Monday, February 27, 2017

Center for Biological Diversity enters Napa fish fight

     The highly reputable Center for Biological Diversity in Oakland, which has reportedly never lost a legal case, has entered the fray surrounding the prospective La Colline vineyard development above Conn Creek. Juvenile steelhead were recently discovered there, and below is the letter from CBD's attorney to Cal-Fire, the government agency charged with approving any timber cutting.
     It's worth taking a long look at this to understand how such determined efforts help prevent the eradication of threatened species, and why radical landscape alteration is going to be a lot more arduous and expensive in the future (also see postings for 10/4/16 and 10/9/16 in menu, right).

To: Bill Solinsky
California Department of Forestry and Fire Protection P.O. Box 944246
Sacramento, CA 94244-2460

Re: Administrative Draft Environmental Impact Report for Le Colline Vineyard Project

Dear Mr. Solinsky:
     These comments are submitted on behalf of the Center for Biological Diversity (the “Center”) regarding the Administrative Draft Environmental Impact Report (“ADEIR”) for the Le Colline Vineyard Project (the “Project”). The Project will degrade the current ecosystems on the Project site, contaminate Conn Creek, and harm imperiled wildlife. Yet, the CEQA mandated environmental review for the Project is wholly inadequate and fails to comply with the requirements of the statute. For the reasons detailed below, we urge approval of the Project be denied, or at the very least substantial revisions to the ADEIR to better analyze, mitigate or avoid the Project’s significant environmental impacts.
     The Center is a non-profit, public interest environmental organization dedicated to the protection of native species and their habitats through science, policy, and environmental law. The Center has over one million members and online activists throughout California and the United States. The Center has worked for many years to protect imperiled plants and wildlife, open space, air and water quality, and overall quality of life for people in Napa County.

I. The Alternatives Analysis in the ADEIR does not Comply with CEQA.

     CEQA mandates that significant environmental damage be avoided or substantially lessened where feasible. (Pub. Res. Code § 21002; Guidelines §§ 15002(a)(3), 15021(a)(2), 15126(d).) Moreover, although “an EIR need not consider every conceivable alternative to a project . . . it must consider a reasonable range of potentially feasible alternatives that will foster informed decision decision-making and public participation.” (Guidelines § 15126.6(a).) Additionally, the “key to the selection of the range of alternatives is to identify alternatives that meet most of the project’s objectives but have a reduced level of environmental impacts.” (Watsonville Pilots Assn. v. City of Watsonville (2010) 183 Cal.App.4th 1059, 1089.) Accordingly, a rigorous analysis of reasonable alternatives to the Project must be provided to comply with this strict mandate. The ADEIR fails to meet this requirement because (a) the ADEIR’s analysis of the alternatives proposed is inadequate and (b) the ADEIR fails to include a reasonable range of alternatives.

     A. The ADEIR does not adequately consider the No Timber Conversion Alternative and Reduced Oak Impact Alternative.
The “No Timber Conversion Alternative” would result in the planting of vineyards on approximately four acres of non-timberland on the property, including chaparral, manzanita, and grasslands. Accordingly to the ADEIR, no trees would be cut down. (ADEIR at 2-3.) The ADEIR claims that this alternative – which would allow the Project area to retain its natural erosion control features – would be inferior to the Project: “[Under the No Timber Conversion Alternative,] the ECP would be reduced in size and scope when compared to the Proposed Project ECP, and would not improve existing sedimentation conditions by the 58± percent reduction proposed.” (ADEIR at 2-3.) The ADEIR does not cite substantial evidence supporting the claim that the No Timber Conversion Alternative would “improve” sedimentation conditions. Indeed, the significant alterations to natural erosion control features proposed by the Project will diminish sedimentation conditions.
Nonetheless, the ADEIR does concede that the No Timber Conversion Alternative is the “environmentally superior alternative” among the development alternatives.
     However, the ADEIR does not specify which project objectives (if any) the No Timber Conversion Alternative would fail to meet. Instead, the ADEIR vaguely claims that the No Timber Conversion Alternative is not “economically viable.” (ADEIR at 5-4.) The ADEIR’s failure to cite any facts or evidence supporting this claim violates CEQA. (See Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1180 (upholding trial court’s ruling that project alternatives did not adequately analyze project alternatives in terms of comparative costs, profit or losses).) In addition, whether a particular alternative is “more expensive or less profitable is not sufficient to show that the alternative is financially infeasible.” (Id. at 1181.)
     The ADEIR similarly fails to demonstrate that the Reduced Oak Impact Alternative would not meet project objectives. This Alternative would only reduce the project size from 36 acres to 32.4 acres (a 3.6 acre reduction). Despite this small reduction in project size, the ADEIR states that the Reduced Oak Impact Alternative would not meet the goal of ensuring “economic viability” of the Project. Again, the ADEIR fails to cite any facts or evidence supporting its claim that this small reduction in vineyard size would render the project economically infeasible.

     B. The ADEIR attempts to “fix” the outcome of the alternatives analysis by narrowly defining the project objectives.
     The ADEIR employed improperly narrow project objectives in order to reject environmentally superior alternatives. The objectives for a project cannot be so narrowly defined so that they essentially preordain the selection of the agency’s proposed alternative. Case law under CEQA’s federal equivalent, the National Environmental Policy Act (“NEPA”) can be helpful in interpreting CEQA. Early CEQA cases relied heavily on NEPA case law. (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 80; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 261.) California courts agree that “NEPA cases continue to play an important role in adjudication of CEQA cases, especially when a concept developed in NEPA decisions has not yet been applied to CEQA cases.” (Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.App.4th 712, 732.) The position of the Seventh Circuit in
Simmons v. U.S. Army Corps of Eng’rs (7th Cir. 1997) 120 F.3d 664, 669, is therefore relevant to this case:
     The “purpose” of a project is a slippery concept, susceptible of no hard-and-fast definitions. One obvious way for an agency to slip past the strictures of NEPA is to contrive a purpose so slender as to define competing “reasonable alternatives” out of consideration (and even out of existence). The federal courts cannot condone an agency’s frustration of Congressional will.
     Applied here, the ADEIR “fixes” the results of the alternatives analysis by stating that the project goals are to develop a vineyard of the exact size proposed by the preferred project alternative. (ADEIR at 3-5.) Given that extremely specific project objectives, there is no room for meaningful consideration of alternatives to the preferred project. By including such specific elements as required objectives of the Project – and refusing to analyze a range of reduced size alternatives – the ADEIR preordains the development of the Project as proposed, in violation of the authorities cited above.
     The ADEIR also does not contain an adequate discussion of whether the Project can be accommodated in lands already used for agriculture. This analysis should have been included in the No Project Alternative section.
C. The ADEIR should have analyzed a range of alternatives and included meaningful analysis of the impacts of these alternatives.
     The ADEIR should also include quantitative and meaningful comparisons between the Project’s impacts and proposed alternatives’ likely impacts, including analysis of forestry impacts, wildlife impacts, GHG emissions, and water quality and availability resulting from each proposed alternative.
The ADEIR’s general statements regarding these topics are insufficient.

