Thousand Oaks City Council
October 21, 2025

Agenda Related Items - Meeting of October 21, 2025
Supplemental Packet Date: October 21, 2025

THOUSAND OAKS CITY COUNCIL

Supplemental
Information
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THE FOLLOWING
143 PAGES ARE

RELATED TO ITEM

10.A.

October 16, 2025
Via Email1
David Newman, Mayor
Mikey Taylor, Mayor Pro Tem
Al Adam, Councilmember
Bob Engler, Councilmember
C. Tie Gutierrez, Councilmember
City Council
City of Thousand Oaks
2100 Thousand Oaks Blvd.

Thousand Oaks, CA 91362
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Scott Kolwitz, Senior Planner
Community Development Department
City of Thousand Oaks
2100 Thousand Oaks Boulevard
Thousand Oaks, CA 91362
[email protected]
Re: SAFER Appeal Comment
Conejo Summit Project
Environmental Impact Report 2022-70775-EIR
City Council Hearing Date: Oct. 21 , 2025
To the Thousand Oaks City Council and Senior Planner Kolwitz:

This comment is submitted on behalf of Supporters Alliance For Environmental Responsibility (“SAFER”) and its members living or working in and around the City of Thousand Oaks (“City”) regarding SAFER’s appeal of the Conejo Summit Project (“Project”) to be heard at the City Council’s October 21, 2025 meeting.

SAFER is concerned that Project’s Environmental Impact Report (“EIR”) is inadequate under the California Environmental Quality Act (“CEQA”) due to: (1) improper reliance on a mitigation fee to mitigate the Project’s significant operational air quality impacts; (2) failure to adequately disclose and mitigate impacts to biological resources; and (3) failure to consider increased on-site renewable energy requirements.

On January 9, 2025, SAFER submitted a comment on the Draft EIR, which is attached 1 The City Council’s online comment form for the October 21, 2025 meeting is not currently accepting comments.
1 SAFER Appeal Comment
Conejo Summit Business Park
City Council Hearing Date: Oct. 21, 2025
October 16, 2025

hereto as Exhibit 1.2 SAFER also joins in the issues raised by CARE LA in its comments on the Draft EIR and Final EIR.

SAFER’s review of the EIR was assisted by expert ecologist Dr. Shawn Smallwood, Ph.D. Dr. Smallwood’s reply to the City’s response to his comment is attached as Exhibit 2.

Due to the EIR’s shortcomings, SAFER respectfully requests that the City Council grant SAFER’s appeal and direct City staff to revise the EIR prior to taking any further action on this Project.

PROJECT DESCRIPTION

The Project proposes a multiple-phase business park development that would include 15 industrial buildings totaling 754,222 square feet (671,122 sf of warehouse/light manufacturing and 83,100 sf of office). The proposed buildings would range in size from approximately 22,700 to 93,300 sf of floor area and from 37 to 41 feet in height. The Project will also include 1,663 surface parking spaces.

The 51-arce Project site is located near the western boundary of the City within the northwestern portion of the Rancho Conejo Industrial Area, approximately 1-mile north of the 101 Freeway. The Project site abuts the Conejo Open Space Conservation Area, which is owned and managed by the Conejo Open Space Conservation Agency (COSCA). Construction of the Project would consist of a maximum of seven phases, with an anticipated construction period of 12 to 18 months for each phase, beginning in 2025 and ending in 2035.

LEGAL STANDARD
CEQA requires that an agency analyze the potential environmental impacts of its proposed actions in an EIR (except in certain limited circumstances). (See, e.g., Pub.

Resources Code, § 21100.) The EIR is the very heart of CEQA. (Dunn-Edwards v.

BAAQMD (1992) 9 Cal.App.4th 644, 652.) “The ‘foremost principle’ in interpreting CEQA is that the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (Communities for a Better Environment v. Cal. Resources Agency (2002) 103 Cal.App.4th 98, 109 (CBE v. CRA).)
CEQA has two primary purposes. First, CEQA is designed to inform decision makers and the public about the potential, significant environmental effects of a project.

2 SAFER’s comment on the Draft EIR inadvertently attached the wrong expert report. The correct expert report was provided to the Planning Commission on September 8, 2025. The correct expert report is attached to Exhibit 1.
2 SAFER Appeal Comment
Conejo Summit Business Park
City Council Hearing Date: Oct. 21, 2025
October 16, 2025

(14 CCR § 15002(a)(1).) “Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR ‘protects not only the environment but also informed self-government.’” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.) The EIR has been described as “an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.” (Berkeley Keep Jets Over the Bay v. Bd. of Port Comm’rs. (2001) 91 Cal.App.4th 1344, 1354 (Berkeley Jets); County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810.)
Second, CEQA requires public agencies to avoid or reduce environmental damage when “feasible” by requiring “environmentally superior” alternatives and all feasible mitigation measures. (14 CCR § 15002(a)(2) and (3); see also Berkeley Jets, 91 Cal.App.4th at 1354; Citizens of Goleta Valley, 52 Cal.3d at 564.) The EIR serves to provide agencies and the public with information about the environmental impacts of a proposed project and to “identify ways that environmental damage can be avoided or significantly reduced.” (14 CCR § 15002(a)(2).) If the project will have a significant effect on the environment, the agency may approve the project only if it finds that it has “eliminated or substantially lessened all significant effects on the environment where feasible” and that any unavoidable significant effects on the environment are “acceptable due to overriding concerns.” (Pub. Res. Code, § 21081; 14 CCR § 15092(b)(2)(A) and (B).)
While the courts review an EIR using an “abuse of discretion” standard, “the reviewing court is not to ‘uncritically rely on every study or analysis presented by a project proponent in support of its position. A ‘clearly inadequate or unsupported study is entitled to no judicial deference.’” (Berkeley Jets, 91 Cal.App.4th at 1355 [quoting, Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal. 3d 376, 391, 409, n. 12.) “A prejudicial abuse of discretion occurs ‘if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.’” (Berkeley Jets, supra, 91 Cal.App.4th at 1355.)
An EIR must “include[] sufficient detail to enable those who did not participate in its preparation to understand and to consider meaningfully the issues the proposed project raises.” (Sierra Club v. Cty. of Fresno (2018) 6 Cal.5th 502, 510.) “Whether or not the alleged inadequacy is the complete omission of a required discussion or a patently inadequate one-paragraph discussion devoid of analysis, the reviewing court must decide whether the EIR serves its purpose as an informational document.” (Id. at 516.) “The determination whether a discussion is sufficient is not solely a matter of discerning whether there is substantial evidence to support the agency’s factual conclusions.” (Id.) As the Court emphasized:

[W]hether a description of an environmental impact is insufficient because 3 SAFER Appeal Comment
Conejo Summit Business Park
City Council Hearing Date: Oct. 21, 2025
October 16, 2025

it lacks analysis or omits the magnitude of the impact is not a substantial evidence question. A conclusory discussion of an environmental impact that an EIR deems significant can be determined by a court to be inadequate as an informational document without reference to substantial evidence.

(Id. at 514.)

In general, mitigation measures must be designed to minimize, reduce or avoid an identified environmental impact or to rectify or compensate for that impact. (14 CCR § 15370.) Where several mitigation measures are available to mitigate an impact, each should be discussed and the basis for selecting a particular measure should be identified. (14 CCR § 15126.4(a)(1)(B).) A lead agency may not make the required CEQA findings unless the administrative record clearly shows that all uncertainties regarding the mitigation of significant environmental impacts have been resolved.

DISCUSSION

I. The EIR’s Reliance on a Mitigation Fee for the Project’s Significant Air Quality Impacts Is Improper.

The EIR found that the Project’s operational emissions of NOx and ROGs would exceed the significance thresholds established by the Ventura County Air Pollution Control District (“VCAPCD”). (DEIR, p. 3.2-29.) The EIR explains that Mitigation Measures TRAF-1 through TRAF-5 will reduce Project-associated vehicle miles travelled (“VMT”) but that NOx and ROG emissions would still be significant. (DEIR, p.

3.2-32.) To reduce these emissions to less-than-significant levels, the EIR relies on Mitigation Measure AQ-4, which requires the applicant to pay a Transportation Demand Management Air Quality Impact Fee (“TDM Fee”). (DEIR, p. 3.2-34.) The TDM Fee is based on an equation that calculates a dollar value for each pound of NOx or ROG in excess of VCAPCD’s significance threshold. (Id.)

The EIR’s reliance on the TDM Fee is improper because, based on VCAPCD’s own guidance, the TDM Fee is to be utilized only when all feasible on-site mitigation measures have been imposed. VCAPCD’s 2003 Air Quality Assessment Guidelines (“AQAG”) specifically state that TDM fees “be implemented only after all feasible area and operational mitigation measures have been applied to the development project.” (AQAG, p. 7-15 [emph. added].) In a comment to the City regarding this EIR, VCAPCD explicitly explained that “[t]he recommended list of mitigation measures in the AQAG are also limited and outdated. There are currently other on-site mitigation options, rather than contributing to an off-site TDM Fund Mitigation, such as installing bicycle lockers, EV charging stations, energy standards exceeding Title 24, etc.” 4 SAFER Appeal Comment
Conejo Summit Business Park
City Council Hearing Date: Oct. 21, 2025
October 16, 2025

(VCAPCD Comment, March 20, 2023, pp. 1-2.)3

The EIR fails to demonstrate that the City considered the feasibility of additional on-site mitigation measures. In the FEIR’s response to comments, the City claims that the TDM Fee is proper because the Project will exceed Title 24 requirements and include onsite bicycle lockers, EV charging stations, and electric charging infrastructure for bicycles and scooters. (FEIR, Response to Comments, Response IND 6-11.) However, the City’s response mischaracterizes the issue. The question is not whether on-site mitigation measures have been applied. Rather, the question is whether there are additional, feasible mitigation measures that could be applied to the Project prior to imposing the TDM Fee.

There is ample opportunity for the City to expand the current on-site mitigation measures to reduce the Project’s operational emissions. For example, the Project is providing electric vehicle (“EV”) charging stations at only 84 of the 1,633 parking spaces (~5%). (DEIR, p. 3.5-8.) An additional 249 of the 1,633 spaces (~15%) will be “EV capable” ( which means electric infrastructure will be run to the spaces but no charger will be installed. (Id.) There is no discussion in the EIR about the feasibility of increasing the required amount of EV charging stations or EV capable spaces. Cal includes Tier 1 and Tier 2 voluntary measures that demonstrate the potential feasibility of requiring more EV spaces. (CalGreen §§ A5.106.5.3.1, A5.106.5.3.2.) Under these voluntary standards, the Project would provide 30-45% of the total spaces as EV capable spaces, of which 33% would also have chargers. The fact that CalGreen includes these voluntary standards demonstrates that the standards are potentially feasible for this Project. The City should not certify this EIR until the maximum amount of feasibly EV spaces are required prior to imposing the TDM Fee.

Similarly, the EIR fails to address whether expanding the Project’s solar energy requirements is feasible. Currently, the Project is required to provide the minimum amount of on-site solar in order to comply with Title 24 and CalGreen requirements. (DEIR, p. 3.5-12.) However, the City should remember that Title 24 requirements set the floor of what is required but do not address the feasibility of doing more. Under Title 24, the Project’s buildings will be required to provide a certain amount of rooftop solar.

However, given the Project’s expansive surface parking, it is entirely feasible to require additional solar generation through the installation of solar carports. The City could also require that the Project install rooftop solar that exceeds the Title 24 requirements prior to imposing the TDM Fee.

The EIR also does not explain why the 5-minute limit for truck idling cannot be reduced further. The Attorney General provided a comment on the EIR on March 1,

3 Available at https://toaks.gov/corecode/storage/uber_resource/uploaded_pdfs/Appendix%20A%20- %20NOP%20(signed)_1732644383.pdf.
5 SAFER Appeal Comment
Conejo Summit Business Park
City Council Hearing Date: Oct. 21, 2025
October 16, 2025

20234 that provided the City with a DOJ document titled “Best Practices and Mitigation Measures to Comply with the California Environmental Quality Act.” The DOJ’s Best Practices explicitly state that operational air quality impact can be mitigated, in part, by “[f]orbidding trucks from idling for more than three minutes and requiring operators to turn off engines when not in use.” (DOJ’s Best Practices, p. 9.) Clearly, it is feasible to reduce idling time below 5 minutes—and the City must do so prior to imposing the TDM Fee.

The City’s response to this issue so far has been inadequate. For EV spaces, solar, and idling time, the City continually claims that the Project will meet the minimum regulatory requirements and, therefore, is not required to do more. (See Planning Commission Supplemental Agenda Packet 3, Response to Comments, Response Letter 3-3, Response Letter 3-11; FEIR, Response to Comments, Response IND 6-7.) Again, these responses mischaracterize the issue. The City must demonstrate that it has required all feasible mitigation measures prior to relying on the outdated TDM Fee. The fact that the Project will meet the bare minimum required by law has no bearing on the question of whether the appropriate amount of mitigation has been applied prior to relying on the TDM Fee.

SAFER requests that the EIR be revised to include additional on-site mitigation measures for the Project’s significant NOx and ROG emission prior to imposing the TDM Fee or otherwise explain why additional on-site mitigation measures are not feasible. Unless those revisions are made to the EIR, the EIR’s reliance on the TDM Fee is improper and the EIR’s conclusion that operational NOx and ROG emissions are less-than-significant in invalid.

II. The EIR Fails to Disclose and Mitigate the Project’s Significant Impacts to Biological Resources.

SAFER’s previous comment on the Draft EIR contained a review of the EIR by expert ecologist Dr. Shawn Smallwood, who found that: (1) the DEIR underestimated the diversity of species at and near the Project site; (2) the DEIR failed to assess or mitigate the Project’s impacts to species due to habitat loss and fragmentation, wildlife movement, traffic, and artificial lighting; and (3) the DEIR’s mitigation measures were inadequate to reduce the Project’s impacts to biological resources to less-than- significant levels (Ex. 1, pp. 3-7.)

The City has provided responses to Dr. Smallwood’s comment. (FEIR, Response to Comments, pp. 9-138 to 9-154; Planning Commission Supplemental Agenda Packet 3, pp. 1-2.) Dr. Smallwood’s reply to the City’s responses is attached as Exhibit 2. Dr.

4 Available at https://toaks.gov/corecode/storage/uber_resource/uploaded_pdfs/Appendix%20A%20- %20NOP%20(signed)_1732644383.pdf
6 SAFER Appeal Comment
Conejo Summit Business Park
City Council Hearing Date: Oct. 21, 2025
October 16, 2025

Smallwood’s reply demonstrates that the EIR continues to underestimate the Project’s impacts to biological resources and must be revised prior to proceeding with this Project.

Dr. Smallwood had observed special-status species, including oak titmouse and wrentit, both of which are listed as a Bird of Conservation Concern by the U.S. Fish & Wildlife Service, and raptors, including Cooper’s hawk, red-tailed hawk, and great horned owl, which are protected in California as birds of prey. (Ex. 1, Exhibit A, pp. 4-5.) In response, the City claimed that the species observed by Dr. Smallwood were not “special-status species” because they “do not meet the definition of endangered, rare, or threatened as defined in CEQA Guidelines, Section 15380(b).” (FEIR, Response to Comments, Response IND 4-4-3, p. 9-140.) However, “special-status species” under CEQA are not limited to endangered, rare, or threatened species—nor does CEQA Guideline 15380(b) claim to so define special-status species. CEQA Guideline 15380 does not use the term “special-status” at all. (See 14 CCR § 15380.) Rather, CEQA provides heightened protection to species “identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service.” (CEQA Guidelines Appendix G; see Ex. 2, p. 4.) As a result, Dr. Smallwood correctly identified special-status species on the Project site beyond what was reported in the EIR. As Dr.

Smallwood explains,

[R]aptors are protected by California Fish and Game Code §3503.5, otherwise known as the Birds of Prey Code. Raptors are protected by this Code because raptors are top predators wherever they live. Their positions in the food chain naturally require that they are rare, which is one of the key conditions – and one of the key words – that meets the CEQA definition of special-status species.
. . .

The Cooper’s hawk is also on the California Department of Fish and Wildlife’s Taxa to Watch List. This assignment is one of special status; otherwise, there would be no point to assigning such species to the Taxa to Watch List.
. . .

Oak titmouse is another species the Response claims is not a special-status species, though the Response gives no reason why not. The oak titmouse is on a list that the United States Fish and Wildlife Service (USFWS) circulates as Birds of Conservation Concern. The legal authority for the BCC includes the Fish and Wildlife Conservation Act (FWCA) of 1980, a 1988 amendment (Public Law 100-653, Title VIII) of which requires the Secretary of the Interior through the USFWS to “identify species, subspecies, and populations of all migratory non -game birds that, without additional conservation actions, are likely to become candidates for listing under the 7 SAFER Appeal Comment
Conejo Summit Business Park
City Council Hearing Date: Oct. 21, 2025
October 16, 2025

Endangered Species Act of 1973.”
. . .

The USFWS first assembled its BCC list in 1995 (USFWS 1995), including those species with 1) Documented or apparent population declines; 2) Small or restricted populations, or 3) Dependence on restricted or vulnerable habitats. The BCC list was intended to prevent species from having to be listed as Threatened or Endangered under the federal Endangered Species Act by recognizing those species in need of management actions.

(Ex. 2, pp. 5-6.) The City’s response only reiterated the EIR’s overly narrow definition of “special-status” and failed to substantively address the fact that the EIR underestimated the full diversity of species on the Project site.

The City also failed to adequately respond to Dr. Smallwood’s concern that the EIR’s review of available databases underestimate the number of species likely to occur at the Project site. Although Dr. Smallwood’s review of available databases found 135 special-status species warranting occurrence potential analysis, the EIR only analyzed the occurrence potential for a mere 38 of those species. (Ex. 1, p. 4.) This discrepancy occurred because, again, the EIR applied an overly narrow definition of “special-status” that does not comply with CEQA’s requirements.

Dr. Smallwood’s reply also explains why the EIR improperly concluded that California gnatcatcher was not present on the Project site. For California gnatcatcher, Dr. Smallwood explained that his associate observed California gnatcatcher on the Project site, that previous biological surveys had detected gnatcatcher only 438 meters from the Project, and that the eBird database shows multiple occurrences just south of the Project site. (Ex. 2, p. 12.)

Because an EIR must start with an accurate baseline against which to measure the Project’s impacts, the EIR must be revised to adequately disclose the wildlife currently utilizing the Project site. (See Communities for a Better Envt. v. So. Coast Air Qual. Mgmt. Dist. (2010) 48 Cal. 4th 310, 321; see 14 CCR § 15125(a).)

Additionally, Dr. Smallwood’s comment on the Draft EIR faulted the EIR for failing to accurately disclose and mitigate the Project’s impacts to wildlife due to habitat loss/fragmentation. (Ex. 1, pp. 5-6.) Dr. Smallwood calculated that the Project would result in a loss of 880 bird nests, which corresponds to an overall loss of 3,899 birds per year. (Ex. 1, p. 5.) The City critiqued Dr. Smallwood by claiming that the studies he relied on to calculate bird loss did not accurately reflect the conditions at the Project site. In reply, Dr. Smallwood explains that he was aware that the studies did not match 8 SAFER Appeal Comment
Conejo Summit Business Park
City Council Hearing Date: Oct. 21, 2025
October 16, 2025

the conditions at the Project site and adjusted his calculation accordingly to “assume[] the average total nest density to be 50% of what the studies reported.” (Ex. 2, p. 19.) Dr.

Smallwood also rejected the City’s claim that habitat loss would not be significant because the site is “expected to provide low-qual ity habitat for special-status wildlife species” (FEIR, Response to Comments, p. 9-145.) The response’s description of the site as “low-quality” does not mesh with the fact that 87 vertebrate species have been observed on site. (Ex. 2, p. 19.) As Dr. Smallwood explains,

There is no such thing as suitable habitat, because there is no such thing as unsuitable habitat. The term suitable habitat, which is used throughout the [City’s] Response, is redundant and misleading. Habitat is defined as that part of the environment required for survival and reproduction of its members, and it is determined scientifically through observation of occurrences and use

(Ex. 2, p. 20 [internal citations omitted].) As a result, the EIR still fails to provide substantial evidence that the Project’s impacts to wildlife from habitat loss will be less than significant. The EIR must be revised to accurately disclose the Project’s potential impacts to wildlife and to mitigate any significant impacts to the extent feasible.

III. The EIR Fails to Consider Increased On-Site Solar Production.

SAFER’s previous comment on the DEIR stressed that the EIR’s analysis of energy impacts failed to consider how the Project could increase reliance on renewable energy sources. (Ex. 1, pp. 7-8.) As discussed above, supra Section I, the City must increase on-site solar production before relying on the TDM Fee to mitigate the Project’s significant operational air quality impacts. Likewise, the City must consider increased on-site solar production beyond the minimum required by Title 24 in order for the EIR to comply with CEQA’s requirements for an adequate discussion of energy impacts. (See Ex. 1, p. 7 [citing League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer (2022) 75 Cal.App.5th 63, 165 (League to Save Lake Tahoe); Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal. App. 4th 256, 264-65; California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173, 209-13.)

In response, the City insists that the bare minimum of on-site solar established under Title 24 is all that is required of the Project. (FEIR, Response to Comments, Response IND 4-5, pp. 9-150 to -152.) This response is inadequate. CEQA requires that the EIR discuss “renewable energy options that might have been available or appropriate for the project,” even if the EIR finds that energy impacts would be less than significant. (League to Save Lake Tahoe, supra, 75 Cal.App.5th at 167 [citing City of Woodland, supra, 225 Cal.App.4th at 208, 213].) Here, the EIR and the City’s response to comments failed to discuss additional available renewable energy options beyond compliance with Title 24.
9 SAFER Appeal Comment
Conejo Summit Business Park
City Council Hearing Date: Oct. 21, 2025
October 16, 2025

There is ample opportunity to increase on-site solar production for this Project.

First, the City must consider whether it is feasible to increase rooftop solar requirements beyond the requirements of Title 24. Second, the City must consider whether it is feasible to require the installation of solar panels, rather than relying on Title 24 which only requires that the Project’s buildings be “solar ready.” Third, the City must consider whether solar carports over the Project’s abundant surface parking is feasible. Only after considering these available options for expanding the Project’s solar capacity can the City conclude that energy impacts will be less than significant. SAFER respectfully requests that the EIR be revised to include an analysis of these additional on-site solar options and to require additional on-site solar where feasible.

CONCLUSION

For the reasons discussed above, the reasons discussed in SAFER’s comment on the DEIR, and the reasons discussed in the comments submitted by CARE LA, SAFER respectfully requests that the City Council grant SAFER’s appeal and direct City staff to revise the EIR prior to taking any further action on this Project.

Sincerely,

Brian B. Flynn
Lozeau Drury LLP

10 EXHIBIT 1
11 January 9, 2025

VIA EMAIL

Scott Kolwitz, Senior Planner
Community Development Department
City of Thousand Oaks
2100 Thousand Oaks Boulevard
Thousand Oaks, CA 91362
[email protected]

Re: SAFER Comment
Conejo Summit Business Park Draft EIR
State Clearinghouse No. 2023020425

To Senior Planner Kolwitz:

This comment is submitted on behalf of Supporters Alliance For Environmental Responsibility (“SAFER”) and its members living or working in and around the City of Thousand Oaks (“City”) regarding the Draft Environmental Impact Report (SCH No. 2023020425) (“DEIR”) prepared for the Conejo Summit Project (“Project”) proposed by Thousand Oaks Master LLC.

SAFER is concerned the DEIR fails to comply with the California Environmental Quality Act (“CEQA”) by: (1) failing to adequately analyze the Project’s impacts on biological resources and (2) failing to adequately analyze the Project’s impacts on energy. SAFER’s review of the Project and EIR was assisted by expert ecologist Dr. Shawn Smallwood, Ph.D. Dr. Smallwood’s comment and CV are attached hereto as Exhibit A.

SAFER respectfully requests that City revise and recirculate the DEIR to address the concerns discussed below.

PROJECT DESCRIPTION

The Project proposes multiple-phase business park development that would include 15 industrial buildings totaling 754,222 square feet (671,122 sf of warehouse/light manufacturing and 83,100 sf of office). The proposed buildings would range in size from approximately 22,700 to 93,300 sf of floor area and from 37 to 41 feet in height. The Project will also include 1,663 surface parking spaces.

The 51-arce Project site is located near the western boundary of the City within the 12 SAFER Comment
Conejo Summit Project
Draft EIR (SCH# 2023020425)
January 9, 2025

northwestern portion of the Rancho Conejo Industrial Area, approximately 1-mile north of the 101 Freeway. The Project site abuts the Conejo Open Space Conservation Area, which is owned and managed by the Conejo Open Space Conservation Agency (COSCA). Construction of the Project would consist of a maximum of seven phases, with an anticipated construction period of 12 to 18 months for each phase, beginning in 2025 and ending in 2035.

LEGAL STANDARD
CEQA requires that an agency analyze the potential environmental impacts of its proposed actions in an EIR (except in certain limited circumstances). (See, e.g., Pub. Resources Code, § 21100.) The EIR is the very heart of CEQA. (Dunn-Edwards v. BAAQMD (1992) 9 Cal.App.4th 644, 652.) “The ‘foremost principle’ in interpreting CEQA is that the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (Communities for a Better Environment v. Cal. Resources Agency (2002) 103 Cal.App.4th 98, 109 (CBE v. CRA).) CEQA has two primary purposes. First, CEQA is designed to inform decision makers and the public about the potential, significant environmental effects of a project. (14 CCR § 15002(a)(1).) “Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR ‘protects not only the environment but also informed self-government.’” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.) The EIR has been described as “an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.” (Berkeley Keep Jets Over the Bay v. Bd. of Port Comm’rs. (2001) 91 Cal.App.4th 1344, 1354 (Berkeley Jets); County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810.)
Second, CEQA requires public agencies to avoid or reduce environmental damage when “feasible” by requiring “environmentally superior” alternatives and all feasible mitigation measures. (14 CCR § 15002(a)(2) and (3); see also Berkeley Jets, supra, 91 Cal.App.4th at 1354; Citizens of Goleta Valley, supra, 52 Cal.3d at 564.) The EIR serves to provide agencies and the public with information about the environmental impacts of a proposed project and to “identify ways that environmental damage can be avoided or significantly reduced.” (14 CCR § 15002(a)(2).) If the project will have a significant effect on the environment, the agency may approve the project only if it finds that it has “eliminated or substantially lessened all significant effects on the environment where feasible” and that any unavoidable significant effects on the environment are “acceptable due to overriding concerns.” (Pub. Res. Code, § 21081; 14 CCR § 15092(b)(2)(A), (B).)
While the courts review an EIR using an “abuse of discretion” standard, “the reviewing court is not to ‘uncritically rely on every study or analysis presented by a project proponent in support of its position. A ‘clearly inadequate or unsupported study is entitled to no judicial deference.’” (Berkeley Jets, supra, 91 Cal.App.4th at 1355 [quoting, Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal. 3d 376, 391, 409, n. 13 SAFER Comment
Conejo Summit Project
Draft EIR (SCH# 2023020425)
January 9, 2025

12.) “A prejudicial abuse of discretion occurs ‘if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.’” (Berkeley Jets, supra, 91 Cal.App.4th at 1355.) An EIR must “include[] sufficient detail to enable those who did not participate in its preparation to understand and to consider meaningfully the issues the proposed project raises.” (Sierra Club v. Cty. of Fresno (2018) 6 Cal.5th 502, 510.) “Whether or not the alleged inadequacy is the complete omission of a required discussion or a patently inadequate one- paragraph discussion devoid of analysis, the reviewing court must decide whether the EIR serves its purpose as an informational document.” (Id. at 516.) “The determination whether a discussion is sufficient is not solely a matter of discerning whether there is substantial evidence to support the agency’s factual conclusions.” (Id.) As the Court emphasized:

[W]hether a description of an environmental impact is insufficient because it lacks analysis or omits the magnitude of the impact is not a substantial evidence question.

A conclusory discussion of an environmental impact that an EIR deems significant can b e determined by a court to be inadequate as an informational document without reference to substantial evidence.

(Id. at 514.)

In general, mitigation measures must be designed to minimize, reduce or avoid an identified environmental impact or to rectify or compensate for that impact. (14 CCR § 15370.) Where several mitigation measures are available to mitigate an impact, each should be discussed and the basis for selecting a particular measure should be identified. (14 CCR § 15126.4(a)(1)(B).) A lead agency may not make the required CEQA findings unless the administrative record clearly shows that all uncertainties regarding the mitigation of significant environmental impacts have been resolved.

DISCUSSION

III. DISCUSSION

A. The DEIR Fails to Disclose and Mitigate the Project’s Significant Impacts to Biological Resources.

Expert wildlife ecologist Dr. Shawn Smallwood, Ph.D., found several deficiencies in the DEIR’s analysis of the Project’s impacts on wildlife. Dr. Smallwood’s comment and CV are attached as Exhibit A. As discussed below, Dr. Smallwood concluded: (1) the DEIR underestimates the diversity of species at and near the Project site; (2) the DEIR fails to assess or mitigate the Project’s impacts to species due to habitat loss and fragmentation, wildlife movement, traffic, and artificial lighting; and (3) the DEIR’s mitigation measures are inadequate to reduce the Project’s impacts to biological resources to less-than-significant levels. 14 SAFER Comment
Conejo Summit Project
Draft EIR (SCH# 2023020425)
January 9, 2025

1. The DEIR underestimates the diversity of species using the Project site.

Dr. Smallwood and his associate conducted three separate reconnaissance surveys of the Project site by walking the site’s perimeters where accessible and scanning for wildlife with binoculars. (Ex. A, pp. 1-2.) They detected 67 species of vertebrate wildlife, including 14 special-status species, including California gnatcatcher, red-tailed hawk, Cooper’s hawk, and oak titmouse. (Id., pp. 3-6.) Notably, they observed an additional 5 special-status species that were not seen during the surveys conducted for the DEIR’s biological report (“Dudek Report”). (Id., p.

19.)

Dr. Smallwood calculated that more thorough site visits would reveal an even greater diversity of wildlife. (Ex. A, pp. 15-18.) Given more time to survey the site, Dr. Smallwood’s predicts that he would have detected 138 species of vertebrate wildlife, 29 of which would be special-status species. (Id., p. 17.) Based on his review of the DEIR and the site visits, Dr.

Smallwood concluded, “[T]he large number of species I predict at the project site is indicative of a relatively species-rich wildlife community that warrants a serious survey effort.” (Id., p. 18.)

Additionally, the Dudek Report’s review of available wildlife databases was inadequate. (Ex. A, pp. 21-23.) The Dudek Report relied on the California Natural Diversity Data Base (“CNDDB”) to determine which species have potential to occur in the Project area. (Id., p. 21.) By relying on only the nearest CNBBD quadrangles, Dudek “screens out many special-status species from further consideration in their characterization of the wildlife community.” (Id.) This is an improper use of CNDDB because “CNDDB is not designed to support absence determinations or to screen out species from characterization of a site’s wildlife community. (Id.)

Based on available databases (including CNDDB, iNaturalist, and eBird) and site visits, Dr. Smallwood found that “135 special-status species of wildlife are known to occur near enough to the site to warrant analysis of occurrence potential.” (Ex. A, p. 22.) However, the Dudek Report only analyzed the occurrence potential for 38 species (i.e. 28% of the species identified by Dr. Smallwood). (Id.) The faulty analysis in the Dudek Report results in unreliable conclusions about the Project site’s biological baseline, including that: (1) California gnatcatcher is not present on the site despite confirmed sightings on site; (2) the occurrence likelihoods, based on CNDDB records, of burrowing owl, white-tailed kite, and mountain lion are low despite the confirmed sightings of the species near or adjacent to the site; and (3) monarch butterfly is not expected to occur on site despite records showing that monarchs have been observed as close as 620 meters from the site. (Id., pp. 22-24.)

