This list of concerns was written on 13 Sept 2004. To see the current list of concerns, see here.
Our concerns are:
A. The new definition of "Environmental Resource of Critical Value or Hazardous Concern" is much more inclusive than the old one.
1. For instance, "active fault zone" was included in this definition under the old guidelines, but "severe earthquake-shaking prone area" was not. This could be interpreted to include the entire County.
2. The old definition did not include "ground water recharge zone", and this, too could include the whole County. Nor did it include "Ground Water Deficient Area", which under the very inclusive new definition of that term, could include vast areas.
3. The old definition did not include "high air-pollution area" or "high noise-pollution area", which terms are not defined and could be subject to arbitrary interpretation to include large areas.
4. The old definition did not include "culturally sensitive area", biologically critical area", "special status species site or habitat area", "habitat of limited distribution", or "wildlife movement corridor", all of which could be interpreted to include vast areas of the County.
5. The old definition did not include "heritage tree", which under these new rules is basically any large tree. Needless to say, they are everywhere.
6. The old definition did not include "scenic resource", which under these new rules apparently includes any and every tree. Again, this makes practically the entire County an "environmentally sensitive area", subject to full CEQA review.
B. Other definitions also concern us:
1. "Groundwater deficient Area" is being redefined here to include practically any parcel in the County with heavy water usage. This definition is far more inclusive than the definition in Napa County Ground Water Ordinance, which includes only the Milliken-Sarco-Tulocay basin.
2. The definition of "Habitat of limited distribution" declares any vegetation type that covers less than 10,100 acres within Napa County to be an environmental resource of critical concern. Literally interpreted, this includes Scotch broom, vinca major, "pampas grass", cactus, stinging nettles, and maybe even poison oak. This is a very broad, nonsensical, and dangerous definition, and should be removed from these local rules.
3. "Heritage Tree" is defined to include any large tree of any species as an environmental resource of critical concern. This appears to be an attempt to slip a County tree ordinance through the back door, and to give the Planning Director arbitrary authority over the fate of any mature tree in the County.
4. "Scenic Resource" was formerly defined as "including, but not limited to, a stand of trees, a rock outcropping, or a historic building." The new definition includes those, and adds "a scenic vista", "a prominent ridgeline", "a tree", "a stone bridge", and those areas regulated by the County's Viewshed Protection Program". If this is not an attempt to expand the scope of the viewshed ordinance without the appropriate public review, then it is redundant, and all but the last addition should be removed. The inclusion of "a tree" as a "scenic resource", and thus as an "environmental resource of critical concern" subject to full CEQA review represents a vast increase in the scope of Planning Department arbitrary authority and a major affront to the right to use and enjoy private property. It is also further evidence of a surreptitious effort to enact a tree ordinance without the appropriate publicity and public review.
5. "Special-status Animals", "Special Status Plants", and "Special-status Species Habitat" apparently replace "rare or endangered plants or animal species" and "rare, endangered, threatened, or critical animal or plant habitats" as "environmental resources of critical concern" under the old guidelines. The new definitions are far more inclusive, and even include all species that are "proposed for listing as threatened or endangered", "candidates for possible future listing", and those that are on either "the Point Reyes Bird Observatory draft list of bird species of special concern" or the CDF "Special Animals List", and those "considered by the California Native Plant Society to be rare, threatened, or endangered". This brings back special memories of Measure P. Can you think of a species that is not on one of those lists? Homo Sapiens, perhaps.
6. "Stream" is newly defined here to be nearly as inclusive as in Measure P. Under this definition, a stream is "any not completely man-made perennial, seasonal, or intermittent, watercourse with a well-defined bed and banks and a width to depth ratio of less than 5:1 that typically has water in it for more than 60 days in any given year". Although "stream" is not presently included in the definition of "environmental resource of critical concern", it must be included in CEQA somewhere, or it would not be defined in this ordinance. If all "streams" are subject to full CEQA review, you don't suppose that the mitigation measures required for you to get a Negative Declaration could include anything like stream setbacks, do you? This one deserves our full attention and full and complete explanations in writing from the BOS and Planning staff. The best solution is to define "stream" the same way it is defined in our existing Hillside Ordinance.
C. Some elements of the "Exemptions" sections of the new regulation also concern us.
1. Several of the Categorical exemptions (Appendix B, Class 1 Existing Facilities c, d, e, and h) are contingent on no mature trees being removed. Thus, any project including removal of a single mature tree loses its exemption and is therefore subject to full CEQA review. This means tree removal can be prohibited, limited, and/or mitigated by required new plantings. This looks like another element of the "back door" tree ordinance.
2. The old guidelines exempt from CEQA expansions of existing structures up to 50% over the original size up to an additional 2500 square feet (Section 409(a)(5). These new "Local Rules" exempt only "very minor modifications of a use permit". Even though building permits are exempt, won't this bring even more projects under CEQA review?
3. "Emergency Projects", exempt under the old guidelines, don't seem to be exempt under these new rules.
4. Demolition permits were exempt under the old guidelines, but are apparently not exempt under these new rules.
5. The exemption for driveways under 300 feet long could be okay, even though it might not really be an exemption at all, depending on the interpretation of "concentrated runoff". The old guidelines do not exempt any driveways, so this is probably a good faith attempt by staff to exempt some driveways under the new guidelines. If so, perhaps they should define "concentrated runoff" in a way that would ensure that the exemption is actually effective.
6. The exemption for “wells installed pursuant to a groundwater permit” might also be okay, depending on the resolution of our concerns regarding the definition of "Groundwater Deficient Area". Under the existing Ground water Ordinance No. 1230, groundwater permits are only required in "groundwater deficient areas", which presently includes only the Milliken-Sarco-Tulocay Basin, so wells elsewhere should not be affected. However, the new definition of "Groundwater Deficient Area" is much more inclusive than that, and the wording of this exemption could result in environmental review being required prior to issuance of well-drilling permits throughout the County. If this is not staff's intent, they should change the definition of "Groundwater Deficient Area". If it is their intent, we should oppose it as excessive and unnecessary regulation.
This new regulation seems to bring more projects and issues than before under CEQA review, and pose more obstacles than before to property owners wishing to improve their properties. Hopefully, our Supervisors will read and understand this ordinance, and direct staff to make the necessary modifications before voting on it. Napa Valley the Land Stewards Alliance will remain vigilant.
NVLSA, September 13, 2004