II. The Project is not Consistent with the General Plan.
     Land use decisions must be consistent with all applicable land use policies, including the General Plan and all of its elements. (See Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal. App. 4th 1552, 1562-1563.) The Project is inconsistent with multiple General Plan policies, as set forth below.
     A. The Project is not consistent with general plan polices relating to wildlife movement.
Napa County’s General Plan requires that vineyard projects ensure habitat connectivity. (Napa County General Plan: Conservation Section CON-25 (2009).) One of the County’s programmatic goals is to “[p]rotect connectivity and continuous habitat areas for wildlife movement.” (Id. (Policy CON-5).) Napa Policy CON-18 states:
     Under CEQA, “the public agency bears the burden of affirmatively demonstrating that, notwithstanding a project's impact on the environment, the agency's approval
of the proposed project followed meaningful consideration of alternatives and mitigation measures.”
Mountain Lion Foundation v. Fish & Game Com. (1997), 16 Cal. 4th 105, 134.)
     The County shall require discretionary projects to retain movement corridors of adequate size and habitat quality to allow for continued wildlife use based on the needs of the species occupying the habitat.
     The County shall require new vineyard development to be designed to
minimize the reduction of wildlife movement to the maximum extent feasible. In the event the County concludes that such development will have a significant impact on wildlife movement, the County may require the applicant to relocate or remove existing perimeter fencing installed on or after February 16, 2007 to offset the impact caused by the new vineyard development.

The County shall disseminate information about impacts that fencing has on wildlife movement in wild land areas of the County and encourage property owners to use permeable fencing. (Id. at CON-28 – CON-29 (Policy CON-18) (emphasis added).)
     Patrick Higgin’s letter of September 30, 2016 (the “Higgins Letter”) cites a California Department of Fish and Wildlife staff report (the “CDFW Report”) which found that the portion of the property that would become vineyard block E-2 is an active wildlife corridor used by raptors, foxes, bears, deer and other wildlife. Higgins further cites the CDFW Report for the claim that the fencing proposed by the Project would be highly disruptive to wildlife migration and would have negative impacts on local wildlife populations.
     The ADEIR does not adequately address these concerns. The ADEIR claims that “there was no evidence of distinct wildlife corridors within the project site” but then states that “Conn Creek, located adjacent to the property, is considered a wildlife corridor” and that the project likely abuts a “significant local wildlife corridor.” (ADEIR at 4.4-22.) The ADEIR claims that vineyard fences will “facilitate wildlife movement within and through the property.” (Id.) The ADEIR’s conclusions appear somewhat contradictory since it states that the property abuts a wildlife corridor but also that there are no wildlife corridors on the property. And the ADEIR’s conclusions are plainly inconsistent with the CDFW Report.
The ADEIR also claims that the Project could conflict with general plan policies regarding wildlife movement (ADEIR at 2-11) but later makes the clearly inconsistent claim that the project would not conflict any applicable land use plan. (ADEIR at 2-17.) The ADEIR fails as an information document because it contains contradictory statements and does not accurately appraise the public and decision-makers of the impacts of the Project.
    B: The ADEIR’s“mitigation”for scenic  resources will further impair wildlife movement.
The proposed mitigation for scenic resources will interfere with wildlife movement. As mitigation for significant impacts on visual character/scenic resources, MM 4.1-3 states that adjacent property owners may request construction of a “solid board fence” around the project. This fence would significantly restrict wildlife movement. A “solid board fence” would also clearly conflict with CON-5, which directs landowners to use “permeable fencing.”
The ADEIR makes other inconsistent claims regarding whether the Project will interfere with wildlife corridors. On the one hand, the ADEIR states that the Project “could interfere with
existing wildlife movement corridors” but in the next sentence states that the project design would render “impacts to wildlife movement [] less than significant.” (ADEIR at 2-11; see also ADEIR at 4.4-46.) The ADEIR concludes that no mitigation measures are required for wildlife movement. (ADEIR at 2-11.) The ADEIR’s conclusion is not supported by any facts or evidence.

     III. The ADEIR’s Analysis of The Project’s Water Quality Impacts is Flawed.
     The Project is located in the Conn Creek watershed. Conn Creek is a blueline stream that feeds the Linda Falls waterfall, which is a popular local hiking trail situated on a wildlife preserve. Conn Creek also is designated as a sensitive domestic water supply, and drains into Lake Hennessey, which is a municipal water supply. The Project would entail the development of vineyards in close proximity to the Conn Creek and other onsite streams. (See ADEIR Figures 3-3 and 4.4-1.)
     Despite its close proximity to Conn Creek, the ADEIR misleadingly suggests that the Project will not impact Lake Hennessy, into which Conn Creek Flows. The ADEIR states: “Lake Hennessey is surrounded by existing vineyards, with some as close as approximately 400 meters (1,300 feet). In comparison, the project site is located approximately five miles northwest of Lake Hennessey.” (ADEIR at 4.8-11.) This sentence is misleading because it omits the fact that the Project will develop vineyards within a few dozen feet of Conn Creek.
     A. The ADEIR does not disclose the baseline conditions for water quality in Conn Creek.
     The ADEIR does not include sufficient data regarding existing water quality conditions to provide adequate baseline information from which to assess Project impacts on local and regional water quality. The ADEIR cites some publicly available information regarding water quality the Napa River (ADEIR at 4.9-3), but does not contain any information regarding water quality in Conn Creek. The ADEIR further claims that there is “no risk” of chemical loading for the Napa River (ADEIR at 4.9-19), but fails to address the risk of chemical loading to Conn Creek, which is the creek adjacent to the project (Conn Creek eventually flows into Napa River). Without this data, the ADEIR fails to provide sufficient baseline information that would allow the public to evaluate significant adverse impacts the Project will have on the environment. (CEQA Guidelines § 15125(a); Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.App.4th 310, 315[hereinafter CBE SCAQMD].)

