HomeMy WebLinkAbout2016-12-14 - Supplemental BIDRU r SIo6d64200
F 510 836 420S
BY EMAIL and HAND -DELIVERY
December 13, 2016
Dominick Perez, Associate Planner
Planning Department
City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga, CA 91730
Email: Dominick. Perez@cityofrc.us
410 12th Street. Suite 250 www lozeaudrury.com
Oakland. Ca 94607 michael@lozeaudrury.com
Re: DRC2015-00797
Santa Anita Warehouse — Oakmont Industrial Group
Initial Study I Mitigated Negative Declaration
Dear Mr. Perez:
This supplemental comment letter is submitted on behalf of Laborers International
Union of North America, Local Union 783, and its members living in San Bernardino
County (collectively, "LIUNA" or "Commenters") concerning the City of Rancho
Cucamonga's (the "City") Initial Study and Mitigated Negative Declaration ("IS/MND")
prepared for the project known as DRC2015-00797, also known as the Santa Anita
Warehouse, proposed by the Oakmont Industrial Group (the "Project"). These comments
supplement the earlier comment letter dated December 8, 2016 also submitted on behalf
of LIUNA.
LIUNA wanted to bring to the City's attention a substantial inconsistency between
the proposed IS/MND and the 2010 General Plan Final Program Environmental Impact
Report ("2010 General Plan EIR") and findings on which the IS/MND relies. The IS/MND's
air quality analysis concludes that the Project will have less than substantial air quality
impacts because it will implement the mitigation measures identified in the 2010 General
Plan EIR. However, the 2010 General Plan EIR and the accompanying determination by
the City that implementation of the General Plan would have significant and unavoidable
impacts from emissions of numerous air pollutants assumed that all of the mitigations
identified in the 2010 General Plan EIR would be implemented. In other words, even if
every single project in the City included the air emission mitigations identified in the
General Plan EIR, the City already determined that those mitigations would not prevent
the anticipated significant and unavoidable air quality impacts. The IS/MND, contrary to
the 2010 General Plan EIR and the City's statement of overriding considerations, claims
that the General Plan EIR mitigations now will avoid cumulative air quality impacts. The
IS/MND goes so far as to cite the 2010 General Plan EIR for this proposition. That prior
EIR, in fact, draws the opposite conclusion. Thus, the IS/MND's air quality analysis lacks
Era
LIUNA Comments - Santa Anita Warehouse, Oakmont Industrial Group
December 13, 2016
Page 2 of 5
any evidence to support the conclusion that the Project's cumulative air quality impacts
would not be significant.
Moreover, because the 2010 General Plan EIR already determined that air quality
emissions from the Project and other development consistent with the City's General Plan
will have unavoidable cumulative air quality impacts and the Project proposes the same
mitigations already considered and deemed inadequate to avoid these impacts by the
General Plan EIR, the City cannot now rely on an IS/MND applying the same inadequate
mitigations. The City's previous analysis and statement of overriding considerations are
substantial evidence of a fair argument that the Project may have significant cumulative
air quality impacts. Accordingly, the City must prepare an EIR addressing that continuing
admitted impact and make a new statement of overriding considerations.
LIUNA also wanted to bring to the City's attention the expert review of the Project
and IS/MND by Shawn Smallwood, Ph.D. Dr. Smallwood points out numerous flaws in the
biological surveys relied upon by the IS/MND and identifies numerous significant impacts
that the Project may have on wildlife, including sensitive and listed species, that have
either been identified or likely use the Project site. Dr. Smallwood's comments are
attached and incorporated by reference as well as summarized below.
A. Mitigations from the 2010 General Plan EIR Which The City Determined
Were Not Sufficient to Avoid Cumulative Air Quality Impacts, Cannot Now
Be Sufficient to Avoid Those Impacts For The Project.
The 2010 General Plan EIR concluded that, even after implementation of the air
quality mitigation measures, its implementation would nevertheless result in significant
and unavoidable long-term emissions of PM10 and PM2.5. The General Plan EIR
explains this at several points:
The proposed 2010 General Plan Update includes many goals and policies,
described above, that would reduce long-term criteria air pollutant
emissions. Also, MM 4.3-1 and MM 4.3-2 describe a range of measures to
be applied to future projects, as feasible, to reduce emissions. However, the
anticipated reduction in emissions with implementation of such measures is
not quantifiable at this time. Therefore, the proposed project would be
considered to have a significant and unavoidable direct impact related to
emissions of PM10 and PM2.5....
General Plan EIR, p. 4.3-31. Likewise, the General Plan EIR states:
As discussed above, the proposed 2010 General Plan Update would result in
a significant and unavoidable direct impact related to emissions of PM10 and
PM2.5 with implementation of identified 2010 General Plan Update goals
and policies, MM 4.3-1 and MM 4.3-2, as feasible. Therefore, because SCAB
is designated non -attainment for particulates, this significant and
unavoidable direct impact would also be a significant and unavoidable
cumulative impact for PM10 and PM2.5.
LIUNA Comments - Santa Anita Warehouse, Oakmont Industrial Group
December 13, 2016
Page 3 of 5
Id., p. 4.3-32. Thus, the General Plan EIR identifies Impact 4.3-33:
Impact 4.3c:... Estimated net emissions of PM2.5 and PM10 would result in
a significant and unavoidable direct impact. Therefore, because SCAB is
designated nonattainment for particulates, this significant and unavoidable
direct impact would also be a significant and unavoidable cumulative impact
for PM10 and PM2.5 after implementation of proposed 2010 General Plan
Update goals and policies, MM 4.3-1 and MM 4.3-2, as feasible.
Id., p. 4.3-33. MM 4.3-1 and MM 4.3-2 of the General Plan EIR lists out the mitigation
measures which the EIR included in its significant impact determination. Id., p. 4.3-34 —
4.3-36. The General Plan EIR is quite explicit, providing a clear determination of the
"Level of Significance After Mitigation" that the General Plan will result in cumulative
impacts that are "Significant and Unavoidable for PM10 and PM2.5." Id., p. 4.3-36.
The IS/MND's cumulative air quality impact discussion exclusively relies upon the
2010 General Plan EIR's analysis and incorporates the FEIR's air pollutant emission
mitigations. However, the IS/MND ignores the fact that the unavoidable air impacts
identified in the General Plan FOR will result even after implementation of the mitigations
identified in the FEIR and now incorporated into the IS/MND. On the contrary, the IS/MND
misstates the FEIR as finding that the PM2.5 and PM10 cumulative impacts would be
significant "if they cannot be mitigated on a project level basis to a level less -than -
significant." IS/MND, p. 11. See id, p. 14. No such qualifier is found in the FEIR's
significance determination. Nor would it make sense that the identified cumulative impacts
would ever be mitigated by a single project. Where, as here, the mitigations identified in
the General Plan EIR are the mitigations now assigned to the Project, there obviously is
no change to the cumulative impacts already anticipated by the 2010 General Plan EIR.
Ignoring the actual language of the 2010 General Plan EIR, the IS/MND states
that, "with implementation of the following mitigation measures from the City's 2010
General Plan FPEIR that are designed to minimize long-term, operational air quality
Impacts, the Project's contribution to cumulative impacts will be less -than -significant."
IS/MND, p. 14. See id., p. 15 ("With implementation of mitigation measures listed in
subsection b) above from the City's 2010 General Plan FPEIR, which are designed to
minimize long-term, operational air quality impacts, cumulative impacts will be less -than -
significant"); p. 11 ("With implementation of the following best practices and mitigation
measures from the City's 2010 General Plan FPEIR that are designed to minimize short-
term air quality impacts, the project's contribution to cumulative impacts will be less -than -
significant"). This conclusion is fundamentally flawed and is not supported by substantial
evidence because, even with the General Plan EIR mitigations, the City already has
concluded in that EIR that cumulative impacts from PM10 and PM2.5 would nevertheless
continue to occur.
For shorter -term construction emissions, the IS/MND also states:
The General Plan Final Program Environmental Impact Report (FPEIR)
analyzed the impacts of Air Quality based on the future build out of the City.
Based upon on the Urban Emissions Model (URBEM1S7G) estimates In
LIUNA Comments - Santa Anita Warehouse, Oakmont Industrial Group
December 13, 2016
Page 4 of 5
Table 4.3-3 of the General Plan (FPEIR), Nitrogen Dioxide (NO2), Ozone
(03), and Particulate Matter (PM2.5 and PM10) would exceed SCAQMD
thresholds for significance; therefore, they would all be cumulatively
considerable if they cannot be mitigated on a project basis to a level less -
than -significant. This city-wide increase in emissions was identified as a
significant unavoidable adverse impact for which a Statement of Overriding
Considerations was ultimately adopted by the City Council as noted in the
Section 4.3 of the General Plan FPEIR.
IS/MND, p. 11. Again, as noted above, the 2010 General Plan EIR found unavoidable
cumulative air pollution impacts after the identified mitigation was applied. Thus, even if a
particular project applies the FEIR's mitigations, it does not alter the existing conclusion
that a project's emissions of PM2.5 and PM10 will still contribute to a significant cumulate
particulate matter problem.
In addition to lacking substantial evidence justifying the City's inconsistent
conclusions regarding cumulative PM2.5 and PM10 emissions, CEQA as a matter of law
also forbids the City from using an IS/MND to effectively erase a prior EIR determination
of unavoidable significant impacts and statement of overriding considerations from which
it is tiering. The IS/MND tiers from the 2010 General Plan EIR. IS/MND, p. 52.
In the case of Communities for a Better Environment v. Cal. Resources
Agency (2002) 103 Cal.AppAth 98, 122-125, the court of appeal held that when a "first
tier' EIR admits a significant, unavoidable environmental impact, then the agency must
prepare second tier EIRs for later tiered projects to ensure that those unmitigated impacts
are "mitigated or avoided." Id. citing CEQA Guidelines §15152(f). The court reasoned that
the unmitigated impacts were not "adequately addressed" in the first tier EIR since they
were not "mitigated or avoided." Id. Thus, significant effects disclosed in first tier EIRs will
trigger second tier EIRs unless such effects have been "adequately addressed," in a way
that ensures the effects will be "mitigated or avoided." Id. Such a second tier EIR is
required, even if the impact still cannot be fully mitigated and a statement of overriding
considerations will be required. The court explained, "The requirement of a statement of
overriding considerations is central to CEQA's role as a public accountability statute; it
requires public officials, in approving environmental detrimental projects, to justify their
decisions based on counterbalancing social, economic or other benefits, and to point to
substantial evidence in support." Id. at 124-125.