Every EIR must start from a “baseline” assumption. The CEQA “baseline” is the set of environmental conditions against which to compare a project’s anticipated impacts. Communities for a Better Envt. v. So. Coast Air Qual. Mgmt. Dist. (2010) 48 Cal. 4th 310, 321; see 14 CCR § 15125(a). Due to the inadequate analysis on the Dudek Report, the DEIR underestimates the biological baseline at the Project site and, as a result, cannot provide substantial evidence about 15 SAFER Comment
Conejo Summit Project
Draft EIR (SCH# 2023020425)
January 9, 2025

the severity of the Project’s impacts on biological resources. As a result, the DEIR should be revised to properly disclose the biological baseline and the impacts of this Project.

2. The DEIR failed to disclose and mitigate the Project’s impacts on wildlife due to habitat loss and fragmentation, wildlife movement, traffic, and artificial lighting.

Dr. Smallwood found that the DEIR failed to adequately discuss numerous significant impacts that the Project may have on biological resources due to habitat loss and fragmentation, wildlife movement, traffic, and artificial lighting. (Ex. A, pp. 31-38.) By failing to disclose and mitigate these impacts, the DEIR is inadequate. The EIR must be revised to account for the impacts discussed below.

a. Habitat loss and fragmentation

Dr. Smallwood found that the DEIR downplays the impacts of habitat loss resulting from the Project by assuming that the adjacent Conejo Open Space Conservation Area would provide ample habitat. (Ex. A, p. 31.) As Dr. Smallwood explains,

The DEIR does not consider that habitat outside the project site is already occupied, and the project would reduce carrying capacities of the species affected. Carrying capacities prevent wildlife from existing at densities that would result from project refugees crowded into neighboring habitat. Ultimately, either the refugees or the animals in the receiving habitat would succumb to the breach of carrying capacity, and the numbers of each species would decline to the reduced carrying capacities resulting from the project.

(Id.) As a result of habitat loss and fragmentation, Dr. Smallwood predicts that the Project would result in a loss of 880 bird nests, which corresponds to an overall loss of 3,899 birds per year, which “would be both substantial and highly significant.” (Id., p. 32.) The DEIR should be revised and recirculated to disclose and mitigate this impact to the extent possible.

b. Wildlife Movement

Similar to the DEIR’s discussion of habitat loss, the DEIR assumes that the Conejo Open Space Conservation Area would minimize the Project’s impacts to wildlife movement. (DEIR, pp. 3.3-12, -33.) Dr. Smallwood found that the EIR applied an improper standard to analyze the Project’s impacts to wildlife movement. (Ex. A, p. 28.) However, as Dr. Smallwood explains,

There was no sampling regime or program of observation to record wildlife movement patterns, nor to quantify them or to qualitatively assess them. Based on what is reported, Dudek (2024) did not record or measure wildlife movement in 16 SAFER Comment
Conejo Summit Project
Draft EIR (SCH# 2023020425)
January 9, 2025

any way. The DEIR’s conclusions regarding wildlife movement on the project site are purely speculative and conclusory.

(Ex. A, p. 33.) The DEIR’s conclusions must be based on substantial evidence, not speculation.

As such, the DEIR should be revised to include a technical assessment of wildlife movement patterns through the Project site.

c. Traffic

The DEIR fails to address the impacts to wildlife from collisions with traffic generated by the Project. This omission is important because, as Dr. Smallwood explains,

Vehicle collisions have accounted for the deaths of many thousands of amphibian, reptile, mammal, bird, and arthropod fauna, and the impacts have often been found to be significant at the population level (Forman et al. 2003). Across North America traffic impacts have taken devastating tolls on wildlife (Forman et al. 2003). In Canada, 3,562 birds were estimated killed per 100 km of road per year (Bishop and Brogan 2013), and the US estimate of avian mortality on roads is 2,200 to 8,405 deaths per 100 km per year, or 89 million to 340 million total per year (Loss et al. 2014). Local impacts can be more intense than nationally.

(Ex. A, p. 34.) According to the DEIR, the Project would result in 23,192 daily vehicle miles traveled (“VMT”), which amounts to 8,465,080 annual VMT. (Id, p. 26.) Based on the Project’s annual VMT, Dr. Smallwood estimates that traffic from the Project will kill at least 3,600 vertibrates annually. (Id., pp. 36-37.) Especially due to the special-status species occurring and likely to occur at or near the Project, these collisions represent a significant impact to wildlife that has not been addressed, discussed, or mitigated in the EIR.

d. Artificial Lighting

The DEIR fails to address the impacts on wildlife from the nighttime lighting used to illuminate the Project’s extensive parking areas. This omission is significant because, as Dr.

Smallwood explains,

Artificial lighting causes a variety of substantial impacts on a variety of wildlife species (Rich and Longcore 2006), including interference with circadian rhythm, disruption of foraging activity, disruption of movement patterns, navigational interference and lethal attraction of flying birds, and altered development of eggs and juveniles/larvae.

(Ex. A, p. 33.) Due to the special-status species occurring and likely to occur at or near the Project and the proximity of the Conejo Open Space Conservation Area, the DEIR should be revised to disclose and mitigate the Project’s impacts to wildlife from artificial lighting. 17 SAFER Comment
Conejo Summit Project
Draft EIR (SCH# 2023020425)
January 9, 2025

4. The DEIR’s proposed mitigation measures for biological resources are inadequate.

Although the DEIR contains 12 mitigation measures for impacts to biological resources, the DEIR’s proposed mitigation is inadequate to reduce impacts from habitat loss and fragmentation, wildlife movement, traffic, and artificial lighting to less-than-significant levels.

Additional mitigation measures should be added to the DEIR including: (1) protocol-level detection surveys for burrowing owl; (2) compensatory mitigation for habitat loss by protecting an equal or greater area of open space in perpetuity as close to the project site as possible; (3) compensatory mitigation for traffic impacts by requiring monetary contributions to wildlife rehabilitation facilities; and (4) requiring California native plants for all landscaping. (Ex. A, pp. 42-43.)

II. The DEIR Fails to Adequately Analyze the Project’s Energy Impacts.

CEQA provides that all Projects must include measures “to reduce the wasteful, inefficient, and unnecessary consumption of energy.” (Pub. Res. Code § 21100(b)(3).) Energy conservation under CEQA is defined as the “wise and efficient use of energy.” (CEQA Guidelines, app. F, § I.) The “wise and efficient use of energy” is achieved by “(1) decreasing overall per capita energy consumption, (2) decreasing reliance on fossil fuels such as coal, natural gas and oil, and (3) increasing reliance on renewable energy resources.” (Id.)

The DEIR concludes that the Project will not result in a wasteful, inefficient, or unnecessary consumption of energy resources based, in part, on the fact that the Project will comply with the California Building Energy Efficiency Standards (Cal. Code Regs., tit. 24, part 6) (“Title 24”) and by providing electric vehicle parking spaces. However, mere compliance with Title 24 does not constitute an adequate analysis of energy. (League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer (2022) 75 Cal.App.5th 63, 165 (League to Save Lake Tahoe); Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.

App. 4th 256, 264-65; California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173, 209-13.) And even though the inclusion of electric vehicle parking is laudable, a lead agency must still analyze implementation of all “renewable energy options that might have been available or appropriate for [a] project.” (League to Save Lake Tahoe, supra, 75 Cal.App.5th at 166-67.) A lead agency’s failure to consider implementation of all feasible renewable energy proposals raised during the environmental review process constitutes a “prejudicial error.” (Id. at 168.)

The DEIR fails to include any discussion of incorporating rooftop solar photovoltaic panels. The Project should be required to include the installation of rooftop solar panels to ensure that the Project does not result in a wasteful, inefficient, or unnecessary consumption of energy resources. The DEIR cannot rely on the more relaxed standards of Title 24 that allow for the rooftops to only be solar-ready without requiring the actual installation of solar panels. A revised 18 SAFER Comment
Conejo Summit Project
Draft EIR (SCH# 2023020425)
January 9, 2025

DEIR should require the installation of rooftop solar panels or otherwise explain why solar installation is infeasible.

CONCLUSION
Due to the DEIR’s failure to adequately disclose, analyze, and mitigate the Project’s impacts to biological resources and the DEIR’s failure to ensure that the Project does not result in a wasteful, inefficient, or unnecessary consumption of energy resources, SAFER respectfully requests that the City revise and recirculate the DEIR to address the concerns raised in this written comment. SAFER reserves the right to supplement this comment throughout the administrative process. (Galante Vineyards v. Monterey Peninsula Water Mgmt. Dist. (1997) 60 Cal.App.4th 1109, 1121.)
Sincerely,
Brian B. Flynn
Lozeau Drury LLP
19 EXHIBIT A
20 1
Shawn Smallwood, PhD
3108 Finch Street
Davis, CA 95616
Attn: Scott Kolwitz, Senior Planner
Community Development Department
2100 Thousand Oaks Boulevard
Thousand Oaks, CA 91362 4 January 2025
RE: Conejo Summit Project DEIR
Dear Mr. Kolwitz,
I write to comment on the Draft Environmental Impact Report (DEIR) prepared for the proposed Conejo Summit Project (City of Thousand Oaks 2024), which I understand would add 15 industrial buildings up to 41 feet tall and totaling 754,222 square feet of floor space, and accompanied by 1,663 parking stalls on 51.34 acres at Conejo Center Drive and Rancho Conejo Blvd., Newbury Park. I also reviewed the biological resources report (Dudek 2024). I write to comment on the inaccuracies of the characterization of the existing environmental setting and the inadequacies of the impacts analyses and mitigation.

My qualifications for preparing expert comments are the following. I hold a Ph.D. degree in Ecology from University of California at Davis, where I also worked as a post- graduate researcher in the Department of Agronomy and Range Sciences. My research has been on animal density and distribution, habitat selection, wildlife interactions with the anthrosphere, and conservation of rare and endangered species. I authored many papers on these and other topics. I served as Chair of the Conservation Affairs Committee for The Wildlife Society – Western Section. I am a member of The Wildlife Society and Raptor Research Foundation, and I’ve lectured part-time at California State University, Sacramento. I was Associate Editor of wildlife biology’s premier scientific journal, The Journal of Wildlife Management, as well as of Biological Conservation, and I was on the Editorial Board of Environmental Management. I have performed wildlife surveys in California for thirty-seven years. My CV is attached.

SITE VISIT
We visited the project site on three separate sets of dates, totaling 13.5 person-hours of reconnaissance surveys (Table 1). We walked the site’s perimeters where accessible, stopping to scan for wildlife with use of binoculars. We recorded all species of vertebrate wildlife we detected, including those whose members flew over the site or were seen nearby, off the site. Animals of uncertain species identity were either omitted or, if possible, recorded to the Genus or higher taxonomic level. The site had been graded in the past, and is now covered by annual grassland and patchy coastal sage scrub (Photos 1-4). It was bordered by expansive scrubland, chaparral and woodland as part of the Conejo Open Space Conservation Area to the west and north, and otherwise by industrial buildings.
21 2

Table 1. Reconnaissance surveys conducted on the Conejo Summit Project in Thousand Oaks, California, totaling 13.5 hours.

Date

Biologist
Start
time
Duration
(mins)

Conditions
7 March 2022 KSS 15:18 165 68° F, clear, little breezy
8 March 2022 KSS 06:12 165 48° F, clear, no wind
2 April 2023 NLS 15:18 146 62-59° F, sunny,10 MPH SW wind 24 December 2024 NLS 07:17 162 60-76° F, sunny, no wind 24 December 2024 NLS 15:30 95 62-57° F, sunny, 6 MPH W wind 24 December 2024 (bats) NLS 16:59 77 57° F, clear, 6 MPH W wind

22 3

Photos 1, 2, 3, and 4. Views to the northwest (top) and north (bottom) of the project site, 8 March 2022.

We detected 67 species of vertebrate wildlife at or next to the project site, including 14 special-status species of wildlife (Table 2). We saw red-tailed hawk (Photos 5, 6, 7), Cooper’s hawk (Photo 8), turkey vulture (Photos 9 and 10), merlin and California thrasher (Photos 11 and 12), California gnatcatcher and oak titmouse (Photos 13 and 14), American crow and common raven (Photos 15 and 16), black phoebe and western meadowlark (Photos 17 and 18), Anna’s hummingbird (Photos 19 and 20), house finch and yellow-rumped warbler (Photos 21 and 22), lark sparrow and California towhee (Photos 23 and 24), savannah sparrow and Lincoln’s sparrow (Photos 25 and 26), white- crowned sparrow (Photos 27 and 28), Say’s phoebe (Photos 29 and 30), California quail (Photos 31 and 32), hermit thrush (Photo 33), mourning dove and Cassin’s kingbird (Photos 34 and 35), Bewick’s wren and gophersnake (Photos 36 and 37), Eastern fox squirrel (Photo 38), among other species listed in Table 2.

Noriko Smallwood certifies that the foregoing and following survey results are true and accurately reported.

23 4

Table 2. Species of wildlife Noriko or I observed during 5.5 hours on 7-8 March 2022 (KSS), during 2.43 hours on 2 April 2023 (NLS), and during 5.57 on 24 December 2024 (NLS).

Common name

Species name

Status1
7-8 Mar
2022
2 April
2023
24 Dec
2024

Notes 12/24/2024
Baja California treefrog Pseudacris h. hypochondriaca X X X Great Basin fence lizard
Sceloporus occidentalis
longipes
X

Western side-blotched
lizard Uta stansburiana elegans
X

Gophersnake Pituophis melanoleucus X Deceased atop fence Mallard Anas platyrhynchos X
California quail Callipepla californica X X Large flock Rock pigeon Columba livia Non-native X
Eurasian collared-dove Streptopelia decaocto Non-native X X Mourning dove Zenaida macroura X X X
White-throated swift Aeronautes saxatalis X
Anna’s hummingbird Calypte anna X X X
Allen’s hummingbird Selasphorus sasin X
Western gull Larus occidentalis BCC X
Turkey vulture Cathartes aura BOP X Circled over site Northern harrier
Circus hudsonicus BCC, SSC3,
BOP
X
Cooper’s hawk Accipiter cooperii WL, BOP X Perched and flew low Red-tailed hawk Buteo jamaicensis BOP X X X Circled over site Great horned owl Bubo virginianus BOP X X Two counter-called Acorn woodpecker Melanerpes formicivorus X X X
Nuttall’s woodpecker Picoides nuttallii BCC X
American kestrel Falco sparverius BOP X
Merlin Falco columbarius WL, BOP X
Cassin’s kingbird Tyrannus vociferans X X
Western kingbird Tyrannus verticalis X
Black phoebe Sayornis nigricans X X
Say’s phoebe Sayornis saya X X X Foraged
California scrub-jay Aphelocoma californica X X X Just off site 24 5

Common name

Species name

Status1
7-8 Mar
2022
2 April
2023
24 Dec
2024

Notes 12/24/2024
American crow Corvus brachyrhynchos X X
Common raven Corvus corax X X X
Oak titmouse Baeolophus inornatus BCC X Foraged
Violet-green swallow Tachycineta thalassina X
Northern rough-winged
swallow Stelgidopteryx serripennis
X

Barn swallow Hirundo rustica X X
Cliff swallow Petrochelidon pyrrhonota X
Bushtit Psaltriparus minimus X X Foraged
Wrentit Chamaea fasciata BCC X X X Called
Ruby-crowned kinglet Regulus calendula X Foraged
Cedar waxwing Bombycilla cedrorum X
California gnatcatcher Polioptila c. californica FT, SSC2 X Called and foraged Rock wren Salpinctes obsoletus X
Bewick’s wren Thryomanes bewickii X X X Foraged
California thrasher Toxostoma redivivum BCC X
Northern mockingbird Mimus polyglottos X X
European starling Sturnus vulgaris Non-native X X Flew over Hermit thrush Catharus guttatus X Perched just off site House finch Haemorphous mexicanus X X X
Purple finch Carpodacus purpureus X
Lesser goldfinch Spinus psaltria X X X Flew over, called American goldfinch Spinus tristis X Flew over, called Lark sparrow Chondestes grammacus X
Chipping sparrow Spizella passerina X
White-crowned sparrow Zonotrichia leucophrys X X X Many, foraged Savannah sparrow Passerculus sandwichensis X X
Song sparrow Melospiza melodia X X
Lincoln’s sparrow Melospiza lincolnii X Foraged
California towhee Melozone crissalis X X X Foraged
Spotted towhee Pipilo maculatus X X Called
Western meadowlark Sturnella neglecta X X X
25 6

Common name

Species name

Status1
7-8 Mar
2022
2 April
2023
24 Dec
2024

Notes 12/24/2024
Common yellowthroat Geothlypis trichas X X X Called
Yellow-rumped warbler Setophaga coronata X X Foraged
Hoary bat Lasiurus cinereus WBWG: M X Detected using Sonobat Desert cottontail Sylvilagus audubonii X X Scat
Eastern fox squirrel Sciurus niger Non-native X Just off site California ground
squirrel Otospermophilus beecheyi
X X X

Coyote Canis latrans X
Black-tailed deer Odocoileus h. hemionus X
Botta’s pocket gopher Thomomys bottae X X X Burrows
1 Listed as FT = federal threatened, SSC = California Species of Special Concern, BCC = U.S. Fish and Wildlife Service Bird of Conservation Concern, WL = Taxa to Watch List (Shuford and Gardali 2008), and BOP = Birds of Prey (California Fish and Game Code 3503.5).
26 7

Photos 5, 6, 7, 8, 9, 10. Red-tailed hawk (top left, 7 March 2022), (top right and middle left), Cooper’s hawk (middle right), and turkey vulture (bottom) on the project site, 24 December 2024. All but top left photos by Noriko Smallwood. 27 8

Photos 11 and 12. Merlin (left) and California thrasher (right) on the project site, 7- 8 March 2022. Photos by Shawn Smallwood.

Photos 13 and 14. California gnatcatcher (left) and oak titmouse (right) on the project site, 24 December 2024. Photos by Noriko Smallwood.

28 9

Photos 15 and 16. American crow (left) and common raven (right) on the project site, 7-8 March 2022. Photos by Shawn Smallwood.

Photos 17 and 18. Black phoebe (left) on the project site, 7-8 March 2022. Photo by Shwan Smallwood. Western meadowlark (right) on the project site, 24 December 2024. Photo by Noriko Smallwood.

29 10

Photos 19 and 20. Anna’s hummingbirds on the project site. Left photo by Shawn Smallwood, 7 March 2022, and right photo by Noriko Smallwood, 24 December 2024.

Photos 21 and 22. House finch (left) on the project site, 8 March 2022. Photo by Shwan Smallwood. Yellow-rumped warbler (right) on the project site, 24 December 2024. Photo by Noriko Smallwood.
30 11

Photos 23, 24, 25, 26, 27, 28. Lark sparrow (top left), California towhee (top right), savannah sparrow (middle left), Lincoln’s sparrow (middle right), and white- crowned sparrow (bottom) on the project site. Photos 23, 24, 25 by Shawn Smallwood, 7-8 March 2022, Photos 26, 27, and 28 by Noriko Smallwood, 24 December 2024. 31 12

Photos 29 and 30. Say’s phoebes on the project site. Left photo by Shawn Smallwood, 7-8 March 2022, and right photo by Noriko Smallwood, 24 December 2024.

Photo 31. Flock of California quail on the project site, 24 December 2024. Photo by Noriko Smallwood.
32 13

Photos 32 and 33. California quail (left) and hermit thrush (right) just off of the project site, 24 December 2024. Photos by Noriko Smallwood.

Photos 34 and 35. Mourning dove (left) and Cassin’s kingbird (right) on the project site, 24 December 2024. Photos by Noriko Smallwood.

33 14

Photos 36 and 37. Bewick’s wren (left) and deceased gophersnake (right) on the project site, 24 December 2024. Photos by Noriko Smallwood.

Photo 38. Eastern fox squirrel just off of the project site, 24 December 2024. Photo by Noriko Smallwood.
34 15

Photo 39. Sonogram of Hoary bat on the project site, 24 December 2024, recorded using a Petterson m500 detector and Sonobat.

The species of wildlife we detected at the project site comprised only samplings of the species that were present during our surveys. To demonstrate this, I fit nonlinear regression models to our cumulative numbers of vertebrate species detected with time into each survey to predict the numbers of species that we would have detected with a longer survey or perhaps with additional biologists available to assist. The model is a logistic growth model which reaches an asymptote that corresponds with the theoretical maximum number of vertebrate wildlife species that could have been detected during the survey. In this case of this project site, the models fit to our survey data predict 63 and 50 species of vertebrate wildlife were available to be detected on the mornings of 8 March 2022 and 24 December 2024, and 57 abd 78 species were avilable to be detected on the evenings of 7 March 2022 and 2 April 2023, but only 23 species were available to be detected on the evening of 24 December 2024 (Figure 1). The low prediction on the evening of the 24th of December 2024 might have resulted from insufficient survey duration, as that survey was the briefest. Otherwise, the model predictions resulting from the patterns in the data of the other surveys indicates we were only sampling the available species of wildlife on the project site.

The patterns in our species detections indicate that the project site supports an above- average species richness as compared to 15 other sites in the region where we have completed similar surveys. Importantly, however, the species we did and did not detect on during our surveys composed only a fraction of the species that would occur at the project site over the period of a year or longer. This is because many species are seasonal in their occurrence.

35 16

Figure 1. Actual and predicted relationships between the numbers of vertebrate wildlife species detected and the elapsed survey time based on my visual-scan surveys on 7-8 March 2022, and on Noriko’s visual-scan surveys on 2 April 2023 and 24 December 2024.

At least a year’s worth of surveys would be needed to more accurately report the number of vertebrate species that occur at the project site, but I only have data from our five surveys. However, by use of an analytical bridge, a modeling effort applied to a large, robust data set from a research site can predict the number of vertebrate wildlife species that likely use the site over the longer term. As part of my research, I completed a much larger survey effort across 167 km2 of annual grasslands of the Altamont Pass Wind Resource Area, where from 2015 through 2019 I performed 721 1-hour visual-scan surveys, or 721 hours of surveys, at 46 stations. I used binoculars and otherwise the methods were the same as the methods I and other consulting biologists use for surveys at proposed project sites. At each of the 46 survey stations, I tallied new species detected with each sequential survey at that station, and then related the cumulative species detected to the hours (number of surveys, as each survey lasted 1 hour) used to accumulate my counts of species detected. I used combined quadratic and simplex methods of estimation in Statistica to estimate least-squares, best-fit nonlinear models of the number of cumulative species detected regressed on hours of survey (number of surveys) at the station: 𝑅̂ =
1 1 𝑎⁄ +𝑏×(𝐻𝑜𝑢𝑟𝑠)𝑐 , where 𝑅̂ represented cumulative species richness detected. The coefficients of determination, r2, of the models ranged 0.88 to 0 50 100 150 200 250 300
Minutes into survey
0 5
10 15
20 25
30 35
40 45Cumulative number of wildlife species detected
95% CI 2019-2024
Y03/08/2022
Y12/24/2024
0 50 100 150 200 250 300
Minutes into survey
0 5
10 15
20 25
30 35
40 45
95% CI 2019-2024
Y03/07/2022
Y04/02/2023
Y12/24/2024

0.99 12.5

0.99 22.8

0.99 8.3
r2 Loss

0.97 89.4

0.98 48.7
r2 Loss
Mornings Evenings
36 17

1.00, with a mean of 0.97 (95% CI: 0.96, 0.98); or in other words, the models were excellent fits to the data.

I projected the predictions of each model to thousands of hours to find predicted asymptotes of wildlife species richness. The mean model-predicted asymptote of species richness was 57 after 11,857 hours of visual-scan surveys among the 46 stations of my research site. I also averaged model predictions of species richness at each incremental increase of number of surveys, i.e., number of hours (Figure 2). On average I would have detected 27.8 species over my first 13.5 hours of surveys at my research site in the Altamont Pass (13.5 hours to match the 13.5 hours we surveyed at the project site), which composed 48.7% of the predicted total number of species I would detect with a much larger survey effort at the research site. Given the example illustrated in Figure 2, the 67 species we detected after our 13.5 hours of survey at the project site likely represented 48.7% of the species to be detected after many more visual-scan surveys over another year or longer. With many more repeat surveys through the year, we would likely detect 67 0.487⁄ = 138 species of vertebrate wildlife at the site. Assuming our ratio of special-status to non-special-status species was to hold through the detections of all 138 predicted species, then continued surveys would eventually detect 29 special-status species of vertebrate wildlife.

Figure 2. Mean (95% CI)
predicted wildlife species
richness, 𝑅̂, as a nonlinear
function of hour-long survey
increments across 46 visual-
scan survey stations across the
Altamont Pass Wind Resource
Area, Alameda and Contra
Costa Counties, 2015‒2019.

Note that the location of the
study is largely irrelevant to the
utility of the graph to the
interpretation of survey
outcomes at the project site. It is
the pattern in the data that is
relevant, because the pattern is
typical of the pattern seen
elsewhere.

Because my prediction of 138 species of vertebrate wildlife, including 29 special-status species of vertebrate wildlife, is derived from mostly daytime visual-scan surveys, and would detect few nocturnal mammals such as bats and owls, the true number of species composing the wildlife community of the site must be larger. Our reconnaissance surveys should serve only as a starting point toward characterization of the site’s wildlife community, but they certainly cannot alone inform of the inventory of species that use the site. More surveys are needed than our few surveys to inventory the species of 0 20 40 60 80 100
0 10
20 30
40 50
Cumulative number of surveys (hours)
(95% CI)
37 18

wildlife that use the project site. Nevertheless, the large number of species I predict at the project site is indicative of a relatively species-rich wildlife community that warrants a serious survey effort.

EXISTING ENVIRONMENTAL SETTING

The first step in analysis of potential project impacts to biological resources is to accurately characterize the existing environmental setting, including the wildlife community and any key ecological relationships and known and ongoing threats to special-status species. A reasonably accurate characterization of the environmental setting can provide the baseline against which to analyze potential project impacts. For these reasons, characterization of the environmental setting, including the project site’s regional setting, is one of the CEQA’s essential analytical steps. Methods to achieve this first step typically include (1) surveys of the site for biological resources, and (2) reviews of literature, databases and local experts for documented occurrences of special-status species. In the case of the proposed project, these required steps remain incomplete and misleading.

Environmental Setting informed by Field Surveys

To the CEQA’s primary objective to disclose potential environmental impacts of a proposed project, the analysis should be informed of which biological species are known to occur at the proposed project site, which special-status species are likely to occur, as well as the limitations of the survey effort directed to the site. Analysts need this information to characterize the environmental setting as a basis for opining on, or predicting, potential project impacts to biological resources.

Biologists from Dudek (2024) completed 11 surveys totaling 54 person-hours on the project site, which were more surveys and more survey time than I typically see committed by environmental consulting firms. Dudek (2024) also reported critical survey details such as start time, survey duration, and survey conditions. I commend Dudek for the effort in survey and reporting. Also noteworthy are the 64 species of vertebrate wildlife that were detected by Dudek (2024). This survey outcome qualifies as a vast improvement over the seven species of wildlife that were reportedly detected by ESA on 26 February 2020. ESA’s findings were only 8% of the species detected collectively by Dudek and us in subsequent surveys. As I commented in my letter of 11 March 2022, “Either the reporting of ESA’s survey is incomplete, or for some reason ESA’s survey was grossly ineffective.” However, the increase in the numbers of species detected through the various surveys is instructive. A model fit to the data predicts 135 species of vertebrate wildlife would be detected by more than 30 visual-scan surveys (Figure 3), which is a prediction within two percentage points of my prediction of 138 species based on our survey findings that I analytically bridged to a large research effort (see above).

38 19

Figure 3. The
increase in
cumulative
detections of
vertebrate wildlife
species increased
with the number of
survey efforts, and a
model fit to the data
which predicts 135
species would be
detected after more
than 30 surveys.

Comparison of Dudek’s surveys results to our own reveals the incompleteness of the survey effort committed to this project site (Figure 3). Our survey results combined with Dudek’s, we collectively detected 87 species of vertebrate wildlife, including 18 special- status species on or adjacent to the project site. Dudek’s biologists detected 21 species of vertebrate wildlife that we did not (including 6 special-status species), and we detected 23 species of vertebrate wildlife that Dudek’s biologists did not (including 5 special- status species). We mutually detected only two-thirds of the species we each detected.

One could surmise that we and Dudek’s biologists observed two different wildlife communities.

Applying the Sørenson Index of 𝑆𝑖𝑚𝑖𝑙𝑎𝑟𝑖𝑡𝑦 =
2𝑐
𝑎+𝑏 , where a is the number of species
found by Dudek, b is the number of species we found, and c is the number of species found by both Dudek and ourselves, the Index of Similarity of the two wildlife communities is only 0.67. For comparison, the mean Index of Similarity among 40 comparisons of surveys I completed over the same time periods at the same place, but on different days over three years 2020-2023, was 0.755 with a high value of 0.90. A value of 0.67 between Dudek’s surveys and ours indicates the wildlife communities between these two sets of surveys were similar but not the same, but of course the sampled wildlife community was the same; the source of the dissimilarity was the inability of either survey effort to sufficiently represent yearlong use of the site by wildlife.

0 2 4 6 8 10 12 14 16 18 20
Survey
0 20
40 60
80 100
120
ESA survey 2022
Smallwood surveys 2022-2023
Smallwood surveys Dec 2024
Dudek surveys 2022-2023
Y
Cumulative number of wildlife species detected a = 135
39 20

The survey effort not only determines the number of species to be detected at a given site, but it also affects the probability of detection of listed species. In my comment letter of 11 March 2022 on the IS/MND prepared for this same project, I pointed out that ESA’s survey effort had carried only an 11% probability of detecting a listed species, and that my survey effort up to that time carried a 61% probability of detecting a listed species. I presented an empirical model (Figure 3 in my 11 March 2022 comment letter) that forecast a 90% probability of detection of a listed species through the detections of 70 total wildlife species. The total number of species detected served as a surrogate predictor variable that represented survey effort, as the number of species detected follows from survey effort. After Dudek’s surveys, 79 species of wildlife had been detected, which increased the probability of detection of a listed species to about 92%. It is therefore not surprising that Dudek (2024) reports the detection of California gnatcatcher – a listed species. At the completion of Noriko’s surveys on 24 December 2024, the cumulative species detected had increased to 87, which would have increased the probability of detection of a listed species to about 95%. It is therefore not surprising that Noriko also detected California gnatcatcher, this one having crossed Conejo Center Drive from west to east, but both sides directly on the project site. This same type of modeling can be applied to forecast the probabilities of detections of 2nd and 3rd listed species with greater survey effort. With greater survey effort, it would not be surprising to detect California condor or white-tailed kite or golden eagle (California Fully Protected) or burrowing owl or willow flycatcher or tricolored blackbird.

Dudek (2024) and the DEIR characterize the project site as “highly disturbed,” thereby giving the impression that the site is of low value to wildlife. However, neither Dudek (2024) nor the DEIR provides any evidence that the types and magnitudes of disturbance on the project site has any relationship to wildlife species richness or species composition. In fact, some species, including some special-status species, appear to thrive in the face of certain types and magnitudes of disturbance. For example, burrowing owls benefit from trenching and infill where soils are silty or clay in composition (Smallwood and Morrison 2018). As another example, Swainson’s hawks benefit from agricultural practices that render prey species more vulnerable to capture (Smallwood 1995, Smallwood et al. 1996). The DEIR over-generalizes that disturbance reduces the likelihoods of occurrence of special-status species. These over- generalizations are readily refuted by the surveys completed to date, and it is clear from the patterns in the species detection data that additional surveys would continue to detect more species of wildlife, including more special-status species.

I note that focused surveys were directed to two special-status species of wildlife – Crotch’s bumble bee and California gnatcatcher. Both species were detected as results of the focused surveys. To my point above, species of wildlife are more likely to be detected when sufficient survey effort is committed to them, as was the case for Crotch’s bumble bee and California gnatcatcher. The failure of a couple of reconnaissance surveys to detect a particular special-status species does not qualify as evidence of absence. Only the negative findings of species-specific detection surveys or of an overwhelming survey effort can qualify as evidence of absence.