     B. The ADEIR concludes  without citation to evidence that the Erosion Control Plan will address erosion and sedimentation impacts.
     The ADEIR states that the Project would alter drainage patterns, but concludes without citation to facts or evidence that the Erosion Control Plan (“ECP”) will reduce impacts to less than significant levels and that no mitigation is required. (ADEIR at 4.9-18.) The ADEIR appears to base this claim on the assumption that the ECP will address all erosion impacts because a licensed engineer prepared it. (See ADEIR at 4.9-3.) The ADEIR further states that the ECP will also address impacts from sedimentation. (ADEIR at 4.9-18.)
     The Higgins Letter disputes this claim, and cites comments by a SFRWQCB staff person: “Please direct the project proponent to revise the Hydrologic Model, and as necessary the related vineyard development plan and BMPs to attenuate storm runoff increases. Absent such changes, we would expect the proposed vineyard development to cause or contribute to potentially significant increases in storm runoff peak and volume, contributing to potentially significant on-site and off-site erosion and sedimentation.” The ADEIR fails to establish that the Project will not increase onsite and offset erosion and sediment.
IV. The ADEIR does not Adequately Mitigate the Project’s Pesticides Impacts.
     CEQA requires that “the EIR must propose and describe mitigation measures that will minimize the significant environmental effects that the EIR has identified.” (Napa Citizens for Honest Gov’t v. Napa County Bd. Of Supervisors (2001) 91 Cal.App.4th 342, 360.) Furthermore, CEQA requires that agencies “mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so.” (Pub. Res. Code § 21002.1(b).) Mitigation of a project’s significant impacts is one of the “most important” functions of CEQA. (Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 41.) Only when the mitigation measures are “truly infeasible” can the lead agency reject mitigation measures for significant impacts. (City of Marina v. Board of Trustees of California State University (2006) 39 Cal. 4th 341, 369.)

     A. The ADEIR’s reliance upon IPM is misplaced.
     Unfortunately, the ADEIR does not adequately mitigate the harmful effects of pesticides on sensitive species such as the foothill yellow legged frog and coast range newt. Pesticides, insecticides, rodenticides, fungicides have damaging effects on amphibians. (See EPA (2013); Miller (2006); Litmans & Miller (2004).) For frogs, pesticides cause birth defects, brain defects, reproductive disorders, immune system dysfunction, cancer, and neurological disorders. (Litmans & Miller (2004), at 10-15.)
The ADEIR’s reliance on integrated pest management (“IPM”) for mitigation is ill- placed. IPM is voluntary; it does not legally bind the Applicant to employ IPM strategies.
     The ADEIR does not even appear to define which chemicals are approved for IPM use. Because the Applicant is under no legal compulsion to adhere to this promise, the ADEIR cannot and should not rely on this mitigation measure to reduce harm to aquatic wildlife on or near the Project area. (CEQA Guidelines § 15126.4(a)(2); Federation of Hillside & Canyon Ass’ns v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1261 (mitigation measures must be “fully enforceable).)
     Even if the Applicant were required to implement IPM techniques, the ADEIR does not provide substantial evidence that IPM will address pesticide impacts. (See ADEIR at 4.9-19.) Instead, it claims that compliance with standard operating procedures for pesticides will render impacts less than significant. (ADEIR at 2-14 & 2-15; see also 4.8-14.)
     The “Hazardous Materials” section of the ADEIR contains similarly vague and inadequate language regarding mitigation. The ADEIR states under “Impact 4.8-2” that “[i]n the event IPM techniques are found to be inadequate for vineyard maintenance during long-term operation, the Proposed Project would include the use of organic-certified pesticides for vineyard maintenance.” This sentence does not even amount to a binding mitigation measure – it is just an observation about what the Applicant might do in certain circumstances.
     The mitigation measure (MM 4.8-2 in Table 2-2) corresponding to this sentence does not require use of organic- certified pesticides. Even MM 4.8-2 did require the use of organic-certified pesticides, the ADEIR contains no analysis as to what is meant by “found to be inadequate” and thus contains no performance standards as to when (if ever) organic-certified pesticides would be required in lieu of conventional pesticides. And even if organic-certified pesticides were required by MM 4.8-2, the ADEIR contains no analysis as to the degree of harm organic-certified pesticides pose to wildlife and water quality (and whether they are environmentally preferable to conventional pesticides).

     B. The ADEIR implicitly concedes that existing approaches to pesticide contamination are inadequate.
     The inadequacy of IPM is borne out in the ADEIR. The ADEIR observes that the Safe Drinking Water Information System reported “a recent uptick in various pesticides and herbicides within Lake Hennessey. . . .” (ADEIR at 4.8-11.) Despite this increase in harmful pesticides in the municipal drinking water supply, the ADEIR states without evidentiary support that “[t]he guidelines set forth in the IPM that limit the use of pesticides, herbicides, and fertilizers will prevent contribution of such chemicals into the Lake Hennessey watershed.” (Id.) If IPM and existing approaches are effective, then why is the body of water to which Conn Creek flows already contaminated with pesticides?
     The ADEIR also never provides further information about these “various pesticides and herbicides” that are contaminating the watershed. This amounts to a failure to describe the baseline conditions; the ADEIR should specify the types and amounts of pesticides which are currently in Lake Hennessy (and Conn Creek).