This reasoning applies in particular here where the mitigation for the Project are
incorporated from the previous 2010 General Plan EIR. If those mitigations were
insufficient to address the significant cumulative particulate matter emissions in the
General Plan, they are equally unable to address those impacts when applied to the
current Project. The FEIR itself gives rise to a fair argument that the Project's particulate
matter emissions may have significant cumulative impacts, requiring the preparation of a
new EIR for the Project.
LIUNA Comments - Santa Anita Warehouse, Oakmont Industrial Group
December 13, 2016
Page 5 of 5
B. Dr. Smallwood's Expert Review is Substantial Evidence of a Fair
Argument That the Project May Have Significant Impacts on Biological
Resources Requiring the Preparation of an EIR.
Dr. Smallwood's expert review of the Project and IS/MND has identified a number
of deficiencies in the analysis and potential environmental impacts. Dr. Smallwood
identifies numerous serious flaws in the surveys conducted for the Project and a general
lack of compliance with recognized survey protocols established by the Department of
Fish & Wildlife. Smallwood Comment. Dr. Smallwood identifies numerous sensitive
animals that his review of relevant databases indicates may occur at the site and which
were not assessed by the City or its consultants. Id, pp. 2-4. He focuses his concerns on
six species of note - Los Angeles pocket mouse , San Diego black -tailed jackrabbit, San
Bernardino kangaroo rat, Silvery legless lizard, coast horned lizard, and burrowing owl -
for which the IS/MND and accompanying biological assessments include unsupported
conclusions, faulty survey techniques, ineffective mitigations, and lack of understanding of
the particular species and its habitat. Id., pp. 5-9. Dr. Smallwood points out the IS/MND's
glaring omission of any recognition of the wildlife impacts that will result from traffic
associated with the Project, citing the copious studies documenting the devastating toll on
wildlife from trucks and other vehicles. Id., p. 9.
As a matter of law, "substantial evidence includes ... expert opinion."
Pub.Res.Code § 21080(e)(1); CEQA Guidelines § 15064(f)(5). CEQA Guidelines
demand that where experts have presented conflicting evidence on the extent of the
environmental effects of a project, the agency must consider the environmental effects to
be significant and prepare an EIR. CEQA Guidelines § 15064(f)(5); Pub. Res. Code §
21080(e)(1); Pocket Protectors v. City of Sacramento (2004) 124 Cal. App. 4th 903, 935).
Dr. Smallwood's comments present a fair argument that the project may have a potential
significant impact on wildlife. As a result, the City must prepare an EIR for the Project.
CONCLUSION
For the foregoing reasons, the IS/MND for the Project should be withdrawn, an EIR
should be prepared and the draft EIR should be circulated for public review and comment
in accordance with CEQA. We reserve the right to supplement these comments further
during the upcoming public hearing on the Project. Galante Vineyards v. Monterey
Peninsula Water Management Dist., 60 Cal. App. 4th 1109, 1121 (1997). Thank you for
considering our comments.
Sincerely,
Michael R. Lozeau
Lozeau Drury LLP
Attachment —Comments of Shawn Smallwood, Ph.D.
ATTACHMENT
Shawn Smallwood, PhD
31o8 Finch Street
Davis, CA 95616
Dominick Perez, Associate Planner
Planning Department
City of Rancho Cucamonga
10500 Civic Center Dr
Rancho Cucamonga, CA 91730
12 December 2o16
RE: Initial Study/Mitigated Negative Declaration for Santa Anita Warehouse
Dear Mr. Perez,
I write to comment on the Initial Study (IS or City of Rancho Cucamonga 2016)
prepared for the proposed Santa Anita Warehouse — Oakmont Industrial Group (Project
file DRC2015-00797), which I understand is to be an industrial building totaling
339,000 square feet on 17 acres in the City of Rancho Cucamonga. I assume this
industrial building is to be a warehouse distribution center, but the IS did not clarify the
purpose of the building or the project.
My qualifications for preparing expert comments are the following. I earned a Ph.D.
degree in Ecology from the University of California at Davis in 199o, where I
subsequently worked for four years as a post -graduate researcher in the Department of
Agronomy and Range Sciences. My research has been on animal density and
distribution, habitat selection, habitat restoration, interactions between wildlife and
human infrastructure and activities, conservation of rare and endangered species, and
on the ecology of invading species. I have authored numerous papers on special -status
species issues, including "Using the best scientific data for endangered species
conservation," published in Environmental Management (Smallwood et al.1999), and
"Suggested standards for science applied to conservation issues" published in the
Transactions of the Western Section of The Wildlife Society (Smallwood et al. 2001). I
served as Chair of the Conservation Affairs Committee for The Wildlife Society —
Western Section. I am a member of The Wildlife Society and the Raptor Research
Foundation, and I've been a part-time lecturer at California State University,
Sacramento. I was also 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-two years. Over these years, I
studied the impacts of human activities and human infrastructure on wildlife, including
on golden eagle, Swainson's hawk, burrowing owl, mountain lions, San Joaquin
kangaroo rat, and other species. I have also performed wildlife surveys at many
proposed project sites. I performed mountain lion track surveys throughout California
since 1985. I also collaborate with colleagues worldwide on the underlying science and
policy issues related to anthropogenic impacts on wildlife. My CV is attached.
BIOLOGICAL IMPACTS ASSESSMENT
The impacts determinations in the IS were based on insufficient baseline data and poor
and often misleading characterizations of the ecology and habitat requirements of
potentially occurring special -status species. Visits to the site were cursory and failed to
meet the minimum standards of survey protocols for any of the special -status species at
issue. Whereas Michael Baker Associates (2o16) identified the biologist who visited the
project site, as well as the date and start time of 28 June 2o16 at o8:oo hours, the
duration of the visit was not reported. To the biologist's credit, however, he reported his
visit on eBird (hnp://ebird.org/ebird/explore). He was on site for 2 hours and 58
minutes, thus devoting to minutes and 28 seconds per acre searching for any sign of
San Diego black -tailed jackrabbit, silvery legless lizard, coast horned lizard, and
burrowing owl, while also recording all other species of wildlife observed. In other
words, this one biologist was tasked with detecting 4 special -status species during a very
cursory site visit one morning on one day. Special -status species warrant much greater
survey effort than this. Most any species warrant much greater survey effort than this.
Another biologist visited the site on 4u and 29th September 2015 (Salix Consulting Inc.
2016). The visit was characterized as a "field assessment," but there was no description
of the assessment methodology, time of day the assessments began or how long they
lasted. Based on a reading of the report, I cannot determine whether the biologist
walked over the site or merely looked it over from the window of a passing car. The
wildlife on the site, and the people of California who value these wildlife, deserve more
survey effort and better reporting than provided as foundation for the IS.
The IS was based on an environmental assessment that was much too dismissive of the
likelihoods of occurrence of many special -status species known to occur in the region
(see Table 1). Michael Baker Associates (2016) was focused on only five special -status
species, but despite this focus no protocol -level surveys or reasonably sufficient surveys
were performed for any of them. Nevertheless, two of the focal species were detected on
site. These detections alone warrant the preparation of an EIR to appropriately assess
project impacts and formulate mitigation measures with public participation. However,
the site is likely used and needed by many other special -status species that were given
only cursory consideration by Salix Consulting Inc. (2016). Of the 59 species listed in
Table 1, Salix Consulting Inc. (2o16) made no mention of 46 (78%) of them. Salix
Consulting Inc. (2o16) determined that another 6 of the species are absent from the site,
but I can agree with only one of these absence determinations. Another 3 were
determined as unlikely, but I could not agree with any of these 3 determinations. How
can Salix Consulting Inc. (2016) determine the absence of western yellow bat or western
mastiff bat without having surveyed for them? Did they deploy acoustic detectors along
with Sonobat to detect species of bats? Did they do any evening or nocturnal surveys to
detect bats at all? The occurrence potential of special -status species should not be
dismissed in the absence of survey effort unless the site is obviously devoid of habitat
suitable for foraging, refuge or reproduction.
Table i. Occurrence likelihoods of 59 special -status wildlife species at the project site.
Under occurrence likelihood, Salix refers to Salix Consulting Inc. (2o16) and KSS refers
to my own assessment, and "skipped" means that no mention was made of the species.
