Napa Valley Land Stewards Alliance
P.O. Box 3238, Napa, CA 94558
October 18, 2004
Steve Lederer
Napa County Planning Department
Dear Steve:
Napa Valley Land Stewards Alliance has reviewed the October 12 version of the proposed new “Napa County’s Local Procedures for Implementing the California Environmental Quality Act”, and has the following serious concerns. Text excerpted from the proposed ordinance is in the blue boxes. Our comments below each box.
Section 100. Intent.
(c) Utilize a master environmental data system called the Napa County Environmental Resource Mapping System in the environmental review of individual projects;
This sounds fine on the surface, as it provides a clear and graphic definition of environmental resources. The troubling questions are: Who gets to decide what “environmental resources” get put on the maps, and on what basis is that decision made? Is there any public review? Are there any protections for property owners from overly zealous mapmakers? For instance, does the definition (below) of “habitat of limited distribution” mean that all conifer forests are to be included on these maps and will therefore be “environmental resources of critical value”?
Before approving this clause, NVLSA and the BOS need to see strict criteria defined and a carefully monitored procedure established for deciding which proposed “environmental resources” can be added to these maps. NVLSA would like to have input into both the initial process of establishing these criteria and the ongoing review process of determining which of the proposed new “environmental resources” meet the established criteria.
Section 104. Use of Consultants.
(a) The County may from time to time use consultants to fulfill its obligations under CEQA including, but not limited to, the preparation of Initial Studies, Negative/Mitigated Negative Declarations, and EIRs. Either a Request for Proposal (RFP) or a sole source contract process may be used at the discretion of the Planning Director. For private projects, the approval of the project sponsor shall be obtained prior to selecting the consultant(s).
(b) All consultant-prepared environmental documents utilized shall be prepared under contract to the County using the most current version of the County’s Professional Services Agreement. Consultant documents, other than technical reports, prepared under contract to the project sponsor shall not be used. No firm or person having a financial interest in a project shall be employed to prepare environmental documents on that project.
(c) For private projects, the project sponsor shall pay the full costs of draft and final document preparation including both consultant and County oversight and review costs. A deposit to cover County oversight and review costs shall be paid at the time of application in conformance with Part III, part 80, section 80.50 of the County Policy Manual or any successor provisions thereto. The deposit shall be made prior to the County contracting with a consultant and prior to commencement of document preparation and in no case later than thirty (30) days after issuance of the letter from the Planning Director indicating the estimated cost to produce the document(s) involved.
This allows the County Planning Department to contract out virtually all of its duties to consultants, while maintaining an “oversight” role for itself. Planning staff surely knows that adding another layer to the approval process will increase costs, yet instead of proposing reductions in Planning staff to generate savings to help pay the consultants, they are proposing to make property owners pay the entire cost, while also paying to maintain the Planning Department at current staffing levels.
Before this clause is added to the CEQA Guidelines, NVLSA and the BOS need to have the additional costs identified and quantified and an acceptable mechanism established for paying those costs. Piling more financial burden onto property owners is not an acceptable solution. If many of the duties of Planning Department staff are transferred to outside consultants, then Planning Department staff should be reduced commensurately.
Definitions, Section 200 General
“Biologically Critical Area”
means a special-status species habitat or a habitat that is particularly productive from a wildlife or biological standpoint such as a marsh, wetland, riparian gallery, spring, seep, etc.
With the stroke of a pen, an innocent sounding definition like this can cause unreasonable hardship and expense for property owners all over the county. “Special status species” probably includes cougars, which range all over Napa County, even into portions of the City of Napa. Is the entire County therefore a Biologically critical area?
Before approving this, NVLSA and the BOS need to see a complete and current list of all the species included under the category “special status species”, and a current map of all their habitat. Only then will any of us be able to comprehend the full effect of this innocent sounding definition.
Similarly, we need to see a complete and current list of all the types of “biologically critical areas” that are contemplated for inclusion here, instead of the word “etc.”, which just raises questions. For instance, does “etc.” mean “a conifer forest”? Is this a back door entry for those who would like to declare any forested area a “biologically critical area” in order to prohibit the removal of trees?
In addition, we need to see a current map of all “biologically critical areas and the precise criteria that were used for defining each of those areas as “biologically critical”, and the criteria that will be used for deciding which areas, if any, can be added to the map in the future. NVLSA would like to have input into both the initial process of establishing these criteria and the ongoing review process of determining which of any proposed new areas will meet those established criteria and will therefore qualify for inclusion on the map.