     C. The ADEIR does not provide for adequate buffers to protect wildlife and water quality.
      The ADEIR fails to require buffers that will protect water quality, prevent erosion, and safeguard wildlife from pesticide impacts. In the Land Trust of Napa County’s letter of May 11, 2016 (the “Land Trust Letter”), the Land Trust cited a herpetological report of Conn Creek that a recommended avoiding use of pesticides or fertilizers with 100 meters (328 feet) of Conn Creek. It does not appear that the ADEIR follows this recommendation, as it only requires “setbacks ranging from 35 to 125 feet ... from all onsite drainages and the onsite wetland.” (ADEIR at 4.4-40; see also ADEIR at 4.4-46.).)
     The ADEIR claims that buffers from five to 262 meters (16 to 829 feet) have been between 50 to 98 percent effective. (Id.) However, this broad range of buffers listed have varying degrees of success, and the studies cited by the ADEIR do not demonstrate that mere 35 to 125 foot setbacks have high levels of effectiveness (e.g., over 90 percent).
     Indeed, the ADEIR grossly misrepresents the conclusions of the studies it cites. For example, the ADEIR claims that Dave Christensen’s study concluded that “maintenance of setbacks ranging from a minimum of 35 to 125 feet is expected to significantly decrease sediment delivery to the streams located on the project site.”1 In the study, Christensen does note that there is a “range of effective buffers” of 10 to 400 feet, but states that the “minimum buffer width” for “majority sediment removal” is 100 feet. Christensen also cites an earlier study for the conclusion that “buffers of 30 m (100 feet) were necessary to provide adequate sediment control, pollutant removal and water temperature control.” Christensen concludes that the “minimum buffer” recommendation for “waters of high use & important water quality” is 150 feet.
      Furthermore, the Land Trust Letter states that stream restoration work funded by Napa County has been occurring on Conn Creek and suggests that the project will undermine this work. The Center shares the Land Trust’s concern that restoration work will be undermined by the Project.

     V. The ADEIR does not Accurately Disclose the Project’s Impacts on Water Supply.
     The ADEIR is the correct place to raise issues regarding adequacy of water supply under CEQA. (See California Water Impact Network v. Newhall County Water District (2008) 161 Cal.App.4th 1464, 1488 (“The lead agency has a separate and independent responsibility to assess the sufficiency of water supplies for the proposed project.”).)
     The ADEIR states that the project will use 13.24 acre feet per year of groundwater, which is supposedly 29.95 percent of the “allowable groundwater allotment for the property.” (ADEIR at 6-12.) The ADEIR does not explain how it arrived at either of these figures. Even if these figures are accurate, the Higgins Letter suggests that the Project’s groundwater usage will harm Conn Creek: The project calls for extracting groundwater from a well to water 36 acres of grapes and operating a second well for residential use. This has the potential to turn the Class II stream within the project area into a Class III and to reduce flow and possible dry up Conn Creek below the project. Neighbors of the Le Colline project express concern about their ability to maintain their domestic water supplies after increased groundwater withdrawal for irrigation of grapes (Stagg 2016). Professor Wyrick-Brownworth (2016) noted that Cold Springs also creates perennial and seasonal wetlands that may be negatively impacted by increased groundwater withdrawal associated with the project.
      The ADEIR does not address the risk that groundwater pumping will impact flow rates or water quality in Conn Creek or other domestic water supplies. (See Christensen, Dave 2000. Protection of Riparian Ecosys A Review of Best Available Science. Jefferson County Environmental Health Division. October 27, 2000, available at
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     VI. The ADEIR Fails to Adequately Analyze or Mitigate the Impacts of the Project on Plants and Wildlife.
      CEQA requires the lead agency to disclose, analyze and mitigation all impacts on special status species, as well as species listed under the Federal Endangered Species Act or California Endangered Species Act. The ADEIR fails to comply with this requirement.

     A. The ADEIR does not demonstrate that adequate surveys were conducted for special status wildlife.
      An EIR must accurately identify the significant impacts would result from a proposed project. (CEQA Guidelins § 15126.2(b).) An EIR must determine significance in relation to an analysis of the physical conditions in the project area as they exist at the time of the notice of preparation. (CEQA Guidelines § 15125(a) & (e); “[T]he significance of a project’s impacts can be ascertained only if the agency first establishes the physical conditions against which those impacts are to be measured.” (MICHAEL H. REMY ET AL, GUIDE TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (11th ed., Solano Press 2007).) CEQA then requires the lead agency to compare “what will happen if the project is built with what will happen if the site is left alone.” (Woodward Park Homeowners Assn, Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 687.)
     This process involves conducting surveys for species that may be present onsite. However, the ADEIR does not contain or reference such surveys. For example, the ADEIR states that the foothill yellow legged frog has “No” potential to occur on site: “Suitable habitat does not occur within the project site. Conn Creek may provide habitat for this species, although it has never been documented in this stream. This species was not observed during biological surveys of the project site.” (ADEIR at 4.4-28.) These sentences in the ADEIR suggest that the applicant’s consultants did not even search for the foothill yellow legged frog in Conn Creek because the ADEIR defined “Conn Creek” as outside the project site. The ADEIR also states that there is no suitable habitat for California red legged frogs, but does not state that any surveys were conducted to verify whether habitat exists. (Id.) Moreover, the ADEIR offers no details on whether surveyors were qualified to identify surveyed species, or whether the surveys were even focused upon specific special status species.
     The ADEIR’s conclusions are also at odds with the surveys described in the Land Trust Letter. As part of the Conn Creek restoration work discussed in the Land Trust Letter, a herpetological survey was conducted in 2014. The herpetological survey concluded that the stretch of Conn Creek adjacent to the Project area is highly suitable for foothill yellow legged frog and coast range newt. The Land Trust Letter further states that Land Trust staff members have observed yellow legged frogs in Conn Creek in the last six months. These conclusions directly contradict those in the ADEIR.