40 21

Considering that ground squirrels occur on the project site, and considering that burrowing owls in California have rapidly declined (Miller 2024) and the California Fish and Game Commission voted to name the burrowing owl as a Candidate species for listing under the California Endangered Species Act, focused detection surveys are warranted for burrowing owls on the project site.

No surveys for bats have been completed, except by Noriko Smallwood on my behalf.

The DEIR’s conclusions regarding bats remain ill-informed in the absence of surveys.

Environmental Setting informed by Desktop Review

The purpose of literature and database review and of consulting with local experts is to inform the field survey, and to augment interpretation of its outcome. Analysts need this information to identify which species are known to have occurred at or near the project site, and to identify which other special-status species could conceivably occur at the site due to geographic range overlap and migration flight paths.

Dudek (2024) did not reportedly review eBird (https://eBird.org) or iNaturalist (https://www.inaturalist.org) for documented occurrence records at or near the project site. Instead, Dudek (2024) queried the California Natural Diversity Data Base (CNDDB) for documented occurrences of special-status species within inclusive and immediately surrounding USGS Quadrangle maps. By doing so, Dudek (2024) screens out many special-status species from further consideration in the characterization of the wildlife community as part of the existing environmental setting. CNDDB is not designed to support absence determinations or to screen out species from characterization of a site’s wildlife community. As noted by the CNDDB, “The CNDDB is a positive sighting database. It does not predict where something may be found. We map occurrences only where we have documentation that the species was found at the site. There are many areas of the state where no surveys have been conducted and therefore there is nothing on the map. That does not mean that there are no special status species present.” Dudek (2024) misuses CNDDB.

The CNDDB relies entirely on volunteer reporting from biologists who were allowed access to whatever properties they report from. Many properties have never been surveyed by biologists. Many properties have been surveyed, but the survey outcomes never reported to the CNDDB. Many properties have been surveyed multiple times, but not all survey outcomes reported to the CNDDB. Furthermore, the CNDDB is interested only in the findings of special-status species, which means that species more recently assigned special status will have been reported many fewer times to CNDDB than were species assigned special status since the inception of the CNDDB. The lack of many CNDDB records for species recently assigned special status had nothing to do with whether the species’ geographic ranges overlapped the project site, but rather more to do with the brief time for records to have accumulated since the species were assigned special status. And because negative findings are not reported to the CNDDB, the CNDDB cannot provide the basis for estimating occurrence likelihoods, either.

41 22

In my assessment based on database reviews and site visits, 135 special-status species of wildlife are known to occur near enough to the site to warrant analysis of occurrence potential (Table 3). Of these 135 species, 18 (13%) were recorded on or adjacent to the project site, and another 41 (30%) species have been documented within 1.5 miles of the site (‘Very close’), another 21 (16%) within 1.5 and 4 miles (‘Nearby’), and another 47 (35%) within 4 to 30 miles (‘In region’). Most (59%) of the species in Table 3 have been reportedly seen within 4 miles of the project site. The site therefore supports multiple special-status species of wildlife and carries the potential for supporting many more special-status species of wildlife based on proximity of recorded occurrences. The site is far richer in special-status species than is characterized in Dudek (2024).

Only 38 (28%) of the species in Table 3 are analyzed for occurrence potential in Dudek (2024), having omitted from its analysis 97 (72%) of the species in Table 3. Of the species omitted from Dudek’s analysis, 12 have been recorded on or next to the project site, 29 have been recorded within 1.5 miles of the site, 14 have been recorded between

1.5 and 4 miles of the site, and 35 have been recorded between 4 and 30 miles of the site.

On the whole, Dudek’s (2024) analyses of occurrence likelihoods are too often inaccurate. Most of the species omitted from the analysis were likely omitted due to Dudek’s improper use of CNDDB to screen species from the analysis.

Of the 4 species Dudek (2024) assigns moderate occurrence likelihood, 2 have been recorded within 1.5 miles of the site, and 1 has been recorded on the site. Of the 12 species Dudek assigns low occurrence likelihood, 3 have been recorded between 1.5 and 4 miles from the site, and 5 have been recorded within 1.5 miles. Of the 15 species Dudek concludes are not expected to occur, 4 have been recorded between 1.5 and 4 miles from the site, and 3 have been recorded within 1.5 miles of the site.

Dudek (2024) reports that the occurrence likelihood analyses were completed prior to the field survey. However, Table 4 of Dudek (2024) concludes that the California gnatcatcher is absent from the project site due to negative findings following focused surveys for California gnatcatcher. Dudek’s reporting indicates that either the occurrence likelihood analyses did not in fact precede the field surveys, or Dudek considers its California gnatcatcher sightings as having been off site. (Noriko Smallwood’s detection of California gnatcatcher was directly on site.) Dudek’s reporting is also inaccurate. Dudek’s focused surveys detected California gnatcatcher only 438 m from the project site. Noriko also detected California gnatcatcher, but directly on the project site. App. E of Dudek (2024) assigns California gnatcatcher moderate occurrence likelihood despite having detected 3 California gnatcatchers in 2023, and despite multiple CNDDB occurrences in the area. California gnatcatchers are certainly on the project site.

Given the inconsistencies between Dudek’s (2024) Table 4 and App. E, as exemplified by the very substantial inconsistency between the California gnatcatcher analyses, I opted to rely more on Dudek’s App. E than on Dudek’s Table 4 for reporting in Table 3.

Dudek (2024) concludes that the occurrence likelihood of burrowing owl is low because there are no CNDDB records of the species within 5 miles of the project site. However, 42 23

this reasoning is flawed because Dudek neglected to review eBird for occurrence records. There are multiple eBird records in the area, including one very close to the project site on Santa Rosa Trail. There are records at California Lutheran University and Mt. Clef Ridge Open Space and Conejo Open Space’s Rancho Hills Trail and Rancho Sierra Vista and elsewhere within 5 miles of the project site. Dudek also reasons that the occurrence likelihood is low because the site supports few California ground squirrels.

However, Noriko and I detected California ground squirrels at the project site each time we visited it, and Dudek’s biologists saw them there, too. Of the 67 species we detected at the site, only 18 (27%) were detected during all three of our visits, and one of these was California ground squirrel. It is my opinion that the California ground squirrel is one of the more ubiquitous of the wildlife species on site. Dudek has not provided a defensible reason for assigning burrowing owl a low likelihood of occurrence.

Dudek (2024) assigns a low occurrence likelihood to California condor, but locations of eBird records and telemetry positions are only 19 km to the north, and the condor has been expanding its range year by year. A distance of 19 km is but a small trip to a California condor.

Dudek (2024) assigns a low occurrence likelihood to white-tailed kite. However, there are multiple occurrence records right next to the project site (Figure 4). Having studied white-tailed kites, I see no reason why the species should be assigned a low occurrence likelihood.

Dudek (2024) concludes that monarch is not expected to occur, because “No suitable wind-protected tree groves are present in the study area to support this species.” However, Dudek neglects to cite the source of this purported requirement for occurrence, which I cannot recall ever having seen in writing or evidenced in the field.

In fact, I have photos of monarchs on open fields with no trees nearby, let along wind- protected trees. In my opinion, Dudek has pigeon-holed monarch into an unrealistically narrow portion of the environment. Monarchs occur more broadly, and they must if they are to migrate the great distances that they do to winter roost sites. According to iNaturalist, monarch occurrence records, including larvae, are located as close as 620 m from the project site, and nowhere near trees. Dudek’s (2024) characterization of monarch habitat is inaccurate.

43 24

Figure 4. eBird occurrence records (blue teardrops) of white-tailed kite very close to the project site.

Dudek (2024) assigns a low occurrence likelihood to mountain lion, explaining “this species has the potential to occur in the study area as a transient during foraging, movement through its home range, or during the dispersal of young. However, due to the proximity of the project site to development, lions are more likely to use the undisturbed open space areas surrounding the study area, and natal dens of this species are not expected since females typically avoid areas of human activity… because the project site is highly disturbed and supports a more open scrub habitat with less cover than the surrounding areas, mountain lions are likely to avoid use of the project site.” However, a photo of a mountain lion taken only one mile east of the project site (https://www.inaturalist.org/observations/60780759) shows it next to the fence that borders a housing complex. This photo refutes Dudek’s speculative habitat 44 25

requirements, as does lots of other evidence of mountain lions in proximity to human development.

I began my research career on mountain lions. Until 1985, the range map of California mountain lion excluded Marin County for some of the same speculated factors cited by Dudek. Funded by CDFW, I did a survey in Marin County, and found mother and kitten tracks on Corte Madera Ridge just upslope from houses in San Rafael. The range map was changed. Since 1985, I have surveyed for mountain lions on randomized plots statewide at least eight times, and I have performed additional, more focused surveys, as well. I have often found mountain lions close to human habitation, and I have many times tracked mountain lions that traveled miles at a time. The one mile between the project site and the nearest iNaturalist record is trivial for a mountain lion. I once saw a female mountain lion calling for a mate on the UC Davis Campus, and shortly afterwards a female and her kitten were captured on the campus after the mother killed several mule deer that were kept in a pen for research purposes. Mountain lions frequently make use of human-dominated landscapes, and I will posit that they do so much more often than people realize. Mountain lions are stealthy, and mostly nocturnal in their activities. Dudek’s analysis of mountain lion occurrence likelihood is contrived and misleading.

In addition to the above, I found other inaccurate characterizations of habitat of special- status species, which led to unfounded predictions of low occurrence likelihoods. It would have been helpful had Dudek made more use of the scientific literature, and had it consulted with species experts. Sources need to be cited.

45 26

Table 3. Occurrence likelihoods of special-status bird species at or near the proposed project site, according to eBird/iNaturalist records (https://eBird.org, https://www.inaturalist.org) and on-site survey findings, where ‘Very close’ indicates within 1.5 miles of the site, “nearby” indicates within 1.5 and 4 miles, and “in region” indicates within 4 and 30 miles, and ‘in range’ means the species’ geographic range overlaps the site. Entries in bold font identify those species we detected.

Common name

Species name

Status1
DEIR occurrence
likelihoods
Data bases,
Site visits
Vernal pool fairy shrimp Branchinecta lynchi FT Not expected In region Riverside fairy shrimp Streptocephalus woottoni FE Not expected In range Monarch Danaus plexippus FC Not expected Very close
Crotch’s bumble bee Bombus crotchii CCE Occurs Very close Western spadefoot Spea hammondii SSC Not expected In region Arroyo toad Anaxyrus californicus FE, SSC In region
Western pond turtle Emys marmorata SSC Not expected Very close Blainville’s horned lizard Phrynosoma blainvillii SSC Low In region Coastal whiptail Aspidoscelis tigris stejnegeri SSC Moderate Very close San Diegan legless lizard Anniella stebbinsi SSC Low Nearby California glossy snake Arizona elegans occidentalis SSC Low In region Coast patch-nosed snake Salvadora hexalepis virgultea SSC In region Two-striped gartersnake Thamnophis hammondii SSC Not expected Nearby South coast gartersnake Thamnophis sirtalis pop. 1 SSC Not expected In region Brant Branta bernicla SSC2 In region
Cackling goose (Aleutian) Branta hutchinsii leucopareia WL In region Redhead Aythya americana SSC2 Very close
Harlequin duck Histrionicus histrionicus SSC2 In region Western grebe Aechmophorus occidentalis BCC Very close Clark’s grebe Aechmophorus clarkii BCC In region
Western yellow-billed cuckoo Coccyzus americanus occidentalis FT, CE Not expected In region Black swift Cypseloides niger SSC3, BCC Nearby
Vaux’s swift Chaetura vauxi SSC2 Very close
Calliope hummingbird Selasphorus calliope BCC Very close Rufous hummingbird Selasphorus rufus BCC Very close
Allen’s hummingbird Selasphorus sasin BCC On site
Mountain plover Charadrius montanus SSC2, BCC In region Snowy plover Charadrius nivosus BCC In region
Western snowy plover Charadrius nivosus nivosus FT, SSC Not expected In region 46 27

Common name

Species name

Status1
DEIR occurrence
likelihoods
Data bases,
Site visits
Long-billed curlew Numenius americanus WL Very close
Marbled godwit Limosa fedoa BCC Nearby
Pectoral sandpiper Calidris melanotos BCC In region
Short-billed dowitcher Limnodromus griseus BCC In region Lesser yellowlegs Tringa flavipes BCC Very close
Willet Tringa semipalmata BCC Nearby
Laughing gull Leucophaeus atricilla WL In region
Franklin’s gull Leucophaeus pipixcan BCC In region
Heermann’s gull Larus heermanni BCC Nearby
Western gull Larus occidentalis BCC Just off site
California gull Larus californicus BCC, WL Very close
California least tern Sternula antillarum browni FE, CE, CFP Not expected Nearby Black tern Chlidonias niger SSC2, BCC In region
Elegant tern Thalasseus elegans BCC, WL In region
Black skimmer Rynchops niger BCC, SSC3 In region
Common loon Gavia immer SSC In region
Double-crested cormorant Phalacrocorax auritus WL Very close American white pelican Pelacanus erythrorhynchos SSC1 Very close Least bittern Ixobrychus exilis SSC2 Nearby
Reddish egret Egretta rufescens BCC In region
White-faced ibis Plegadis chihi WL Very close
California condor Gymnogyps californianus FE, CE, CFP Low In region Turkey vulture Cathartes aura BOP On site
Osprey Pandion haliaetus WL, BOP Very close
White-tailed kite Elanus luecurus CFP, BOP Low Very close Golden eagle Aquila chrysaetos BGEPA, CFP, BOP, WL Low Very close Northern harrier Circus cyaneus BCC, SSC3, BOP Just off site Sharp-shinned hawk Accipiter striatus WL, BOP Very close Cooper’s hawk Accipiter cooperii WL, BOP On site
Bald eagle Haliaeetus leucocephalus CE, BGEPA, BOP Nearby Red-shouldered hawk Buteo lineatus BOP Very close
Swainson’s hawk Buteo swainsoni CT, BOP Very close
Red-tailed hawk Buteo jamaicensis BOP On site
47 28

Common name

Species name

Status1
DEIR occurrence
likelihoods
Data bases,
Site visits
Ferruginous hawk Buteo regalis WL, BOP Very close
Zone-tailed hawk Buteo albonotatus BOP Nearby
Harris’ hawk Parabuteo unicinctus WL, BOP In region
Rough-legged hawk Buteo lagopus BOP In region
American barn owl Tyto furcata BOP Very close
Western screech-owl Megascops kennicotti BOP Very close Great horned owl Bubo virginianus BOP On site
Burrowing owl Athene cunicularia BCC, SSC2, BOP, CCE Low Very close Long-eared owl Asio otus BCC, SSC3, BOP In region
Short-eared owl Asia flammeus BCC, SSC3, BOP In region Northern pygmy-owl Glaucidium gnoma BOP Nearby
Lewis’s woodpecker Melanerpes lewis BCC Very close
Nuttall’s woodpecker Picoides nuttallii BCC Occurs On site American kestrel Falco sparverius BOP On site
Merlin Falco columbarius WL, BOP On site
Peregrine falcon Falco peregrinus BOP Very close
Prairie falcon Falco mexicanus WL, BOP Very close
Olive-sided flycatcher Contopus cooperi BCC, SSC2 Very close Willow flycatcher Empidonax trailii CE Very close
Southwestern willow flycatcher Empidonax traillii extimus FE, CE Not expected In region Vermilion flycatcher Pyrocephalus rubinus SSC2 Very close Least Bell’s vireo Vireo bellii pusillus FE, CE Not expected Very close Loggerhead shrike Lanius ludovicianus SSC2 Moderate Very close Oak titmouse Baeolophus inornatus BCC On site
California horned lark Eremophila alpestris actia WL Very close Bank swallow Riparia riparia CT Not expected Nearby
Purple martin Progne subis SSC2 Very close
Wrentit Chamaea fasciata BCC Occurs On site
California gnatcatcher Polioptila c. californica FT, SSC2 Moderate On site Coastal cactus wren Campylorhynchus brunneicapillus
sandiegensis
SSC1 Occurs On site
California thrasher Toxostoma redivivum BCC Occurs On site Cassin’s finch Haemorhous cassinii BCC In region
48 29

Common name

Species name

Status1
DEIR occurrence
likelihoods
Data bases,
Site visits
Lawrence’s goldfinch Spinus lawrencei BCC Occurs On site Grasshopper sparrow Ammodramus savannarum SSC2 Very close Black-chinned sparrow Spizella atrogularis BCC Very close Gray-headed junco Junco hyemalis caniceps WL Nearby
Bell’s sparrow Amphispiza b. belli WL Nearby
Oregon vesper sparrow Pooecetes gramineus affinis SSC2 In range Southern California rufous-
crowned sparrow
Aimophila ruficeps canescens WL On site
Yellow-breasted chat Icteria virens SSC3 Occurs Very close Yellow-headed blackbird Xanthocephalus xanthocephalus SSC3 Nearby Bullock’s oriole Icterus bullockii BCC Very close
Tricolored blackbird Agelaius tricolor CT, BCC, SSC1 Not expected Nearby Lucy’s warbler Leiothlypis luciae SSC3 Nearby
Virginia’s warbler Leiothlypis virginiae WL, BCC Nearby Prothonotary warbler Protonotaria citrea BCC In region Prairie warbler Setophaga discolor BCC In region
Yellow warbler Setophaga petechia SSC2 Low Very close
Summer tanager Piranga rubra SSC1 Nearby
Little brown bat Myotis lucifugus WBWG:M In region
Yuma myotis Myotis yumanensis WBWG:LM In region
Long-eared myotis Myotis evotis WBWG:M In region
Fringed myotis Myotis thysanodes WBWG:H In range
Long-legged myotis Myotis volans WBWG:H In range
California myotis Myotis californicus WBWG:L In region Small-footed myotis Myotis ciliolabrum WBWG:M In region Canyon bat Parastrellus hesperus WBWG:M In region
Big brown bat Episticus fuscus WBWG:L In region
Silver-haired bat Lasionycteris noctivagans WBWG:M In region Hoary bat Lasiurus cinereus WBWG:M On site
Western red bat Lasiurus blossevillii SSC, WBWG:H Low In region Western yellow bat Lasiurus xanthinus SSC, WBWG:H In range Spotted bat Euderma maculatum SSC, WBWG:H In range
Townsend’s big-eared bat Corynorhinus townsendii SSC, WBWG:H In range 49 30

Common name

Species name

Status1
DEIR occurrence
likelihoods
Data bases,
Site visits
Pallid bat Antrozous pallidus SSC, WBWG:H Low Nearby
Mexican free-tailed bat Tadarida brasiliensis WBWG:L In region Big free-tailed bat Nyctinomops macrotis SSC, WBWG:MH In region Western mastiff bat Eumops perotis SSC, WBWG:H Not expected In region San Diego black-tailed jackrabbit Lepus californicus bennettii SSC In range San Diego Bryant’s woodrat Neotoma bryanti SSC Moderate In region Ringtail Bassariscus astutus CFP In region
American badger Taxidea taxus SSC Low Nearby
Mountain lion Puma concolor CCT Low Very close
1 Listed as FT or FE = federal threatened or endangered, FC = federal candidate for listing, BCC = U.S. Fish and Wildlife Service Bird of Conservation Concern, CT or CE = California threatened or endangered, CCT or CCE = Candidate California threatened or endangered, CFP = California Fully Protected (California Fish and Game Code 3511), SSC = California Species of Special Concern (not threatened with extinction, but rare, very restricted in range, declining throughout range, peripheral portion of species' range, associated with habitat that is declining in extent), SSC1, SSC2 and SSC3 = California Bird Species of Special Concern priorities 1, 2 and 3, respectively (Shuford and Gardali 2008), WL = Taxa to Watch List (Shuford and Gardali 2008), and BOP = Birds of Prey (CFG Code 3503.5), and WBWG = Western Bat Working Group with priority rankings, of low (L), moderate (M), and high (H). 1Delisted as CFP

50 31

POTENTIAL BIOLOGICAL IMPACTS

An impacts analysis should consider whether and how a proposed project would affect members of a species, larger demographic units of the species, the whole of a species, and ecological communities. The accuracy of this analysis depends on an accurate characterization of the existing environmental setting. In the case of the proposed project, the existing environmental setting has not been accurately characterized, and several important types of potential project impacts have been inadequately analyzed or not analyzed at all. These types of impacts include habitat loss, interference with wildlife movement, and wildlife-automobile collision mortality.

HABITAT LOSS AND HABITAT FRAGMENTATION

Habitat loss not only results in the immediate numerical decline of wildlife, but it also results in permanent loss of productive capacity. Habitat fragmentation amplifies the negative effects of habitat loss on the productive capacities of biological species (Smallwood 2015). However, instead of analyzing this type of impact with any rigor, the DEIR writes that ample habitat exists outside the perimeter of the project site. The DEIR does not consider that habitat outside the project site is already occupied, and the project would reduce carrying capacities of the species affected. Carrying capacities prevent wildlife from existing at densities that would result from project refugees crowded into neighboring habitat. Ultimately, either the refugees or the animals in the receiving habitat would succumb to the breach of carrying capacity, and the numbers of each species would decline to the reduced carrying capacities resulting from the project.

The DEIR provides flawed impacts analysis of the effects of habitat loss on individual species. For example, it writes (p. 3.3-23) “Direct impacts to loggerhead shrike resulting from habitat loss would be less than significant. The nesting habitat on the Project site is of low quality and abundant suitable habitat is present in the Project vicinity, …” However, the statement contrives a distinction between nesting habitat and other habitat that does not exist in nature, as all habitat is critical to breeding success. Note that the DEIR neglects to characterize loggerhead shrike nesting habitat as opposed to some other type of habitat. Additionally, the statement invokes the term “habitat quality” in a manner that is not used in wildlife ecology, as habitat quality is typically measured by reproductive metrics connoting breeding success or productivity; unless Dudek measured productivity of loggerhead shrikes, the DEIR’s use of the term habitat quality is unsupported. Based on my experience (Smallwood and Smallwood 2021), the project site looks like loggerhead shrike habitat.

The DEIR makes the same claims of abundant habitat in the project area regarding coastal whiptail and Crotch’s bumble bee. Rather than acting as judge over the sufficiency of habitat that would remain in the area following project construction, the DEIR should instead predict the numbers of each species that would be lost to the project.

Noriko Smallwood and I measured the impacts of habitat loss to wildlife caused by mitigated development projects. We revisited 80 sites of proposed projects that we had 51 32

originally surveyed in support of comments on CEQA review documents (Smallwood and Smallwood 2023). We revisited the sites to repeat the survey methods at the same time of year, the same start time in the day, and the same methods and survey duration in order to measure the effects of mitigated development on wildlife. We structured the experiment in a before-after, control-impact experimental design, as some of the sites had been developed since our initial survey and some had remained undeveloped. We found that mitigated development resulted in a 66% loss of species on site, and 48% loss of species in the project area. Counts of vertebrate animals declined 90%. “Development impacts measured by the mean number of species detected per survey were greatest for amphibians (-100%), followed by mammals (-86%), grassland birds (-75%), raptors (-53%), special-status species (-49%), all birds as a group (-48%), non-native birds (-44%), and synanthropic birds (-28%). Our results indicated that urban development substantially reduced vertebrate species richness and numerical abundance, even after richness and abundance had likely already been depleted by the cumulative effects of loss, fragmentation, and degradation of habitat in the urbanizing environment,” and despite all of the mitigation measures per existing policies and regulations. We also specifically tested for the effects of projects to wildlife in neighboring habitats, and found significant decreases in species richness and overall abundance in those areas as well.

Habitat loss not only results in the immediate numerical decline of wildlife, but also in net loss of productive capacity (Smallwood 2015). This loss of capacity can be predicted (Smallwood 2022), starting with two study sites in grassland/wetland/woodland complexes, which supported total bird nesting densities of 32.8 and 35.8 nests per acre (Young 1948, Yahner 1982) for an average 34.3 nests per acre. These 2 study sites differed from the project site by including more woodland and wetland, so I assumed the nest density at the project site is half the densities of the two study sites. Multiplying

17.15 nests/acre against 51.34 acres would predict a loss of 880 bird nest sites. Assuming

1.39 broods per nest site, which is the average among 322 North American bird species I asked Noriko to review, then I predict the project would cost California 1,223 nest attempts/year.

The loss of 880 nest sites and 1,223 nest attempts per year would qualify as significant impacts that have not been analyzed in the DEIR. But the impacts would not end with the immediate loss of nest sites. The reproductive capacity of the site would be lost. The average number of fledglings per nest in Young’s (1948) study was 2.9. Assuming Young’s (1948) study site typifies bird productivity, the project would prevent the production of 3,547 fledglings per year. Assuming an average bird generation time of 5 years, the lost capacity of both breeders and annual fledgling production can be estimated from an equation in Smallwood (2022): {(nests/year × chicks/nest × number of years) + (2 adults/nest × nests/year) × (number of years ÷ years/generation)} ÷ (number of years) = 3,899 birds per year denied to California.

The loss of 3,899 birds per year would be both substantial and highly significant. Most if not all of these birds are protected by the federal Migratory Bird Treaty Act and by California’s Migratory Bird Protection Act, both of which most strongly protect breeding migratory birds. Therefore, the DEIR should be withdrawn from public circulation and 52 33

revised to appropriately analyze potential project impacts to birds resulting from the reduction of avian productive capacity caused by habitat loss.

Artificial Light Impacts on Wildlife

The project would add nighttime lighting to illuminate extensive parking areas and other project features. Though minimized by downward shielding, some level of the added lighting would penetrate adjacent scrubland bordering the project site, illuminating surface areas normally traversed by nocturnal wildlife that rely on darkness for stealth. Penetrating light would also generate stark light/shadow contrasts that can be confusing to wildlife. Artificial lighting causes a variety of substantial impacts on a variety of wildlife species (Rich and Longcore 2006), including interference with circadian rhythm, disruption of foraging activity, disruption of movement patterns, navigational interference and lethal attraction of flying birds, and altered development of eggs and juveniles/larvae. Added lighting could cause displacement or altered activity patterns of at least some species, resulting in habitat degradation and additional habitat loss. The DEIR provides no analysis of any of these types of impacts, and makes no predictions of the extent of light penetration into wildlife habitat nor of habitat loss resulting from light pollution. The DEIR needs to be revised to analyze impacts resulting from habitat loss that would result from project-generated light pollution.

WILDLIFE MOVEMENT

The DEIR (p. 3.3-12) asserts, “Wildlife is much more likely to depend on this adjacent habitat (i.e., COSCA and unnamed drainage) than the Project site, for local, largescale movement.” And (p. 3.3-33), “Although the vegetation present on the Project site could provide move-through habitat, because the Project site is highly disturbed, subject to regular human use, including off-road vehicles, and adjacent to development, wildlife is expected to preferentially utilize the higher quality habitat present in the open space to the north and west for movement and dispersal.” Yet, Dudek (2024) reports no survey methodology designed to determine whether or how wildlife rely on the site for movement in the region. There was no sampling regime or program of observation to record wildlife movement patterns, nor to quantify them or to qualitatively assess them.

Based on what is reported, Dudek (2024) did not record or measure wildlife movement in any way. The DEIR’s conclusions regarding wildlife movement on the project site are purely speculative and conclusory.

Even in its disturbed state, the ground cover of the project site readily accommodates passage by wildlife. The project would block wildlife movement another 219 m west of the City’s Municipal Service Center, and by filling the vacant space between existing warehouses and the Service Center, it would extend the blockage to wildlife movement by 795 m. The project would also fragment the riparian area south of the Municipal Service Center – the same area where California gnatcatchers have been detected, as well as where we saw Cooper’s hawk and California thrashers.

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TRAFFIC IMPACTS TO WILDLIFE

Project-generated traffic would endanger wildlife that must, for various reasons, cross roads used by the project’s traffic to get to and from the project site (Photos 40―43), including along roads far from the project footprint. Vehicle collisions have accounted for the deaths of many thousands of amphibian, reptile, mammal, bird, and arthropod fauna, and the impacts have often been found to be significant at the population level (Forman et al. 2003). Across North America traffic impacts have taken devastating tolls on wildlife (Forman et al. 2003). In Canada, 3,562 birds were estimated killed per 100 km of road per year (Bishop and Brogan 2013), and the US estimate of avian mortality on roads is 2,200 to 8,405 deaths per 100 km per year, or 89 million to 340 million total per year (Loss et al. 2014). Local impacts can be more intense than nationally.

Photo 40. A Gambel’s quail dashes
across a road on 3 April 2021. Such
road crossings are usually successful,
but too often prove fatal to the animal.

Photo by Noriko Smallwood.

Photo 41. Great-tailed grackle (left) walks onto a
rural road in Imperial County, 4 February 2022.

Photo 42. A mourning dove
(right) killed by vehicle traffic on a
California road. Photo by Noriko
Smallwood, 21 June 2020.

54 35

Photo 43. Raccoon killed on Road 31 just east of
Highway 505 in Solano County. Photo taken on
10 November 2018.

While I was at the project site, I saw multiple cars
and trucks driven at dangerously fast speeds to
and from existing industrial buildings. I observed
cars and trucks rounding curves along the
project’s roads at speeds that in my opinion not
only endanger human pedestrians, but also any
wild animal attempting to walk, run or fly across
the road. Snakes and lizards would be particularly
vulnerable. I also saw local wildlife crossing the road (Photos 44 and 45), some of which were nearly struck and killed. Existing environmental conditions are already dangerous to wildlife that must cross the roads.

Photos 44 and 45. A California thrasher – a US Fish and Wildlife Service Bird of Conservation Concern – prepares to dash across Conejo Center Drive, right where the road snakes between the two southern parcels of the project, 8 March 2022. The thrasher followed through with its dash at great risk of being crushed by a speeding vehicle.

The nearest study of traffic-caused wildlife mortality was performed along a 2.5-mile stretch of Vasco Road in Contra Costa County, California. Fatality searches in this study found 1,275 carcasses of 49 species of mammals, birds, amphibians and reptiles over 15 months of searches (Mendelsohn et al. 2009). This fatality number needs to be adjusted for the proportion of fatalities that were not found due to scavenger removal and 55 36

searcher error. This adjustment is typically made by placing carcasses for searchers to find (or not find) during their routine periodic fatality searches. This step was not taken at Vasco Road (Mendelsohn et al. 2009), but it was taken as part of another study next to Vasco Road (Brown et al. 2016). Brown et al.’s (2016) adjustment factors for carcass persistence resembled those of Santos et al. (2011). Also applying searcher detection rates from Brown et al. (2016), the adjusted total number of fatalities was estimated at 12,187 animals killed by traffic on the road. This fatality number over 1.25 years and 2.5 miles of road translates to 3,900 wild animals per mile per year. In terms comparable to the national estimates, the estimates from the Mendelsohn et al. (2009) study would translate to 243,740 animals killed per 100 km of road per year, or 29 times that of Loss et al.’s (2014) upper bound estimate and 68 times the Canadian estimate. An analysis is needed of whether increased traffic generated by the project site would similarly result in local impacts on wildlife.

For wildlife vulnerable to front-end collisions and crushing under tires, road mortality can be predicted from the study of Mendelsohn et al. (2009) as a basis, although it would be helpful to have the availability of more studies like that of Mendelsohn et al. (2009) at additional locations. My analysis of the Mendelsohn et al. (2009) data resulted in an estimated 3,900 animals killed per mile along a county road in Contra Costa County. Two percent of the estimated number of fatalities were birds, and the balance was composed of 34% mammals (many mice and pocket mice, but also ground squirrels, desert cottontails, striped skunks, American badgers, raccoons, and others),

52.3% amphibians (large numbers of California tiger salamanders and California red- legged frogs, but also Sierran treefrogs, western toads, arboreal salamanders, slender salamanders and others), and 11.7% reptiles (many western fence lizards, but also skinks, alligator lizards, and snakes of various species). VMT is useful for predicting wildlife mortality because I was able to quantify miles traveled along the studied reach of Vasco Road during the time period of the Mendelsohn et al. (2009), hence enabling a rate of fatalities per VMT that can be projected to other sites, assuming similar collision fatality rates.