“Critical Wildlife Movement Corridor”
means an area, defined and mapped by a qualified professional, used by fish or wildlife to move between one part of their range and another. Such corridors are only considered critical resources when, in the context of other corridors in the area, elimination of the corridor will significantly impact the species’ ability to move between one part of their range and another.
Who are the referenced “qualified professionals”? What, exactly, are the referenced qualifications? What is the definition of “significantly impact”? We can probably all agree that eliminating wildlife’s ability to reach major portions of its range is significantly impacting it. But is making the animals walk around the outside of a vineyard fence a significant impact? Exactly where are these “wildlife corridors? These questions must be answered before anyone can understand the true impact of this clause. The clause should not be approved until its impact is fully understood.
“Environmental Resource of Critical Value or Hazardous Concern”
means any slope failure-threatened area, active fault zone, severe settlement-prone area, liquefaction-prone area, floodway, groundwater deficient area, high air pollution level area, high ambient noise level area, culturally-sensitive areas, biologically-critical areas, special status species site or habitat area, habitat of limited distribution, critical wildlife movement corridor, heritage tree, scenic resource, scientific/educational/recreational resource site, roadway which is at or proposed to be reduced to Level of Service D or below, hazardous material contaminated site, extended airport or heliport clear zone or important mineral/rock product resource area. Each of the above, as well as other resources required to be evaluated by the State CEQA Guidelines, shall be evaluated based on delineation in the County’s Environmental Resource Mapping System (where such maps are available) or by observation and documentation in the field by a qualified professional.
“Environmental Resource of Critical Value” is a category of enormous import, yet there are no criteria given, nor any threshold established for including any particular resource in that category. It seems that the Planning Department may be hoping to acquire authority to arbitrarily include anything it wants, well beyond those “resources required to be evaluated by the State CEQA Guidelines”.
One example of this is “Heritage Tree”. No argument is offered to explain why a conifer of 24 inches in diameter should be considered an “Environmental Resource of Critical Value”. If by the mere stroke of a pen any large tree can be declared an “environmental resource of critical value”, then so can all the land surface of Napa County be similarly categorized, giving bureaucrats total arbitrary authority over all land uses, without any real justification.
Unless we wish to simply grant arbitrary authority over all use of private property to the bureaucrats that wrote this definition, we must demand that the definition of “environmental resource of critical value” and all referenced definitions make sense and be justifiable according to sensible, useful, well defined, and publicly acceptable criteria. Until such standard criteria are offered and publicly accepted, every single addition to this list/category must be fully and publicly justified based on its own merits. “Heritage Tree” does not pass this test, and neither does “habitat of limited distribution”. In fact, the entire list is apparently beyond the realm of “resources required to be evaluated by the State CEQA Guidelines.” If so, then every item on the list must be individually and publicly justified prior to inclusion.
“High air pollution areas” and “high ambient noise level areas” do not exist in Napa County. Why are we including them? If they do exist, where are they?
“Biologically critical areas” and “special status species site or habitat” are redundant, as the latter is already included in the definition of the former.
“Heritage tree” is defined far too inclusively and would effectively prevent the cutting of any tree of harvestable size. Is this the real purpose of these new guidelines?
“Habitat of Limited Distribution” is poorly and arbitrarily defined and should be eliminated from the list of “Environmental Resource of Critical Value”.
“Habitat of Limited Distribution”
means an assemblage of various forms of vegetation (such as conifer forest) with a defined structure and plant composition as delineated in the County Environmental Resources Mapping System that covers either: (a) less than approximately 2% of Napa County (i.e., 10,100 acres), OR (b) less than 1% of a given drainage(s).
This definition says the structure and plant composition of each of these “habitats of limited distribution” must be defined, but none are defined. Only one possible example is given, but even in this case, the structure and plant composition are not defined. Under the current definition, “habitat of limited distribution” is still a very vaguely defined term.
One possibility is that the definition is intentionally vague, and that the one example was carefully chosen to create arbitrary authority to define conifer and mixed forests as “environmental resources of critical value” in order to make it more difficult for the State Board of forestry to approve timber harvest plans in Napa County. If this is the objective, then this definition is a deceptive attempt to enact regulations with intentional impacts well beyond the scope of the one sentence “executive summary” offered to the Supervisors and to the public, and well beyond the range of the discussion anticipated in the public hearing. If this really is an attempt to pull something over on the public in the hope that the public will not notice until it is too late, then approval needs to be delayed indefinitely until the real impacts are fully analyzed, articulated, and publicized and the public has had adequate opportunity to understand and comment on the proposed new rules.