     B. The ADEIR fails to disclose, analyze, or mitigate the Project’s impacts on plant species.
     The ADEIR fails to adequately mitigate impacts to special status plant species because it does not even analyze or disclose those impacts. For instance, the ADEIR acknowledges that two special status plant species are located on the property – the Napa false indigo and the narrow-anthered California brodiaea. (ADEIR at 4.4-24.) The ADEIR claims that impacts will be less than significant because the populations shall be “avoided” when a biologist puts orange construction fencing around them. (ADEIR at 2-9.) The ADEIR does not appear to discuss where on the property these plant populations exist, or whether they are sited in areas that are planned for vineyards. Thus, it is difficult to ascertain whether they will be permanently “avoided” or whether they will left in an area where they will lack suitable conditions to continue surviving and reproducing.
Additionally, of the 26 plant species listed in Table 4.4-2, the ADEIR only states that the two species listed above were present on site. In Table 4.4-2 which lists the various plant species, the ADEIR has a column called “Potential to Occur on Site.” Within this column, some answers read, “No. Suitable habitat and vegetation associates for this species does occur within the project site.” (Table 4.4-2.) The ADEIR is inconsistent because it maintains that a species that can have both (a) “No” potential to occur on site but also (b) suitable habitat for the species on site.
C. The ADEIR fails to disclose, analyze, or mitigate the Project’s impacts on special status wildlife.
     By way of background, CDFW defines a species of special concern as a species that, among other things, “is experiencing, or formerly experienced, serious (noncyclical) population declines or range retractions (not reversed) that, if continued or resumed, could qualify it for State threatened or endangered status.”2 CDFW aims to “achieve conservation and recovery of these animals before they meet California Endangered Species Act criteria for listing as threatened or endangered.” (Id.) CDFW states that species of special concern “should be considered during the environmental review process.” (Id.; CEQA Guidelines § 15380(b)(B).) An impact to wildlife is significant where it “substantially reduce[s] the number or restrict[s] the range of an endangered, rare or threatened species.” (CEQA Guidelines, § 15065.) CDFW interprets this provision to apply to species of special concern. The ADEIR must mitigate significant effects whenever feasible. (Cal. Pub. Res. Code § 21080.5(d)(2)(A).)

Northern Spotted Owl
     The ADEIR does not disclose or mitigate the Project’s impacts on the Northern spotted owl. On the one hand, the ADEIR concedes that the Project site contains suitable habitat for the federally threatened Northern spotted owl. (ADEIR at 4.4-29.) The ADEIR also states that three acres of the Project site are suitable nesting/roosting habitat for Northern spotted owls. (ADEIR
See California Dep’t of Fish & Wildlife, Species of Special Concern (available at
at 4.4-42.)
     On the other hand, the ADEIR later makes an inconsistent claim – it states that “the project site lacks potential nesting habitat” for the Northern spotted owl. (ADEIR at 4.4-29.) The ADEIR again refutes itself when it identifies specific trees (some of which are scheduled to be destroyed) that are “potential roost trees” for Northern spotted owl. (ADEIR at Table 4.4-3.)
Because the ADEIR provides conflicting information regarding the Northern spotted owl, the ADEIR does not serve its purpose as an informational document. In addition, the ADEIR does not include adequate mitigation measures to protect the Northern spotted owl. MM 4.4-5 only requires compliance with “California Forest Practice Rule 14 CCR 919.9(e) Scenario 4” in order for “take avoidance.” (ADEIR at 4.4-42.) The ADEIR does not describe that compliance with this rule entails.

     Townsend’s Big-eared Bat and Pallid Bat
     The ADEIR reports that two special status species of bats were observed onsite – the Townsend’s big-eared bat and the pallid bat. Unfortunately, MM 4.4-7 allows for the removal of trees that currently serve as roosts for these bats and only requires the Applicant to notify CDFW if special status bat species are injured when these trees are removed. The “preconstruction surveys” set forth in MM 4.4-7 also do not require the Applicant to cease construction if Townsend big-eared bats are identified – MM 4.4-7 merely requires that “CDFW shall be contacted about confirming the identity of the roosting species and about protecting the roost site.” MM 4.4-7 does not actually require that these roost sites be protected or left undisturbed.

Other Species Not Analyzed
     There are numerous other special status species that are not even mentioned in the ADEIR which inhabit similar habitats in Napa County. CDFFP should request species presence information from USFWS to help it establish biological resources its baseline. Such special status species include the white-tailed kite and steelhead. Because the ADEIR entirely neglected to discuss the above species—including impacts to these species from the Project—or to propose any mitigation, it is difficult to provide detailed mitigation commentary or suggestions for these species.

     D. The ADEIR does not disclose or mitigate impacts on steelhead/rainbow trout.
     The ADEIR does not disclose or mitigate the impacts to steelhead and/or rainbow trout arising from the Project. The ADEIR does not even mention rainbow trout, and only states without analysis that steelhead do not have “suitable habitat” in the Project site. (ADEIR at 4.4- 27.) The Higgins Letter cites a study by Leidy demonstrating that rainbow trout have occupied or still occupy the upper portions of Conn Creek In particular, Leidy notes that rainbow trout were observed in Conn Creek in 1945, 1959, 1979, 1988, 1994, and 2002. The Higgins Letter ( See Higgins Letter at 3 citing Leidy, R.A., G.S. Becker, B.N. Harvey. 2005. Historical distribution and current status of steelhead/rainbow trout (Oncorhynchus mykiss) in streams of the San Francisco Estuary, California. Center for Ecosystem Management and Restoration, Oakland, CA. 246 p. also reveals that the author observed rainbow trout in the pools below Linda Falls, which is downstream of the Project. These rainbow trout likely have the same genetic makeup as the Napa River steelhead trout populations, such that they should be afforded protected status because they are part of a diminishing gene pool. As further noted in the Higgins Letter, Conn Creek has maintained some flows of cold water because of the water in the underlying volcanic terrain. This water would be extracted by the Project. Because this species requires cold flowing water, the Project may threaten the survival or recovery of this species in the Conn Creek watershed.
     The ADEIR does not acknowledge the risks to steelhead/rainbow trout of increased sedimentation, which decreases aquatic diversity and food sources for fish in the creek. In addition, the Higgins Letter states that the ADEIR obscures the true sedimentation impacts by inaccurately claiming that slopes on the property are only 7 to 29 percent, when in fact they are as steep as 63 percent. This means that sediment originating at the Project has a high likelihood of flowing into Conn Creek. The ADEIR contains no analysis or mitigation for these impacts.
     CDFFP should conduct surveys of Conn Creek in the vicinity and downstream of the Project (in the Linda Falls area) to determine current levels of rainbow trout and/or steelhead. Moreover, the DEIR must analyze and mitigate the impacts on this species from increased pesticide load, sedimentation, alteration of drainage patterns, and groundwater extraction.