Common name, Species name
Status
Occurrence
likelihood
Salix
KSS
Coast horned lizard Phrynosoma coronatum blainvillii
SSC
Possible
Possible
Orange -throated whiptail, Aspidoscelis hyperythra
SSC [2016
watch list]
Skipped
Possible
Coastal whi tail, Cnemido horus tiris multiscutatus
SSC
Skipped
Possible
Silvery legless lizard Anniella p. pulchra
SSC
Unlikely
Possible
San Diego Banded gecko, Coleonjux varie atus abbotti
SSC
Skipped
I Possible
Two -striped garter snake Thamno his hammondi
SSC
Absent
I Unlikely
Coastal rosy boa, Lichanura trivir ata
FSC
119931
Skipped
Possible
Coastpatch-nosed snake, Salvadora hexale is vir ultea
SSC
Skipped
Possible
San Bernardino ringneck snake, Diadophis punctatus
modestus
CNDDB
Skipped
Possible
San Diego rin neck snake, Diado his punctatus similis
CNDDB
Skipped
Possible
Turkey vulture Cathartes aura
CDFW 3503.5
Skipped
Probable
Swainson's hawk, Buteo swainsoni
CT
Skipped
Probable
Ferruginous hawk, Buteo re alis
CDFW 35o3.5
Skipped
Possible
Red-tailed hawk, Buteo 'amaicensis
CDFW 35o3.5
Certain
Red -shouldered hawk, Buteo lineatus
CDFW 35o3.5
Skipped
Probable
Northern harrier, Circus c aneus
SSC3
Skipped
Probable
White-tailed kite, Elanus leucurus
CFP
Skipped
Probable
Sharp -shinned hawk Acci iter striatus
CDFW 3503.5
Skipped
Probable
Cooper's hawk, Acci iter coo eri
CDFW 3503.5
Skipped
Probable
American kestrel, Falco s arverius
CDFW 35o3.5
Skipped
Certain
Merlin Falco columbarius
CDFW 35o3.5
Skipped
Possible
Prairie falcon Falco mexicanus
CDFW 35o3.5
Skipped
Possible
Peregrine falcon, Falco peregrinus
CE, CFP
Skipped
Probable
Barn owl, 71jto alba
CDFW 3503.5
Skipped
Probable
Great -horned owl, Bubo vir inianus
CDFW 3503.5
Skipped
Probable
Burrowing owl Athene cunicularia
FCC SSC2
Unlikely
Probable
Black swift seloides ni er borealis
FSC SSC
Skipped
Possible
Horned lark Eremo hiia al estris actia
TWL
Skipped
Probable
Coastal California gnatcatcher, Polio tila c. cali ornica
FT SSC
Unlikely
Possible
Southwestern willow flycatcher, Empidonax traillii
Extimus
FE, CE
Skipped
Stop -over
Olive -sided flycatcher, Conto us coo eri
SSC2
Skipped
Stop -over
Loggerhead shrike Lanius ludovicianus
FSC SSC2
Skipped
Probable
Least Bell's vireo, Vireo belli pusillus
FE CE
Skipped
Stop -over
Yellow warbler, Seto ha a petechia
SSC2
Skipped
Stop -over
Yellow -breasted chat Icteria virens
SSC3
Skipped
Stop -over
Common name, Species name
Status
Occurrence
likelihood
Salix
KSS
Bell's sage sparrow, Am his iza b. beAi
TWL
Ski ed
Possible
Oregon vesper sparrow, Pooecetes gramineus affinis
SSC2
Skipped
Possible
Grasshopper sparrow, Ammodramus savannarum
SSC2
Skipped
Possible
Southern California rufous -crowned sparrow, Aimophila
ru ce s canescens
FSC, SSC
Skipped
Possible
Tricolored blackbird A elaius tricolor
SSC1
Absent
Possible
California leaf -nosed bat Macrotus calf ornicus
SSC
Skipped
Possible
Pallid bat, Antrozous pallidus
SSC
Skipped
Possible
Townsend's western big -eared bat Plecotus t. townsendii
SSC
Skipped
Possible
Western red bat, Lasiurus blossevillii
SSC
Skipped
Possible
Western yellow bat Lasiurus xanthinus
SSC
Absent
Possible
Small -footed m otis M otis cililabrum
WBWG
Skipped
Possible
Long-eared m otis M otis evotis
WBWG
Skipped
Possible
Fringed m otis, M otis th sanodes
WBWG
Skipped
Possible
Long-legged m otis M otis Volans
WBWG
Skipped
I Possible
Yuma m otis, M otis yumanensis
WBWG
Skipped
Possible
Western mastiff bat Eumo s perotis
SSC
Absent
Possible
Pocketed free -tailed bat NzIctinomopsfernorosaccus
SSC
Skipped
Possible
Southern grasshopper mouse, Onychomys torridus
ramona
SSC
Skipped
Possible
Pacific pocket mouse, Perognathus longimembris
aci cus
Skipped
Possible
Los Angeles pocket mouse, Perognathus longimembris
brevinasus
SSC
Present
Certain
San Diego pocket mouse, Chaetodipusffallax
SSC
Absent
Possible
San Bernardino kangaroo rat, Dipodomys merriami
arvus
SSC
Absent
Possible
San Diego desert woodrat Neotoma le ida intermedia
i SSC
Absent
Possible
San Diego black -tailed jackrabbit, Lepus californicus
bennettii
SSC
Present
Certain
I Listed as FE = federal endangered, FCC = U.S. Fish and Wildlife Service Bird of Conservation
Concern, CE = California endangered, Cr = California threatened, 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), CFP = California Fully Protected (CDFG Code 4700), CDFW 3503.5 = California
Department of Fish and Wildlife Code 3503.5 (Birds of prey), and SSCi, SSC2 and SSC3 =
California Bird Species of Special Concern priorities t, 2 and 3, respectively (Shuford and
Gardali 2008), and TWL = Taxa to Watch List (Shuford and Gardali 2008), WBWG = Western
Bat Working Group listing as moderate or high priority.
Los Angeles pocket mouse — The City of Rancho Cucamonga (2016) misleadingly
states that Los Angeles pocket mouse captures were associated with the on -site drainage
feature. According to Lawrey (2016), Los Angeles pocket mouse was "evenly spread
throughout the trapping grid." This trapping grid did not overlap the on -site drainage
feature (see Figure 3 of Lawrey 2016).
According to City of Rancho Cucamonga (2016), "The project site has no direct
connectivity to any natural habitats or open spaces, and it is unlikely to be used for
any notable wildlife movements." But this statement is not entirely true, as just across
the canal to the west is the right-of-way to a transmission line. This linear habitat
feature connects wildlife on the project site to other habitat areas.
San Diego black -tailed jackrabbit — Other than piggy -backing on the compensatory
mitigation for Los Angeles pocket mouse (see below, under MITIGATION), no
mitigation is proposed for San Diego black -tailed jackrabbit. The City of Rancho
Cucamonga (2016) gives an absurd reason for its decision to not mitigate for the loss of
San Diego black -tailed jackrabbit and its habitat. The reason given is ` jackrabbits
readily scatter when disturbed." Whether an animal scatters when disturbed is no basis
for assessing potential project impacts. If such a basis existed, then there would be no
further need for CEQA or for any wildlife protection laws when it comes to assessing
project impacts on wildlife, as we could conclude that California condors will also scatter
when disturbed, as will Coastal California gnatcatcher, longhorn fairy shrimp, Quino
checkerspot butterfly, and even desert tortoise — perhaps more slowly than other
vertebrates, but tortoises will scatter nonetheless. Reasoning that jackrabbits readily
scatter seems more like a cynical joke than a serious CEQA assessment.
Whether scattering or not, San Diego black -tailed jackrabbits will have only one
direction to move out of harm's way during construction, and that is west into the
transmission line right-of-way — an area already occupied by San Diego black -tailed
jackrabbits if the habitat is suitable. Whether these jackrabbits scatter or march in lock -
hop, the project would destroy 17 acres of habitat while pushing survivors into a narrow
corridor possibly already occupied by the same species at its numerical capacity. The
post -construction number of San Diego black -tailed jackrabbits occupying the
transmission line right-of-way would quickly return to the pre -construction number, but
this return to the original number will not happen without considerable stress among
both displaced and in -place jackrabbits.
The San Diego black -tailed jackrabbits that are displaced or killed by the project will not
benefit from the proposed mitigation for impacts on Los Angeles pocket mouse,
amounting to 6.4 acres of habitat protection at a site yet to be selected. Unless the local
San Diego black -tailed jackrabbits are trapped and released at this mitigation site, they
will be unable to reach it. A serious mitigation plan is needed for San Diego black -tailed
jackrabbit.
San Bernardino kangaroo rat — No mitigation is proposed for loss of San
Bernardino kangaroo rat or its habitat because the City of Rancho Cucamonga (2016)
concludes that the species is absent. Several reasons for this conclusion are provided,
but none are satisfactory. It is claimed that the species needs connectivity to natural
hydrological processes, which no longer exist on the project site. It is also claimed that
unauthorized off -road vehicle activity has degraded the habitat on the site. However, in
my experience with an endangered species of kangaroo rat (Dipodomys n. nitratoides),
the disturbances caused by off -road vehicle activity replaced enough of the disturbance
regime formerly provided by natural hydrological processes to maintain the species at
two sites. In fact, our management actions to conserve and recover the species were
designed and implemented to simulate the disturbance impacts of off -road vehicle
activity, so long as the spatial extent of disturbances was kept in check (Smallwood and
Morrison 2oo6, 2013). Therefore, the site's off -road vehicle activity might very well
make up for the lost hydrological processes needed to maintain cleared space usable by
San Bernardino kangaroo rat. I would not dismiss this species for the reasons given.
Another reason provided in support of a determination of absence was lack of trap
success when traps were set for Los Angeles pocket mouse. According to the City of
Rancho Cucamonga (2o16), if the San Bernardino kangaroo rat is present, then the
trapping for Los Angeles pocket mouse would have detected San Bernardino kangaroo
rat. This conclusion is flawed, however. First of all, Lawrey (2o16) used 12-inch
Sherman live traps, which are small for kangaroo rats. I use 15-inch Sherman live traps,
which are better sized for kangaroo rats. I understand that Lawrey caught 14 Dulzura
kangaroo rats (Dipodomys simulans), but this capture success does not mean that San
Bernardino kangaroo rat would have been caught in 12-inch traps. Additionally, Lawrey
(2016) did not report the number of trap nights of the trapping effort (a standard
reporting metric), so there is no way of assessing the likelihood of capture. What is
reported is the setting of 8o traps on 6 July 2o16, which captured 81 small mammals. A
serious consumer of Lawrey's (2o16) report needs to know how many nights these traps
were opened in order to subtract these 81 captures and all closed -but -empty trap
outcomes from the product of the number of traps and the number of nights of trapping
to arrive at total trap nights. For example, if the 8o traps were opened only two nights,
then the 81 captures (assuming 1 capture per trap) would leave 79 trap nights available
for catching San Bernardino kangaroo rat (2 nights x 8o traps for 16o trap nights — 81
captures = 79 trap nights). If, hypothetically, 15 traps per night were found to be closed
but empty, then we divide these 30 traps nights by 2 (the standard approach) to arrive at
15 lost trap nights, or a total of 64 trap nights available for catching San Bernardino
kangaroo rat. Lawrey (2o16) needs to report all the information that is needed to assess
capture likelihood, including the number of nights when traps were set and the number
of traps found closed and empty the following morning.
Trapping endangered species of kangaroo rats is not easy. I have many times set traps
and failed to capture San Joaquin kangaroo rat. On the rare occasion when I did
succeed at capturing this endangered kangaroo rat, nearly all of my traps were filled
nearly every night I ran them. Just the right conditions are needed, including
temperature and moon stage, so one should be cautious about relying on a single
trapping session for determining absence of San Bernardino kangaroo rat. A sufficient
number of traps should be opened over 5 consecutive nights in one session, followed by
two or three additional sessions spread through the year to experience various
temperature and moon conditions.