Predicting project-generated traffic impacts on wildlife

The DEIR predicts 23,192 daily vehicle miles traveled (VMT), which translates to 8,465,080 annual VMT. These would be many miles driven at great peril to wildlife that must cross roads to go about their business of foraging, patrolling home ranges, dispersing and migrating. Despite the obvious risks to wildlife, and despite the multiple papers and books written about this type of impact and how to mitigate them, and despite my comments on this issue in response to the IS/MND prepared for the same project in 2022, the DEIR does not address impacts to wildlife caused by vehicles traveling to and from the project site.

During the Mendelsohn et al. (2009) study, 19,500 cars traveled Vasco Road daily, so the vehicle miles that contributed to my estimate of non-volant fatalities was 19,500 cars and trucks × 2.5 miles × 365 days/year × 1.25 years = 22,242,187.5 vehicle miles per 9,462 wildlife fatalities, or 2,351 vehicle miles per fatality. This rate divided into the predicted annual VMT would predict 3,600 vertebrate wildlife fatalities per year due to 56 37

project-generated traffic. This level of mortality would qualify as a significant impact, and based on my review of the DEIR, it would be an unmitigated impact.

CUMULATIVE IMPACTS

The DEIR does not provide much of a cumulative impacts analysis, and the analysis it does provide is flawed. After defining the source of cumulative impacts as past, present and foreseeable future projects, the DEIR skips over past projects as if they never happened. In fact, past projects contributed to a stretch of Thousand Oaks development extending northwest into natural wildlands, substantially fragmenting habitat and interfering with wildlife movement. The nature of the development, with warehouses located on the highest elevations of its northwest extent, results in trucks driving at high speeds downhill along Rancho Conejo Blvd and other arterial roads connecting to US 101. Forcing trucks onto steeply graded roads puts wildlife at greater risk, as loaded trucks headed downhill are less likely to slow or stop for wildlife. The cumulative impacts analysis should be revised to include the contributions of cumulative effects from past projects.

Specific to biological resources, the DEIR’s analysis is limited to nesting birds. At p. 3.3- 39, the DEIR asserts, “Impacts to nesting birds for the proposed project and the related projects would be below the level of significance with the compliance with regulations protecting nesting birds. In addition, it is also anticipated that the other related projects would implement similar mitigation measures on a case-by-case basis as determined by project-specific environmental review to reduce individual project impacts, if any.” This assertion, however, is at odds with the CEQA Guidelines §15064(h)(3), where they state, “When relying on a plan, regulation or program, the lead agency should explain how implementing the particular requirements in the plan, regulation or program ensure that the project’s incremental contribution to the cumulative effect is not cumulatively considerable.” The DEIR does not do this. Moreover, as I commented earlier, the projects that Noriko and I included in our BACI study of the effects of development on wildlife had also presumably complied with regulations protecting birds (Smallwood and Smallwood 2023). Despite having presumably complied with the regulations, the development projects we studied caused measured declines of 75% of grassland bird species and 53% of raptor species, as well as a 91% reduction in overall bird abundance.

The evidence in Smallwood and Smallwood (2023) soundly refutes the DEIR’s assertion.

At p. 3.3-39, the DEIR continues, “The proposed Project is expected to have an impact on sensitive biological resources, which could add to cumulative impacts within the region; however, with the implementation of mitigation measures BIO-1 through BIO-12 during the proposed Project, and the implementation of appropriate mitigation during construction of each of the projects listed above, cumulative biological impacts will be reduced to a less than significant level.” Again, however, this assertion is not supported by the findings of Smallwood and Smallwood (2023). The DEIR requires the same types of mitigation measures as had been required of the projects studies by Smallwood and Smallwood (2023). All of the environmental review documents that had been prepared for these other projects had likewise claimed that the mitigation measures would reduce 57 38

impacts to wildlife to less than significant levels, but none of the claims were supported by any measurement of mitigation efficacy.

MITIGATION

Should the project go forward, more substantial mitigation measures would be needed.

The DEIR’s required mitigation measures would minimize project impacts by no more than trivial degrees, and would not address the much more substantial impacts of habitat loss, habitat fragmentation, interference with wildlife movement, wildlife- vehicle collision mortality, and cumulative effects.

BIO-1 (Worker Education Awareness Program (WEAP)): … all personnel … shall attend a worker education awareness program conducted by a City-approved qualified biologist.

This measure should be implemented. Nonetheless, it would achieve very small conservation benefits for wildlife compared to the project’s impacts. It would do nothing to avoid habitat loss and habitat fragmentation.

BIO-2 (Biological Monitoring): The Project Applicant shall fund a City-approved Biological Monitor during the initial vegetation removal or grading activities in undeveloped areas to monitor those activities and to ensure compliance with all mitigation measures. … shall implement and monitor any required no-disturbance buffers for Crotch’s bumble bee and/or nesting birds based on the results of pre- construction surveys conducted under MM-BIO-7 and MM-BIO-9.

This measure should be implemented. Nonetheless, it would achieve very small conservation benefits for wildlife compared to the project’s impacts. It would do nothing to avoid habitat loss and habitat fragmentation.

BIO-3 (Demarcation of Disturbance Limits): Prior to commencement of initial vegetation removal and grading, the construction limits shall be clearly demarcated using high-visibility construction fencing.

This measure should be implemented. Nonetheless, it would achieve very small conservation benefits for wildlife compared to the project’s impacts. It would do little to avoid habitat loss and habitat fragmentation.

BIO-4 (Master Fuel Management Plan and Conejo Dudleya Habitat Enhancement): … each year, a Master Fuel Management Plan … shall be prepared by a City-approved restoration ecologist or qualified biologist in coordination with the Project Applicant’s landscape architect and submitted to the Community Development Department, Fire Department, and the Conejo Open Space Conservation Agency for review and approval prior to Fire abatement work being conducted. …Should accidental clearing outside of grading limits result in loss of Conejo dudleya individuals and/or loss of occupied habitat, the Project Applicant shall commit to off- 58 39

site in-kind habitat enhancement at a 3:1 ratio to achieve no net loss of special-status plant species habitat.

This measure should be implemented. Nonetheless, it would achieve very small conservation benefits for wildlife compared to the project’s impacts. It would do little to avoid habitat loss and habitat fragmentation.

BIO-5 (Stormwater Pollution Prevention Plan): …shall develop a project- specific Stormwater Pollution Prevention Plan (SWPPP) requiring erosion and sediment control Best Management Practices (BMPs) to be implemented during construction and submit the SWPPP to the City for review and approval. ….

This measure should be implemented. Nonetheless, it would achieve very small conservation benefits for wildlife compared to the project’s impacts compared to the project’s impacts. It would do little to avoid habitat loss and habitat fragmentation.

BIO-6 (Invasive Plant Species Prevention and Weed Control Plan): … shall retain a City-approved restoration ecologist or qualified biologist to prepare a comprehensive Invasive Plant Species Prevention and Weed Control Plan (IPSP & WCP) in coordination with the Project Applicant’s landscape architect. The IPSP & WCP shall be implemented within the landscaped areas of the Project to minimize invasive plant species and weed invasion into open space areas. The IPSP & WCP is to be implemented during construction and for a period of up to 5 years post- development …

This measure should be implemented. Nonetheless, it would achieve very small conservation benefits for wildlife compared to the project’s impacts. It would do nothing to avoid habitat loss and habitat fragmentation.

BIO-7 (Crotch’s Bumble Bee Pre-Construction Surveys): A preconstruction survey for Crotch’s bumble bee shall be conducted within the construction footprint prior to the start of initial vegetation removal or initial grading activities occurring during the Crotch’s bumble bee nesting period (February 1 through October 31) to determine if nests for Crotch’s bumble bee are located within the construction … shall include 1) a habitat assessment and 2) focused surveys, both of which will be based on recommendations described in the “Survey Considerations for CESA Candidate Bumble Bee Species,” released by the CDFW on June 6, 2023, or the most current at the time of construction. ... The measure goes on to detail the standards of survey in the CDFW (2023) guidelines.

The obtaining of a take permit is not a legitimate mitigation measure. Also, the available survey guidelines for Crotch’s bumble bee (CDFW 2023) need to be implemented prior to the public circulation of the DEIR, not afterwards as a preconstruction survey.

Detection surveys for Crotch’s bumble bee are intended to inform the CEQA review, but the DEIR inaccurately presents the surveys as a mitigation measure.

59 40

BIO-7 describes what should be done to complete the habitat assessment and focused surveys, which reportedly were already completed. However. The DEIR does not include any technical report of the focused surveys for Crotch’s bumble bee at the project site, so I cannot comment on whether or how well the CDFW (2023) guidelines were implemented.

No additional survey is needed to establish whether Crotch’s bumble bee is present on the project site. Crotch’s bumble bee was found on the project site; it is present. The question now is whether take would be allowed by CDFW for this Candidate Endangered Species under CESA. Because this measure’s implementation depends on whether the CDFW allows take of Crotch’s bumble bee, the DEIR should be removed from public circulation until it is known whether the CDFW would issue an Incidental Take Permit and under what circumstances it would do so. The public and decision- makers should be made aware of whether the attainment of an ITP is even possible.

BIO-8 (Special-Status Reptile Pre-Construction Survey): A preconstruction survey for coastal whiptail shall be conducted by a City-approved qualified biologist (someone who has more than three years of experience of conducting coastal whiptail surveys and monitoring coastal whiptail habitat in the Project region) ... If coastal whiptail is observed on the Project site, a salvage and relocation plan for this species shall be developed and submitted to the City for review and approval. The plan shall be implemented to allow a City-approved qualified biologist to capture and relocate the species to suitable habitat outside of the impact footprint prior to the onset of ground disturbing activities. The results of special-status reptile pre-construction surveys shall be documented in a letter report that will be submitted to the City and CDFW.

This measure should be implemented if the project goes forward. However, it must be understood that the biologist would capture and relocate only a small fraction of the coastal whiptails that occur on site. Furthermore, the relocation of captured whiptails could cause adverse impacts to coastal whiptails in the receiving areas, as whiptails maintain territories and are likely at carrying capacity wherever they occur. Without compensatory mitigation as well, this measure would not achieve much in the way of conservation benefits for coastal whiptails, and it would do nothing to prevent the permanent loss of 51.34 acres f habitat and the loss of movement capacity across the project site.

BIO-9 (Nesting Bird Avoidance Survey): Project construction shall be conducted in compliance with the conditions set forth in the MBTA and California Fish and Game Code to protect active bird/raptor nests. To the maximum extent feasible, vegetation removal shall occur during the non-breeding season for nesting birds and nesting raptors. If the Project requires that work be initiated during the breeding season for nesting birds (February 1–August 31) or nesting raptors (January 1–June 30), in order to avoid direct impacts to active nests, a pre-construction survey shall be conducted in the study area by a City-approved qualified biologist (someone who has more than three years of experience of conducting nesting bird surveys and monitoring active nests in the Project region) for nesting birds and raptors within 7 days prior to initial vegetation removal or initial grading activities. … If the City- 60 41

approved qualified biologist finds an active nest within or immediately adjacent to the construction area and determines that the nest may be impacted, or breeding activities substantially disrupted by the initial vegetation removal or initial grading activities, the City-approved qualified biologist shall delineate an appropriate buffer zone around the nest depending on the sensitivity of the species and the nature of the construction activity. …The buffer shall be a minimum of 100 feet for nonspecial- status passerine species, 200 feet for special-status passerine species, and 300 feet for nesting raptors (distances may be greater depending on the bird species and construction activity, as determined by the City-approved qualified biologist).

Construction can proceed within the buffer when the City-approved qualified biologist has determined that the nest is no longer active.

Whereas a preconstruction nesting bird survey should be completed, it needs to be understood that a preconstruction survey achieves very little. Preconstruction, take- avoidance surveys consist of two steps, both of which are very difficult because birds are highly adept at concealing their nests. First, the biologist(s) performing the survey must identify birds that are breeding. Second, the biologist(s) must locate the breeding birds’ nests. The first step is typically completed by observing bird behaviors such as food deliveries and nest territory defense. These types of observations typically require many surveys on many dates spread throughout the breeding season. To identify the birds of all species nesting on a site requires a much greater survey effort than a single survey only days prior to the start of construction. The biologists conducting the preconstruction survey would be very lucky to find any of the bird nests that are available to be found at the time of the survey.

One reason why preconstruction surveys achieve very little is because species of bird vary in their nest phenology within what is generally understand as the avian breeding season. Whereas killdeer begin nesting in mid-March, western meadowlarks begin in late April, burrowing owls usually begin in May, and American goldfinches do not nest until July-August. Whenever the preconstruction survey is conducted, the biologists conducting the survey would be searching only for the nests of the birds that happen to be breeding at the time, and would miss the nests begun between the survey and the start of construction. On the project site, this task would be further complicated by the size of the site, by its terrain, and by its diversity of vegetation communities.

Another reason why preconstruction surveys achieve very little is because the nests that might be salvaged are only the nests of the year. Even if nests are found in a preconstruction survey, the nests might be salvaged, but the nest sites cannot be protected. Many birds demonstrate considerable fidelity to nest sites by returning to use them year after year. Whereas a nest might be salvaged, the nest site would not survive project construction. All subsequent years of on-site productivity would be destroyed by the project regardless of the success of a preconstruction survey. The impacts to nesting birds are not avoided merely with detection and salvage.

Lastly, the mitigation language allows a single individual to make a subjective decision, outside the public’s view, to determine the buffer area and duration of protection for any given species. This measure lacks sufficient objective criteria, and is unenforceable. 61 42

BIO-10 (Lighting): To prevent illumination of wildlife habitats, construction activities shall be limited to the time between dawn and dusk. If construction activity time restrictions are not possible, down shielding or directional lighting will be used to avoid light trespass into adjacent natural open space areas ... Exterior lighting on finished buildings shall be designed to minimize upward-directed lighting …

This measure would not prevent all light from penetrating adjacent wildlands.

Compensatory mitigation ought to be provided for the level of impact that cannot be avoided, and this level of impact needs to be estimated.

RECOMMENDED MEASURES

Detection Surveys: Protocol-level detection surveys should be implemented for additional special-status species, and most especially for burrowing owl (CDFW 2012).

Ground squirrels occur at the site, so there is a heightened likelihood that burrowing owls also live there. Also, eBird reports burrowing owls within close proximity to the site.

Habitat Loss: If the project goes forward, compensatory mitigation would be warranted for habitat loss. An equal or greater area of open space should be protected in perpetuity as close to the project site as possible.

Road Mortality: Compensatory mitigation is needed for the increased wildlife mortality that will be caused by the project’s contribution to increased road traffic in the region. I suggest that this mitigation can be directed toward funding research to identify fatality patterns and effective impact reduction measures such as reduced speed limits and wildlife under-crossings or overcrossings of particularly dangerous road segments.

Compensatory mitigation can also be provided in the form of donations to wildlife rehabilitation facilities (see below).

Fund Wildlife Rehabilitation Facilities: Compensatory mitigation ought also to include funding contributions to wildlife rehabilitation facilities to cover the costs of injured animals that will be delivered to these facilities for care. Many animals would likely be injured by collisions with project-generated traffic.

Landscaping: If the Project goes forward, California native plant landscaping (i.e., grassland and locally appropriate scrub plants) should be considered to be used as opposed to landscaping with lawn and exotic shrubs and trees. Native plants offer more structure, cover, food resources, and nesting substrate for wildlife than landscaping with lawn and ornamental trees. Native plant landscaping has been shown to increase the abundance of arthropods which act as importance sources of food for wildlife and are crucial for pollination and plant reproduction (Narango et al. 2017, Adams et al. 2020, Smallwood and Wood 2022.). Further, many endangered and threated insects require native host plants for reproduction and migration, e.g., monarch butterfly. Around the world, landscaping with native plants over exotic plants increases the abundance and diversity of birds, and is particularly valuable to native birds (Lerman and Warren 2011, Burghardt et al. 2008, Berthon et al. 2021, Smallwood and Wood 2022). Landscaping 62 43

with native plants is a way to maintain or to bring back some of the natural habitat and lessen the footprint of urbanization by acting as interconnected patches of habitat for wildlife (Goddard et al. 2009, Tallamy 2020). Lastly, not only does native plant landscaping benefit wildlife, it requires less water and maintenance than traditional landscaping with lawn and hedges.

Thank you for your consideration,

______________________
Shawn Smallwood, Ph.D.

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Smallwood, K. S., and N. L. Smallwood. 2023. Measured effects of anthropogenic development on vertebrate wildlife diversity. Diversity 15, 1037. https://doi.org/10.3390/d15101037.

Smallwood, N. L., and E. M. Wood. 2022. The ecological role of native-plant landscaping in residential yards to birds during the nonbreeding period. Ecosphere 2022;e4360.

Smallwood, K. S., B. J. Nakamoto, and S. Geng. 1996. Association analysis of raptors on an agricultural landscape. Pages 177-190 in D.M. Bird, D.E. Varland, and J.J.

Negro, eds., Raptors in human landscapes. Academic Press, London.

Santos, S. M., F. Carvalho, and A. Mira. 2011. How long do the dead survive on the road? Carcass persistence probability and implications for road-kill monitoring surveys.

PLoS ONE 6(9): e25383. doi:10.1371/journal.pone.0025383

Shuford, W. D., and T. Gardali, [eds.]. 2008. California bird species of special concern: a ranked assessment of species, subspecies, and distinct populations of birds of immediate conservation concern in California. Studies of Western Birds 1. Western Field Ornithologists, Camarillo, California.

Sørenson, T. 1948. A method of establishing groups of equal amplitude in plant sociology based on similarity of species content. K. Dan. Vidensk. Selsk. Skr. 5:1–34.

Tallamy, D.W. 2020. Nature’s Best Hope: A New Approach to Conservation that Starts in Your Yard. Timber Press.

Yahner, R. H. 1982. Avian nest densities and nest-site selection in farmstead shelterbelts. The Wilson Bulletin 94:156-175.

Young, H. 1948. A comparative study of nesting birds in a five-acre park. The Wilson Bulletin 61:36-47.

65 1

Kenneth Shawn Smallwood
Curriculum Vitae
3108 Finch Street Born May 3, 1963 in
Davis, CA 95616 Sacramento, California.

Phone (530) 756-4598 Married, father of two.

Cell (530) 601-6857
[email protected]
Ecologist

Expertise

• Finding solutions to controversial problems related to wildlife interactions with human industry, infrastructure, and activities;

• Wildlife monitoring and field study using GPS, thermal imaging, behavior surveys;

• Using systems analysis and experimental design principles to identify meaningful ecological patterns that inform management decisions.

Education

Ph.D. Ecology, University of California, Davis. September 1990.

M.S. Ecology, University of California, Davis. June 1987.

B.S. Anthropology, University of California, Davis. June 1985.

Corcoran High School, Corcoran, California. June 1981.

Experience
 762 professional reports, including:
 90 peer reviewed publications
 24 in non-reviewed proceedings
 646 reports, declarations, posters and book reviews
 8 in mass media outlets
 92 public presentations of research results

Editing for scientific journals: Guest Editor, Wildlife Society Bulletin, 2012-2013, of invited papers representing international views on the impacts of wind energy on wildlife and how to mitigate the impacts. Associate Editor, Journal of Wildlife Management, March 2004 to 30 June 2007.

Editorial Board Member, Environmental Management, 10/1999 to 8/2004. Associate Editor, Biological Conservation, 9/1994 to 9/1995.

Member, Alameda County Scientific Review Committee (SRC), August 2006 to April 2011. The five-member committee investigated causes of bird and bat collisions in the Altamont Pass Wind Resource Area, and recommended mitigation and monitoring measures. The SRC reviewed the science underlying the Alameda County Avian Protection Program, and advised 66 Smallwood CV

2 the County on how to reduce wildlife fatalities.

Consulting Ecologist, 2004-2007, California Energy Commission (CEC). Provided consulting services as needed to the CEC on renewable energy impacts, monitoring and research, and produced several reports. Also collaborated with Lawrence-Livermore National Lab on research to understand and reduce wind turbine impacts on wildlife.

Consulting Ecologist, 1999-2013, U.S. Navy. Performed endangered species surveys, hazardous waste site monitoring, and habitat restoration for the endangered San Joaquin kangaroo rat, California tiger salamander, California red-legged frog, California clapper rail, western burrowing owl, salt marsh harvest mouse, and other species at Naval Air Station Lemoore; Naval Weapons Station, Seal Beach, Detachment Concord; Naval Security Group Activity, Skaggs Island; National Radio Transmitter Facility, Dixon; and, Naval Outlying Landing Field Imperial Beach.

Part-time Lecturer, 1998-2005, California State University, Sacramento. Instructed Mammalogy, Behavioral Ecology, and Ornithology Lab, Contemporary Environmental Issues, Natural Resources Conservation.

Senior Ecologist, 1999-2005, BioResource Consultants. Designed and implemented research and monitoring studies related to avian fatalities at wind turbines, avian electrocutions on electric distribution poles across California, and avian fatalities at transmission lines.

Chairman, Conservation Affairs Committee, The Wildlife Society--Western Section, 1999-2001.

Prepared position statements and led efforts directed toward conservation issues, including travel to Washington, D.C. to lobby Congress for more wildlife conservation funding.

Systems Ecologist, 1995-2000, Institute for Sustainable Development. Headed ISD’s program on integrated resources management. Developed indicators of ecological integrity for large areas, using remotely sensed data, local community involvement and GIS.

Associate, 1997-1998, Department of Agronomy and Range Science, University of California, Davis. Worked with Shu Geng and Mingua Zhang on several studies related to wildlife interactions with agriculture and patterns of fertilizer and pesticide residues in groundwater across a large landscape.

Lead Scientist, 1996-1999, National Endangered Species Network. Informed academic scientists and environmental activists about emerging issues regarding the Endangered Species Act and other environmental laws. Testified at public hearings on endangered species issues.

Ecologist, 1997-1998, Western Foundation of Vertebrate Zoology. Conducted field research to determine the impact of past mercury mining on the status of California red-legged frogs in Santa Clara County, California.

Senior Systems Ecologist, 1994-1995, EIP Associates, Sacramento, California. Provided consulting services in environmental planning, and quantitative assessment of land units for their conservation and restoration opportunities basedon ecological resource requirements of 29 special-status species. Developed ecological indicators for prioritizing areas within Yolo County 67 Smallwood CV

3 to receive mitigation funds for habitat easements and restoration.

Post-Graduate Researcher, 1990-1994, Department of Agronomy and Range Science, U.C. Davis.

Under Dr. Shu Geng’s mentorship, studied landscape and management effects on temporal and spatial patterns of abundance among pocket gophers and species of Falconiformes and Carnivora in the Sacramento Valley. Managed and analyzed a data base of energy use in California agriculture. Assisted with landscape (GIS) study of groundwater contamination across Tulare County, California.

Work experience in graduate school: Co-taught Conservation Biology with Dr. Christine Schonewald, 1991 & 1993, UC Davis Graduate Group in Ecology; Reader for Dr. Richard Coss’s course on Psychobiology in 1990, UC Davis Department of Psychology; Research Assistant to Dr. Walter E. Howard, 1988-1990, UC Davis Department of Wildlife and Fisheries Biology, testing durable baits for pocket gopher management in forest clearcuts; Research Assistant to Dr. Terrell P. Salmon, 1987-1988, UC Wildlife Extension, Department of Wildlife and Fisheries Biology, developing empirical models of mammal and bird invasions in North America, and a rating system for priority research and control of exotic species based on economic, environmental and human health hazards in California. Student Assistant to Dr. E.

Lee Fitzhugh, 1985-1987, UC Cooperative Extension, Department of Wildlife and Fisheries Biology, developing and implementing statewide mountain lion track count for long-term monitoring.

Fulbright Research Fellow, Indonesia, 1988. Tested use of new sampling methods for numerical monitoring of Sumatran tiger and six other species of endemic felids, and evaluated methods used by other researchers.

Projects

Repowering wind energy projects through careful siting of new wind turbines using map-based collision hazard models to minimize impacts to volant wildlife. Funded by wind companies (principally NextEra Renewable Energy, Inc.), California Energy Commission and East Bay Regional Park District, I have collaborated with a GIS analyst and managed a crew of five field biologists performing golden eagle behavior surveys and nocturnal surveys on bats and owls. The goal is to quantify flight patterns for development of predictive models to more carefully site new wind turbines in repowering projects. Focused behavior surveys began May 2012 and continue.

Collision hazard models have been prepared for seven wind projects, three of which were built.

Planning for additional repowering projects is underway.

Test avian safety of new mixer-ejector wind turbine (MEWT). Designed and implemented a before- after, control-impact experimental design to test the avian safety of a new, shrouded wind turbine developed by Ogin Inc. (formerly known as FloDesign Wind Turbine Corporation). Supported by a $718,000 grant from the California Energy Commission’s Public Interest Energy Research program and a 20% match share contribution from Ogin, I managed a crew of seven field biologists who performed periodic fatality searches and behavior surveys, carcass detection trials, nocturnal behavior surveys using a thermal camera, and spatial analyses with the collaboration of a GIS analyst. Field work began 1 April 2012 and ended 30 March 2015 without Ogin installing its MEWTs, but we still achieved multiple important scientific advances.

68 Smallwood CV

4 Reduce avian mortality due to wind turbines at Altamont Pass. Studied wildlife impacts caused by 5,400 wind turbines at the world’s most notorious wind resource area. Studied how impacts are perceived by monitoring and how they are affected by terrain, wind patterns, food resources, range management practices, wind turbine operations, seasonal patterns, population cycles, infrastructure management such as electric distribution, animal behavior and social interactions.

Reduce avian mortality on electric distribution poles. Directed research toward reducing bird electrocutions on electric distribution poles, 2000-2007. Oversaw 5 founds of fatality searches at 10,000 poles from Orange County to Glenn County, California, and produced two large reports.

Cook et al. v. Rockwell International et al., No. 90-K-181 (D. Colorado). Provided expert testimony on the role of burrowing animals in affecting the fate of buried and surface-deposited radioactive and hazardous chemical wastes at the Rocky Flats Plant, Colorado. Provided expert reports based on four site visits and an extensive document review of burrowing animals. Conducted transect surveys for evidence of burrowing animals and other wildlife on and around waste facilities.

Discovered substantial intrusion of waste structures by burrowing animals. I testified in federal court in November 2005, and my clients were subsequently awarded a $553,000,000 judgment by a jury. After appeals the award was increased to two billion dollars.

Hanford Nuclear Reservation Litigation. Provided expert testimony on the role of burrowing animals in affecting the fate of buried radioactive wastes at the Hanford Nuclear Reservation, Washington. Provided three expert reports based on three site visits and extensive document review.

Predicted and verified a certain population density of pocket gophers on buried waste structures, as well as incidence of radionuclide contamination in body tissue. Conducted transect surveys for evidence of burrowing animals and other wildlife on and around waste facilities. Discovered substantial intrusion of waste structures by burrowing animals.

Expert testimony and declarations on proposed residential and commercial developments, gas-fired power plants, wind, solar and geothermal projects, water transfers and water transfer delivery systems, endangered species recovery plans, Habitat Conservation Plans and Natural Communities Conservation Programs. Testified before multiple government agencies, Tribunals, Boards of Supervisors and City Councils, and participated with press conferences and depositions. Prepared expert witness reports and court declarations, which are summarized under Reports (below).

Protocol-level surveys for special-status species. Used California Department of Fish and Wildlife and US Fish and Wildlife Service protocols to search for California red-legged frog, California tiger salamander, arroyo southwestern toad, blunt-nosed leopard lizard, western pond turtle, giant kangaroo rat, San Joaquin kangaroo rat, San Joaquin kit fox, western burrowing owl, Swainson’s hawk, Valley elderberry longhorn beetle and other special-status species.

Conservation of San Joaquin kangaroo rat. Performed research to identify factors responsible for the decline of this endangered species at Lemoore Naval Air Station, 2000-2013, and implemented habitat enhancements designed to reverse the trend and expand the population.

Impact of West Nile Virus on yellow-billed magpies. Funded by Sacramento-Yolo Mosquito and Vector Control District, 2005-2008, compared survey results pre- and post-West Nile Virus epidemic for multiple bird species in the Sacramento Valley, particularly on yellow-billed magpie and American crow due to susceptibility to WNV.
69 Smallwood CV

5 Workshops on HCPs. Assisted Dr. Michael Morrison with organizing and conducting a 2-day workshop on Habitat Conservation Plans, sponsored by Southern California Edison, and another 1- day workshop sponsored by PG&E. These Workshops were attended by academics, attorneys, and consultants with HCP experience. We guest-edited a Proceedings published in Environmental Management.

Mapping of biological resources along Highways 101, 46 and 41. Used GPS and GIS to delineate vegetation complexes and locations of special-status species along 26 miles of highway in San Luis Obispo County, 14 miles of highway and roadway in Monterey County, and in a large area north of Fresno, including within reclaimed gravel mining pits.

GPS mapping and monitoring at restoration sites and at Caltrans mitigation sites. Monitored the success of elderberry shrubs at one location, the success of willows at another location, and the response of wildlife to the succession of vegetation at both sites. Also used GPS to monitor the response of fossorial animals to yellow star-thistle eradication and natural grassland restoration efforts at Bear Valley in Colusa County and at the decommissioned Mather Air Force Base in Sacramento County.

Mercury effects on Red-legged Frog. Assisted Dr. Michael Morrison and US Fish and Wildlife Service in assessing the possible impacts of historical mercury mining on the federally listed California red-legged frog in Santa Clara County. Also measured habitat variables in streams.

Opposition to proposed No Surprises rule. Wrote a white paper and summary letter explaining scientific grounds for opposing the incidental take permit (ITP) rules providing ITP applicants and holders with general assurances they will be free of compliance with the Endangered Species Act once they adhere to the terms of a “properly functioning HCP.” Submitted 188 signatures of scientists and environmental professionals concerned about No Surprises rule US Fish and Wildlife Service, National Marine Fisheries Service, all US Senators.

Natomas Basin Habitat Conservation Plan alternative. Designed narrow channel marsh to increase the likelihood of survival and recovery in the wild of giant garter snake, Swainson’s hawk and Valley Elderberry Longhorn Beetle. The design included replication and interspersion of treatments for experimental testing of critical habitat elements. I provided a report to Northern Territories, Inc.

Assessments of agricultural production system and environmental technology transfer to China.

Twice visited China and interviewed scientists, industrialists, agriculturalists, and the Directors of the Chinese Environmental Protection Agency and the Department of Agriculture to assess the need and possible pathways for environmental clean-up technologies and trade opportunities between the US and China.

Yolo County Habitat Conservation Plan. Conducted landscape ecology study of Yolo County to spatially prioritize allocation of mitigation efforts to improve ecosystem functionality within the County from the perspective of 29 special-status species of wildlife and plants. Used a hierarchically structured indicators approach to apply principles of landscape and ecosystem ecology, conservation biology, and local values in rating land units. Derived GIS maps to help guide the conservation area design, and then developed implementation strategies.

70 Smallwood CV

6 Mountain lion track count. Developed and conducted a carnivore monitoring program throughout California since 1985. Species counted include mountain lion, bobcat, black bear, coyote, red and gray fox, raccoon, striped skunk, badger, and black-tailed deer. Vegetation and land use are also monitored. Track survey transect was established on dusty, dirt roads within randomly selected quadrats.

Sumatran tiger and other felids. Upon award of Fulbright Research Fellowship, I designed and initiated track counts for seven species of wild cats in Sumatra, including Sumatran tiger, fishing cat, and golden cat. Spent four months on Sumatra and Java in 1988, and learned Bahasa Indonesia, the official Indonesian language.

Wildlife in agriculture. Beginning as post-graduate research, I studied pocket gophers and other wildlife in 40 alfalfa fields throughout the Sacramento Valley, and I surveyed for wildlife along a 200 mile road transect since 1989 with a hiatus of 1996-2004. The data are analyzed using GIS and methods from landscape ecology, and the results published and presented orally to farming groups in California and elsewhere. I also conducted the first study of wildlife in cover crops used on vineyards and orchards.