     VII. The ADEIR does not Adequately Disclose or Mitigate the Project’s Impacts Greenhouse Gas Emissions.
     Mitigation of a project’s environmental impacts is one of the “most important” functions of CEQA. (Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 41.) Therefore, it is the “policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures which will avoid or substantially lessen the significant environmental effects of such projects.” (Pub. Res. Code § 21002.)
The ADEIR does not comply with these legal duties and instead relies upon the false conclusion that the Project will not result in significant GHG impacts. While the ADEIR rightly acknowledges the GHG impacts of “timber removal” (ADEIR at Table 4.7-1), the ADEIR claims a credit in GHG emissions from “retention of 15.24 acres of Oak woodland” and “planting 1,000 conifer seedlings.” (ADEIR at Table 4.7-1.) Because the ADEIR states that some trees will be retained and some seeds will be planted, the ADEIR concludes that the GHG impacts are not significant. (Id.) The ADEIR relies upon the illusory the “mitigation” of preserving some of the onsite forest and planting seedlings in order to get under the SMAQMD construction emissions threshold of significance of 1,100 MT CO2E. (Id.) Without this illusory mitigation, the Project’s emissions would be well above threshold of significance.
There are no legal authorities indicating that an applicant’s choice to (a) refrain from destroying all trees on a property and (b) plant seedlings amounts to a reduction in GHG emissions. Such purported GHG emissions reductions also are illusory because the ADEIR fails (See Higgins Letter at p. 10.) to demonstrate that these reductions comply with CARB’s Compliance Protocol for U.S. Forest Projects (the “CARB Protocol”). The CARB Protocol sets forth offset protocol standards to reduce or prevent GHG emissions through increasing and/or conserving forest carbon stocks.
     The ADEIR also fails to analyze whether the Project is consistent with CARB’s Scoping Plan and CDFFP’s 2008 Strategic Plan and Report to the California Air Resources Board on Meeting AB 32’s Forestry Sector Targets (the “Strategic Plan”).7 The Strategic Plan sets forth CARB’s “No Net Loss” target for the forest sector, and provides that the California Department of Forestry and Fire Protection (“CDFFP”) will develop a plan to “maintain current sequestration levels in a forest environment that is at risk of losses from land-use change . . . .”8 (Id. at 1.)
The ADEIR does not explain how the destruction of approximately 34 acres of trees is consistent with the state policy of maintaining current sequestration levels in forests that are at risk to losses from land use changes.

     Because the ADEIR wrongly concludes that the Project will not result in significant GHG impacts, the ADEIR concludes that absolutely no mitigation is required. (ADEIR at 4.7-11.)
The ADEIR cannot claim impacts are not significant merely because they are planting some seeds. These seeds will take many decades to mature into trees that have significant carbon sequestration benefits, and there is no guarantee that all (or even most) will survive.

     VIII. The ADEIR does not Accurately Disclose or Mitigate the Project’s Impacts on Forests.
     Related to the GHG analysis is the ADEIR’s failure to accurately describe the extent of impacts on forest resources. The ADEIR repeatedly states that approximately 32 acres of forests would be “harvested” for the vineyard. (ADEIR at 1-3 & 2-2.) The forests impacted include 17.43 acres of douglas fir, 7.52 acres of mixed oak alliance, and 9.19 acres of mixed manzanita . (ADEIR at 4.4-16.) These numbers equal 34.14 total acres, not 32 acres. While this is a fairly minor difference in reported acreage, the ADEIR later states that the Project would only harvest “20.5 acres of tree canopy.” (ADEIR at 4.9-21.) 20.5 acres is significantly different from 34.14 acres. The ADEIR fails its purpose as an informational document because it contains contradictory figures regarding the number of acres to be impacted.
     More importantly, the ADEIR appears to violate the “60/40 Rule.” As set forth in the ADEIR, the 60/40 Rule requires the retention of a minimum of 60 percent of the tree canopy cover and a minimum of 40 percent of the shrub, brush, and associated annual and perennial herbaceous vegetation within sensitive domestic supply watersheds. (ADEIR at 4.9-20.) The ADEIR states that the property is subject to the 60/40 Rule and that based upon aerial surveys (California Air Resources Board, “Compliance Offset Protocol for U.S. Forest Projects,” (Nov. 14, 2014) (available at  CARB Protocol See California Department of Forestry and Fire Protection, “2008 Strategic Plan and Report to the California Air Resources Board on Meeting AB 32’s Forestry Sector Targets,” (Oct. 17, 2008) (available at [hereinafter “Strategic Plan”]. 
 Strategic Plan showing 57.45 acres of tree canopy on the property, “22.98 acres of trees may be removed from the property.” (Id.) However, as noted above, the ADEIR repeatedly states that at 32 acres of trees will be removed (and elsewhere the ADEIR indicates that 34.14 acres of trees will be removed). Such activities violate the “60/40 Rule.” Accordingly, the ADEIR is incorrect in concluding that the Project does not have a significant impact on forests and that no mitigation is required.
     IX. The ADEIR does not Accurately Disclose or Analyze The Cumulative Impacts of the Project.
     CEQA defines “cumulative impacts” as “two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.” (CEQA Guidelines § 15355.) The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project “when added to other closely related past, present, and reasonably foreseeable probable future projects.” (CEQA Guidelines § 15355(b).) While an agency is not expected to foresee the unforeseeable, it is expected to use its “best efforts to find out and disclose all that it reasonably can.” (CEQA Guidelines § 15144; see also City of Richmond, supra, 184 Cal.App.4th at 96; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 428.)
The purpose of analyzing cumulative environmental impacts is to assess adverse environmental change “as a whole greater than the sum of its parts.” (Environmental Protection Information Center v. Johnson (1985) 170 Cal.App.3d 604, 625.)
Kings County Farm
Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 721.)