An EIR should be prepared to appropriately assess impacts to San Bernardino kangaroo
rat.
Silvery legless lizard and coast horned lizard — According to the City of Rancho
Cucamonga (2o16), "The site has marginal or moderate habitat to support silvery
legless lizard, coast horned lizard." No foundation is provided for this conclusion.
What is marginal or moderate about the habitat for these species on this site? And if we
are to believe that the habitat is of moderate suitability, then why conclude these species
are absent? If the habitat is moderately suitable, then both species might very well
occur on site. Certainly, no surveys were performed to determine the absence of either
of these species. I cannot recall surveying for silvery legless lizard in my own career, but
I have surveyed for coast horned lizard and other rare herpetological species. I have
used a rake on appropriate soils, as well as a hooked stick to turn over debris. This is
how one finds these types of species, and not by simply declaring absence. An EIR
should be prepared to appropriately assess impacts to these species.
Burrowing owl — The City of Rancho Cucamonga (2016) concludes the site includes
marginal to moderate habitat for burrowing owl, and then in the next sentence settles
on marginal habitat. From this habitat downgrade from moderate to marginal, the City
then concludes burrowing owls are absent thereby negating the need for surveys. This
progression of logic is contrary to the precautionary principle in risk assessment
(National Research Council 1986, O'Brien 2000) and contrary to the CDFW (2012)
guidance on burrowing owl mitigation. The CDFW (2012) survey protocol was not
followed by the City of Rancho Cucamonga (2016), as detailed below.
Biologist qualifications.—CDFW (2012) lists minimum qualifications of biologists
engaged to perform surveys and impact assessments. These qualifications include (1)
Familiarity with the species and local ecology; (2) Experience conducting habitat
assessments and breeding and non -breeding season surveys; (3) Familiarity with
regulatory statutes, scientific research and conservation related to burrowing owls; (4)
Experience with analyzing impacts on burrowing owls. There is no evidence of expertise
on burrowing owls or experience performing burrowing owl surveys by any of the
biologists who visited the project cite in support of City of Rancho Cucamonga (2016),
and there is no indication that anyone involved was familiar with burrowing owl
research or conservation. After all, the only source referenced on burrowing owl ecology
or conservation was to a 312 word blurb on an internet web site (Poulin et al. 2011).
Habitat assessment. —Neither Michael Baker International (2016) nor Salix Consulting
Inc. (2016) reported findings of a suitable habitat assessment. On burrowing owl
ecology, Michael Baker International (2o16) cited Poulin et al. (2011), consisting of a 312
word blurb on a web site. Poulin et al.'s (2011) only summary of burrowing owl ecology
in its 312 words was the following, "this species is active day and night, nests in
underground burrows, and typically nests in small groups." Nevertheless, Michael
Baker International (2016) attributes the following statements to Poulin et al. (20i1):
(1) "Agricultural fields, golf courses, cemeteries, airports, and vacant lots are also all
utilized readily as breeding habitat;" (2) "Western burrowing owls (A.c. hypugaea)
only very rarely dig their own burrows and generally must rely on natural or
artificial burrows;" (3) "Nests are typically constructed in an area that contains a high
density of burrows and are typically placed in areas surrounded by bare ground or
low -growing vegetation." These attributions to Poulin et al. (2oli) are false. Most of
the rest of the habitat summary in Michael Baker International (2016), including (3)
above, are inaccurate. These false attributions and inaccurate habitat descriptions are
inconsistent with the standards listed in CDFW (2012), and they strongly indicate that
Michael Baker International was unqualified to assess burrowing owl habitat at the time
it was tasked with doing so for this project.
Breeding season surveys. —According to the CDFW (2012) survey protocol, 4 surveys
are needed, and these surveys are supposed to be separated by at least 3 weeks, with t
survey preceding April 15 and one following June 15. The surveys are supposed to be
performed between dawn and io:oo hours or within the 2 hours preceding evening civil
twilight. Instead, one biologist visited the site once on 28 June 2016, and another
visited the site in September, after the breeding season. This level of effort fails to meet
breeding -season survey standards in CDFW (2012).
Reporting.—CDFW (2012) lists reporting standards numerically for burrowing owl
surveys. Michael Baker International (2016) and City of Rancho Cucamonga (2016) fail
to report (1) survey dates appropriately separated by at least 3 weeks, along with start
and end times and weather conditions, (2) qualifications of surveyor(s), (3) discussion
of how the timing of surveys affected comprehensiveness and detection probability (see
Crowe and Longshore 2010), (4) description of survey methods including point count
dispersal and duration (transect spacing was the only description provided), (5) a
description and justification of the area surveyed, (6) numbers of nestlings or juveniles
associated with each pair and whether adults were banded or marked, (7) descriptions
of behaviors of burrowing owls observed, (8) a list of possible burrowing owl predators
in the area, including any signs of predation of burrowing owls, (1o) signed field forms,
photos, etc., (12) copies of CNDDB field forms that were sent to CDFW in compliance
with the surveyor(s) scientific collecting permits (the SCP compliance clause was added
by me but does not appear in the protocol). Some of the preceding non -reporting
resulted from the lack of burrowing owl detections, but these lack of detections likely
resulted from inadequate survey effort and failing to follow CDFW's (2012) breeding
season survey protocol.
To summarize, protocol -level surveys were not performed for burrowing owls on the site
— not even close. Without having followed the survey protocol, the City of Rancho
Cucamonga (2o16) lacks foundation for concluding absence. Both Salix Consulting Inc.
(2o16) and Michael Baker International (2016:9) claim the habitat on site is of low
quality, but I cannot agree with this. Based on the site photos appearing in the reports,
the habitat looks typical of where I often find burrowing owls. Michael Baker
International (2016:9) pigeon -holes burrowing owls as a grassland specialist, but
burrowing owls occur in a variety of vegetation covers including bare or sparsely
vegetated patches of ground, as reported by Michael Baker International (2016:9) in the
sentence immediately following the claim that the species is a grassland specialist.
Burrowing owls are not as restricted to areas of high mammal burrow density as claimed
by Michael Baker International (2016:lo), nor are they necessarily year-round residents
of burrows in southern California (no reference was provided for this claim). Burrowing
owls do not always use burrows out in the open, as claimed by Michael Baker
International (2ot6:20). Qualified biologists are needed to assess burrowing owl
habitat on the project site.
Michael Baker International (2016:20) claims to have thoroughly examined all mammal
burrows for sign of burrowing owls, but this was not done according to the protocol,
which matters to the determinations made about habitat being of low quality and
burrowing owls unlikely occurring on site. I have many times found burrowing owls
nesting in burrows where I had previously found no sign of burrowing owl use. This is
the reason the protocol recommends multiple surveys separated by several weeks each.
One cannot rely on a single visit to determine owl presence based on sign. The protocol
needs to be heeded.
Traffic Impacts on Wildlife
According to City of Rancho Cucamonga (2o16), the project will generate about'712
vehicle trips daily. However, if this project is to be a distribution warehouse (I am
assuming it is, given the recent trend in proliferating distribution warehousing and the
lack of a project description in the I8), then this daily trip estimate appears low for a
339,000 square feet of warehousing. For example, at a similar -sized warehouse project
nearby (I-210 Logistics Center IV project composed of 431,265 square feet of warehouse
on 18.3 acres), Kimley-Horn and Associates (2o16) predict 2,573 daily passenger car
equivalent trips. Adjusted for the size of the warehouse (339,000/431,265 = 0.786), this
traffic volume would translate to 2,022 average daily trips, or 2.8 times greater traffic
volume than predicted by City of Rancho Cucamonga (2016).
Regardless of whether the traffic volume would be 712 or 2,022 average daily trips, the
increase in traffic volume would be considerable. It is therefore surprising that no
analysis of traffic impacts on wildlife is provided. Auto and truck traffic poses one of the
most lethal and devastating effects to wildlife (Forman et al. 2003). Vehicle collisions
have accounted for the deaths of many thousands of reptile, amphibian, mammal, bird,
and arthropod fauna, and the impacts have often been found to be significant at the
population level (Forman et al. 2003). The impact caused by the project's added traffic
should be assessed and mitigated.
Cumulative Effects Analysis
The City of Rancho Cucamonga (2o16) explained that a statement of overriding
considerations in an earlier 2010 Program FEIR prepared for the City of Rancho
Cucamonga General Plan, and citing the benefits of development under the General
Plan, negates the need for assessing cumulative impacts. In fact, no cumulative effects
analysis is reported. However, cumulative impacts are highly likely to be significant and
considerable, given the extensive habitat destruction that has already taken place in the
region, and the loss of this site as one of the last patches of stop -over habitat for
migrating birds, one of the last patches of habitat for multiple special -status species, and
one of the last stop -over habitat patches for terrestrial wildlife moving along the
transmission line right-of-way corridor during migration and dispersal. An EIR should
be prepared, and it should address cumulative impacts regardless of the earlier
statement of over-riding considerations.
MMGATION
Removal and relocation of captured Los Angeles pocket mouse — This
measure needs much greater detail and specificity. As written, setting traps for an hour
and catching no Los Angeles pocket mice would suffice. Minimum standards are
needed on trapper qualifications, trap -nights, representation of seasons and the year,
and spatial coverage of the project site. Minimum standards are also needed on
duration of holding captive animals prior to release, the conditions of holding, time of
day (night) of release, and conditions of release site, including the numerical and
demographic status of the receiving Los Angeles pocket mouse population.
Dumping captured pocket mice into an area already occupied by Los Angeles pocket
mouse would likely cause significant impacts on the receiving population, which will
have already reached its numerical capacity and established social bonds. This sort of
dumping could be viewed by some biologists as inhumane, reckless, or even a form of
take under the California Endangered Species Act. It could be viewed as an expansion of
the project's impacts into areas occupied by Los Angeles pocket mouse. When I was
asked to facilitate a similar dumping of burrowing owls from a project area into habitat
patches elsewhere, I relinquished my consultancy rather than engage in what I
considered to be unethical treatment of wildlife. In my opinion, the only ethical grounds
for trapping and relocation of Los Angeles pocket mice would be into areas undergoing
habitat restoration, where the species likely has not established yet.