Agricultural energy use and Tulare County groundwater study. Developed and analyzed a data base of energy use in California agriculture, and collaborated on a landscape (GIS) study of groundwater contamination across Tulare County, California.

Pocket gopher damage in forest clear-cuts. Developed gopher sampling methods and tested various poison baits and baiting regimes in the largest-ever field study of pocket gopher management in forest plantations, involving 68 research plots in 55 clear-cuts among 6 National Forests in northern California.

Risk assessment of exotic species in North America. Developed empirical models of mammal and bird species invasions in North America, as well as a rating system for assigning priority research and control to exotic species in California, based on economic, environmental, and human health hazards.

Peer Reviewed Publications

Smallwood, K. S. 2022. Utility-scale solar impacts to volant wildlife. Journal of Wildlife Management: e22216. https://doi.org/10.1002/jwmg.22216

Smallwood, K. S., and N. L. Smallwood. 2021. Breeding Density and Collision Mortality of Loggerhead Shrike (Lanius ludovicianus) in the Altamont Pass Wind Resource Area. Diversity 13, 540. https://doi.org/10.3390/d13110540.

Smallwood, K. S. 2020. USA wind energy-caused bat fatalities increase with shorter fatality search intervals. Diversity 12(98); https://doi.org/10.3390/d12030098

Smallwood, K. S., D. A. Bell, and S. Standish. 2020. Dogs detect larger wind energy impacts on bats and birds. Journal of Wildlife Management 84:852-864. DOI: 10.1002/jwmg.21863.

Smallwood, K. S., and D. A. Bell. 2020. Relating bat passage rates to wind turbine fatalities. 71 Smallwood CV

7 Diversity 12(84); doi:10.3390/d12020084.

Smallwood, K. S., and D. A. Bell. 2020. Effects of wind turbine curtailment on bird and bat fatalities. Journal of Wildlife Management 84:684-696. DOI: 10.1002/jwmg.21844

Kitano, M., M. Ino, K. S. Smallwood, and S. Shiraki. 2020. Seasonal difference in carcass persistence rates at wind farms with snow, Hokkaido, Japan. Ornithological Science 19: 63 –

71. Smallwood, K. S. and M. L. Morrison. 2018. Nest-site selection in a high-density colony of burrowing owls. Journal of Raptor Research 52:454-470.

Smallwood, K. S., D. A. Bell, E. L. Walther, E. Leyvas, S. Standish, J. Mount, B. Karas. 2018.

Estimating wind turbine fatalities using integrated detection trials. Journal of Wildlife Management 82:1169-1184.

Smallwood, K. S. 2017. Long search intervals under-estimate bird and bat fatalities caused by wind turbines. Wildlife Society Bulletin 41:224-230.

Smallwood, K. S. 2017. The challenges of addressing wildlife impacts when repowering wind energy projects. Pages 175-187 in Köppel, J., Editor, Wind Energy and Wildlife Impacts:

Proceedings from the CWW2015 Conference. Springer. Cham, Switzerland.

May, R., Gill, A. B., Köppel, J. Langston, R. H.W., Reichenbach, M., Scheidat, M., Smallwood, S., Voigt, C. C., Hüppop, O., and Portman, M. 2017. Future research directions to reconcile wind turbine–wildlife interactions. Pages 255-276 in Köppel, J., Editor, Wind Energy and Wildlife Impacts: Proceedings from the CWW2015 Conference. Springer. Cham, Switzerland.

Smallwood, K. S. 2017. Monitoring birds. M. Perrow, Ed., Wildlife and Wind Farms - Conflicts and Solutions, Volume 2. Pelagic Publishing, Exeter, United Kingdom. www.bit.ly/2v3cR9Q

Smallwood, K. S., L. Neher, and D. A. Bell. 2017. Turbine siting for raptors: an example from Repowering of the Altamont Pass Wind Resource Area. M. Perrow, Ed., Wildlife and Wind Farms - Conflicts and Solutions, Volume 2. Pelagic Publishing, Exeter, United Kingdom. www.bit.ly/2v3cR9Q

Johnson, D. H., S. R. Loss, K. S. Smallwood, W. P. Erickson. 2016. Avian fatalities at wind energy facilities in North America: A comparison of recent approaches. Human–Wildlife Interactions 10(1):7-18.

Sadar, M. J., D. S.-M. Guzman, A. Mete, J. Foley, N. Stephenson, K. H. Rogers, C. Grosset, K. S.

Smallwood, J. Shipman, A. Wells, S. D. White, D. A. Bell, and M. G. Hawkins. 2015. Mange Caused by a novel Micnemidocoptes mite in a Golden Eagle (Aquila chrysaetos). Journal of Avian Medicine and Surgery 29(3):231-237.

Smallwood, K. S. 2015. Habitat fragmentation and corridors. Pages 84-101 in M. L. Morrison and H. A. Mathewson, Eds., Wildlife habitat conservation: concepts, challenges, and solutions.

John Hopkins University Press, Baltimore, Maryland, USA. 72 EXHIBIT 2
73 1

Shawn Smallwood, PhD
3108 Finch Street
Davis, CA 95616

Attn: Scott Kolwitz, Senior Planner
Community Development Department
2100 Thousand Oaks Boulevard
Thousand Oaks, CA 91362 7 October 2025

RE: Conejo Summit Project DEIR

Dear Mr. Kolwitz,

I write to rebut the City of Thousand Oaks’s responses to my 4 January 2025 (the date on my letter was miswritten as 4 January 2024) comments on the DEIR prepared for the proposed Conejo Summit Project. In my rebuttals below, I further separate some responses by letter. I do this for responses to multiple comments or issues under one response number.

Response IND 1-1: Provides introductory remarks; no response required.

Rebuttal: The referenced paragraphs were introductory in nature, and they needed no response.

Response IND 1-2: Provides results of surveys conducted by Dr. Smallwood; no response required.

Rebuttal: The first of the referenced paragraphs described our site visits and surveys, and it needed no response. However, the second through sixth referenced paragraphs, along with the photos, Table 2, and Figures 1 and 2, summarized our survey results, and did warrant a response. We detected 67 species of vertebrate wildlife, including 14 species with special status. The patterns in our species detection rates predict that many more species would be detected with additional surveys. These findings bear strongly on the adequacy of the DEIR, because they demonstrate the incompleteness of the surveys that support important conclusions in the DEIR. Characterizing the wildlife community based on an insufficient survey effort that results in an incomplete listing of the species that compose the wildlife community is a significant environmental issue. According to Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603, 615; Rural Landowners Association v. City Council (1983) 143 Cal.App.3d 1013, 1020, “Failure of a lead agency to respond to comments raising significant environmental issues before approving a project frustrates CEQA’s informational purpose and may render the EIR legally insufficient.”

Response IND 1-3: See Chapter 9 Response to Comments, Responses IND-4-4-2, IND-4-4-3 through IND-4-4-7 of the Final EIR.

Rebuttal: My rebuttals to the cited Responses follow.
74 2

Response IND 4-4-2a: The comment states that “The DEIR underestimates the diversity of species using the Project site.” The comment serves as a section title for comments IND 4-4-3 through IND 4-4-7, each of which provide supporting information for this comment. As such, the comment is addressed in each of the responses to comments IND 4-4-3 through IND 4-4-7, as appropriate.

Rebuttal: The quoted statement does not occur in my comment letter.

Response IND 4-4-2b: In summary, the comments provided within this comment letter section generally uses the number of species observed on site, including special- status species, as a measure of species diversity on site.

Rebuttal: No, I am not using species diversity as a metric. Species richness would be closer to what I am measuring, but I am not truly measuring species richness, either. My metric is the number of species detected, whereas species richness would represent the number of species that are truly present. After the completion of a sufficient number of surveys, inclusive of surveys using a variety of methods that are appropriate to the species of various natural histories, species richness could be represented, but to measure species diversity, the surveys would also need to enumerate each and every species in the wildlife community. The surveys completed to date cannot measure either species richness or species diversity.

Response IND 4-4-2c: Based on this metric, the Draft EIR identifies a similar diversity of wildlife (65 total wildlife species observed, 62 vertebrate wildlife species observed; see Appendix C of Appendix D of the Draft EIR) as is cited in the comment (67 vertebrate wildlife species observed). Surveys for the Draft EIR also identified more special-status species than the 2022 Smallwood Report (see IND 4-4-3 Survey results discussion below) and the Draft EIR analyzes the potential to occur for more special- status species than the 2022 Smallwood Report suggests should be analyzed (Response IND 4-4-5 below). Therefore, the Draft EIR’s assessment of wildlife diversity exceeds the recommendations of the comment letter. Therefore, the Draft EIR does not need to be revised or recirculated. No additional response is required.

Rebuttal: The Response falsely claims that the surveys completed in support of the DEIR had measured species diversity, which they had not. The Response also inappropriately casts the survey results as some sort of competition between Dudek’s biologists and ourselves, or that one set of surveys is better than the other. In contrast, my comments describe how to best interpret the survey outcomes from both Dudek and ourselves to estimate the number of additional survey efforts needed to accurately characterize the species composition of the wildlife community. Figure 3 of my comment letter suggests that about 20 survey efforts would come close enough to the model-predicted asymptote of the metric, Cumulative number of wildlife species detected. Fourteen more survey efforts should achieve the asymptote. Any survey effort short of that needs to be understood as having been inadequate for charactering the species inventory, which is fine so long as the DEIR refrains from claiming that an inventory has been achieved. But as the Response indicates, the City is 75 3

mischaracterizing Dudek’s survey findings as more representative of the wildlife community than they are.

Response IND 4-4-3a: The comment summarizes the results of surveys conducted by Dr. Smallwood along the perimeter of the Project site and references predictions made by Dr. Smallwood that more thorough surveys would have yielded increased species observations. The comment also references conclusions made by Dr. Smallwood that the number of wildlife species predicted at the Project site is “…indicative of a relatively species-rich wildlife community that warrants a serious survey effort.”

As noted below in Response IND 4-6, the 2022 Smallwood Report is outdated and several of the claims made in comment IND 4-4-3 are not reflected in the 2022 Smallwood Report. Comment IND 4-4-3 states that Dr. Smallwood detected 67 vertebrate wildlife species, including 14 special-status species, during surveys of the Project site. However, the surveys described in the 2022 Smallwood Report detected 45 vertebrate wildlife species, not 67, and 7 special-status wildlife species, not 14.

Regardless of the inconsistencies in the comment letter,

Rebuttal: My letters of 2022 and 2025 are not at all inconsistent in their reporting of the numbers of species we detected at the project site. My 2022 letter reports what I found in 2022. My 2025 letter reports those findings in addition to the results of our surveys we completed at the same site in 2023 and 2024. My 2025 letter summarizes all three survey efforts, including results from all three. Figure 3 in my 2025 letter shows the increase in the number of species detected with increase in surveys, inclusive of ESA’s survey and Dudek’s surveys.

Response IND 4-4-3b: the 65 wildlife species observed (including 62 vertebrate wildlife species; see Appendix C of Appendix D of the Draft EIR) during surveys conducted for the Draft EIR is 20 (44%) more than the 45 species identified in the 2022 Smallwood Report and is consistent with the 67 vertebrate wildlife species claimed to have been observed in comment IND 4-4-3, indicating that the Draft EIR identified a far greater diversity of species than that indicated in the 2022 Smallwood Report and a similar diversity of species to the unsupported claim made in comment IND 4-4-3.

Rebuttal: As I noted earlier, the survey results of Dudek and myself do not represent species diversity. To measure diversity, we would need the abundance of each species, and we would need to know the true number of species on the site. Diversity is an information theoretic term, the most basic form of which is the Shannon-Weaver Diversity Index, 𝐻′ = − ∑ 𝑝𝑖
𝑅
𝑖=1 𝑙𝑛(𝑝𝑖), where R = species richness, and pi is the
proportion of the total number of animals composing the ith species. This is not what is being measured by Dudek’s or my own surveys, although I would endorse its measurement as a CEQA review standard. The point of my comments is that we are nowhere close to representing the species composition of the site’s wildlife community.

We are certainly nowhere close to estimating species diversity (see Smallwood 2002 for a summary of diversity metrics).

76 4

Response IND 4-4-3c: With respect to the comment’s claim that more thorough site visits (i.e., greater survey time and different methods) would result in a greater diversity of wildlife being observed, the Draft EIR similarly points out several potential limitations of the surveys conducted, including a diurnal bias and the absence of focused trapping for small mammals and reptiles, and identifies several common wildlife species that were not observed but that would be expected to occur in the study area (see Appendix D, p. 15).

Rebuttal: The City deserves credit for pointing out some of the survey limitations, but doing so was not enough. The conclusions of the DEIR must also reflect the limitations.

The surveys completed to date do not support an accurate characterization of the wildlife community, which means the basis for impacts analysis and the formulation of a mitigation strategy is deficient.

Response IND 4-4-3d: The comment does not raise an issue related to the adequacy of any specific section or analysis of the Draft EIR, except to note that Dr. Smallwood observed 5 special-status species that were not seen during the surveys conducted for the Draft EIR, which is not reflected in the results reported in the 2022 Smallwood Report.

Rebuttal: The comment letter at issue here is my 2025 letter, not my 2022 letter.

Response IND 4-4-3e: Of the 7 special-status species identified in the 2022 Smallwood Report, only 1 meets the definition of “special-status”19 as used in the Draft EIR, fewer than the 3 special-status wildlife species observed during surveys conducted for the Draft EIR (see Appendix D, p. 30 and Appendix F of Appendix D). The remaining species identified as special-status in comment IND 4-4-3, including red tailed hawk, Cooper’s hawk, and oak titmouse, do not meet the definition of endangered, rare, or threatened as defined in CEQA Guidelines, Section 15380(b) (14 CCR 15000et seq.) and therefore are not considered special-status in the Draft EIR. Using the comment letter’s erroneous definition of special status, the surveys conducted for the Draft EIR found more, not less, of these species than are identified in the 2022 Smallwood Report (see Appendix C of Appendix D of the Draft EIR). Therefore, the Draft EIR does not need to be revised or recirculated. No additional response is required.

Rebuttal: The CEQA Guidelines, Section 15380(b) (14 CCR 15000et seq.) is certainly one of the sources to consult for a definition of special-status species in California.

However, there exist additional sources, because special-status species is not so simply defined as implied by the City of Thousand Oaks. The California Resources Agency’s Guidelines for Implementation of CEQA includes Appendix G which requires that the proposed project be evaluated for whether it may have a substantial adverse effect on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by California Department of Fish and Wildlife and US Fish and Wildlife Service. The California Department of Fish and Wildlife in turn defines Species of Special Concern to be a species that, among other criteria, “has naturally small populations exhibiting high susceptibility to risk from any factor(s), that 77 5

if realized, could lead to declines that would qualify it for State threatened or endangered status.”

The other sources of the special-status species definition go to two examples that the Response claims failed to meet the City’s definition of special-status species, and those were red-tailed hawk and Cooper’s hawk. Both these species are raptors, which occur in naturally small populations exhibiting high susceptibility to anthropogenic factors and which are protected by regulation. Specifically, raptors are susceptible to habitat loss because they require large home ranges, and they are susceptible to electrocutions and collisions with powerlines and exposure to rodenticides among multiple other anthropogenic threats. And specifically, raptors are protected by California Fish and Game Code §3503.5, otherwise known as the Birds of Prey Code. Raptors are protected by this Code because raptors are top predators wherever they live. Their positions in the food chain naturally require that they are rare, which is one of the key conditions – and one of the key words – that meets the CEQA definition of special-status species. Species that are naturally rare, such as species of raptor, are more likely identified as special- status species, e.g., California condor, bald eagle, peregrine falcon, burrowing owl, spotted owl, whereas fewer of the naturally abundant species are so identified, such as songbirds. Raptors protected by CFG Code §3503.5 should be considered special-status species.

The Cooper’s hawk is also on the California Department of Fish and Wildlife’s Taxa to Watch List. This assignment is one of special status; otherwise, there would be no point to assigning such species to the Taxa to Watch List. Specifically, these species are those that were earlier assigned special concern, but which did not rank as high as those species currently listed as Species of Special Concern. Nevertheless, the CDFW commissioned the development of the Taxa to Watch List, and it would not have done so without concern for the rarity and sensitivity of the species on this List.

Oak titmouse is another species the Response claims is not a special-status species, though the Response gives no reason why not. The oak titmouse is on a list that the United States Fish and Wildlife Service (USFWS) circulates as Birds of Conservation Concern. The legal authority for the BCC includes the Fish and Wildlife Conservation Act (FWCA) of 1980, a 1988 amendment (Public Law 100-653, Title VIII) of which requires the Secretary of the Interior through the USFWS to “identify species, subspecies, and populations of all migratory non-game birds that, without additional conservation actions, are likely to become candidates for listing under the Endangered Species Act of 1973.” (Additional authorities include the Endangered Species Act, the Fish and Wildlife Act of 1956, and 16 USC §701.)

The USFWS first assembled its BCC list in 1995 (USFWS 1995), including those species with 1) Documented or apparent population declines; 2) Small or restricted populations, or 3) Dependence on restricted or vulnerable habitats. The BCC list was intended to prevent species from having to be listed as Threatened or Endangered under the federal Endangered Species Act by recognizing those species in need of management actions. To assemble the BCC list, the USFWS undertook a five-step process beginning with deliberations among species’ experts, then examining trend data of several sources – 78 6

Christmas Bird Counts (CBC), Breeding Bird Surveys (BBS), Partners in Flight regional data -- and lastly a review of species previously designated by the USFWS as either Candidate 1 or Candidate 2 species. Selection criteria were established ahead of each step. For example, more than 50% of the experts interviewed in step 1 scored their concern as high or moderate. In other examples, the trends in CBC or BBS data in steps 2 and 3 needed to exceed declines of 2.5% per year with a P-value < 0.05. The BCC list is entirely consistent with the CEQA’s definition of special-status species.

The meanings of CEQA’s defining terms for a species’ special status differ, but their differences also broaden the suite of species that CEQA intends should be considered as special-status species. The meanings of the terms Rare and Sensitive also often underly the inclusions of species on special-status species lists compiled by resource agencies.

Rareness can apply to species that have been diminished in abundance or geographic extent, or it can apply to species that are naturally scarce owing to their position at the top of the food-chain or to some other ecological factor. Rareness can also apply to species that are endemic to a region, even though such species can be abundant within their limited geographic range, e.g., oak titmouse. Sensitive can apply to species that respond more adversely than other species to changes to their environment, often due to susceptibility to pollutants or pathogens or to the loss or degradation of a narrow portion of the environment on which the species relied. For example, burrowing owls often but not always depend on ground squirrels for the squirrels’ provisions of burrows as nest sites and for their mutual predator-alarm calling. Therefore, burrowing owls are sensitive to human changes to the environment that diminish ground squirrel abundance.

Lastly, the City of Thousand Oaks focuses too narrowly on the question of whether a species is a special-status species. The CEQA certainly emphasizes the analysis of potential project impacts on special-status species, but it never intended to decouple special-status species from the wildlife communities of which they are inter-dependent members. An important policy of the CEQA is “to prevent the elimination of fish or wildlife species due to man’s activities, insure that fish and wildlife populations do not drop below self-perpetuating levels, and preserve for future generations representations of all plant and animal communities and examples of the major periods of California history” (Pub. Res. Code § 21001(c)). This policy is not restricted to special-status species, but it also applies to wildlife populations and plant and animal communities. In fact, the CEQA Guidelines Section 21155.1 defines wildlife habitat as “the ecological communities upon which wild animals, birds, plants, fish, amphibians, and invertebrates depend for their conservation and protection.” This definition is consistent with the scientific definition of habitat, which is that portion of the environment that is used by members of a species for survival and reproduction (Hall et al. 1997). An essential portion of the environment used by any special-status species is composed of the collection of other species of plants and wildlife, because these species are forage, provisioners of refugia and nest substrates, and ecological mutualists; no special-status species can exist in a vacuum of other wildlife. The CEQA Checklist Evaluation assigns priority to special-status species to balance information and cost of the review, but it does not exclude the need to evaluate environmental impacts to other species, which, 79 7
after all, are members of the very communities within which special-status species inter- depend for survival and reproduction.

All wildlife species should be of concern in a CEQA review, but the CEQA prioritizes special-status species. The species I consider to be special-status species are those listed in California’s Special Animals List inclusive of threatened and endangered species under the California and federal Endangered Species Acts, candidates for listing under CESA and FESA, California’s Fully Protected Species, California species of special concern, and California’s Taxa to Watch List (https://nrm.dfg.ca.gov/FileHandler.ashx? DocumentID=109406), continental and region-specific US Fish and Wildlife Service Birds of Conservation Concern (https://www.fws.gov/sites/default/files/documents/ birds-of-conservation-concern-2021.pdf), naturally rare species such as raptors protected by California’s Birds of Prey laws, Fish and Game Code Sections 3503, 3503.5, 3505 and 3513 (see https://wildlife.ca.gov/Conservation/ Birds/Raptors), and considered moderate to high conservation concern by the Western Bat Working Group (https://wbwg.org/).

Response IND 4-4-4a: The comment states that Dudek’s review of available wildlife databases was inadequate. The comment asserts that a reliance on “only the nearest CNDDB quadrangles…screens out many special-status species from further consideration…” which constitutes “an improper use of the CNDDB because CNDDB is not designed to support absence determinations or to screen out species…” The comment’s premise that the Draft EIR relied on only the nearest CNDDB quadrangles to determine which special-status wildlife species have a potential to occur in the project area is inaccurate. As is explained in Section 3.1 of Appendix D of the Draft EIR (p. 11), the California Native Diversity Database (CNDDB) query (CDFW 2023a20), which consisted of a “9-quad” search based on the U.S. Geological Survey (USGS) 7.5- minute topographic quadrangle map for Newbury Park, where the Project site is located, as well as the surrounding eight USGS 7.5-minute quadrangles, was a part of a broader, thorough literature review.

Rebuttal: If this was the case that the CNDDB extended one 7.5-minute quad beyond the nearest quads, then I stand corrected. However, the correction makes no difference to my argument that reliance on a positive sightings database was inappropriate for making absence determinations.

Response IND 4-4-4b: The CNDDB was one of several sources referenced during the literature review performed prior to field investigations, which included but was not limited to the State and Federally Listed Endangered and Threatened Animals of California (CDFW 2023b21), CDFW’s California Wildlife Habitat Relationships Life History Accounts and Range Maps (CDFW 2023c22), U.S. Fish and Wildlife Service’s Information for Planning and Consultation (USFWS 202323), and eBird (eBird 202324) (see Appendix D, p. 11, of the Draft EIR).
80 8

Rebuttal: It is just as inappropriate to rely on eBird to screen out species based lack of occurrence records as it is to use the CNDDB this way. eBird is also a positive sightings database. Lack of sightings records does not mean a species is absent.

The CDFW’s California Wildlife Habitat Relationships (CWHR) Life History Accounts and Range Maps and U.S. Fish and Wildlife Service’s Information for Planning and Consultation provide general guidance on the types of environments in which species are expected to be found, but these products cannot be relied upon for determining the absence of any species. The CWHR website states that “A typical application of the Single Situation Reports is to predict a list of species that potentially occur in a project area” (https://wildlife.ca.gov/Data/CWHR), but it does not state that it can be used to determine the absences of species. The CWHR is based on many assumptions, none of which are addressed in the DEIR. Nor does the DEIR report any CWHR habitat ratings for any of the species at issue. The same types of shortfalls apply to IPAC, and whether and how IPAC was used in the environmental review of the proposed project. The Response states that these tools were used, but it does not explain how. And the evidence is lacking that these tools were used, or used effectively, because only 28% of the 135 special-status in Table 3 of my 4 January 2025 comment letter were assessed for occurrence likelihoods in the DEIR.

Response IND 4-4-4c: Furthermore, no component of the literature review, including the CNDDB, was used as the sole basis for “screening out” species from consideration in the Draft EIR. The results of the literature review, inclusive of the CNDDB query results, were used in conjunction with other relevant data and field survey results, such as geographic ranges, the presence/absence of suitable habitat, and other natural history elements, in the assessment of which special-status wildlife species have the potential to occur in the study area (see Appendix D, pp. 13-14, of the Draft EIR). To this point, several species that do not have records in the 9 quad CNDDB search results, including California condor and loggerhead shrike, which the comment suggests would have been “screened out” from analysis, were included in the Draft EIR’s assessment of potential impacts to special-status wildlife species (see Table 4 and pp. 34-35 of Appendix D of the Draft EIR). Therefore, the Draft EIR does not need to be revised or recirculated. No additional response is required.

Rebuttal: And yet he DEIR goes forward with its review inclusive only 28% of the 135 special-status species listed in Table 3 of my 4 January 2025 comment letter. As I commented, “Of the species omitted from Dudek’s analysis, 12 have been recorded on or next to the project site, 29 have been recorded within 1.5 miles of the site, 14 have been recorded between 1.5 and 4 miles of the site, and 35 have been recorded between 4 and 30 miles of the site. On the whole, Dudek’s (2024) analyses of occurrence likelihoods are too often inaccurate.” Dudek’s analysis is grossly deficient because it fails to comport with the evidence of occurrence records.

Response IND 4-4-5a: The comment summarizes results from Dr. Smallwood’s survey, stating that Dr. Smallwood found that “135 special-status species of wildlife are known to occur near enough to the site to warrant analysis of occurrence potential.”

81 9

Rebuttal: This comment, which appears at the top of page 22 of my 4 January 2025 comment letter, does not summarize my survey. It summarizes my desktop review of occurrence likelihoods of special-status species in the project area.

Response IND 4-4-5b: The comment also states that Appendix D of the Draft EIR analyzed the occurrence potential for “38 species (i.e. 28% of the species identified by Dr. Smallwood).” Both of these assertions are incorrect. The 2022 Smallwood Report states that 73 special-status wildlife species potentially use the Project site (p. 15), 62 species (54%) less than the total stated in comment IND 4-4-5. Appendix D of the Draft EIR analyzed the potential for 44 special-status wildlife species to occur on site (see Appendix E of Appendix D of the Draft EIR), not the 38 species stated in comments IND 4-4-5.

Rebuttal: The Response attempts to confuse the issues by first referring to my 2022 comment letter, which is not the letter at issue here. It also confuses the issue by ignoring the fact that me comment was specific to those special-status species listed in Table 3 of my 2025 comment letter. The numbers and percentages reported in my comment are accurate.

Response IND 4-4-5c: In addition to incorrectly reporting the results of both the Dr.

Smallwood Report and the Draft EIR, the comment further misrepresents the two reports’ findings by defining “special-status” differently than the Draft EIR.

Endangered, rare, or threatened wildlife species as defined in CEQA Guidelines, Section 15380(b) (14 CCR 15000et seq.), are referred to as “special-status wildlife species” and, as used in Appendix D of the Draft EIR, include (1) wildlife species listed, proposed for listing, or candidates for listing as endangered or threatened recognized in the context of CESA and FESA; (2) California Species of Special Concern (SSC) as designated by CDFW; and (3) mammals and birds that are fully protected species as described in the California Fish and Game Code, Sections 4700 and 3511 (Appendix D, pp. 13 14, of the Draft EIR). Species with other designations, such as those designated as Birds of Conservation Concern (BCC) by the U.S. Fish and Wildlife Service, several of which were observed on the Project site and are expected to occur there, do not meet the definition of endangered, rare, or threatened wildlife species as defined in CEQA Guidelines, Section 15380(b) (14 CCR 15000et seq.), and therefore are not included in the assessment of special-status species in the Draft EIR. Dr. Smallwood’s Report, on the other hand, includes many species as “special-status” that do not meet the definition of endangered, rare, or threatened wildlife species as defined in CEQA Guidelines, Section 15380(b) (14 CCR 15000et seq.). For example, Dr. Smallwood includes as “special-status species” those birds identified as birds of prey (BOP) in California Fish and Game Code 3503.5, which include birds in the orders Falconiformes or Strigiformes. The basis for inclusion in California Fish and Game Code 3503.5 is a species’ taxonomic group (i.e., Falconiformes or Strigiformes) and the BOP referenced in California Fish and Game Code 3503.5 include many common species, such as red-tailed hawk, that do not meet the definition of endangered, rare, or threatened under CEQA. Of the 73 “special-status” species whose potential to occur is assessed in the 2022 Smallwood Report, only 39 meet the definition of “special-status” as it is used in the Draft EIR, meaning the Draft EIR analyzes the occurrence potential for more special-status species (44) than the 2022 82 10

Smallwood report does, not less. Therefore, the Draft EIR does not need to be revised or recirculated. No additional response is required.

Rebuttal: This Response repeats an earlier Response. See my rebuttal to Response IND 4-4-3e.

Response IND 4-4-5d:It is acknowledged that the Draft EIR contained a typo regarding the number of special-status species determined to have a moderate potential to occur on site. The text in Section 3.3.2 (p. 3.3-10) has been corrected as indicated in strikeout/underline format below. Note that the number of species observed on or near the site, and the number of species with at least a moderate potential to occur on site, are reported accurately in Section 3.3.6 (p. 3.3-21) and the impacts analysis reflects the accurate observations and potential determinations. The corrected text in Section 3.3.2 (p. 3.3-10) does not change the analysis and does not result in a new significant impact or constitute new significant information that would require recirculation of the Draft EIR. Therefore, the Draft EIR does not need to be revised or recirculated. No additional response is required.

Based on the presence of suitable habitat and recent occurrence data adjacent to the study area, five three special-status species, including coastal California gnatcatcher (Polioptila californica californica), coastal whiptail (Aspidoscelis tigris stejnegeri) and loggerhead shrike (Lanius ludovicianus) were determined to have a moderate to high potential to occur within the study area. Two additional species were observed incidentally during the biological assessment; Crotch’s bumble bee was observed in the northern and southeast portion of the Project site and immediately to the north of the Project site, within the 300-foot survey buffer, and a single yellow-breasted chat was observed immediately to the northwest of the Project site, in the 300 foot survey buffer.

Rebuttal: The corrected typo is an improvement, but I pointed out other problems with Dudek’s reporting that were much more consequential to the review, and which have been ignored in the City’s responses to comments. It is also trivial in comparison to the gross misuse of the CNDDB and the inaccurate analysis of special-status species occurrence likelihoods.

Response IND 4-4-6a: Statements made in comment IND 4-4-5 presents the premise that the analysis in Appendix D of the Draft EIR is “faulty” and asserts that this faulty analysis “results in unreliable conclusions about the Project site’s biological baseline.” The comment characterizes three specific conclusions made in the Draft EIR as unreliable: “(1) California gnatcatcher is not present on the site despite confirmed sightings on site; (2) the occurrence likelihoods, based on CNDDB records, of burrowing owl, white-tailed kite, and mountain lion are low despite the confirmed sightings of the species near or adjacent to the site; and (3) monarch butterfly is not expected to occur on site despite records showing that monarchs have been observed as close as 620 meters from the site.”

83 11

Rebuttal: The fourth paragraph on page 22 of my 2025 comment letter starts with the reason, “Dudek (2024) reports that the occurrence likelihood analyses were completed prior to the field survey. However, Table 4 of Dudek (2024) concludes that the California gnatcatcher is absent from the project site due to negative findings following focused surveys for California gnatcatcher.” This reporting calls into question its accuracy because the timing of the conclusion of absence of California gnatcatcher is internally inconsistent. The issue here is not just the inaccuracy of the conclusion that the California gnatcatcher is absent (it is, in fact, present), but that the premise of this conclusion is based on negative survey outcome just after Dudek (2024) reported that the desktop analysis preceded the field survey. The desktop review could not have preceded the survey if it is citing survey results in support of its conclusion. The reporting is faulty.

Response IND 4-4-6b: The statement that the analysis contained in Appendix D of the Draft EIR is “faulty” is based on incorrect assertions that Dudek analyzes the occurrence potential for 38 species and that the number of special status species analyzed is far fewer than the number identified as warranting analysis by Dr.

Smallwood (see IND 4-4-4 Special-status species discussion above).