If this not the goal, then the definition of “habitat of limited distribution” needs to be deleted or fundamentally changed to eliminate these adverse unintended consequences. Before approving this clause, NVLSA and the BOS need to see a sensible, precise, and limited definition of “habitat of limited distribution” that includes criteria and thresholds for inclusion in the category.
“Heritage Tree”
means any tree that has a relationship to an event of historical significance, or is of public importance. Any healthy oak tree larger than 96 inches in circumference (approximately 32 inches in diameter) or healthy conifer larger than 72 inches in circumference (approximately 24 inches in diameter) measured 4 1/2 feet above grade will normally be considered a distinctive specimen and thus a heritage tree.
“Heritage Tree” should either be deleted or be defined only as “any tree that has a relationship to an event of historical significance.” The rest of the definition should be deleted. The phrase “Is of public importance” allows arbitrary authority for the Planning Department to include practically any tree. This arbitrary authority is unnecessary and undesirable, as it can too easily be abused, to the detriment of property owners. The size definitions are way too inclusive and would serve only to prohibit the harvesting of any tree of harvestable size.
“Special-status Animals”
means animals that meet the definition of “rare, endangered, or threatened” under CEQA (State CEQA Guidelines §15380). This includes all species that are:
(1) listed or officially proposed for listing as threatened or endangered under the Federal Endangered Species Act (FESA) (50 CFR 17.11 [listed animals] and various notices in the Federal Register [FR] [proposed species]);
(2) candidates for possible future listing as threatened or endangered under the FESA (66 FR 54808) (State CEQA Guidelines §15380);
(3) on the most current U.S. Fish and Wildlife Service’s (USFWS) Birds of Conservation Concern List (16 U.S.C. §703);
(4) listed or candidates for listing by the State of California as threatened or endangered under the California Endangered Species Act (CESA) (14 CCR 670.5);
(5) fully protected under California Fish and Game Code Section 3511 (birds), Section 4700 (mammals), Section 5515 (fish), and Section 5050 (reptiles and amphibians);
(6) on the California Department of Fish and Game’s (CDFG) most current Special Animals List (mammals) or on the CDFG’s most current List of Bird Species of Special Concern;
(7) Non-listed but considered endangered, rare or threatened per Section 15380(b) of the State CEQA Guidelines.
“Special-status Plants”
means plants that meet the definition of “rare, endangered, or threatened” under CEQA (State CEQA Guidelines §15380). This includes all species that are:
(1) listed or proposed for listing as or endangered under FESA (50 Code of Federal Regulations [CFR] 17.12 [listed plants] and various notices in the Federal Register [FR] [proposed species]);
(2) candidates for possible future listing as threatened or endangered under the FESA (66 FR 54808, October 30, 2001) or as may be amended;
(3) listed or candidates for listing by the State of California as threatened or endangered under the CESA (14 CCR 670.5);
(4) listed as rare under the California Native Plant Protection Act (California Fish and Game Code Section 1900 et seq.);
(5) considered by the California Native Plant Society (CNPS) to be rare, threatened, or endangered in California (CNPS Lists 1B and 2 in Tibor 2001) (State CEQA Guidelines §15380).
“Special-status Species”
means all special status animals and plants.
All the items included in these three definitions are defended by staff by the claim that CEQA requires that they be included. If it is true that CEQA or the State CEQA Guidelines already include all these line items, then it is redundant to include them here, and they should be eliminated from the County Guidelines. If they are in fact not already included in CEQA or the State CEQA Guidelines, then what is the real justification for including them in the County Guidelines?
Before approving this clause, NVLSA and the BOS must have staff either show them the exact wording in CEQA that requires these inclusions in local CEQA Guidelines, or justify their inclusion in some other way.
SUMMARY:
The bottom line is that no necessity for any of these new guidelines has been demonstrated, and we doubt that they really are necessary. Some of the new guidelines, such as the codification of the vineyard replant exemption, may be desirable to certain stakeholders, but many of the new definitions will have clearly undesirable and unjustified consequences for the rest of us. This proposed new CEQA guideline should either be shortened and simplified by the elimination of the objectionable definitions above, or it should be rejected in its entirety.
Sincerely.
George Bachich, president
Napa Valley Land Stewards Alliance