Compensate 3.2 acres of Los Angeles pocket mouse habitat at 2:1 ratio — The
basis for this measure is incorrect. Lawrey (2016) found Los Angeles pocket mice
spread across the trapping grid, but the trapping grid did not necessarily represent the
entirety of the species occupation of the site. Lawrey did not trap the remainder of the
project site, so the City of Rancho Cucamonga (2016) cannot conclude that Los Angeles
pocket mouse is limited in its distribution to the 3.2 acre trapping grid. Given that the
species was spread across the entire trapping grid, it is reasonable to conclude that it
occupies the entire project site. The appropriate basis for habitat compensation is 17
acres.
Preconstruction surveys for burrowing owls — Whereas preconstruction surveys
should be performed for burrowing owl, the CDFW (2012) protocol calls for more
substantial surveys prior to the preconstruction surveys, and these have not yet been
completed. Protocol -level surveys are needed first to establish the numerical basis for
impact assessment and formulation of compensatory mitigation.
10
Thank you for your consideration,
,4.M
Shawn Smallwood, Ph.D.
CITED
CDFG (California Department of Fish and Game). 2012. Staff Report on Burrowing
Owl Mitigation. Sacramento, California.
City of Rancho Cucamonga. 2016. Initial Study Part II.
Forman, T. T., D. Sperling, J. A. Bisonette, A. P. Clevenger, C. D. Cutshall, V. H. Dale, L.
Fahrig, R. France, C. R. Goldman, K. Heanue, J. A. Jones, F. J. Swanson, T. Turrentine,
and T. C. Winter. 2003. Road Ecology. Island Press, Covello, California.
Kimley-Horn and Associates. 2016. Traffic Impact Study for the proposed I-210
Logistics Center IV Project in the City of Rialto. Appendix I to Draft I-2io Logistics
Center IV Addendum to the Renaissance Specific Plan Final Environmental Impact
Report Sch No. 20060771021. City of Rialto, California.
Lawrey, S. 2oi6. Presence/Absence Focused Survey Report: Los Angeles pocket mouse
(Perognathus longimembris [LAPM]), Oakmont Industrial Project. Letter to RBF
Consulting, Ontario, California.
Michael Baker International. 2016. Oakmont Industrial Project, City Of Rancho
Cucamonga, San Bernardino County, California: Special -Status Species Habitat
Suitability Assessment. Report to McWhit Properties, Inc., Newport Coast, California.
National Research Council. 1986. Ecological knowledge and environmental problem -
solving: concepts and case studies. National Academy Press, Washington, D.C.
O'Brien, M. 2000. Making better environmental decisions: an alternative to risk
management. The MIT Press, Cambridge, Massachusetts.
Salix Consulting, Inc. 2016. Biological Resources Assessment for the t17-Acre Santa
Anita Avenue Study Area Rancho Cucamonga, San Bernardino County, California.
Report to CRP Oakmont Santa Anita, LLC, Auburn, California.
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 i. Western Field
Ornithologists, Camarillo, California.
11
Smallwood, K. S. and M. L. Morrison. 2oo6. San Joaquin kangaroo rat (Dipodomys n.
nitratoides) Conservation Research in Resource Management Area 5, Lemoore Naval
Air Station: 2005 Progress Report (Inclusive of work during 2001-2005). U.S. Navy
Integrated Product Team (IPT), West, Naval Facilities Engineering Command, South
West, Daly City, California.16o pp.
Smallwood, K. S. and M. L. Morrison. 2013. San Joaquin kangaroo rat (Dipodomys n.
nitratoides) Conservation Research in Resource Management Area 5, Lemoore Naval
Air Station: 2012 Progress Report (Inclusive of work during 2000-2012). Naval
Facilities Engineering Command, Southwest, Desert Integrated Products Team, San
Diego, California.
Smallwood, K.S., J. Beyea and M. Morrison. 1999. Using the best scientific data for
endangered species conservation. Environmental Management 24:421-435•
Smallwood, K.S., A. Gonzales, T. Smith, E. West, C. Hawkins, E. Stitt, C. Keckler, C.
Bailey, and K. Brown. 2001. Suggested standards for science applied to conservation
issues. Transactions of the Western Section of the Wildlife Society 36:40-49•
12
loce-el'o'c"I cvT
From: Jeremiah George [mailto:iernaeorae(@vahoo.comj
Sent: Wednesday, December 14, 2016 11:52 AM
To: Burnett, Candyce <Candvice.Burnett@citvofrc.us>; Planning, City <Citv.Planning@citvofrc.us>
Subject: OPPOSAL TO APPROVAL OF DRC2015-00797 Dec, 14, 2016
PLEASE PRESENT TO THE COMMISSION and PLANING DEPARTMENT prior to 06:00 PM
December 14, 2016.
COMMENTS REGARDING: DRC2015-00797 ENVIRONMENTAL ASSESSMENT AND DEIGN REVIEW.
THE COMMENTS BELOW WERE SUBMITTED WITHIN THE LEGAL WINDOW TO GO ON RECORD
REGARDING OUR OPPOSAL of approval of
DR0015-00797.
Dear, Members of the Planning commission
This projects was just brought to my attention yesterday evening so please
accept my apologies in advance for the brevity of my comments.
The current environmental documentation for DRC2015-00797 is wholly
inadequate the site is significant and has the potential or has known
historical observations of a number of special status resources. The
following issues have not been adequately addressed.
1. The site is potential habitat for the Delhi sands Flower Loving fly a
federally listed Endangered species. Southern California Edison has conducted
some protocol surveys abutting this site which have produced negative
results. However this site has not been surveyed for the required two years
per USFWS. The area maps outside of Delhi sands (per USGs) however this area
has documented Delhi blow sands present (per obs, per UsFws)
2. The site likely supports Los Angeles Pocket Mouse (a CDFWS special status
species). Surveys need to be conducted.
3. The site likely supports San Bernardino kangaroo rat a federally
endangered species. Recent surveys from the area have documented likely
persistence of this species from the area.
4. The historic channel of Day creek or Cucamonga creek crosses this site
from the northeast to the southeast and still supports alluvial fan and
riparian plant communities including Lepidospartum squamatum, Eriogonum
fasiculatum, Salix exigua and and associated rich native plant community.
Lepidospartum squamatum
5. The area has seen a lot of recent disturbance from "weed abatement"
activities and unauthorized ORV use. However it supports the last large piece
of Aeolian dune and alluvial scrub in the area.
6. A number of potential status plant species likely or possible occur onsite
for example Phacelia stelaris.
7. The site also likely supports California legless lizard and is appropriate
habitat for the southcoast horned lizard.
Myself and the South Coast Chapter of the California Native Plant Society
oppose approval of this project until the above issues are addressed.
sincerely
Jeremiah N. George PhD -Consulting Biologist & Conservation Chair south Coast
CNPS. iernoeorge@vahoo.com, 310-469-8989.
Click here to report this email as spam.
DRURY 1 510.836.4200
F 510,836,4205
BY EMAIL and OVERNIGHT MAIL
December 8, 2016
Dominick Perez, Associate Planner
Planning Department
City of Rancho Cucamonga
(909) 477-2750
10500 Civic Center Dr
Rancho Cucamonga, CA 91730
Email: Dominick. Perez@cityofrc.us
410 17rh SrreO. Suite 250 www.lozeaudrury,corn
Oakland. Ca 94607 dougglozeaudrury corn
Re: DRC2015-00797
Santa Anita Warehouse — Oakmont Industrial Group
Initial Study I Mitigated Negative Declaration
Dear Mr. Perez:
This letter is submitted on behalf of Laborers International Union of North
America, Local Union 783, and its members living in San Bernardino County
(collectively, "LIUNA" or "Commenters") concerning the City of Rancho Cucamonga's
(the "City") Initial Study and Mitigated Negative Declaration ("IS/MND") prepared for the
project known as DRC2015-00797, also known as the Santa Anita Warehouse,
proposed by the Oakmont Industrial Group (the "Project").
Commenters request that the City withdraw the IS/MND and instead prepare an
environmental impact report ("EIR") for the Project, as there is substantial evidence that
the Project will have significant unmitigated impacts on the environment as discussed
below. An EIR is required to analyze these impacts and to adopt feasible mitigation
measures and alternatives to reduce the impacts to the extent feasible.
PROJECT DESCRIPTION
The project proposes the construction of a 338,470-square foot warehouse on
16.29 acres located north of 6th Street to the north of the termination of Santa Anita
Avenue, Rancho Cucamonga, California. The warehouse includes 109,567 square feet
Comments of LIUNA on Initial Study / Mitigated Negative Declaration
DRC2015-00797
December 8, 2016
Page 2 of 8
of landscaping, 191 automobile parking spaces, 36 trailer parking spaces, 36 loading
docks, and 20 bicycle parking spaces (10 short term and 10 long term).
STANDING
Members of LIUNA Local Union No. 783 live, work, and recreate in the
immediate vicinity of the Project site. These members will suffer the impacts of a poorly
executed or inadequately mitigated Project, just as would the members of any nearby
homeowners association, community group or environmental group. Hundreds of
LIUNA Local Union No. 783 members live and work in areas that will be affected by air
pollution generated by the project. Therefore, LIUNA Local Union No. 783 and its
members have a direct interest in ensuring that the Project is adequately analyzed and
that its environmental and public health impacts are mitigated to the fullest extent
feasible.
Pursuant to CEQA, LIUNA Local Union No. 783 submits these comments in
response to the City's proposed IS/MND. Under the circumstances presented here,
CEQA clearly requires the preparation of an EIR and accordingly, the City should
decline to adopt the proposed IS/MND.
LEGALSTANDARD
As the California Supreme Court recently held, "[i]f no EIR has been prepared for
a nonexempt project, but substantial evidence in the record supports a fair argument
that the project may result in significant adverse impacts, the proper remedy is to order
preparation of an EIR." (Communities for a Better Environment v. South Coast Air
Quality Management Dist. (2010) 48 Cal.4th 310, 319-320 ["CBE v. SCAQMD" ], citing,
No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, 88; Brentwood Assn. for No
Drilling, Inc. v. City of Los Angeles (1982) 134 Cal.App.3d 491, 504-505.) "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.