Rebuttal: This Response is again confusing the issues. The faults I found with conclusions involving California gnatcatcher, mountain lion and monarch are already summarized in the earlier portion of this Response. The incompleteness of the analysis of occurrence likelihoods of 38 special-status species was already addressed in earlier Responses (and rebuttal), but it has nothing to do with the conclusions on the occurrence likelihoods of California gnatcatcher, mountain lion and monarch.

Response IND 4-4-6c: Nevertheless, each of the 3 conclusions identified in this comment is addressed below.

1) The comment states that there are several confirmed sightings of coastal California gnatcatcher (Polioptila californica californica) on the Project site but provides no citation or other documentation. The literature review conducted as a part of the Draft EIR, which included the CNDDB and eBird, identified several records for this species from the open space areas surrounding the Project site, including the Conejo Canyons Open Space (CDFW 2023a, eBird 2023; see Appendix D, p. 34). The Draft EIR also acknowledges that, although much of the coastal scrub within the Project site is disturbed and consists of fragmented stands, based on the literature review, it was initially determined that coastal California gnatcatcher had a moderate potential to occur on the Project site (see Appendix D, p. 34). The Draft EIR concluded that coastal California gnatcatcher is absent from the study area, including the Project site, based on negative focused surveys conducted in 2023, following the literature review (see Appendix D, p. 35 and Appendix F of Appendix D of the Draft EIR). During the focused surveys, conducted in accordance with the currently accepted protocol of the U.S.

Fish and Wildlife Service (USFWS) Coastal California Gnatcatcher (Polioptila californica californica) Presence/Absence Survey Protocol (USFWS 199725), no 84 12

coastal California individuals were observed or audibly detected on the Project site or in the surrounding study area.

Rebuttal: I provided ample citation of my sources. One was Dudek (2024), which reports finding 3 California gnatcatchers only 438 m from the project site. Claiming the species is absent after it has been seen a quarter mile from the site assumes that California gnatcatchers are static, as if they are statues instead of birds. Moreover, Noriko Smallwood, who surveyed the site on my behalf, detected California gnatcatchers on the project site (see Photo 13 of my 2025 comment letter). As for the eBird records I cited, anybody can access eBird and see for themselves (see Figure 1).

Figure 1. eBird occurrence records of California gnatcatchers just south of the project site. I slightly more expansive view would reveal occurrence records to the north and west of the site, as well.

Response IND 4-4-6d: The comment states that the Draft EIR’s determination that there is a low potential to occur for burrowing owl (Athene cunicularia), white-tailed kite (Elanus leucurus), and mountain lion (Puma concolor) is based on CNDDB records. 85 13

However, no determination of potential to occur, including those determinations of low potential to occur for burrowing owl, white-tailed kite, and mountain lion, were based solely on the results of the CNDDB query. As is discussed in IND 4-4-4 (see Special- status species discussion above), the results of the literature review, inclusive of the CNDDB query results, were used in conjunction with other relevant data and field survey results, such as geographic ranges, the presence/absence of suitable habitat, and other natural history elements, in the assessment of these species’ potential to occur.

Rebuttal: None of the other cited sources/factors, which are only vaguely described, would have supported absence determinations of any of the species at issue.

Response IND 4-4-6e: Burrowing owl. As is stated in the Draft EIR, in addition to an absence of CNDDB records for burrowing owl within an 8-mile radius of the Project site, the study area lacks the open grassland habitat and does not contain abundant ground squirrel burrows preferred and utilized by this species and neither the species nor its sign were observed during several surveys conducted of the Project site and surrounding areas (see Appendix D, Table 4). In addition, the Draft EIR points out that, due to previous grading and other disturbance, soils on site are compacted and very few burrows were observed, none of which were suitable for burrowing owl (i.e., approximately 4 inches or greater at the entrance) (see Appendix D, p. 34). For these reasons, the Draft EIR determined that burrowing owl is not expected to nest or winter on site but could occur as a transient during migration (Appendix D, p. 34).

Rebuttal: What the DEIR points out about burrowing owls in incomplete and incorrect. The absence of CNDDB records is not evidence of absence of burrowing owls, and as I commented there are multiple eBird records close to the project site.

The claim that the site lacks open grassland is false. In my several decades of research on burrowing owls, the site looks perfectly capable of supporting burrowing owls.

The claim of few ground squirrel burrows is false but also misleading because it does not take the presence of many ground squirrel burrows to vastly increase the likelihood of occurrence of burrowing owls. As I commented in my 2025 letter, we saw ground squirrels on the project site during all three of our survey visits.

That the soils were previously compacted does not mean the site should be devoid of burrowing owls. I studied a burrowing owl on compacted soils that existed in one of the highest densities ever recorded (Smallwood and Morrison 2018). The claim that none of the ground squirrel burrows were at least 4 inches in diameter is based on no measurement data provided in Dudek (2024), and anyway it is not credible based on my experience with ground squirrel burrows. In my experience, about a third of ground squirrel burrow entrances are at least four inches in diameter.

The response claims that any use of the site by one or more burrowing owls would be the use of transients. However, there is no such thing as transient burrowing owls.

Burrowing owls can be resident as breeders or over-wintering, or they can be dispersing from natal areas or on migration. A burrowing owl that is stopping over briefly is no less 86 14

dependent on the stopover site for survival and reproduction than is a burrowing owl in use of a nest site. If a burrowing owl cannot find refugia and forage over the non- breeding season or while on migration, then it will not successfully nest and might not survive to the next breeding season.

Considering that the burrowing owl is now a candidate for listing under the California Endangered Species Act, consultation with the CDFW is warranted, and so is the completion of breeding-season detection surveys to the standards of CDFW (2012).

Neither the DEIR nor the Response provides evidence of absence of the burrowing owl on the project site.

Response IND 4-4-6f: White-tailed kite. The Draft EIR acknowledges there are multiple white-tailed kite observations in open space areas west and north of the Project site, as well as to the south in the Santa Monica Mountains (see Appendix E of Appendix D, p. E-6). The Draft EIR points out that most observations of this species in the Project vicinity are during wintering or migratory periods and that documented nesting occurrences are sporadic in Ventura County, with the nearest CNDDB occurrence from 2009, approximately 6 miles southwest of the study area (see Appendix E of Appendix D, p. E-6). The Draft EIR concludes that white-tailed kite is not expected to nest on the Project site due to an absence of suitable nesting habitat on site, a fact unrelated to the absence of CNDDB records on site. The Draft EIR acknowledges that a small amount of suitable nesting habitat is present in a limited portion of the study area, outside of the Project site, and that foraging could occur on the Project site (see Appendix E of Appendix D, p. E-6).

Rebuttal: The Response is misleading. Many of the eBird records of white-tailed kite in the project area were recorded during the breeding season, including five of the records depicted in Figure 4 of my 2025 comment letter. One of the eBird records includes a lengthy summary of observations that led the observer to believe that the pair of white- tailed kites under observation were nesting. Regardless of when the records were made, it is of little to no importance whether the white-tailed kites were there in the project area to breed. Any white-tailed kite that cannot find sufficient refugia and forage during all times of the year is not going to be capable of successfully breeding. And the species’ Fully Protected Status is not conditioned on whether members of the species are present for breeding. Fish and Game Code Section 3511 does not specify that only nesting white- tailed kites are Fully Protected. The question of whether white-tailed kites are nesting on site is just a red-herring argument.

The white-tailed kite makes for a good example of a flaw in Dudek’s (2024) analysis of occurrence likelihoods. Noriko Smallwood and I have surveyed hundreds of sites at which we examined databases for occurrence records of white-tailed kites. What we found was that the probability of our detection of white-tailed kite is a function of both the proximity of occurrence records and survey effort measured as accumulated survey time (Figure 2). Sites with occurrence records within 1.5 miles stand about a 20% chance of detection of white-tailed kite after 10 hours of survey, which is about 6 times more of a chance than at a site with occurrence records located >1.5 miles from the site.

Sites with white-tailed kite occurrence records located farther away just require more 87 15

survey effort before a detection is made, and the only site that would stand 0% chance of a detection is a site that is not surveyed.

Figure 2 reinforces my comments that negative findings in reconnaissance surveys do not qualify as evidence of absence. Negative findings need to be interpreted in context of survey effort and the proximity of occurrence records to assess (1) the likelihood that the species would have been detected, and (2) the survey effort needed to have a reasonable likelihood of detection of the species. In the case of white-tailed kites known to occur within 1.5 miles of the project site, but not yet on the project site, Figure 2 predicts about 56 hours of survey time would be needed to first detect the species on the project site.

The appropriate question is not whether white-tailed kites are present on the site, but rather how much effort would it take to detect their presence?

Figure 2. Probability of
detection of white-tailed
kite as a function of
survey effort and
proximity of occurrence
records to a project site.

Response IND 4-4-6g: Mountain lion. There are no records for mountain lion in the CNDDB; therefore, the absence of CNDDB records was not used in the Draft EIR’s determination of this species’ potential to occur on the Project site. As is stated in the Draft EIR, while the slopes adjacent to the Project site provide chaparral and scrub habitat with dense undergrowth and cover suitable for mountain lion, the Project site has been heavily disturbed and does not contain the dense vegetation in which mountain lion is likely to occur. An absence of suitable natal den habitat and the Log10 Survey hours
-0.6 -0.2 0.2 0.6 1.0 1.4 1.8 2.2

0.2 0.4

0.6 0.8

1.0 0
Probability of detection

1.5 and 40 miles
Within 1.5 miles
On site or adjacent
Nearest eBird records
White-tailed kite Elanus leucurus
California Fully Protected

0.4 1584 10 Hours1
88 16

proximity to human activity associated with the surrounding developed and recreational activities on site and within the adjacent Conejo Canyons Open Space are also cited as reasons that would limit mountain lion use of the Project site (see Appendix D, pp. 35- 36).3)

Rebuttal: The Response ignores the evidence of mountain lion presence I shared in my comment letter. A mountain lion photographed only one mile away is really the same as having a record of the mountain lion on site, considering the home range requirements of mountain lions. It is strange that the City relies only on the CNDDB for occurrence records of species such as mountain lions, because only professional biologists report observations to the CNDDB whereas the entire public can report observations to more publicly accessible databases such as iNaturalist. iNaturalist includes two more occurrence records between 1.5 and 2 miles west of the project site, including one with three photos of a mountain lion.

Implying that a natal den must be present to make the occurrence records count is a contrived condition. The status of mountain lion as a Special Animal is not conditioned on the presence of a natal den.

Response IND 4-4-6h: Monarch butterfly. Monarch’s sensitivity status is tied to the overwintering populations of this species. The Draft EIR’s conclusion that monarch is not expected to occur pertains to overwintering populations and was based on the absence of suitable overwintering habitat on site (i.e., wind-protected tree groves) (see Appendix E of Appendix D, p. E-1). Records of monarch in the Project region, such as those on iNaturalist (202526) approximately 0.4 miles west of the Project site, are not relevant to the Draft EIR’s conclusions of overwintering potential.

Rebuttal: The Response falsely implies that over-wintering habitat is the only Monarch habitat that would be significant. However, the conservation strategy of the Western Monarch Butterfly Conservation Plan 2016-2069 says otherwise. According to this Plan, the strategy is to “Protect and restore overwintering groves, including development of site-specific grove management plans; and conserve monarch breeding and migratory habitats in natural lands, urban and industrial, rights-of-way, and agricultural habitat sectors.” Migratory habitats are no less important to the conservation of monarchs than are overwintering groves, and the Plan identifies urban areas as contributive to migratory habitat. The observation of a Monarch on the project site is evidence that at minimum the site serves as part of a migration route to and from over-wintering sites.

The close proximity of Monarch occurrence records is significant, and it warrants an appropriate analysis of potential project impacts on Monarch.

Response IND 4-4-7: The comment states that, “due to the inadequate analysis of the biological technical report” (Appendix D of the Draft EIR), the Draft EIR “underestimates the biological baseline” at the Project site and therefore “cannot provide substantial evidence about the severity of the Project’s impacts on biological resources.”

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The Draft EIR’s discussion of the environmental setting (see Section 4 of Appendix D) identifies historical and current land uses of the Project site, the topography of and soils that have been mapped at the Project site, and the watershed in which the Project site is located. The biological baseline presented in the Draft EIR also includes the vegetation communities/land covers and other biological resources present on and around the site, as discussed in Section 5 of Appendix D of the Draft EIR. The comment does not raise an issue related to the adequacy of any of these sections of the Draft EIR, except as noted in comments IND 4-4-2 (Wildlife diversity assessment discussion above), IND 4- 4-4 (Methodology discussion above) and IND 4-4-5 (Special-status species discussion above). This response assumes that the comment’s reference to an “inadequate analysis” and “underestimation” of the biological baseline is related to the review of available wildlife databases, mentioned in comment IND 4-4-4 (Methodology discussion above), the number of special-status species analyzed in the Draft EIR, mentioned in comment IND 4-4-5 (Special-status species discussion above), and the overall claim made in comment IND 4-4-2 (Wildlife diversity assessment discussion above) that the Draft EIR underestimates the diversity of species using the Project site. As is stated in the responses to those comments, the Draft EIR included a broad and thorough literature review consisting of more than just the CNDDB (see Appendix D, p. 11), the number of special-status species analyzed in the Draft EIR is greater than the number Dr.

Smallwood suggests should be analyzed in 2022 Smallwood Report (see Appendix E of Appendix D), and the Draft EIR identified a far greater diversity of species than the one presented in 2022 Smallwood Report and a similar diversity of species to the unsupported numbers reported in comment IND 4-4-3 (see Appendix C of Appendix D).

For these reasons, the Draft EIR appropriately characterizes the environmental setting, including the biological baseline, in order to accurately assess the significance of impacts associated with the Project. Therefore, the Draft EIR does not need to be revised or recirculated. No additional response is required.

Rebuttal: This Response repeats earlier Responses, and it again distorts and misrepresents my comments. I did not comment on diversity, and whoever found more species during surveys is irrelevant to what they mean in the context of the comparative method. In fact, the DEIR puts none of its findings into context, such as what it means to have found 64 species of vertebrate wildlife on the project site. Is this the number of species Dudek normally finds at project sites?

I have maintained a log of Dudek’s survey outcomes, or at least a log of the survey outcomes I have reviewed in my role as an expert. I have records of 20 of Dudek’s survey efforts. Of these, Dudek did not report the species detected in five of the survey efforts.

The 14 survey efforts other than at the Conejo Summit project site averaged 23.8 wildlife species detections, range 3 to 59. The 64 species that Dudek detected at Conejo Summit were nearly three times the average number detected by Dudek, at least among the project sites where Dudek reported which species were detected. So why so many more species at Conejo Summit? And what does this relatively large number of species mean? To my comments, it is impossible to know what Dudek’s findings mean without knowing about the spatial areas surveyed at the other project sites, the conditions at those sites, Dudek’s methods and survey time at those other sites, and when in the day Dudek started its surveys. Without comparative context, there is no way to make sense of what 90 18

Dudek found other than the names of species they found at Conejo Summit. Without comparative context, there is no way to make sense of how many and which species Dudek did not find during its surveys. There is no reported measure of variance, and not even a qualitative comparison of what Dudek found at Conejo Summit as compared to what Dudek or anyone else has found elsewhere.

In contrast, my comment letter contextualizes our findings, as well as those of Dudek to the degree possible. I provide confidence intervals where they are needed, and I compare survey results to predict results that would come from additional surveys.

Because the DEIR lacks any of this contextualization, its characterization of the wildlife community is incomplete, inaccurate and way too uncertain to qualify as a suitable foundation for predicting project impacts or for formulating an appropriate mitigation strategy.

Response IND 1-4: See Chapter 9 Response to Comments, Responses IND-4-4-8 and IND-4-4-9 of the Final EIR.

Rebuttal: My rebuttals to the cited Responses follow.

Response IND 4-4-8: The comment states that the “Draft EIR failed to disclose and mitigate the Project’s impacts on wildlife due to habitat loss and fragmentation, wildlife movement, traffic, and artificial lighting” and states that the Draft EIR must be revised to account for these impacts. The comment serves as a section title for comments IND 4- 4-9 through IND 4-4-12, each of which provide supporting information for this comment. As such, the comment is addressed in each of the responses to comments IND 4-4-9 through IND 4-4-12, as appropriate. In summary, the Draft EIR includes an analysis of impacts due to habitat loss and fragmentation, wildlife movement, traffic, and artificial lighting and includes mitigation where needed (i.e., to reduce impacts that are potentially significant absent mitigation). No additional response is required.

Rebuttal: The quoted statement does not appear in my comment letter.

Response IND 4-4-9a: The comment states that the Draft EIR “downplays the impacts of habitat loss” and references predictions by Dr. Smallwood that the habitat loss associated with the Project would result in the loss of 3,899 birds annually.

Note that the comment misrepresents Dr. Smallwood’s predictions, overstating the predicted bird loss stated in the 2022 Smallwood Report by 38%. Furthermore, these predictions are based in part on the results of a 76-year-old study conducted in habitats that are dissimilar to the Project site, of a quality that is dissimilar to the Project site, and with dissimilar surroundings to the Project site, and include arbitrary assumptions regarding nest density at the Project site.

Rebuttal: There is no overstatement of the predicted bird loss in my 2022 comment letter because it is the 2025 letter that is at issue here. Nevertheless, the difference in predictions was only due to my addition of the average number of nest attempts per 91 19

breeding pair, which was 1.39. I had not used this term in 2022, which left my 2022 prediction biased low.

Now that this difference was brought up, I realize that at the time I prepared my 2025 letter, I was still assuming 5 years as the average lifespan of the average bird. I since switched to assuming 4 years as the average lifespan, which is more realistic. With this revised assumption, my prediction of the number of birds that would be denied to California due to the habitat loss caused by the project increases to 3,987 birds per year.

As for the age of one of the studies I relied on, its age is irrelevant. There is nothing outdated about the study, and the Response cites no reason why the study’s findings should be dismissed because of the publication date. An estimate of total nest density does not depreciate.

It is true the two studies I relied on do not occur near the project site. For this reason, I assumed the average total nest density to be 50% of what the studies reported.

Moreover, it is not of critical importance whether my estimated number of nest sites is 100% accurate; the important point is to show the magnitude of the impact – an impact that the DEIR does not analyze at all. The Response had the opportunity to provide an alternative prediction of the impacts, but it fails to do so.

Response IND 4-4-9b: As is reported in the Draft EIR, almost half of the Project site supports non-native vegetation communities, which are expected to provide low-quality habitat for special-status wildlife species (see Appendix D, Table 2 and Figure 3, and Appendix B, Photo Exhibit, of Appendix D of the Draft EIR). The native vegetation that is present on site is highly disturbed and fragmented and also is expected to provide limited value in meeting essential life functions of most wildlife species, including special-status species that may be present in the Project vicinity. Nevertheless, the loss of habitat associated with the Project could impact special-status wildlife species occupying the Project site and these potential impacts are analyzed in the Draft EIR (see Section 3.3.6 and Appendix D).

Rebuttal: The Response throws out multiple reasons why Dudek (2024) should not have detected 64 species of wildlife where the Response says highly disturbed and fragmented non-native vegetation provides limited value to the essential life functions of most wildlife and low-quality habitat to special-status species. At such a site, it is a wonder how Dudek could have detected so many species -- the largest number of wildlife species I have on record for Dudek’s surveys among 20 project sites. It is a wonder that our combined surveys total 87 species of vertebrate wildlife. But it is not a wonder after one recognizes the Response’s premise as speculation. The Response cites no evidence that non-native vegetation limits wildlife or that the habitat of special- status species is of low quality. Habitat quality is represented by productivity metrics such as fecundity or nest success, but no such metric is cited. Nor is there any definition or description of habitat fragmentation or what are supposed to be essential life functions. The Response’s characterization of the project site appears dire, but its terms lack meaning, and its consequences to wildlife are readily refuted by survey results.

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Response IND 4-4-9c: The Draft EIR analyzes direct impacts due to habitat loss for 3 special-status species: loggerhead shrike, Crotch’s bumble bee, and coastal whiptail (see pp. 3.3-21 through 3.3-23). As is stated in the Draft EIR, while loggerhead shrike may nest on the Project site, habitat on site is highly disturbed and suitable vegetation for nesting by this species is limited on the Project site (p. 3.3-22). The Draft EIR points out that an abundance of high-quality nesting habitat is present in the Project vicinity, including throughout the approximately 1,673-acre Conejo Canyons Open Space adjacent to the Project site (p. 3.3-23). The Draft EIR does not consider these high- quality habitat areas to be unoccupied, as the comment suggests. On the contrary, because these areas provide an abundance of high-quality nesting and foraging opportunities, they are presumed to be utilized by loggerhead shrike. It is in part because these areas provide high quality habitat and are presumed to be utilized, including for nesting, that the Draft EIR concludes that the loss of approximately 25.55 acres of potentially suitable nesting habitat for this species would not substantially reduce the habitat for the species and would not cause the species population to drop below self-sustaining levels and, therefore, that direct impacts to this species due to the loss of potentially suitable habitat are less than significant. Similar conclusions are made in the Draft EIR for Crotch’s bumble bee and coastal whiptail: Because abundant suitable habitat for these species is present in the Project vicinity, which is presumed to be utilized by these species, the loss of approximately 49.53 acres of potentially suitable habitat for Crotch’s bumble bee and the loss of approximately 25.55 acres of potentially suitable habitat for coastal whiptail would not substantially reduce the habitat for these species and would not cause these species populations to drop below self-sustaining levels; therefore, direct impacts to these special-status species due to the loss of potentially suitable habitat is less than significant (see pp. 21-22 of the Draft EIR).

Rebuttal: Continuing the pattern of the first part of this Response, the Response relies on speculation applied to distorted ecological terminology to ultimately deny the findings of the surveys. There is no such thing as suitable habitat, because there is no such thing as unsuitable habitat (Krausman 2016). The term suitable habitat, which is used throughout the Response, is redundant and misleading. Habitat is defined as that part of the environment required for survival and reproduction of its members (Hall et al. 1997), and it is determined scientifically through observation of occurrences and use (Smallwood 2002). Loggerhead shrike, Crotch’s bumble bee, and coastal whiptail were all detected in habitat adjacent to the project site. The close proximity of these species to the project footprint raises the likelihoods of occurrence of each of these species to a much higher level (see Figure 2 herein). When addressing rare or precious resources of which these species qualify, the appropriate action is to err on the side of caution consistent with the Precautionary Principle (National Research Council 1986), which in this case means to assume these species are present on the project site.

Response IND 4-4-9d: It is assumed that the comment refers to common bird species as well as special-status bird species in its prediction of annual bird loss.

Rebuttal: By common bird species, I assume the Response refers to species that lack special status. Many such bird species are not common, and are in fact rare.

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My comments made very clear that my prediction refers to all bird species. And I wrote, “Most if not all of these birds are protected by the federal Migratory Bird Treaty Act and by California’s Migratory Bird Protection Act, both of which most strongly protect breeding migratory birds.”

Response IND 4-4-9e: As is reported in the Draft EIR, although the Project site is highly disturbed, it likely provides marginal nesting opportunities for common bird species (see p. 3.3-22).

Rebuttal: Again, the Response relies on speculation. A sounder foundation could have been obtained by performing surveys for nesting birds. Of the many bird species detected by Dudek on the project site, Dudek (2024) does not report what these birds were doing on the project site. If any of them displayed behaviors indicative of nesting, Dudek (2024) does not report it.

Response IND 4-4-9f: Compliance with the Migratory Bird Treaty Act and California Fish and Game Code would be achieved through implementation of MM-BIO-1 (Worker Education and Awareness Program), MM-BIO-2 (Biological Monitoring), and MM-BIO- 9 (Nesting Bird Avoidance), which places seasonal restrictions on construction and, in instances where those restrictions are not feasible, requires preconstruction nesting bird surveys to be conducted during the breeding season and avoidance of active nests.

Rebuttal: The seasonal restriction on construction is an aspirational condition that is unenforceable as written. As for the WEAP, construction workers should not be expected to look out for birds while they are working around heavy machinery and moving vehicles. The WEAP would provide de minimis conservation value to birds relative to the project’s impacts.

Response IND 4-4-9g: The reduction in future nesting opportunities due to habitat loss for common bird species protected under the Migratory Bird Treaty Act and California Fish and Game Code is not a violation of either of these regulations since the loss of future nesting opportunities would not result in the loss of an active nest.

Rebuttal: The primary CEQA objective regarding biological resources is to analyze potential project impacts to special-status species and their habitats. According to Section 21002.1 of the CEQA Guidelines, “The purpose of an environmental impact report is to identify the significant effects on the environment of a project,” and according to Section 21061, an EIR needs to provide “detailed information about the effect which a proposed project is likely to have on the environment.” Birds protected by the federal MBTA and California MBPA are special-status species, but even if one does not regard all migratory birds as special-status species, they nevertheless compose a significant part of the environment and they compose part of the habitat of special- status species. It is CEQA’s primary objective and part of the purpose of an EIR to analyze potential impacts to birds. The City’s claim that only harm to an active nest violates the law is a poor and inadequate excuse for bypassing the analysis of potential project impacts on birds. In other words, the Response treats its interpretation of the MBTA’s take standard as some sort of exemption against completing its environmental 94 22

review. The MBTA take standard does not eliminate the City’s responsibility to achieve CEQA’s primary objective to analyze potential project impacts to special-status species and their habitats.

Response IND 4-4-9h: The Draft EIR concludes that impacts due to habitat loss is less than significant (see Section 3.3.6 of the Draft EIR). Because this impact was determined to be less than significant, no mitigation is incorporated into the Draft EIR to minimize or avoid this impact. The Draft EIR also concludes that the loss of 25.55 acres of chaparral and coastal scrub communities could be significant, absent mitigation, due to a conflict with General Plan Conservation Element policy C-5.2, although not required to mitigate impacts due to the loss of habitat, mitigation measure BIO-12 in the Draft EIR requires the enhancement of a total of 25.5 acres of native plant communities, including 0.23 acres of chaparral communities and 23.1 acres of coastal scrub communities, providing 1:1 mitigation for the loss of these native communities (see p. 3.3-39).

In summary, direct impacts resulting from the loss of habitat are addressed in the Draft EIR, with the conclusion that, because the loss of habitat on site would not substantially reduce the habitat for special status species and would not cause special-status species populations to drop below self-sustaining levels, direct impacts resulting from habitat loss would not have a substantial adverse effect on special-status wildlife species and are less than significant. In addition, implementation of mitigation measure BIO-12 would result in 1:1 mitigation for the loss of chaparral and coastal scrub communities.

Therefore, the Draft EIR does not need to be revised or recirculated. No additional response is required.

Rebuttal: The Response relies on what the City believes is a technicality to skip the analysis of potential project impacts to avian productivity. This technicality is bogus, and its use is a rejection of both the CEQA’s primary objective regarding biological resources and the purpose of an EIR. Nest sites can be just as active as the nest structure, but it is only to the latter that the City applies its interpretation of the MBTA’s take standard and CDFW’s definition of a nest. But this is not necessarily the CDFW’s definition of a nest.

In 2015, the CDFW proposed to change the definition of nest in California Fish and Game Code Section 3503.5, because CDFW was concerned that the term “nest” is ambiguous; some biologists regard the nest as a structure built or maintained to support chicks and eggs, whereas others regard a nest to include surrounding habitat, and still others regard the nest as a multi-year provider of protection for eggs and chicks. The latter two versions of the nest definitions are consistent with the popular notion among ecologists and wildlife biologists that nests in the wild are meaningless to birds out of context of the habitats in which nests function. And because birds often exhibit higher fidelity to nest sites than they do to particular nest structures, the nest site has emerged as the more ecologically stable nest construct. Nests are easily rebuilt, and nests often must be rebuilt due to damage between years or because they accumulate parasites or the attention of predators, but nest sites reflect the breeding birds’ familiarity and trust in the local environment. Nest sites also connect breeding birds that occur on a nest 95 23

today with the site’s productive capacity looking forward. The taking of a nest site translates into taking the reproductive capacity of birds that would have relied on that nest site. The nest site is a critical component of the life of a bird; without the nest site there is no bird, or worse yet, there are no birds for years to come.

I used birds as my example of the analysis needed in the EIR to analyze potential project impacts to productive capacity to wildlife. The same type of approach needs to be repeated for mammals, reptiles, amphibians and arthropods. And a mitigation strategy needs to be formulated to reduce impacts to less than significant. One strategy might be to reduce the project’s construction footprint. Another might be to protect nearby habitat at a 5:1 ratio to achieve a no-net-loss standard.

Lastly, I noticed that the Response fails to respond to my comment on losses to species richness and wildlife abundance that were measured in Smallwood and Smallwood (2023). Measured losses were substantial and highly significant, and they are predictive of what would happen to wildlife as a result of the project.

Response IND 1-5: See Chapter 9 Response to Comments, Responses IND-4-4-8 and IND-4-4-12 of the Final EIR.

Rebuttal: This Response refers me to Responses IND-4-4-8 and IND-4-4-12. I do not understand why I am referred to IND-4-4-8, but below is my rebuttal to Response IND- 4-4-12.

Response IND 4-4-12: The comment states that the Draft EIR does not analyze potential impacts on wildlife due to nighttime lighting after the Project is completed.

Photometric Plans for the proposed Project can be found in Appendix B. As noted on page 2-12 of the Draft EIR, all light sources associated with the Project would be shielded and directed downward. Lighting would be designed to improve safety and to add visual interest to the Project site, including accentuating key landscape and architectural features and incorporated into business signage.

The Draft EIR identifies lighting as a potential long-term indirect impact to special- status wildlife after development is complete (p. 3.3-23) and includes mitigation measure BIO-10 (Lighting) to reduce these impacts to a less than significant level. As is described in Section 3.3.6 of the Draft EIR, pp. 3.3-30 through 3.3-31, with implementation of MM-BIO-10, exterior lighting on finished buildings shall be designed to minimize upward-directed lighting and Project design shall minimize the duration and amount of exterior and interior lighting to be in accordance with the Thousand Oaks Municipal Code (TOMC) and any other related federal and state regulations, such as California Code of Regulations Title 24. TOMC Sections 9-4.2405(b) regarding off- street parking, and 9-4.2308(b) regarding signage, outline the provisions for the installation and operation of outdoor lighting. The California Building Code, Chapter 10, Section 1008.2.3 provides mandatory illumination requirements from a building’s exit to the public way. Additionally, the Green Building Code, Chapter 5, Section 106.8, provides mandatory nonresidential light pollution reduction requirements related to 96 24

backlight, uplight and glare. Mitigation measures BIO-10 also requires lighting design standards to be incorporated pursuant to prevent illumination of wildlife habitats, construction activities shall be limited to the time between dawn and dusk. If construction activity time restrictions are not possible, down shielding or directional lighting will be used to avoid light trespass into adjacent natural open space areas. With implementation of mitigation measure BIO-10, the Draft EIR concludes that impacts related to nighttime lighting would be less than significant (p. 3.3-24). Therefore, the Draft EIR does not need to be revised or recirculated. No additional response is required.

Rebuttal: The Response, like the DEIR, is entirely speculative in its implication that the required mitigation measures would sufficiently minimize artificial light impacts on wildlife. No study is cited on the efficacy of the required measures. No example is cited of another project having implemented the same measures and to achieve less-than- significant impacts. In fact, many of the projects revisited in our study of development impacts on wildlife consisted of warehouses that came with similar mitigation requirements to minimize impacts on wildlife, but we found no evidence that the measures were effective (Smallwood and Smallwood 2023). Have the DEIR’s mitigation measures to minimize lighting impacts been measured more directly anywhere?

Response IND 1-6: See Chapter 9 Response to Comments, Responses IND-4-4-8 and IND-4-4-10 of the Final EIR.

Rebuttal: I do not understand why I am referred to IND-4-4-8, but below is my rebuttal to Response IND-4-4-10.

Response IND 4-4-10: The comment states that the Draft EIR does not provide a sampling regime or program of observation to record, quantify, or qualitatively assess wildlife movement patterns. The comment further states that the Draft EIR’s conclusions regarding wildlife movement are speculative and conclusory and states that the Draft EIR’s conclusions must be based on substantial evidence. Lastly, the comment requests that the Draft EIR be revised to include a technical assessment of wildlife movement patterns through the Project site.