     A. The ADEIR does not adequately define the geographic scope used in the cumulative 
impacts analysis.

      The ADEIR does not properly “define the geographic scope of the area affected by the cumulative effect and provide a reasonable explanation for the geographic area.” (See Guidelines § 15130(b)(3)). In general, the ADEIR states that a three-mile radius from the Project area is the geographic scope, with the exception of “agriculture and forestry” and a few other categories. (ADEIR at 6-2.) Although the ADEIR never expressly describes this different geographic scope for forestry, the ADEIR later considers the entire acreage of forests remaining in Napa County in concluding that there are no cumulative impacts to forestry resources. (ADEIR at 6-4 & 6-5.) Yet, only a few sentences later, the ADEIR suggests that the geographic scope is once again the 3 mile radius when it observes that there are “4 pending or approved timber conversion projects within a 3-mile radius of the project site, all of them in the Angwin area.” The ADEIR needs to clearly specify the geographic scope and provide substantial evidence for using that particular geographic scope.
      To the extent the ADEIR is claiming that all of Napa County as the geographic scope for forestry resources, then such a scope is overly broad. The ADEIR should consider cumulative impacts in the vicinity of the Project Area, particularly with regards to existing ecosystems and analysis there would be no control of development and “piecemeal development would inevitably cause havoc in virtually every aspect of the environment” in watersheds such as Conn Creek. To the extent the ADEIR is using only a 3 mile radius, the ADEIR still fails as an information document because – as noted above – the ADEIR only generally states that there are 4 other timber projects in the area. The ADEIR does not provide any further detail regarding these projects – are they also within the Conn Creek watershed? Will they cumulatively contribute to erosion, impact wildlife movement, or contaminate water quality? The ADEIR does not answer these questions.

     B. The ADEIR’s cumulative impacts analysis for biological resources is conclusory and inadequate.
     The ADEIR inaccurately states that the Project’s cumulative impacts to biological resources would not be considerable since the Project would implement mitigation measures in the ADEIR. (ADEIR at 6-7.) This claim is not based upon substantial evidence because the referenced mitigation measures are designed to reduce the Project’s direct impacts; they are not designed to alleviate cumulative impacts as required by CEQA Guidelines 15130(a)(3).
Similarly, the ADEIR does not specifically discuss the cumulative effects the construction project and the continued operation of the Project will have on wildlife. (See DEIR at 6-6.) Instead of providing an informative cumulative wildlife impacts discussion in its cumulative impacts analysis, the DEIR dismisses the possibility that the Project will have any cumulative impact on special status species. (ADEIR at 6-7.) The ADEIR concludes the “[t]he County would similarly require future projects with potentially significant impacts to wildlife and plant species to comply with federal, State, and local regulations and ordinances protecting biological resources through implementation of mitigation measures during construction to reduce impacts to less-than-significant levels.” (ADEIR at 6-7.) The ADEIR essentially equates regulatory compliance with a lack of cumulative impacts.
     By the ADEIR’s reasoning, all approved projects would categorically never cause cumulative impacts, no matter how much the intensity of number of local activities increase. So long as the lead agency makes any significance determination that legally complies with CEQA requirements, then no project in the County can be susceptible, or contribute, to local cumulative impacts. This is pure fiction, and it nullifies the purpose of the cumulative effects analysis. This cannot be the purpose of the cumulative impacts reporting duties outlined in CEQA, which requires the lead agency to consider “individually minor but collectively significant projects taking place over a period of time.” (CEQA Guidelines § 15355(b).)
     The ADEIR’s conclusory cumulative impacts analysis does not provide the public and decision-makers with the meaningful cumulative impacts analysis that CEQA mandates. (Cal. Pub. Res. Code §§ 21001(g); 21002.1(a) & (e); 21003(b).)
Contrary to the DEIR’s flawed reasoning, most “less than significant” impacts, when combined with other “less than significant” impacts have the ability to cumulatively harm plant and animal species. “Less than significant” does not equate to “no impact,” so each individual “less than significant” impact has an additive quality that CDFFP should have discussed. The construction and vineyard operations, as well as other human activities in the vicinity, will still have a cumulative impact on wildlife and plant species despite the proposed mitigation measures. These species will lose habitat, there will be increased human presence and increased traffic, there will be added noise, species will be excluded from suitable habitat by fencing, suitable upland and riparian habitat will be destroyed, and species health may be affected by pesticide drift. The ADEIR should have fully accounted for all combined impacts before it concluded that the cumulative impacts would remain less than significant. The ADEIR cannot simply eschew full cumulative effects analysis for all biological resources by hiding behind a legalistic significance determination. Because the ADEIR determined that CEQA compliance equates to no cumulative impacts, it ignored potential off-site cumulative effects to local plants and wildlife both within and from the Project. This incomplete and inadequate cumulative impacts analysis is uninformative, and violates CEQA. (Cal. Pub. Res. Code §§ 21001(g); 21002.1(a) & (e); 21003(b); CEQA Guidelines § 15355(b).)
     C. The ADEIR’s cumulative impacts analysis for GHGs, air quality, and water quality is deficient.
The DIER does not list any related projects nor analyze their cumulative impacts on greenhouse gases or air quality. Instead, the ADEIR also incorrectly claims that there is no need to identify other projects which may contribute to or GHG or air quality impacts because “cumulative air quality issues in the SFBAAB are addressed through regional air quality control plans developed by the BAAQMD.” (ADEIR at 6-10.) The existence of other plans or policies does not excuse the agency or applicant from compliance with the CEQA.
     Similarly, the ADEIR does not contain any detailed analysis regarding potential cumulative impacts to hydrology and water quality. Instead, the ADEIR suggests that the Project will not contribute to cumulative impacts because the Project would comply with BMPs to reduce sedimentation. Such promises of regulatory compliance are insufficient to demonstrate a lack of cumulative impacts. (See Californians for Alternatives to Toxics v. Dept. of Food & Agric. (2005) 136 Cal.App.4th 1, 17 (compliance with existing environmental laws or regulations is not sufficient to support a finding that a project will not have significant environmental impacts).)
X. The ADEIR Fails to Adequately Assess or Mitigate the Project’s Noise Impacts.
     The ADEIR states that the Project’s construction activities would generate noise of approximately 83 dBA Leq at 130 feet. (ADEIR at 4.11-10.) The ADEIR acknowledges that this level of noise exceeds the County threshold of 75 dBA Leq and is therefore a potentially significant impact. (Id.) The ADEIR then immediately contradicts itself by stating, “At 130 feet, standard construction equipment would not exceed the 75 dBA, Leq County threshold. Therefore, this is not a significant impact.” The ADEIR cannot conclude that noise impacts will be both above and below 75 dBA at 130 feet.
     Furthermore, the ADEIR does not appear to contain any analyses of the impacts of construction noise on wildlife, despite the fact that construction noise can disrupt the wildlife. Given the undeveloped and undisturbed areas surrounding the Project, the ADEIR needs to analyze the impacts of noise pollution on sensitive wildlife species, such as bats. Despite concluding at one point that impacts are potentially significant, the ADEIR only contains very basic mitigation measures which appear to merely restate existing policies and ordinances (e.g., construction can only occur between 8 a.m. and 6 p.m.). The ADEIR does not demonstrate that these meager mitigation measures will address the noise impacts of construction activities or risks to wildlife.
XI. Conclusion
     Given the possibility that the Center will be required to pursue appropriate legal remedies in order to ensure enforcement of CEQA, we would like to remind CDFFP of its duty to maintain and preserve all documents and communications that may constitute part of the “administrative record.” As you may know, the administrative record encompasses any and all documents and communications which relate to any and all actions taken by CDFFP with respect to the Project, and includes “pretty much everything that ever came near a proposed [project] or [] the agency’s compliance with CEQA . . . .” (County of Orange v. Superior Court (2003) 113 Cal.App.4th 1, 8.) The administrative record further contains all correspondence, emails, and text messages sent to or received by CDFFP’s representatives or employees, which relate to the Project, including any correspondence, emails, and text messages sent between CDFFP’s representatives or employees and the Applicant’s representatives or employees. Maintenance and preservation of the administrative record requires that, inter alia, CDFFP (1) suspend all data destruction policies; and (2) preserve all relevant hardware unless an exact replica of each file is made.
     Thank you for the opportunity to submit comments on the Project. We look forward to working to assure that the Project and environmental review conforms to the requirements of state law and to assure that all significant impacts to the environment are fully analyzed, mitigated or avoided. In light of many significant, unavoidable environmental impacts that will result from the Project, we strongly urge the Project not be approved in its current form. Please do not hesitate to contact the Center with any questions at the number listed below.
Attorneys for the Center for Biological Diversity 1212 Broadway, Suite #800
Oakland, CA 94612