Calif. Resources Agency (2002) 103 Cal.AppAth 98, 109 ["CBE v. CRA"].)
The EIR is the very heart of CEQA. (Bakersfield Citizens for Local Control v. City
of Bakersfield (2004) 124 Cal.AppAth 1184, 1214; Pocket Protectors v. City of
Sacramento (2004) 124 Cal.AppAth 903, 927.) The EIR is an "environmental 'alarm
bell' whose purpose is to alert the public and its responsible officials to environmental
changes before they have reached the ecological points of no return." (Bakersfield
Citizens, supra, 124 Cal.AppAth at 1220.) The EIR also functions as a "document of
accountability," intended to "demonstrate to an apprehensive citizenry that the agency
has, in fact, analyzed and considered the ecological implications of its action." (Laurel
Heights Improvements Assn. v. Regents of University of California (1988) 47 Cal.3d
Comments of LIUNA on Initial Study / Mitigated Negative Declaration
DRC2015-00797
December 8, 2016
Page 3 of 8
376, 392.) The EIR process "protects not only the environment but also informed self-
government." (Pocket Protectors, supra, 124 Cal.AppAth at 927.)
An EIR is required if "there is substantial evidence, in light of the whole record
before the lead agency, that the project may have a significant effect on the
environment." (Pub. Resources Code, § 21080(d); see also Pocket Protectors, supra,
124 Cal.App.4th at 927.) In very limited circumstances, an agency may avoid preparing
an EIR by issuing a negative declaration, a written statement briefly indicating that a
project will have no significant impact thus requiring no EIR (14 Cal. Code Regs., §
15371 ["CEQA Guidelines"]), only if there is not even a "fair argument" that the project
will have a significant environmental effect. (Pub. Resources Code, §§ 21100, 21064.)
Since "[t]he adoption of a negative declaration ... has a terminal effect on the
environmental review process," by allowing the agency "to dispense with the duty [to
prepare an EIR]," negative declarations are allowed only in cases where "the proposed
project will not affect the environment at all." (Citizens of Lake Murray v. San Diego
(1989) 129 Cal.App.3d 436, 440.)
Where an initial study shows that the project may have a significant effect on the
environment, a mitigated negative declaration may be appropriate. However, a
mitigated negative declaration is proper only if the project revisions would avoid or
mitigate the potentially significant effects identified in the initial study "to a point where
clearly no significant effect on the environment would occur, and... there is no
substantial evidence in light of the whole record before the public agency that the
project, as revised, may have a significant effect on the environment." (Public
Resources Code §§ 21064.5 and 21080(c)(2); Mejia v. City of Los Angeles (2005) 130
Cal.App.4th 322, 331.) In that context, "may" means a reasonable possibility of a
significant effect on the environment. (Pub. Resources Code, §§ 21082.2(a), 21100,
21151(a); Pocket Protectors, supra, 124 Cal.AppAth at 927; League for Protection of
Oakland's etc. Historic Resources v. City of Oakland (1997) 52 Cal.AppAth 896, 904-
905.)
Under the "fair argument" standard, an EIR is required if any substantial evidence
in the record indicates that a project may have an adverse environmental effect —even if
contrary evidence exists to support the agency's decision. (CEQA Guidelines, §
15064(f)(1); Pocket Protectors, supra, 124 Cal.AppAth at 931; Stanislaus Audubon
Society v. County of Stanislaus (1995) 33 Cal.AppAth 144, 150-15; Quail Botanical
Gardens Found., Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602.) The "fair
argument" standard creates a "low threshold" favoring environmental review through an
EIR rather than through issuance of negative declarations or notices of exemption from
CEQA. (Pocket Protectors, supra, 124 Cal.AppAth at 928.)
The "fair argument" standard is virtually the opposite of the typical deferential
standard accorded to agencies. As a leading CEQA treatise explains:
Comments of LIUNA on Initial Study / Mitigated Negative Declaration
DRC2015-00797
December 8, 2016
Page 4 of 8
This 'fair argument' standard is very different from the standard normally followed
by public agencies in making administrative determinations. Ordinarily, public
agencies weigh the evidence in the record before them and reach a decision
based on a preponderance of the evidence. [Citations]. The fair argument
standard, by contrast, prevents the lead agency from weighing competing
evidence to determine who has a better argument concerning the likelihood or
extent of a potential environmental impact. The lead agency's decision is thus
largely legal rather than factual; it does not resolve conflicts in the evidence but
determines only whether substantial evidence exists in the record to support the
prescribed fair argument.
(Kostka & Zishcke, Practice Under CEQA, §6.29, pp. 273-274.) The Courts have
explained that "it is a question of law, not fact, whether a fair argument exists, and the
courts owe no deference to the lead agency's determination. Review is de novo, with a
preference for resolving doubts in favor of environmental review." (Pocket
Protectors, supra, 124 Cal.AppAth at 928 [emphasis in original].)
As a matter of law, "substantial evidence includes ... expert opinion." (Pub.
Resources Code, § 21080(e)(1); CEQA Guidelines, § 15064(f)(5).) CEQA Guidelines
demand that where experts have presented conflicting evidence on the extent of the
environmental effects of a project, the agency must consider the environmental effects
to be significant and prepare an EIR. (CEQA Guidelines § 15064(f)(5); Pub. Res. Code
§ 21080(e)(1); Pocket Protectors, supra,124 Cal.AppAth at 935.) "Significant
environmental effect" is defined very broadly as "a substantial or potentially substantial
adverse change in the environment." (Pub. Resources Code, § 21068; see also CEQA
Guidelines, § 15382.) An effect on the environment need not be "momentous" to meet
the CEQA test for significance; it is enough that the impacts are "not trivial." (No Oil,
Inc., supra, 13 Cal.3d at 83.) In Pocket Protectors, the court explained how expert
opinion is considered. The Court limited agencies and courts to weighing the
admissibility of the evidence. (Pocket Protectors, supra, 124 Cal.App.4th at 935.) In
the context of reviewing a negative declaration, "neither the lead agency nor a court
may 'weigh' conflicting substantial evidence to determine whether an EIR must be
prepared in the first instance." (1d.) Where a disagreement arises regarding the validity
of a negative declaration, the courts require an EIR. As the Court explained, "[i]t is the
function of an EIR, not a negative declaration, to resolve conflicting claims, based on
substantial evidence, as to the environmental effects of a project." (Id.)
Comments of LIUNA on Initial Study / Mitigated Negative Declaration
DRC2015-00797
December 8, 2016
Page 5 of 8
DISCUSSION
A. AN EIR IS REQUIRED BECAUSE THE PROJECT WILL MAY HAVE
SIGNIFICANT UNMITIGATED ENVIRONMENTAL IMPACTS.
An EIR is required whenever substantial evidence in the entire record before the
agency supports a fair argument that a project may have a significant effect on the
environment. (CBE v. SCAQMD, supra, 48 CalAth at 319-20; Public Resources Code §
21080(d); see also, Pocket Protectors, supra, 124 Cal.App.4t" at 927.) As set forth
below, there is a fair argument supported by substantial evidence that the Project may
result in significant environmental impacts from the operation of the Project. Therefore,
the City is required to prepare an EIR to evaluate the Project's impacts and analyze
mitigation measures needed to reduce such impacts to a less than significant level.
Substantial Evidence Supports a Fair Argument that the Project Will
Result in Significant Unmitigated Impacts to Air Quality.
The IS/MND used the California Emissions Estimator Model Version
CalEEMod.2013.2.2 ("CaIEEMod") to calculate emissions from the Project. However,
on information and belief we conclude that several of the assumptions used and values
input into CaIEEMod were inconsistent with both information disclosed in the IS/MND as
well as recommended procedures and values set forth by the South Coast Air Quality
Management District ("SCAQMD") for a high -cube warehouse (the type of Project at
issue). Had the Project's emissions been calculated using the correct parameters, the
Project would have a potentially significant impact on air quality. As such, the Project's
air quality impacts have not been properly analyzed and mitigated. Accordingly, the
following points constitute substantial evidence that support a fair argument that the
IS/MND failed to properly calculate the Project's emissions and that the Project will thus
have significant unmitigated impacts.
The Initial Study calculates that the Project's operational emissions of nitrogen
oxides ("NOx") is 52 pounds per day ("ppd") —just slightly below 55 ppd CEQA
significance threshold set by the South Coast Air Quality Management District. (Initial
Study page 13 ("IS 13")). Given that this figure is only 3 ppd less than the CEQA
significance threshold, there is a fair argument that the Project's emissions will be
significant. This could be due to any calculation errors or if there is even a slight
increase in traffic related to the Project. "[U]nder CEQA, the lead agency bears a
burden to investigate potential environmental impacts. 'If the local agency has failed to
study an area of possible environmental impact, a fair argument may be based on the
limited facts in the record. Deficiencies in the record may actually enlarge the scope of
fair argument by lending a logical plausibility to a wider range of inferences.' (Sundstrom
v. County of Mendocino (1988) 202 Cal. App. 3d 296, 311; County Sanitation Dist. No. 2
v. County of Kern (2005) 127 Cal. App. 4th 1544).
Comments of LIUNA on Initial Study / Mitigated Negative Declaration
DRC2015-00797
December 8, 2016
Page 6 of 8
Furthermore, the Project will have significant cumulative NOx impacts. Under
CEQA, the EIR must analyze the relevant area affected in its analysis of cumulative
impacts. (14 CCR §15130(b)(3)). The area affected depends on the nature of the
impact being analyzed. (Id.) For example, for air quality impacts, the relevant region for
cumulative impacts would be the air basin. Kings Co. Farm Bureau v. Hanford, 221
Cal.App.3d 692, 721; Citizens to Preserve the Ojai v. County of Ventura, 176
Cal.App.3d 421, 430 (1985). For urban decay impacts the relevant geographic area
would be the urban region. Bakersfield Citizens v. Bakersfield, 124 Cal.App.4'h 1184,
1216 (2004). Since NOx is a regional pollutant, which contributes to regional ozone
pollution, the relevant area is the South Coast Air Basin.
Rather than looking at the cumulative impacts of foreseeable projects in the air
basin, he Initial Study improperly limits its cumulative impact analysis to only the City of
Rancho Cucamonga. IS 14.