“Substantial evidence,” as used in the CEQA Guidelines Section 15384, means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. The Draft EIR’s analysis of impacts to wildlife movement is not based on speculation, but rather information obtained during the literature review and observations in the field, as well as inferences made based upon that information.

Based on information obtained in the literature review, the Draft EIR points out that the 1,673-acre Conejo Canyons Open Space is a part of the Santa Monica-Sierra Madre Connection, a regionally recognized wildlife movement corridor identified in the South Coast Missing Linkages Project (p. 3.3-33). As is stated in the Draft EIR, the Santa Monica-Sierra Madre Connection provides one of the few coastal-inland connections remaining in Southern California and serves as the basis for a Habitat Connectivity and 97 25

Wildlife Corridors overlay zone established by Ventura County, which excludes all but

1.7 acres at the northern edge of the Project site (see p. 3.3-11 and Figure 3 of Appendix D of the Draft EIR). Based on the fact that the Project site was largely excluded from areas recognized for their habitat connectivity value and movement opportunities, combined with observations made in the field that differentiate the Project site from these surrounding high value areas, including high levels of disturbance and regular human use of the site, as well as the fact that the Project site is immediately adjacent to extensive development that constrains movement to the east and south, it was inferred that wildlife is more likely to utilize the higher quality habitat present in the open space to the north and west of the Project site for movement and dispersal (see p. 3.3-33). The Draft EIR recognizes that, despite these factors, the northern and western portions of the Project site could provide move-through habitat for wildlife utilizing the adjacent Conejo Canyons open space. Nevertheless, because of the fact that the Project site was not included in the adjacent open space areas recognized for their habitat connectivity and wildlife movement value, from which it can be inferred that the Project site provides comparatively less connectivity and movement value; because of the fact that the Project site is highly disturbed and subject to regular human use, diminishing any value it does provide for movement and dispersal; because highly urbanized areas to the east and south serve as a barrier to movement beyond the site; and because the adjacent Conejo Canyons Open Space, which is owned and managed by the Conejo Open Space Conservation Agency, would be expected to continue providing movement and dispersal opportunities in the future, the Draft EIR concluded that the loss of marginal movement and dispersal opportunities provided by the Project site would be less than significant (see p.3.3-33). Therefore, the Draft EIR does not need to be revised or recirculated. No additional response is required.

Rebuttal: The Response confuses scientific inference with speculation, but the difference is large between these two forms of logical processing. An inference is a conclusion derived logically from data that are available about a phenomenon, whereas a speculation is an inconclusive guess or the ponderance on a phenomenon without the benefit of data. The Response cites no data, so it is not drawing inferences from a literature review or from the adjacent land designations or from anything measured about wildlife movement on the project site. Just as was the case in the DEIR, the Response relies on speculation and leaps in logic.

Response IND 1-7: See Chapter 9 Response to Comments, Responses IND-4-4-8 and IND-4-4-11of the Final EIR.

Rebuttal: I do not understand why I am referred to IND-4-4-8, but below is my rebuttal to Response IND-4-4-11.

Response IND 4-4-11a: The comment states that impacts due to vehicle collisions with wildlife would be significant and are not addressed, discussed, or mitigated in the Draft EIR. The comment also predicts the Project would kill at least 3,600 vertebrates annually as a result of vehicle collisions. …The predictions made in the comment, which are not supported by information provided in the 2022 Smallwood Report, …

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Rebuttal: The Response fails to explain how my 2025 prediction of wildlife mortality is not supported by 2022 comment letter. I do not understand why my 2025 prediction should be supported by my 2022 comment letter, but the only difference is the predicted number of annual fatalities, which is 3,255 wildlife fatalities per year in my 2022 comment letter, and 3,600 wildlife fatalities per year in my 2025 comment letter. The difference between the two predictions derives from my re-analysis of the Mendelsohn et al. (2009) data after I acquired better carcass detection adjustment factors. Th e10% change in prediction is trivial with respect to the DEIR’s lack of analysis of the potential impact.

Response IND 4-4-11b: …are based on the results of a study conducted along a rural 2-lane highway that does not provide an appropriate comparison to the urbanized environment in which the majority of the Project’s vehicle miles traveled (VMT) would be expected.

Rebuttal: The Response fails to explain how or why my drawing of inference from the Mendelsohn et al. (2009) is inappropriate. See my definition of scientific inference under Response IND 4-4-10.

Response IND 4-4-11c: The Draft EIR has been revised to clarify that potential indirect impacts to special-status wildlife species, specifically related to vehicle collisions, would be less than significant in the Biological Resources Section

3.3.6/Impact 3.3-1. The text has been corrected as indicated in strikeout/underline format below. It should also be noted that feasible mitigation measures (TRAF-1 through TRAF-5) would be implemented to reduce the Project’s VMT impact to less than significant (see Section 3.12 of the Draft EIR). The additional text does not alter the Biological Resources analysis, does not provide new significant information in the Draft EIR, does not constitute new significant information, and does not alter the text of any Mitigation Measure. Therefore, the EIR analysis does not need to be recirculated. No additional response is required.

3.3.6 Impact Analysis
Impact 3.3-1: Would the Project either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special-status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S.

Fish and Wildlife Service? (Less than Significant with Mitigation)

Wildlife
Indirect Impacts
Impacts due to vehicle collisions with wildlife were analyzed. The Project is located along Rancho Conejo Boulevard and Conejo Center Drive (see p. 2-1).

Currently, existing industrial facilities line large portions of these roads. After completion of the Project, these roads would be surrounded on both sides by industrial development (see Figure ES-2) that provides little to no foraging or refugia value for wildlife and does not support the essential life functions of special status wildlife species potentially present in the area. Access routes to the 99 27

Project site from the south pass through highly urbanized areas provide little habitat value for wildlife and would not be expected to support special-status wildlife species. For these reasons, the Project’s impacts due to vehicle-wildlife collisions is expected to be minimal and less than significant.

Rebuttal: The new analysis, which is indeed based on significant new information contrary to the Response’s denial, is based on speculation. See the distinction I describe between inference and speculation in my rebuttal to Response IND 4-4-10.

The speculation in the new analysis is also inaccurate. I have many times found wildlife- vehicle fatalities on roads lined by industrial facilities. The raccoon in Photo 43 of my 2025 comment letter was located in just such a setting. Such settings can entrap wildlife that enter into them, who once they are on a road with no safe outlet are eventually run over by cars or trucks. In fact, I just completed a year of pedestrian surveys for wildlife fatalities on all roads in the City of Davis where I live. I have yet to fully analyze the data, but I preliminarily found no significant difference in wildlife fatalities/km on roads through industrial/commercial areas (Mean = 0.831, SD = 0.654) and residential areas (Mean = 1.198, SD = 0.952), but mortality was higher on roads through both these types of area as compared to roads through rural areas (Mean = 0.418, SD = 0.228).

Considering that the Mendelsohn et al. (2009) study was conducted on a rural road, it stands to reason that roads through industrial areas might be expected to kill more wildlife per mile of road.

Response IND 1-8: See Chapter 9 Response to Comments, Response IND-4-9 of the Final EIR.

Rebuttal: IND-4-9 does not address my comments on the DEIR’s cumulative impacts analysis, which I had commented as flawed.

Response IND 1-9: See Chapter 9 Response to Comments, Response IND-4-4-13 of the Final EIR.

Rebuttal: Below is my rebuttal to Response IND-4-4-13.

Response IND 4-4-13a: The comment states that the mitigation proposed in the Draft EIR is “…inadequate to reduce impacts from habitat loss and fragmentation, wildlife movement, traffic, and artificial lighting to less-than significant levels.” The comment also requests mitigation measures be added to the Draft EIR requiring the following: (1) protocol-level detection surveys for burrowing owl; (2) compensatory mitigation for habitat loss by protecting an equal or greater area of open space in perpetuity as close to the Project site as possible; (3) compensatory mitigation for traffic impacts by requiring monetary contributions to wildlife rehabilitation facilities; and (4) requiring California native plants for all landscaping.

The Draft EIR concludes that impacts due to habitat loss, interference with wildlife movement, and vehicle-wildlife collisions are less than significant (see Section 3.3.6 of the Draft EIR and Responses IND 4-4-9 IND 4-4-10, and IND 4-4-11). Because these 100
28 impacts were determined to be less than significant, no mitigation is incorporated into the Draft EIR to minimize or avoid these impacts. The Draft EIR also concludes that the loss of 25.55 acres of chaparral and coastal scrub communities could be significant, absent mitigation, due to a conflict with General Plan Conservation Element policy C-

5.2, although not required to mitigate impacts due to the loss of habitat, mitigation measure BIO-12 in the Draft EIR requires the enhancement of a total of 25.5 acres of native plant communities, including 0.23 acres of chaparral communities and 23.1 acres of coastal scrub communities, providing 1:1 mitigation for the loss of these native communities (see p. 3.3-39). As is discussed in Response IND 4-4-12, the Draft EIR concludes that long-term indirect impacts to special-status wildlife due to development- related nighttime lighting would be less than significant with the implementation of mitigation measure BIO-10 (see p. 3.3-24).

The Draft EIR concludes that impacts due to habitat loss is less than significant (see Section 3.3.6 of the Draft EIR). Because this impact was determined to be less than significant, no mitigation is incorporated into the Draft EIR to minimize or avoid this impact. The Draft EIR also concludes that the loss of 25.55 acres of chaparral and coastal scrub communities could be significant, absent mitigation, due to a conflict with General Plan Conservation Element policy C-5.2, although not required to mitigate impacts due to the loss of habitat, mitigation measure BIO-12 in the Draft EIR requires the enhancement of a total of 25.5 acres of native plant communities, including 0.23 acres of chaparral communities and 23.1 acres of coastal scrub communities, providing 1:1 mitigation for the loss of these native communities (see p. 3.3-39).

Rebuttal: This part of the Response repeats earlier Responses to which I already replied. In fact, nearly the entire paragraph is copied nearly verbatim from Response IND 4-4-9h. Please see my rebuttal to Response IND-4-4-9h.

Response IND 4-4-13b: As is described in the Draft EIR, based on observations during surveys of the Project site, the study area lacks the open grassland habitat and does not contain abundant ground squirrel burrows preferred and utilized by this species (see Appendix D, Table 4). Neither the species nor its sign was observed during several surveys conducted of the Project site and the surrounding areas and, due to previous grading and other disturbance, soils on site are compacted and very few burrows were observed, none of which were suitable for burrowing owl (i.e., approximately 4 inches or greater at the entrance) (see Appendix D, p. 34). For these reasons, the Draft EIR determined that burrowing owl is not expected to nest or winter on site; therefore, this species is not expected to be impacted by the Project and mitigation is not included in the Draft EIR (see Appendix D, p. 34).

Rebuttal: This Response largely repeats Response IND-4-4-6e. Please see my rebuttal to Response IND-4-4-6e.

Response IND 4-4-13c: The Draft EIR includes mitigation measure BIO-6 to reduce potentially significant indirect impacts due to the introduction of non-native invasive plant species (see p. 3.3-24). Mitigation measure BIO-6 states that invasive plant species on the California Invasive Plant Council inventory shall not be included in Project 101
29 landscaping palettes and Project landscaping palettes shall be reviewed and approved by the City to ensure that invasive plant species are excluded (see p. 3.3-26). Additional mitigation requiring that landscaping include California native plants only is not necessary to reduce impacts to less than significant. Therefore, the Draft EIR does not need to be revised or recirculated. No additional response is required.

Rebuttal: As I commented on BIO-6, “This measure should be implemented.

Nonetheless, it would achieve very small conservation benefits for wildlife compared to the project’s impacts. It would do nothing to avoid habitat loss and habitat fragmentation.”

Thank you for your attention,

______________________
Shawn Smallwood, Ph.D.

LITERATURE CITED

CDFW (California Department of Fish and Wildlife). 2012. Staff Report on Burrowing Owl Mitigation. Sacramento, California.

Dudek. 2024. Biological resources technical report Conejo Summit. Prepared for Thousand Oaks Master, LLC, Porter Ranch, California.

Hall, L. S., P. R. Krausman, and M. L. Morrison. 1997. The habitat concept and a plea for standard terminology. Wildlife Society Bulletin 25:173-82.

Krausman, P. R. 2016. Another Plea for Standard Terminology. Journal of Wildlife Management 80:1143–1144. DOI: 10.1002/jwmg.21121

Mendelsohn, M., W. Dexter, E. Olson, and S. Weber. 2009. Vasco Road wildlife movement study report. Report to Contra Costa County Public Works Department, Martinez, California.

National Research Council. 1986. Ecological knowledge and environmental problem- solving: concepts and case studies. National Academy Press, Washington, D.C.

Smallwood, K.S. 2002. Habitat models based on numerical comparisons. Pages 83-95 in Predicting species occurrences: Issues of scale and accuracy, J. M. Scott, P. J.

Heglund, M. Morrison, M. Raphael, J. Haufler, and B. Wall, editors. Island Press, Covello, California.

Smallwood, K. S. and M. L. Morrison. 2018. Nest-site selection in a high-density colony of burrowing owls. Journal of Raptor Research 52:454-470.

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30 Smallwood, K. S., and N. L. Smallwood. 2023. Measured effects of anthropogenic development on vertebrate wildlife diversity. Diversity 15, 1037. https://doi.org/10.3390/d15101037.

USFWS (United States Fish and Wildlife Service). 1995. Migratory nongame birds of management concern in the United States: The 1995 list. Office of Migratory Bird Management, U.S. Fish And Wildlife Service, Washington, D.C.

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From: Adrian Taghdiri <[email protected]>
Sent: Monday, October 6, 2025 5:15 PM
To: Scott Kolwitz <[email protected]>
Cc: DuRoss, Patrick <[email protected]>
Subject: Conejo Summit Letter (Newmark)

CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Scott,

Please find attached letter to add to the file for the City Council hearing from Newmark.

Patrick DuRoss, the author of the letter, is included in this email. Thank you, Scott.

Regards,

Adrian Taghdiri
Shapell Properties
Senior Director,
Acquisitions &
Development
D: 323-988-7541 | M:
310-490-7906
[email protected]
1990 S. Bundy Drive, Suite 500
Los Angeles, CA 90025
shapell.com

104

October 6, 2025

City of Thousand Oaks
City Council
2100 Thousand Oaks Blvd.

Thousand Oaks, CA 91362

Re: Support for the Conejo Summit Project Height Waiver

Dear Honorable Members of the City Council:

I am writing to express my strong support for the proposed Conejo Summit project currently under entitlement in Thousand Oaks, California.

I serve as Vice Chairman in Newmark’s Calabasas office, specializing in advising occupiers and investors on the sale, leasing, and development of industrial and R&D properties throughout the North Los Angeles region. Over the course of more than 20 years, I have represented both tenants and landlords in transactions involving large corporations and complex projects totaling more than 49 million square feet and valued in excess of $3.5 billion. This experience has afforded me the opportunity to become one of the leading advisors in this submarket, which includes the area where the Conejo Summit project is located.

My team has worked with the applicant in an advisory capacity on this project for nearly eight years. Throughout this time, we have provided input on the design to ensure maximum flexibility and the ability to attract a wide range of best-in-class businesses consistent with the vision outlined in the Thousand Oaks 2045 General Plan. The proposed design further incorporates key features that appeal to modern tenants, including an enhanced parking ratio, dock -high loading doors, and industry-standard clear height recommendations.

My team strongly support s the requested height waiver for the Conejo Summit project, as it will allow the developer to accommodate 32-foot clear height buildings. In today’s industrial real estate market, 32- foot clear height has become an essential standard. Buildings constructed below this threshold are increasingly unable to compete for the high- quality uses contemplated under the Thousand Oaks 2045 General Plan for this area.

The benefits of a 32-foot clear height are significant:

• Maximized Storage Capacity – 32' clear height allows additional pallet positions and higher racking, significantly increasing cubic storage compared to even 30' clear height. That extra two feet can mean an entire additional rack level, which translates directly into more capacity and efficiency.

• Improved Operational Efficiency – Higher ceilings enable tenants to consolidate inventory, streamline material flow, and reduce overall costs.

• Alignment with Tenant Expectations – Many modern users now require a minimum of 32’ of clearance.

Facilities with only 30’ are often screened out during site selection processes.

• Support for Automation and Innovation – Robotics, AS/RS systems, and mezzanine solutions are designed for high-bay environments, making 32’ the practical entry point for automation and ensuring future adaptability.

• Advanced Manufacturing Demand – Many of today’s advanced manufacturing companies require ceilings above 30’ to accommodate modern manufacturing processes, equipment, product flow, and operating systems.

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• Ancillary Office Space within the Building Footprint – High ceiling environments in this area are a critical component for many first -class tenants, who require best -in-class office areas. This is a critical element to attracting high image companies.

In short, 32-feet represents the competitive threshold for modern facilities. While the difference between 30 and 32- feet may appear minor, in practice it determines whether a facility can meet the demands of today’s tenants.

Without this height waiver, it will be extremely difficult to attract the caliber of tenants needed to realize the City’s and developer’s shared vision of a vibrant, job-creating project, bringing meaningful economic and employment benefits to the Thousand Oaks community.

Thank you for your thoughtful consideration.

Sincerely,

Patrick DuRoss, SIOR
Vice Chairman

24025 Park Sorrento
Suite 480
Calabasas, CA 91302
t 818-921-8526
nmrk.com

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350 South Grand Avenue, 51st Floor
Los Angeles, CA 90071-1410
213-576-1000 | Fax: 213-576-1100

Alston & Bird LLP www.alston.com
Atlanta | Beijing | Brussels | Charlotte | Dallas | Los Angeles | New York | Raleigh | San Francisco | Silicon Valley | Washington, D.C.

Edward J. Casey Direct Dial: 213-576-1005 Email: [email protected]

October 20, 2025
Scott Kolwitz
Senior Planner
Community Development Department
2100 Thousand Oaks Blvd.

Thousand Oaks, CA 91362

R
e: Conejo Summit Business Park—SAFER Appeal

Dear Scott Kolwitz,

On behalf of the applicant and developer (“Applicant”) for the Conejo Summit Business Park (“Project”), I submit this letter to address a key misstatement of the law made by the Supporters Alliance For Environmental Responsibility (“SAFER”) 1 in its
letter dated October 16, 2025, submitted in support of its appeal of the Planning Commission decision to approve the Project.

In support of its challenge to the evaluation of the Project’s potential impacts to biological resources provided in the City's Environmental Impact Report (“EIR”), which is supported by multiple technical reports prepared by the biology experts at Dudek, SAFER advances an interpretation of an aspect of Appendix G to the CEQA Guidelines that is both inconsistent with the facts as well as the law, including a 2024 decision by a Court of Appeal.

1 SAFER is a non-profit organization established and led by a construction union, the Southern District Council of Laborers, as reported by the Daily Journal. Refer to the article at this link. https://www.dailyjournal.com/article/379577-union-linked-group-challenges-project-s- ceqa-exemption
LEGAL02/47521286v1
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Scott Kolowitz
October 20, 2025

The EIR and associated biological technical reports evaluated whether the Project would significantly impact any species that is considered to be “endangered, rare or threatened” as that term is defined under CEQA Guideline 15380. Guideline 15380 defines that term as follows--
“(b) A species of animal or plant is:
(1) "Endangered" when its survival and reproduction in the wild are in immediate jeopardy from one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, disease, or other factors; or
(2) "Rare" when either:
(A) Although not presently threatened with extinction, the species is existing in such small numbers throughout all or a significant portion of its range that it may become
endangered if its environment worsens; or
(B) The species is likely to become endangered within the foreseeable future throughout all or a significant portion of its range and may be considered "threatened" as that term is used in the Federal Endangered Species Act.
(c) A species of animal or plant shall be presumed to be endangered, rare or threatened, as it is listed in:
(1) Sections 670.2 or 670.5, Title 14, California Code of Regulations; or
(2) Title 50, Code of Federal Regulations Sections 17.11 or

17.12 pursuant to the Federal Endangered Species Act as rare, threatened, or endangered.
(d) A species not included in any listing identified in subdivision (c) shall nevertheless be considered to be
endangered, rare or threatened, if the species can be shown to meet the criteria in subdivision (b).”

Thus, the definition of a “endangered, rare or threatened” species under Guideline 15380 includes species that either have already been listed by a regulatory agency as endangered, rare or threatened (refer to subdivision (c) of Guideline 15380), or have not been listed but meet the factual criteria set forth in subdivision (b).

Apparently recognizing that the EIR and supporting technical reports evaluated all species that meet the definition of “endangered, rare or threatened” under Guideline 15380, SAFER instead advocates for an unduly broad interpretation of one aspect of 108
Scott Kolowitz
October 20, 2025

Appendix G to the CEQA Guidelines. Appendix G is used by lead agencies when preparing an EIR to evaluate the potential impacts listed in Appendix G. With respect to potential impacts to biological resources, SAFER focuses on the following question posed by Appendix G—would the proposed project "have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service?” The very language of this part of Appendix G undercuts SAFER’s argument.

First, while SAFER argues that this part of Appendix G is broader than the definition of “endangered, rare or threatened” under Guideline 15380, it is actually narrower because this part of Appendix G requires that the species be listed or identified in a plan adopted by a regulatory agency, while a species can be endangered, rare or threatened under subdivision (b) of Guideline 15380 even if not listed on a regulatory plan.

Second, Appendix G is expressly limited to certain types of plans, specifically plans that identify the species as a “candidate, sensitive or special status” species. Trying to satisfy that express requirement, SAFER and Dr. Smallwood seek to rely on a list prepared by United States Fish and Wildlife (USFW) called the “Birds of Conservation Concern” and a list by the California Dept. of Fish & Wildlife’s called a “Watch List.” However, neither of those lists identify species as a candidate to be listed as endangered, rare or threatened, but merely that a species “may” become a candidate to be listed as endangered, rare or threatened in the future, if it all.

Such speculation as to the future listing status of a species does not qualify a species as endangered, rare or threatened within the meaning of CEQA—as recently held in a case where the plaintiff challenging the project was represented by the same law firm 109
Scott Kolowitz
October 20, 2025

representing SAFER in this appeal and where the plaintiff retained Dr. Smallwood as its expert. In Nassiri vs. City of Lafeyette (a copy of which is attached to this letter as Exhibit A), the plaintiff submitted a report from Dr. Smallwood that opined that “special-status species (which he defines as including Bird Species of Conservation Concern), are by definition rare” under CEQA. (Refer to page 12 of the attached appellate court opinion.) (Notably, Dr. Smallwood made this argument in that case as to the Oak titmouse, which he opines should be considered as a sensitive species in the instant appeal filed by SAFER.) In contrast, the lead agency’s biological expert opined that the factual conditions needed for such species to meet the criteria in subdivision (b) of Guideline 15380 were not present at the project site. (Refer to page 12-13 at Exhibit A hereto.) Accordingly, the lead agency concluded that such species were not “rare” within the meaning of CEQA Guideline 15380(b). Nor did the Court require that the species identified by Dr. Smallwood be evaluated pursuant to Appendix G. Instead, the Court of Appeal upheld the lead agency’s determination as to no significant impacts to biological resources. (Refer to pages 13 to 14 of the appellate decision.) Indeed, by relying solely on USFW’s Birds of Conservation Concern, the Court expressly found that the plaintiff’s attorney and Dr. Smallwood “quoted just a portion of subdivision (b)(2)(A).” A proper interpretation of subdivision (b) has to look at the factual criteria set forth in that part of Guideline 15380 to determine if a species is considered “rare” under CEQA. In the EIR and Dudek’s numerous technical reports and responses, the City has properly evaluated those factual criteria and determined which species are rare and not rare. While SAFER and Dr. Smallwood may disagree with those expert determinations, a disagreement among experts is not a basis to invalidate an EIR. (Refer to CEQA Guideline 15151.) 110
Scott Kolowitz
October 20, 2025

Therefore, the Applicant respectfully requests that the City Council reject SAFER’s appeal.

Sincerely,

Edward J. Casey

cc: Adrian Taghdiri (via email)

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EXHIBIT A
112
1 Filed 6/27/24; pub. & mod. order 7/18/24 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

NAHID NASSIRI,
Plaintiff and Appellant,
v.

CITY OF LAFAYETTE, et al.,
Defendants and Respondents;
3721 LAND LLC,
Real Party in Interest
and Respondent.

A165324

(Contra Costa County
Super. Ct. No. MSN201971)

This appeal concerns a proposal by a developer to construct a 12-unit residential condominium building in downtown Lafayette, California on a parcel that is mostly occupied by a vacant convalescent hospital, which is now in disrepair. After a lengthy planning process, the City of Lafayette, the Lafayette City Council, and the Lafayette Planning Department (collectively City) determined that the proposed condominium project was exempt from review under the California Environmental Quality Act (Pub. Resources 113
2 Code, § 21000 et seq., CEQA) because it qualified as infill development under the CEQA Guidelines. (Cal. Code Regs., tit. 14, § 15332.1) Nahid Nassiri, who owns an office building adjacent to the project site, filed a petition for writ of mandate challenging the approval of the project, which the trial court denied. In this appeal, Nassiri argues that the project does not qualify for the infill development exemption because the project site has value as habitat for rare species and because approval of the project would result in significant effects related to air quality. (Guidelines, § 15332, subds. (c) & (d).) Nassiri also makes an argument she did not make in the trial court that the “unusual circumstances” exception applies to the project, so the project does not qualify for the infill development exemption. (Id., § 15300.2, subd. (c).) We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND
A. CEQA Overview
“CEQA is a comprehensive scheme designed to provide long-term protection to the environment.” (Mountain Lion Foundation v. Fish & Game Commission (1997) 16 Cal.4th 105, 112.) CEQA generally applies to “discretionary projects proposed to be carried out or approved by public agencies.” (§ 21080, subd. (a).)
In the first step of the CEQA process, a public agency determines whether a proposed activity is a “project,” defined as including any activity that may cause a physical change in the environment and that involves the agency’s issuance of a permit, license, or certificate. (§ 21065, subd. (c); Guidelines, § 15378, subd. (a)(3); see Protect Tustin Ranch v. City of Tustin

1 All further undesignated statutory references are to the Public Resources Code. We refer to the CEQA Guidelines (Cal. Code Regs., tit. 14, §§ 15000-15387) as the Guidelines.
114
3 (2021) 70 Cal.App.5th 951, 959 (Tustin Ranch) [outlining the multi-step CEQA process].)
But not every project is subject to CEQA review. If the agency determines that the activity is a “project,” it then determines whether the project is exempt from the CEQA review process under a statutory or categorical exemption, such as the categorical exemption in Guideline section 15332 for “infill” development. (Tustin Ranch, supra, 70 Cal.App.5th at p. 959.) A project qualifying for the infill development exemption must meet these five conditions: “(a) The project is consistent with the applicable general plan designation and . . . policies as well as with applicable zoning designations and regulations. [¶] (b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. [¶] (c) The project site has no value as habitat for endangered, rare or threatened species. [¶] (d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. [¶] (e) The site can be adequately serviced by all required utilities and public services.” (Guidelines, § 15332.) Categorical exemptions themselves are subject to exceptions, including the so-called “unusual circumstances” exception set forth in Guidelines section 15300.2, subdivision (c). A project that is categorically exempt and does not fall within an exception “is not subject to CEQA requirements and ‘may be implemented without any CEQA compliance whatsoever.’ ” (Association for Protection of Environmental Values v. City of Ukiah (1991) 2 Cal.App.4th 720.)
B. Project Application and Review
In May 2018, 3721 Land LLC (who we will refer to as the developer) applied to the City to demolish a vacant building on Mt. Diablo Boulevard, 115
4 and construct a new 4-story, 13-unit condominium building (the project). The property on which the vacant building stands is about 0.3 of an acre and relatively flat, with a creek along the southern property line. The existing building takes up most of the site. There are no trees within the proposed building footprint, and the trees adjacent to the creek would remain standing.

Commercial buildings flank the property on either side and across Mt. Diablo Boulevard; single-family residences lie beyond the creek to the south.

The developer’s application was subjected to an extensive public review process, including two hearings before the Planning Commission and two hearings before the Design Review Commission, at all of which public comment was received.

By the time of the Planning Commission’s second meeting, in April 2020, the project had been modified in several respects, including eliminating one of the fourth-floor units, which reduced the project to 12 units.2 At the April 2020 meeting, the Planning Commission found that the project is exempt from CEQA review as an infill development project under Guidelines section 15332 based on the record before it, which included an August 2019 biological resources report by Mosaic Associates and a February 2020 CEQA exemption memo, both submitted by the developer. The Planning Commission forwarded the project to the City Council with a recommendation to approve the application subject to conditions.

Review of the project continued at a hearing before the City Council on May 11, at which further public comments were received. The City Council continued the matter to June 22 to allow staff to respond to the comments, including written comments submitted by Nassiri, who owns an office

2 All subsequent dates are in 2020 unless otherwise stated. 116
5 building adjacent to the site of the proposed project. Through her attorney, Nassiri had retained consultants to opine on the applicability of the infill development exemption, and the consultants’ comments were included in her written submission.

The City reviewed the public comments, including further submissions by Nassiri’s attorney, and also reviewed further submissions by the developer that included responses to Nassiri’s consultants. The City Attorney’s Office prepared a memorandum dated June 18, concluding that Nassiri had not provided substantial evidence to support her claim that the project was not exempt under the infill development exemption, and further concluding that substantial evidence supported the City’s application of the exemption to the project.

On June 22, Nassiri submitted additional comments, including more reports from her consultants. After a public hearing that day, the City Council adopted a resolution finding the project exempt from CEQA and approved the project, subject to conditions.

On July 2, the City filed a Notice of Exemption from CEQA review under Guidelines section 15332. The stated reasons for the exemption include that the proposal is consistent with the general plan, zoning and density bonus regulations; the site “is currently developed with structures and is not known to have any values as habitat for endangered, rare or threatened species”; and “the proposal will not significantly impact . . . air quality.” In other words, in the City’s view, the conditions for the infill development exemption had been met.

C. Proceedings in the Superior Court
Nassiri first petitioned the Contra Costa Superior Court to stop the project in December 2020. In June 2021, Nassiri filed a First Amended 117
6 Verified Petition for Writ of Mandate against the City and the developer, alleging that the City’s approval of the project violated CEQA.3 After the parties briefed the merits and the trial court held a hearing, the court granted the petition as to Nassiri’s CEQA cause of action based on its finding that substantial evidence did not support the City’s determination that “[t]he project site has no value, as habitat for endangered, rare or threatened species.” The court rejected Nassiri’s other CEQA claims, specifically, that the project was inconsistent with the City’s general plan and zoning code, that the City’s finding that the project would not result in significant effects relating to air quality was not supported by substantial evidence, and that the City’s requirement for a pre-construction survey for nesting birds was a mitigation measure that prevented the City from finding the project exempt from CEQA.

The developer filed a motion for new trial, in which the City joined, arguing that in light of Tustin Ranch, supra, 70 Cal.App.5th at pp. 959-961, which addressed the meaning of “project site” in Guidelines section 15332, subdivision (b), that same term in Guidelines section 15332, subdivision (c), should be properly understood as including only part of the 0.3 acre on which the project would be located. The developer argued that the only potential habitat for rare birds on the parcel was an area that was not part of the “project site” under Tustin Ranch, because no demolition or construction activities would occur in that area. Therefore, according to the developer, substantial evidence supported the City’s determination that “[t]he project

3 The petition also alleged violation of the California Density Bonus Law (Gov. Code, § 65915), and the City’s story pole requirement. Nassiri does not challenge the trial court’s denial of her petition with respect to those causes of action, and we do not discuss them further.
118
7 site has no value as habitat for endangered, rare or threatened species” under Guidelines section 15332, subdivision (c).

The trial court granted the motion for new trial based on its finding that there was substantial evidence in the record that the “project site” as properly understood did not include the portion of the parcel where rare birds were located.