Sunday, February 26, 2017

The deeper the punt the costlier the wine. Often it's just a distraction.


    The pretentious punt is more so, it seems, and a sign of ever more assertive fruit. As often as not, though, deep punts suggest jam in the bottle.
    Punts were invented to give the glass added strength, which it rarely needs these days. Bottles with shallow punts cost less and were thought to indicate inferior wine, whereas deep punts indicated quality. Often they still do, but a bottle of over-priced, over-oaked, alcoholic drek, too, can come in a Fort Knox of a bottle with a three-inch depression in the bottom.
    A wine bottle’s generally considered a means to an end, the world concerned only with its contents. But the bottle will outlast the wine and ends up on the kitchen table the next morning, or in the trash, to mock the reveler. The evolution of wine bottles is closely tied up with the history of wine, and questions of bottle size and shape are still subjects of debate.
    Wine was first stored in amphorae that had been sealed with pitch, and then in barrels. Bottles were used only to serve wine until about 1700, when corks started appearing in bottles to keep out air and allowing wine to age and improve. But corks also dry out unless the bottles are turned on their sides, so as a result wine-bottle shapes evolved from pot-like containers to cylinders that could lie flat and be easily stacked. Presto, the wine cellar!
    Over the years wine producers developed standard shapes and sizes of bottles that vary according to the origin and expected shelf life of a wine. The most common bottle size is 750 milliliters or 26 fluid ounces, but because good wine ages better in larger bottles many wines come in 1.5-liter magnums, which hold two bottles in one. Bordeaux also comes in double magnums, and in imperials, which hold about eight regular bottles. Champagne has its magnums, double magnums, jeroboams (four bottles), methuselahs (eight bottles) and salmanazars (twelve bottles).
    For many, the choice of bottle size pivots more on consumption than storage considerations. Around our house standard bottles usually have wine left in them, which means putting in a rubber stopper and evacuating the air with a plastic pump. Some people consider this tacky, or ineffectual, but they’re wrong, at least on the second point. If you do it immediately after pouring, the wine – particularly reds – will be fine for a day or two.
    If you abhor tackiness and the effort required to pump, a smaller bottle would save you some money from otherwise wasted wine, but half-liter bottles are proportionately more expensive and, from a producer/seller’s point of view, a pain. But half-bottles take up less storage space. And, because wine ages faster in them, some cabernets and other reds not yet ready in full-sized bottles can be drunk earlier in the smaller bottles.
    Many more bottles have the screw-on caps, which don't affect the taste of the wine and are cheaper and more efficient than corks. But they, like half-bottles, wine in boxes - and honest punts - lack of sex appeal.


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