There are literally millions of square feet of similar warehouse projects being
proposed and constructed throughout the air basin. All of these projects are reasonably
foreseeable. Together, they will have significant cumulative NOx impacts, adding to
already unacceptable ozone levels in the region. (Kings Co Farm Burea, supra). For
example, there is the Renaissance Specific Plan Amendment project in the nearby City
of Rialto (16 miles away), which contains 4 million square feet of warehouse space.
http://Yourrialto.com/wp-content/uploads/2015/06/REN-DSEIR Print-Version-
2106.06.27-foxit.pdf. The Colony Commerce Center Project in the nearby City of
Ontario will have 1.3 million square feet of warehouse space.
http://www. ontarioca. aov/pla nn ing/reports/environmental-i m pact-reports/colon y-
commerce-center-specific-plan-draft-eir. These projects together with the proposed
DRC2015-00797 project will clearly have significant cumulative NOx impacts.
Therefore an EIR is required.
2. The Project Will Have Significant Unmitigated Biological Impacts.
The Initial Study and biological survey conclude that the protected San Diego
Black -tailed Jackrabbit is found on site. IS 17. However, the IS proposes no mitigation,
stating:
San Diego black -tailed jackrabbit was identified on -site by Michael Baker in 2014
during a standard habitat assessment and again 2016 during a focused habitat
suitability assessment. No additional mitigation is proposed for this species. No
relocation will be required, as jackrabbits readily scatter when disturbed and
Mitigation Measure 3 is assumed to partially mitigate for the loss of habitat for
this species to achieve a less than significant Impact.
Comments of LIUNA on Initial Study / Mitigated Negative Declaration
DRC2015-00797
December 8, 2016
Page 7 of 8
This conclusion that no mitigation is required because rabbits "scatter when
disturbed" is simply preposterous, and may constitute a violation of the Endangered
Species Act. Species are "taken" and adversely impacted by the destruction of habitat.
If an animal's home is destroyed, this adversely affects a species, even if the species is
a fast jackrabbit and can outrun a bulldozer. In short, forcing a protected species to "run
away" does not mitigate the impact. In fact, the act of "scattering" protected species is it
itself a significant adverse impact requiring an EIR. Center for Biological Diversity v.
Department of Fish & Wildlife, 62 Cal. 4th 204, 231 (Cal. 2015).
Similarly, the Initial Study indicates that the Los Angeles Pocket Mouse (LAPM)
has been positively identified on site. IS 17. The IS proposes a mitigation measure to
trap and relocate the species. IS 17. However, the process of trapping and relocating
will necessarily result in protected species being killed either during the relocation
process or after. For example, in the case of Center for Biological Diversity v.
Department of Fish & Wildlife, 62 Cal. 4th 204, 231 (2015), the Department of Fish and
Wildlife proposed to capture and relocate of the stickleback as a conservation measure
to protect the fish and aid in its recovery. The Supreme Court held that since the
protected fish would be injured and possibly killed during relocation, "the agency may
not rely in a CEQA document on the prospect of capture and relocation as mitigating a
projects adverse impacts." Center for Biological Diversity v. Department of Fish &
Wildlife, 62 Cal. 4th 204, 232 (Cal. 2015). This measure fails to reduce impacts to less
than significant and an EIR is required to analyze this impact and propose all feasible
mitigation measures and alternatives.
The California Department of Fish and Wildlife (DFW) has submitted written
comments on the project concluding that the environmental baseline has not been
adequately described, there may be several additional species on the site, and impacts
have not been adequately mitigated. (Exhibit A). The Initial Study fails to adequately
respond to DFWs comments. DFWs comments create a fair argument that the Project
may have significant unmitigated environmental impacts.
3. The Project will Have Significant Impacts Because it will Fill -In a
Streambed.
As discussed by DFW, the Project involves entirely filling a streambed, which
runs directly through the center of the site. (Exhibit A). DFW concludes that the
wetland delineation prepared for the Project may underestimate the streambed and
wetlands on site. Filling a wetland or streambed is a significant impact under CEQA.
Mira Monte Homeowners Assn v. County of Ventura, 165 Cal. App. 3d 357 (1985). The
failure to adequately delineate the streambed, and the act of filing the streambed
Comments of LIUNA on Initial Study / Mitigated Negative Declaration
DRC2015-00797
December 8, 2016
Page 8 of 8
constitute significant adverse impacts that must be analyzed in an EIR so that adequate
mitigation measures and alternatives may be considered.
CONCLUSION
For the foregoing reasons, the IS/MND for the Project should be withdrawn, an
EIR should be prepared and the draft EIR should be circulated for public review and
comment in accordance with CEQA. We reserve the right to supplement these
comments during public hearings concerning the Project. Galante Vineyards v.
Monterey Peninsula Water Management Dist., 60 Cal. App. 4th 1109, 1121 (1997).
Thank you for considering our comments.
Sincerely,
Richard Drury
Lozeau Drury LLP
EXHIBIT A
State of California - Natural Resources Agency EDMUND G. BROWN, Jr., Governor
DEPARTMENT OF FISH AND WILDLIFE CHARLTON H. BONHAM, Director
Inland Deserts Region
3602 Inland Empire Blvd., Suite C-220
Ontario, CA 91764
(909) 484-0469
www.wildlife.ca.gov
May 20, 2016
Mr. Dominick Perez
Associate Planner
City of Rancho Cucamonga
Planning Department
10500 Civic Center Drive
Rancho Cucamonga, CA 91730
Subject: Initial Study and Mitigated Negative Declaration
DRC2015-00797 Project
SCH No. 2016041071
Dear Mr. Perez:
The Department of Fish and Wildlife (Department) appreciates the opportunity to
comment on the Initial Study (IS) and Mitigated Negative Declaration (MND) for the
DRC2015-00797 Project (project) [SCH No. 2016041071]. The Department is
responding to the IS and MND as a Trustee Agency for fish and wildlife resources
(California Fish and Game Code Sections 711.7 and 1802, and the California
Environmental Quality Act [CEQA] Guidelines Section 15386), and as a Responsible
Agency regarding any discretionary actions (CEQA Guidelines Section 15381), such as
the issuance of a Lake or Streambed Alteration Agreement (California Fish and Game
Code Sections 1600 et seq.) and/or a California Endangered Species Act (CESA)
Permit for Incidental Take of Endangered, Threatened, and/or Candidate species
(California Fish and Game Code Sections 2080 and 2080.1).
Project Description
The approximately 16-acre project site is located north of the northern terminus of
Santa Anita Avenue, east of the Day Creek flood control channel, south of an existing
Burlington North Santa Fe and Metrolink rail line, and west of an existing SCE facility;
within the City of Rancho Cucamonga, County of San Bernardino, California;
Assessor's Parcel Numbers (APNs) 0229-271-24, -25, and -26. The proposed project
includes the construction of a 339,000-square-foot industrial building.
Conserving California's rWilcfltfe Since 1870
Initial Study and Mitigated Negative Declaration
DRC2015-00797 Project
SCH No. 2016041071
Page 2 of 7
Comments and Recommendations
Following review of the IS and MND, the Department is concerned about the lack of
biological analysis included in the IS, and recommends that the IS and MND be revised
to include a thorough and detailed analysis of the project's potential impacts on
biological resources, and recirculated for further public review pursuant to CEQA
Guidelines section 15073.5. We offer the comments and recommendations presented
below to assist the City of Rancho Cucamonga (City; the CEQA lead agency) in
adequately identifying and mitigating the project's significant, or potentially significant,
impacts on biological resources:
Biological Resource Analvsis
The IS identifies several special -status species with potential to occur on the project
site, including Parry's spineflower, Brand's star phacelia, mesa horkelia, Los Angeles
pocket mouse, San Diego black -tailed jackrabbit, silvery legless lizard, coast horned
lizard, burrowing owl, and California gnatcatcher. To avoid and minimize impacts to the
aforementioned species, the IS proposes to require focused surveys and, if one or
more special -status species is discovered on -site, formulation of a plan to relocate the
special -status species found. The Department does not concur that these proposed
measures are adequate to reduce potential impacts to special -status species to a level
that is less than significant for the following reasons:
The measures inappropriately defer analysis of the site's baseline conditions
(i.e., focused surveys) and formulation of specific avoidance, minimization,
and/or mitigation measures to some future time. While it is not always possible
to devise a complete, specific, and fully detailed mitigation plan while the project
is still in the early planning stages, it is not appropriate to adopt an MND unless
the lead agency is reasonably certain that the proposed project will have no
significant effects. Such certainty is not possible if the analysis of the baseline
conditions of the site (including the species present) and formulation of specific
mitigation measures is deferred until after the adoption of the MND.
Furthermore, the lack of public review of the mitigation plan deprives the public
of the opportunity to comment on the mitigation pian's adequacy, feasibility, and
enforceability. "[I]t is improper to defer the formulation of mitigation measures
until after project approval; instead, the determination of whether a project will
have significant environmental impacts, and the formulation of measures to
mitigate those impacts, must occur before the project is approved" (California
Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603,
621 [91 Cal. Rptr. 3d 571] (CNPS), citing Sundstrom v. County of Mendocino
(1988) 202 Cal.App.3d 296 [248 Cal. Rptr. 3521 (Sundstrom) and Gentry v. City
of Murrieta (1995) 36 Cal.App.4th 1359 [43 Cal. Rptr. 2d 170] (Gentry).)
2. The Department generally does not support the use of translocation or
transplantation as the primary mitigation strategy for unavoidable impacts to
Initial Study and Mitigated Negative Declaration
DRC2015-00797 Project
SCH No. 2016041071
Page 3 of 7
rare, threatened, or endangered plant or animal species. Studies have shown
that these efforts are experimental and the outcome unreliable (Dodd & Siegel
1991; Germano et al. 2015; Menges 2008; and Shier & Swaisgood 2011). The
Department has found that permanent preservation and management of habitat
capable of supporting these species is often a more effective long-term strategy
for conserving sensitive plants and animals, and their habitats.