Judgment was thus entered denying Nassiri’s petition, and this appeal timely followed.4

DISCUSSION
A. Standard of Review
Our review of an agency’s determination that a project falls within a categorical exemption from CEQA review “extend[s] only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” (§ 21168.5; see Tustin Ranch, supra, 70 Cal.App.5th at p. 960 [discussing standard of review].)
We review the agency’s action, not the decision of the trial court; accordingly, we “independently determine[ ] whether the record ‘demonstrates any legal error’ by the agency and deferentially consider[ ] whether the record ‘contains substantial evidence to support [the agency’s] factual determinations.’ ” (Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 495.) Thus, we

4 The City filed a respondent’s brief in this court, but the developer did not. A few weeks before the extended deadline for filing, the developer’s counsel filed an unopposed motion for leave to withdraw as counsel, which we granted.
119
8 review the City’s factual determination that the project falls within the infill development exemption for substantial evidence. To the extent our review requires us to interpret the language of the exemption, we do so independently under the de novo standard of review. (Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 268 & fn. 16 (Banker’s Hill).) In substantial evidence review, “we simply review the record to determine whether substantial evidence supports the City’s findings as to [the] elements” of the exemption. (Id. at p. 268.) “We do not weigh conflicting evidence, as that is the role of the public agency. [Citation.] Rather, we review the administrative record to see if it contains evidence of ponderable legal significance that is reasonable in nature, credible, and of solid value, to support the agency’s decision.” (Tustin Ranch, supra, 70 Cal.App.5th at p. 960.) We resolve conflicts in the evidence in favor of the prevailing party, and make “all legitimate and reasonable inferences . . . to support the agency’s decision. [Citation.] When two or more inferences can reasonably be deduced from the evidence, we cannot substitute our deductions for those of the agency.” (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 410 (Holden).) If substantial evidence in the record supports the City’s finding, “we will uphold the City’s determination, even if other evidence arguably supports a different conclusion.” (Banker’s Hill, supra, 139 Cal.App.4th at p. 269.)5

5 Nassiri has requested we take judicial notice of two documents that postdate the City’s action that is under review. We deny the request because the documents are not relevant to our resolution of this appeal. (See Sweeney v. California Regional Water Quality Control Bd. (2021) 61 Cal.App.5th 1093, 1118, fn. 3 [denying request for judicial notice of documents that “are unnecessary to resolve the issues before us”]; see also Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 565 [evidence not 120
9 B. Value as Habitat
There is no dispute that a portion of the 0.3 acre parcel contains a creek, with adjacent trees, which runs along the southern property line.

Nassiri argues that the project does not qualify for the infill development exemption because the “creek area” of the parcel (that is, the creek and the adjacent trees) is part of the project site and has value as habitat for two species of birds: oak titmouse and Nuttall’s woodpecker. Nassiri argues that these species qualify as “rare” under CEQA because they have been listed by the United States Fish and Wildlife Service as “Bird Species of Conservation Concern.”
The City argues that substantial evidence supports its finding that the parcel on which the project would be built has no value as habitat for rare species, and that in any event, applying the holding of Tustin Ranch, supra, 70 Cal.App.5th at pages 960-961, the “creek area” is not part of the project site because no development or construction-related activity will take place there.

1. Applicable Law
As we have described, the infill development exemption requires that “[t]he project site has no value as habitat for endangered, rare or threatened species.” (Guidelines, § 15332, subd. (c).)
A species is “rare” under the Guidelines “when either: [¶] (A) Although not presently threatened with extinction, the species is existing in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens; or [¶] (B) The species is likely to become endangered within the foreseeable future throughout all or a

contained in the administrative record is generally inadmissible in actions brought under section 21168.5].)
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10 significant portion of its range and may be considered ‘threatened’ as that term is used in the Federal Endangered Species Act.”6 (Guidelines, § 15380, subd. (b)(2).)
A species is “endangered” under the Guidelines “when its survival and reproduction in the wild are in immediate jeopardy.” (Guidelines, § 15380, subd. (b)(1).)
We note that the Guidelines state that a species is presumed to be endangered, rare or threatened if it is listed in specified sections of the California Code of Regulations or in specified sections of the Code of Federal Regulations under the federal Endangered Species Act. (Guidelines, § 15380, subd. (c).) Nassiri properly does not contend that the oak titmouse or Nuttall’s woodpecker are listed species under Guidelines section 15380, subdivision (c). A species that is not listed is nevertheless considered “rare” if it is shown to meet the criteria in subdivision (b)(2) of Guidelines section 15380, which are set forth above. (Id., § 15380, subd. (d),) The precise issue before us is whether substantial evidence supports the City’s finding that the oak titmouse and Nuttall’s woodpecker are not “rare” because they do not meet these criteria.

2. Additional Factual Background
During the approval process, the developer submitted to the City a report prepared by Judy Bendix of Mosaic Associates (Mosaic). This report assessed the suitability of habitat conditions to support what Bendix called “special-status species” in the “Study Area,” defined in the report as

6 A “threatened species” under the federal Endangered Species Act is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” (16 U.S.C. § 1532(20).) An “endangered species” is one “which is in danger of extinction throughout all or a significant portion of its range.” (Id. § 1532(6).) 122
11 encompassing the 0.3 acre parcel on which the project would be constructed.

Bendix defined “special-status species” to include species listed under the federal or state Endangered Species Acts as rare, threatened or endangered and all candidates for listing, as well as species on other lists prepared by federal and state agencies, and concluded that “[d]ue to the absence of suitable habitat” in the Study Area only one of the species that she considered “special-status” had the potential to occupy the site. That species, the Cooper’s hawk, is not at issue in this appeal.7 Bendix noted that she had observed oak titmouse and Nuttall’s woodpecker during her site visit.

In a report that Nassiri’s counsel submitted to the City on May 8, Shawn Smallwood, a biologist hired for Nassiri, stated that he had observed oak titmouse and Nuttall’s woodpecker during a visit to the site, and he regarded both as “special-status species” because they have been listed as Bird Species of Conservation Concern by the U.S. Fish and Wildlife Service.8 Smallwood concluded that “[t]he project site provides habitat value for

7 Neither of the experts who opined on bird species (Bendix for the developer and Shawn Smallwood for Nassiri) reported any observation of Cooper’s hawk during their site visits. Bendix opined that there is suitable nesting habitat for Cooper’s hawk and other birds “in and near the Study Area,” but that birds and their nests would be protected by the requirement that if “site disturbance for the proposed project” begins during nesting season, a nesting survey would be conducted, and a “no disturbance buffer” zone would be established surrounding any nests that were detected.

Nassiri’s opening brief makes no reference to the Cooper’s hawk, and we do not discuss that species further.
8 “Bird Species of Conservation Concern” are species of “migratory nongame birds that, without additional conservation actions, are likely to become candidates for listing under the [federal] Endangered Species Act.” (16 U.S.C. § 2912(a)(3).)
123
12 special-status species of wildlife,” and that “a reasonable argument can be made for the need to prepare an Environmental Impact Report.” The developer then submitted to the City a response from Bendix to Smallwood’s report. Bendix acknowledged that oak titmouse and Nuttall’s woodpecker are “Bird Species of Conservation Concern,” but stated that the birds were not “rare.” She concluded that the project site “does not have value for species listed under the federal or state Endangered Species Acts, nor does it have habitat value for species that are rare or unique to the region.”
On June 22, Nassiri’s counsel submitted a reply from Smallwood in response. Smallwood opined that special-status species (which he defines as including Bird Species of Conservation Concern), “are by definition rare, sensitive, or declining in number or geographic range, so their presence disqualifies the in-fill exemption,” and concluded that “[a] fair argument can be made for the need to prepare an [Environmental Impact Report] to assess impacts and formulate mitigation for the proposed project.” At the June 22 City Council meeting, Bendix, speaking in support of the developer’s application to demolish the convalescent hospital and build the residential condominiums, stated that she stood by her conclusion that the project site does not have value as habitat for species listed under the federal or state Endangered Species Acts, or for any species that are rare or unique to the region. She reported that she had consulted additional sources as to the classification of the oak titmouse and Nuttall’s woodpecker, which she had previously characterized as “locally and regionally abundant” and as birds that “would [not] be considered rare,” and that the Cornell University Laboratory of Ornithology classified them as “least concerned species.” She also stated that she had reviewed the definition of “rare” in Guidelines 124
13 section 15380, including the part of the definition referring to species that “exist[ ] in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens” (Guidelines, § 15380, subd. (b)(2)(A)), and opined that under the definition of “rare” in the Guidelines, the site does not provide habitat value for any rare species.

3. Analysis
In concluding that the conditions for the infill development exemption to CEQA review had been met, the City found that the project site was not known to have any value as habitat for rare species. (Guidelines § 15332, subd. (c).) We conclude substantial evidence supports this finding.

To begin, there is no dispute that oak titmouse and Nuttall’s woodpecker were observed on the parcel where the proposed project would be located, and that these birds are listed as Bird Species of Conservation Concern by the U.S. Fish and Wildlife Service. We will assume without deciding that their presence means that the parcel has some value as habitat for those species. Bird Species of Conservation Concern are species “that, without additional conservation actions, are likely to become candidates for listing under the Endangered Species Act.” (16 U.S.C. § 2912(a)(3), italics added.) Quoting from Guidelines section 15380, subdivision (b)(2)(A), Nassiri contends that a Bird Species of Conservation Concern is “rare” for purposes of CEQA because the species “ ‘may become endangered if [their] environment worsens.’ ”9 But Nassiri quotes just a portion of subdivision (b)(2)(A). Nassiri

9 Recall that Guidelines section 15380, subdivision (b)(2) establishes two alternative definitions for “rare,” one in subdivision (b)(2)(A) and the other in (b)(2)(B). Nassiri does not contend that Bird Species of Conservation Concern are “rare” under section 15380, subdivision (b)(2)(B), which states that a species is “rare” for purposes of CEQA if it “is likely to become 125
14 provides no authority or legal analysis to support her claim that a species that is “likely to become [a] candidate[ ] for listing under the Endangered Species Act” in the absence of additional conservation actions (16 U.S.C. § 2912(a)(3), italics added) is necessarily a species that currently “exists in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens” for purposes of CEQA.10 (Guidelines, § 15380, subd. (b)(2)(A), italics added.) Nor does Nassiri point to anything in the administrative record that addresses whether oak titmouse or Nuttall’s woodpecker exist in such small numbers in all or a significant portion of their ranges that they may become “endangered” if their environments worsen and are therefore “rare” for purposes of the Guidelines section 15380, subdivision (b)(2)(A), which defines “rare,” or section 15332, subdivision (c), which provides that the infill development exemption applies only if the project site has no habitat value for “rare” species.

The question, then, is whether there is substantial evidence in the administrative record to support the City’s finding that these two bird species are not “rare” for purposes of the Guidelines. Bendix’s reports and statement to the City Council conclude that, although oak titmouse and Nuttall’s woodpecker had been observed at the parcel where the project would be built, the parcel did not have habitat value for “rare” species, as that term is defined in the Guidelines. Because there is substantial evidence in the record to support the City’s finding, we uphold it, even if there is evidence that

endangered within the foreseeable future throughout all or a significant portion of its range and may be considered ‘threatened’ as that term is used in the Federal Endangered Species Act.”
10 As we have noted, under CEQA a species is “endangered” “when its survival and reproduction in the wild are in immediate jeopardy.” (Guidelines, § 15380, subd. (b)(1), italics added.)
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15 supports a different conclusion. (Banker’s Hill, supra, 139 Cal.App.4th at p. 269.)
We note that Nassiri’s expert, Smallwood, never discussed the definition of “rare” in the Guidelines and never asserted that oak titmouse and Nuttall’s woodpecker are “rare” under Guidelines section 15380, subdivision (b)(2). He opined only that the project site provided habitat value for “special-status species,” that the species he considers to be special-status species, including Bird Species of Conservation Concern are necessarily “rare, sensitive, or declining in number or geographic range,” and that therefore “their presence disqualifies the in-fill exemption.” (Italics added.) But he did not opine that the fact that a species is “sensitive” or “declining in number or geographic range” means that the species is “rare” as that term is defined in Guidelines section 15380, subdivision (b). Even if he had done so, his opinion would have simply been evidence that the City could weigh against Bendix’s opinion in determining whether the parcel had habitat value for rare species, and we must resolve all conflicts in the evidence in favor of the City, as the prevailing party.11 (Holden, supra, 43 Cal.App.5th at p. 410.)

11 Smallwood criticized what he characterized as Bendix’s position that a special-status species must be “rare within a region before its presence at a site disqualifies the in-fill exemption,” and Nassiri adopts his criticism in her brief. The characterization is not strictly accurate. Bendix stated more than once that the site had no habitat value “for species that are rare or unique to the region.” Even if “to the region” in Bendix’s phrase could be understood as modifying both “rare” and “unique” (so that the statement could be read as referring to “species that are rare to the region, or species that are unique to the region,”) that is not the only way to interpret her statement. Her statement can also be understood as referring to “rare species, or species that are unique to the region.” Thus the City was not required to conclude that Bendix claimed a species must be “rare within [the] region [of the project]” to count as “rare” for the Guidelines. In any event, at the June 22 City Council 127
16 Finally, because we conclude that substantial evidence supports the City’s finding that the parcel on which the project would be constructed has no value as habitat for rare species, we need not reach the City’s argument that because no construction or development activity would occur in the “creek area” (that is in the creek along the southern property line or among the adjacent trees), under the holding of Tustin Ranch, supra, 70 Cal.App.5th 951, the “creek area” is not part of the “project site.” In any event, the facts of Tustin Ranch are completely different from the facts here, and that case has no bearing on this one.

Tustin Ranch concerned the development of a gas station within a large shopping center. (70 Cal.App.5th at p. 955.) After the city of Tustin concluded that the project was exempt from CEQA under the infill development exemption, a writ petition was filed challenging the approval based in part on a claim that the project site was too large to qualify for the exemption, which applies only if the “project site” is no larger than five acres.12 (Id. at p. 958.) The trial court denied the petition, and the Court of Appeal affirmed. (Id. at p. 956.) In Tustin Ranch, the claim that the project was too large to qualify for the infill exemption rested on the fact that some initial project documents described the project site as encompassing nearly 12

hearing, Bendix stated unambiguously that in her view the site did not have habitat value for any “rare” species as the term is defined in the Guidelines. 12 The requirement that the “project site” be no more than five acres is set forth in subdivision (b) of Guidelines section 15332. That subdivision is not at issue in the case before us, but the habitat provision in subdivision (c) of that section also includes the phrase “project site.” We assume the phrase has the same meaning in both subdivisions of the regulation. (See Wilcox v.

Birtwhistle (1999) 21 Cal.4th 973, 979 [“words or phrases given a particular meaning in one part of a statute must be given the same meaning in other parts of the statute”].)
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17 acres. (Id. at p. 960.) But other documents made clear that although the total size of the existing shopping center was about 12 acres, the size of the “project site” was 2.38 acres: only 2.38 acres would be altered by the project, and “ ‘[n]o new development or construction activity related to the proposed project [would] occur in the other portions of the shopping center.’ ” (Id. at pp. 960-961.)
Notably, in Tustin Ranch, “[m]ultiple documents” confirmed that the size of the project site was 2.38 acres, including a revised development application form, an environmental assessment form, technical documents, and maps. (70 Cal.App.5th at p. 960.) And comments by City staff made while the City Council was considering the matter “clarif[ied] the total project site acreage was calculated by adding together the acreage of the project’s two components—1.74 acres where the gas station and ancillary facilities will be built, and 0.64 acres which will include demolition of the existing [building] and development of the new surface parking spaces.” (Ibid.) In our case, in contrast, the documents consistently describe the project site for the residential condominiums as coterminous with the parcel; and there is no dispute that the parcel includes the “creek area.”13 And the City’s resolution approving the condominium project states, “[t]he project site is an existing

13 For example, the developer’s density bonus application states that “[t]his project site consists of .30 acres net land,” and the developer’s expert Milani describes the project site as “located at 3721 Mt. Diablo Boulevard,” as “consist[ing] of a single parcel identified as [parcel number],” and as “approximately rectangular in shape and occupy[ing] about 0.3 acres.” City staff reports to the City Council stated: “The site contains a creek along the southern property line . . . [and] is almost completely covered with existing development, with the [existing] building taking up the majority of the site.

The property is ~0.30 acres.”
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18 parcel with access to Mt. Diablo Blvd” and “[t]he site contains few natural features other than the creek at the rear given it[s] former development.” In short, under Tustin Ranch, for purposes of calculating the required five-acre maximum project site size for the infill development exemption, an agency can properly consider a “project site” to be part of an existing parcel, so long as development and construction activity are confined to that part of the parcel and no other part of the parcel is being altered by the project. (70 Cal.App.5th at pp. 960-961.) But here, unlike in Tustin Ranch, there is nothing to suggest that the City considered the project site to be just part of the parcel. In particular, nothing suggests that the City considered the project site to exclude the “creek area.”
C. Significant Effect Relating to Air Quality
We next turn to Nassiri’s argument that the City lacked substantial evidence to conclude that the project would not result in a significant effect related to air quality, another one of the criteria that must be satisfied before the City can find that CEQA’s infill development exemption applies to this project. (Guidelines, § 15332, subd. (d).) Nassiri argues that a health risk assessment prepared by retained experts at an environmental consulting firm constitutes expert evidence of significant air quality impacts from diesel particulate matter, and that because the assessment was not rebutted by any expert, the City could not conclude that the requirements of the infill exemption had been met. We find no merit to this argument.

1. Additional Factual Background
Nassiri’s counsel submitted a report to the City on May 8 from Soil Water Air Protection Enterprise (a consulting firm referred to by the parties as SWAPE). The report stated that the proposed project will produce emissions of diesel particulate matter (DPM), a human carcinogen, through 130
19 the exhaust stacks of construction equipment and through exhaust from the vehicle and truck trips that would occur after construction over the years while the project was “in operation,” presumably meaning when it was a completed and occupied 12-unit residential condominium building. SWAPE did not contend that the DPM emissions from construction or operation would exceed the thresholds established by the Bay Area Air Quality Management District (BAAQMD).14 Rather, SWAPE stated that in view of recommendations from the state’s Office of Environmental Health Hazard Assessment that projects lasting at least two months be evaluated for cancer risks, a health risk assessment should be performed to compare the excess health risk associated with the DPM emissions project to the threshold of 10 in one million adopted by the BAAQMD. SWAPE did not represent that there was any statutory or regulatory requirement to prepare a health risk assessment for the project. But nonetheless SWAPE prepared what it characterized as “a simple screening-level” health risk assessment, and stated that its analysis “demonstrates that the [p]roject’s air quality and health risks impacts may be potentially significant.”
SWAPE reported that it prepared a “CalEEMod” model for the project that estimated the total amount of DPM emissions associated with the construction and subsequent “operation” of the project as residential condominiums. SWAPE used the output of its model as the basis for

14 In contrast, at one point SWAPE asserted that the project’s construction-related emissions of VOC (volatile organic compounds) and NOx (nitrogen oxides) would exceed BAAQMD thresholds. SWAPE later acknowledged that modeling by the developer’s expert, which was based on actual project characteristics, showed that VOC and NOx emissions would be below the BAAQMD thresholds. VOC and NOx emissions are not at issue on appeal.
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20 calculations to estimate average DPM emission rates during construction and operation, and used those estimated emissions rates in a screening model recommended by the United States Environmental Protection Agency (U.S.

EPA), “AERSCREEN,” to generate “maximum reasonable estimates of single- hour DPM concentrations from the project site” at particular points in the vicinity of the site. From those concentrations, SWAPE calculated that the increased cancer risk to the “maximally exposed individual resident” over the course of project construction and operation exceeded the BAAQMD threshold. SWAPE stated that although its screening analysis “is known to be conservative and tends to err on the side of health protection,” the analysis “demonstrates that construction and operation of the [p]roject could result in a potentially significant health risk impact.” In other words, there could be a potentially significant health risk impact from building and operating the condominium project on this downtown site adjacent to Nassiri’s office building.

The developer’s air quality consultant, Mark Milani of Milani & Associates, responded to SWAPE’s analysis, stating that SWAPE’s CalEEMod modeling did not reflect the construction conditions and emissions sources associated with the project. Milani prepared a CalEEMod model using project- and site-specific information, attached the output from the model to his response dated June 8, and stated that based on the modeling results, the project “will [ ] not result in any significant air quality effects . . . from construction emissions.” Milani did not specifically address SWAPE’s health risk assessment.

SWAPE’s reply to Milani’s analysis, dated June 22, was submitted to the City that same day. For purposes of the health risk assessment, SWAPE revised the input to the AERSCREEN model using the DPM emissions 132
21 output from Milani’s CalEEMod model run, rather than the output of its own CalEEMod model run, which Milani had criticized. SWAPE reported that even with these revised inputs, it calculated increased cancer risk over the course of project construction and operation that exceeded the BAAQMD threshold of 10 in one million, “thus resulting in a potentially significant impact.”
At the June 22 City Council meeting, Milani stated that because the site was “very narrow and small,” the excavation would be done with one excavator that would be stationary and a bobcat that would move at two-to- three miles per hour to pick up small loads from the excavator and drop them off at trucks that would come to the site. He concluded that there was “much less impact from what SWAPE is saying in terms of” diesel emissions from the site.

2. Analysis
The question before us is whether the administrative record contains substantial evidence to support the City’s finding that “[a]pproval of the project would not result in any significant effects relating to . . . air quality.” (Guidelines, § 15332, subd. (d).) We conclude that it does in the form of Milani’s report stating that an analysis of emissions based on project-specific data shows that the project will not result in any significant air quality effects associated with construction emissions.

As an initial matter, and contrary to Nassiri’s assertion, it is not at all clear that SWAPE’s health risk assessment (on which Nassiri relies to argue that the City’s determination is not supported by substantial evidence) constitutes evidence that the project “would result” in significant effects related to air quality. SWAPE’s reports by their own terms conclude that the project “may” result in impacts on the surrounding environment and that the 133
22 project “could result in a potentially significant . . . impact.” (Italics added.) The differences are important: the infill development exemption at issue here “does not depend on whether a project may have a significant effect, but instead depends on if it will have a significant effect.” (Banker’s Hill, supra, 139 Cal.App.4th at p. 269.)
In any event, the City argues on appeal that even though SWAPE’s June 22 analysis uses Milani’s CalEEMod model output data as input to the AERSCREEN analysis, SWAPE’s health risk assessment does not reflect the characteristics of the project, and that because SWAPE’s analysis does not concern the actual project, it is based on “inherently improbable, and therefore not credible, data,” and does not constitute substantial evidence of a potential significant effect. (See Brentwood Assn. for No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal.App.3d 491, 504 (Brentwood) [agency may disregard even uncontradicted testimony “if it is inherently improbable” and “may reject an opinion if it is unsupported by the facts from which it is derived”].)
The City identifies “misstatements and errors” in SWAPE’s analysis, and claims that given these misstatements, the evidence presented by SWAPE is “clearly inaccurate or erroneous” and is therefore not substantial evidence. (§ 21080, subd. (e)(2).) Although we do not find the City’s entire argument to be convincing, we are persuaded that SWAPE’s June 22 report does not accurately reflect the scope of construction of the proposed project and therefore does not constitute substantial evidence of the effect of approving the project.

We begin with the part of the City’s argument that we find persuasive.

The City observes that although SWAPE’s health risk assessment used Milani’s estimate of total DPM emissions during the construction period, the 134
23 AERSCREEN model on which SWAPE based its health risk assessment assumed a constant rate of emissions, 24 hours per day throughout the entire 171-day period from beginning to end of construction. The City argues that this does not accurately reflect the construction of the project, because construction would not occur 24 hours a day or on weekends (so the total number of days on which emissions are produced would be fewer), and because the highest level of emissions would occur only during a five-day phase of the construction, not during the entire construction period. Nassiri responds that the AERSCREEN model, which is recommended by the U.S.

EPA, requires the entry of an emission rate; that there is nothing erroneous or inaccurate in calculating an average rate over the entire construction period; and that SWAPE was simply following the U.S. EPA’s recommended methodology. But the fundamental issue raised by the City is that there is no evidence that SWAPE’s analysis, which is based on an estimated constant rate of DPM emissions over a period of almost six months, provides an accurate representation of the effect of emissions from this project, when there is unrefuted evidence that the emissions will not be constant. In the absence of any showing that a model based on inaccurate assumptions about project construction nevertheless provides an accurate estimate of health risks from the construction of the project, SWAPE’s report is not substantial evidence that approving the project will have a significant effect relating to air quality.

The City also claims that SWAPE’s assertions about cancer risk from DPM emissions during operation of the project are erroneous because “they presume continuing construction emissions coming from a [p]roject that . . . would have already been constructed and occupied, and offer no evidence to support their estimate.” The City’s argument on this point is not persuasive, 135
24 because it disregards SWAPE’s statement that its estimate of annual DPM emissions after construction was completed was taken from Milani’s model output, and further states that its calculations assume that exposure to DPM from operations would occur “after [p]roject construction.” (Italics added.) But the fact remains that SWAPE’s conclusion about excess cancer risk pertains to “the course of [p]roject construction and operation.” Because the conclusion rests on incorrect assumptions about construction, the analysis does not concern the actual project, and therefore does not constitute substantial evidence of a significant effect relating to air quality in the form of DPM emissions.

In sum, we conclude that SWAPE’s health risk assessment does not constitute substantial evidence of a significant effect relating to air quality from approval of the project, and the City could disregard it. (Brentwood, supra, 134 Cal.App.3d at p. 504.)
D. The “Unusual Circumstances” Exception

1. Applicable Law
The “unusual circumstances” exception provides that a categorical exemption from the provisions of CEQA, such as the infill development exemption, “shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (§ 15300.2, subd. (c).) Our Supreme Court has explained that the unusual circumstances exception “require[s] findings of both unusual circumstances and a potentially significant effect.” (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1115 (Berkeley Hillside).) For a project that meets the requirements of a categorical exemption, like the 12-unit residential condominium project here, a party challenging the exemption has 136
25 the burden to produce evidence supporting the unusual circumstances exception. (Id. at p. 1105.) That burden can be met in one of two ways.

First, the party can establish an unusual circumstance “by showing that the project has some feature that distinguishes it from others in the exempt class,” and then show that the exception applies by “show[ing] a reasonable possibility of a significant effect due to that unusual circumstance.” (Ibid., italics added.) Alternatively, the party can “establish an unusual circumstance with evidence that the project will have a significant environmental effect,” because such evidence, “if convincing, necessarily also establishes ‘a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.’ (Guidelines, § 15300.2, subd. (c).)” (Ibid., italics added.)

2. Additional Factual Background
Nassiri raised the unusual circumstances exception during the administrative process in written comments stating that the City was not authorized to apply any exemption to the project because “the Project will have significant adverse biological impacts due to unusual circumstances.

The ‘unusual circumstances’ are the presence of a creek along the south edge of the Project Site and the proximity to Lafayette Reservoir. As a result of these unusual circumstances, the Project will have adverse impacts on special status species.”
The City found that the unusual circumstances exception did not apply under either of the analyses set forth in Berkeley Hillside. As to the first, the City cited resolutions approving three other projects located near a creek under an infill exemption as substantial evidence that there was no unusual circumstance here. As to the second, the City cited the biological resource analysis provided by Mosaic Associates (the developer’s biological consultant) 137
26 as substantial evidence that the project will not have a significant effect on special status species.

Nassiri’s amended petition for writ of mandate alleged that the City abused its discretion by exempting the project from CEQA review “despite the Project’s impacts due to ‘unusual circumstances’ presented by the [ ] creek along the south edge of the Project Site and the Project’s proximity to Lafayette reservoir.” But in her trial court briefs, Nassiri never argued that the unusual circumstances exception applied to bar the infill development exemption. To the contrary, in a footnote in her reply brief in support of the writ petition, Nassiri stated that the unusual circumstances exception was “irrelevant in the instant case.” The trial court did not address the unusual circumstances exception in its tentative rulings; Nassiri did not argue that the exception applied at either of the trial court hearings; and the trial court did not address the exception in its statement of decision or its order granting the motion for new trial.

3. Analysis
As a general rule, “[p]oints that are not properly raised in the trial court are . . . waived on appeal.” (Guardians of Turlock’s Integrity v. Turlock City Council (1983) 149 Cal.App.3d 584, 599 [declining to reach argument that environmental impact report failed to discuss and mitigate cumulative effects, which was not raised in the trial court].) “To allow a litigant to change his theory on appeal is not only unfair to the court but unjust to the opposing litigant.” (Ibid.) It is within our discretion to reach “an issue not properly raised in the trial court, if it presents a pure question of law on undisputed factual evidence regarding . . . a matter affecting the public interest.” (Vikco Ins. Services, Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 67.)
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27 Nassiri argues that we should exercise our discretion because impacts to special status species are important issues of public interest; because “the facts are set,” by which she means that our review is based solely on the record before the City; and because “whether the City improperly exempted the project from CEQA due to unusual circumstances presents an issue of law.” But the applicability of the unusual circumstances exception here presents questions of fact that we review for substantial evidence, rather than a question of law based on undisputed factual evidence. (See, e.g., Berkeley Hillside, supra, 60 Cal.4th at p. 1114.) [“[w]hether a particular project presents circumstances that are unusual for projects in an exempt class is an essentially factual inquiry”].) This case is not like those on which Nassiri relies. (See Ryan v. Real Estate of the Pacific, Inc. (2019) 32 Cal.App.5th 637, 644 [exercising discretion to address whether expert witness is needed to establish scope of duty under a common knowledge]; Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 712-714 [exercising discretion to address whether environmental documents were adequate as a matter of law]; Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1 [exercising discretion to address constitutionality of Forest Practice Act].)
Almost every CEQA case will involve matters affecting the public interest and an administrative record that has been set. This does not mean that we must allow parties to raise substantial evidence arguments for the first time on appeal. The question whether the City erred in finding that the unusual circumstances exception applied could have been raised as part of Nassiri’s trial court challenge to the City’s determination, but was not. We decline to reach the issue here.
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28 DISPOSITION
The judgment is affirmed. Respondents shall recover any costs on appeal.

_________________________
Miller, J.

WE CONCUR:

_________________________
Stewart, P. J.

_________________________
Desautels, J.

A165324, Nassiri v. City of Lafayette, et al.
140
1 Filed 7/18/24 after opinion filed 6/27/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

NAHID NASSIRI,
Plaintiff and Appellant,
v.

CITY OF LAFAYETTE, et al.,
Defendants and Respondents;
3721 LAND LLC,
Real Party in Interest
and Respondent.

A165324

(Contra Costa County
Super. Ct. No. MSN201971)

ORDER GRANTING PUBLICATION

AND MODIFYING OPINION

BY THE COURT:

The opinion in the above-entitled matter filed on June 27, 2024, was not certified for publication in the Official Reports. For good cause and pursuant to California Rules of Court, rule 8.1105, it now appears that the opinion should be published in the Official Reports, and it is so ordered.

It is also ordered that the opinion filed herein on June 27, 2024, be modified as follows:

On page 1, in the third line of text, delete the words “which is”.

On page 4, in the second to last line of the first full paragraph, delete the words “all of”.

On pages 14 and 15, revise the sentence that runs from the end of page 14 to the top of page 15 to read as follows: “Because this is substantial 141
2 evidence in the record to support the City’s finding, we uphold the finding, whether or not there is evidence that supports a different conclusion.” On page 16, in the last sentence of first paragraph, replace the words “In any event” with “But”.

This modification does not change the judgment.

Dated:_____________________ ________________________________ Stewart, P. J.

A165324, Nassiri v. City of Lafayette et al.

142
3 Court: Contra Costa County Superior Court

Trial Judge: Hon. Edward G. Weil

Lozeau Drury, Richard Drury, Brian B. Flynn, for Plaintiff and Appellant

Best Best & Krieger, Sarah E. Owsowitz, Hannah S. Park, for Defendants and Respondents City of Lafayette, Lafayette City Council, Lafayette Planning Department

A165324, Nassiri v. City of Lafayette, et al.

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