which it will be considered at a public hearing by the Planning Commission, which is yet to be scheduled.
I1-8 This comment provides a photo of pink Castilleja densiflora in the bed of a vernal pool at “Las Posas”.
The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR.
I1-9 This comment provides a photo of Goldenstar, a lily growing in clusters by the “Las Posas vernal pools”.
The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR.
I1-10 This comment provides a photo of a specie of blue dicks (Dipterostemon capitatus ssp. lacuna-vernalis) and states that it grows only in vernal pools. The photo is not stated to have been taken at the “Las Posas vernal pools” or project site. The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR.
I1-11 This comment provides a photo of a Brodiaea lily at “Las Posas vernal pools”. The comment does not raise any specific environmental issues related to the adequacy of the Draft EIR. The Draft EIR describes the current scope of Brodiaea at the project site. Refer to, e.g., EIR Appendix C, Figure 8, and Figure 11.
I1-12 This comment provides a photo of a cloud of endangered pale blue Downingia cuspidate flowers at the Miramar vernal pools, and states they are “also reported at ‘Las Posas’”. This photo is not specific to the project site and the comment does not raise any specific environmental issues related to the adequacy of the Draft EIR.
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I1-13 This comment provides a photo of a Parry’s larkspur and camas lily (star lily) alongside Miramar vernal pools. This photo is not specific to the project site and the comment does not raise any specific environmental issues related to the adequacy of the Draft EIR.
I1-14 This comment provides a photo of Muilla maritima at Miramar. This photo is not specific to the project site and the comment does not raise any specific environmental issues related to the adequacy of the Draft EIR.
I1-15 This comment includes a PDF of the link provided in comment I1-3. This document was prepared by Professor Armstrong and his students that documents rare and endangered plants and the federally endangered San Diego fairy shrimp in the San Marcos vernal pools. The document is titled San Marcos Vernal Pool Checklist, prepared by W.P. Armstrong on May 22, 2011. This comment does not raise any specific environmental issues related to the adequacy of the Draft EIR.
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