The Department requests that appropriate focused, species -specific surveys be
conducted prior to recirculation of the CEQA document, and that the revised and
recirculated document include the survey results. The revised document should also
contain a thorough and detailed analysis of the project's potential direct, indirect, and
cumulative impacts on biological resources, and appropriately specific, adequate,
feasible, and enforceable mitigation measures to reduce the potential impacts to a level
that is less than significant. To assist with review, an accompanying map or maps
showing the areas of impact and any proposed mitigation locations should also be
included. If special -status species are discovered on -site, the Department is available
to assist the City in identifying appropriate mitigation measures prior to recirculating the
document.
San Bernardino Kangaroo Rat
The Biological Resources Assessment (BRA) for the project, prepared by Salix
Consulting, Inc. in 2015, concludes that there is no potential for the Federally
Endangered and State Species of Special Concern San Bernardino kangaroo rat
(SBKR; Dipodomys merriami parvus) to occur on -site because the site "lacks suitable
habitat". The BRA also refers to the 2006 Summary of Special -status Biological
Resource Investigations Conducted between 2003-2006 at the Proposed Etiwanda
Peaker Project Site (Etiwanda Summary report), which includes the results of small
mammal trapping conducted In 2003 over the Etiwanda Peaker Site located directly
east of the project site. The Department does not concur with this conclusion for the
following reasons:
1. The site does support potentially suitable habitat for SBKR. It is unclear how the
conclusion that no suitable habitat for the species exists on -site was reached;
however, the presence of sandy, loamy soils and alluvial scrub are classic
elements of SKBR habitat, and the site is within SBKR historical range.
2. Habitat disturbance is not sufficient to determine that SBKR are not present.
Disturbed but undeveloped habitat areas within the Santa Ana River floodpiain,
including water spreading grounds, airports, mining operations, and agricultural
areas, have been known to support SBKR in limited numbers (USFWS 2009).
3. The small mammal trapping surveys performed in 2003 appear to have been
limited to the adjacent Etiwanda site. Although the Etiwanda Summary report
refers to negative surveys results in the historic Etiwanda Creek channel to the
Initial Study and Mitigated Negative Declaration
DRC2015-00797 Project
SCH No. 2016041071
Page 4 of 7
east of the Etiwanda Peaker Site, no mention is made of trapping within the
channel on the site to the west (i.e., the current project site). Based on historic
aerial photography, the current project site supported what was likely better
quality SBKR habitat than the Etiwanda Peaker Site did in 2003. Failure to
detect SBKR on the Etiwanda Peaker Site In focused surveys conducted over a
decade ago is inadequate to determine the species' absence on the current
project site.
In order to determine whether SBKR are present on -site, we strongly recommend that
a qualified and permitted biologist conduct focused trapping surveys in coordination
with the United States Fish and Wildlife Service (USFWS), and that the survey results
be included in the revised and recirculated CEQA document.
Nesting Birds and Migratory Bird Treaty Act
Please note that it is the project proponent's responsibility to comply with all applicable
laws related to nesting birds and birds of prey. Migratory non -game native bird species
are protected by international treaty under the federal Migratory Bird Treaty Act
(MBTA) of 1918, as amended (16 U.S.C. 703 et seq.). In addition, sections 3503,
3503.5, and 3513 of the Fish and Game Code (FGC) also afford protective measures
as follows: Section 3503 states that it is unlawful to take, possess, or needlessly
destroy the nest or eggs of any bird, except as otherwise provided by FGC or any
regulation made pursuant thereto; Section 3503.5 states that is it unlawful to take,
possess, or destroy any birds in the orders Falconiformes or Strigiformes (birds -of -
prey) or to take, possess, or destroy the nest or eggs of any such bird except as
otherwise provided by FGC or any regulation adopted pursuant thereto; and Section
3513 states that it is unlawful to take or possess any migratory nongame bird as
designated in the MBTA or any part of such migratory nongame bird except as
provided by rules and regulations adopted by the Secretary of the Interior under
provisions of the MBTA.
The IS includes a mitigation measure requiring preconstruction nesting bird surveys
prior to initiating project activities during the nesting season, which the IS defines as
"February 1 through August 31 ". Please note that some species (i.e., owls) may
commence nesting as early as January 1, while many other species may not fully
fledge until fall. The Department therefore does not recommend relying on seasonal
restrictions alone, to avoid impacts to nesting birds, and recommends that the
mitigation measure be revised to require nesting bird surveys regardless of the time of
year. In order to locate nests, the Department recommends that pre -construction
nesting bird surveys be required no more than three (3) days prior to vegetation
clearing or ground disturbance activities, as instances of nesting could be missed if
surveys are conducted sooner.
Initial Study and Mitigated Negative Declaration
DRC2015-00797 Project
SCH No. 2016041071
Page 5 of 7
Alluvial Scrub Habitat
The IS identifies approximately 7 acres of "alluvial scrub" habitat on -site, characterized
by California buckwheat (Erioganum fasciculatum), sandbar willow (Salix exigua), scale
broom (Lepidospartum squamatum), pine goldenbrush (Ericameria pinfolia), tree
tobacco (Nicotiana glauca), and giant reed (Arundo donax). The IS states that the
ruderal nature of the site prevents the "alluvial scrub" from being identified as a classic
habitat type. However, the Department has identified the vegetation community present
based on the species list and the site's presence on the historic Etiwanda alluvial fan:
according to Sawyer et al. (2009), the presence of >1 % cover of Lepidospartum
squamatum within vegetation stands in alluvial environments would categorize the
community as scale broom scrub (Lepidospartum alliance). Scale broom scrub has an
overall rarity ranking of G3 S3, with some associations within the scale broom scrub
alliance (i.e., Riversidean alluvial fan sage scrub) as rare as G1 S1.1. The Department
considers all associations with state ranks of S1-S3 to be highly imperiled, and
considers the removal of approximately 7 acres of alluvial fan scale broom scrub to be
a significant impact.
In order to reduce the impacts to alluvial fan scale broom scrub to a level that is less
than significant, the Department recommends that the City require the project
proponent to purchase, conserve in perpetuity, and enhance/restore similar habitat
within the watershed. While the amount (acreage) of habitat that is appropriate will vary
based on the location of the proposed mitigation area, the amount and type of
enhancement and/or restoration proposed, and whether (a) the project site and (b) the
proposed mitigation site is occupied by special -status species, the Department
recommends that the mitigation site include no less than 35 acres of alluvial fan scale
broom scrub. A higher acreage may be warranted if the proposed mitigation site
requires little enhancement, is located far away from the project site (i.e., within a
separate watershed), is not occupied by or available to special status species, and/or
possesses other attributes that diminish its long term conservation value. The
Department is available to assist the City in evaluating the proposed mitigation prior to
the document's recirculation.
Lake and Streambed Alteration
For any activity that will divert or obstruct the natural flow, or change the bed, channel,
or bank (which may include associated riparian resources) of a river or stream or use
material from a streambed, the project applicant (or "entity') must provide written
notification to the Department pursuant to Section 1602 of the Fish and Game Code.
Based on this notification and other information, the Department then determines
whether a Lake and Streambed Alteration (LSA) Agreement is required. The
Department's Issuance of an LSA Agreement is a "project" subject to CEQA (see Pub.
Resources Code 21065). To facilitate issuance of an LSA Agreement, the revised and
recirculated CEQA document should fully identify the potential impacts to the lake,
stream or riparian resources and provide adequate avoidance, mitigation, and
monitoring and reporting commitments. Early consultation with the Department is
Initial Study and Mitigated Negative Declaration
DRC2015-00797 Project
SCH No. 2016041071
Page 6 of 7
recommended, since modification of the proposed project may be required to avoid or
reduce impacts to fish and wildlife resources.
The Department is concerned that the Jurisdictional Delineation (JD) included with the
IS/MND underrepresents the streambed and riparian resources present on -site.
Although the BRA characterizes the on -site willow scrub as non -riparian, the willows
are associated with the stream and should be included in the evaluation of impacts.
Furthermore, the JD appears to depict only the low -flow portion of the channel. The
Department recommends that the JD be revised to include the stream's entire bed,
bank, and channel, including the vegetation associated with the stream, prior to
recirculating the CEQA document.
Further Coordination
The Department appreciates the opportunity to comment on the IS and MND for the
DRC2015-00797 Project (SCH No. 2016041071), and requests that the City
address the Department's comments and concerns prior to the MND's adoption. If
you should have any questions pertaining to these comments, please contact
Gabriele Quillman at (909) 980-3818 or gabriele.quiliman@wildlife.ca.gov.
Sincerely,
rf•= .
11 Nai
.. r
ager
cc: State Clearinghouse, Sacramento
Literature Cited
Dodd, C.K, and R.A. Siegel. 1991. Relocation, Repatriation, and Translocation of
Amphibians and Reptiles: Are They Conservation Strategies That Work?
Herpetologica, 47(3), 336-350
Germano, J.M. et al. 2015. Mitigation -Driven Translocations: Are We Moving Wildlife in
the Right Direction? Frontiers in Ecology and the Environment, 13(2),
100-105
Menges, E.S. 2008. Restoration demography and genetics of plants: when is a
translocation successful? Australian Journal of Botany, 56(3), 187-196
Initial Study and Mitigated Negative Declaration
DRC2015-00797 Project
SCH No. 2016041071
Page 7 of 7
Sawyer, J. O., T. Keeler -Wolf, and J. M. Evens. 2009. A manual of California
Vegetation, 2nd ed. California Native Plant Society Press, Sacramento,
California. http://vegetation.cnps.org/
Shier, D.M. and R.R. Swaisgood. 2012. Fitness costs of neighborhood disruption in
translocations of a solitary mammal. Conservation Biology, 26(1), 116-
123
United States Fish and Wildlife Service (USFWS). August 14, 2009. 5-Year Review for
San Bernardino Kangaroo Rat (Dipodomys merriami parvus).
https://www.fws.gov/carlsbad/SpeciesStatusList/5YR/20090814 5YR SB
KR.pdf. Accessed February 26, 2016.
1�ce , 02ace
PLANNING AND ENVIRONMENTAL SERVICES
December 14, 2016
To: Mr. Dana Whitmer
From: Mr. Christopher Brown, Director
Re: Oakmont Santa Anita
Responses to Comments (Air Quality)
Please find our responses to the Lozeau-Drury LLP comments regarding air quality below
Response A.1
1.1 The reviewer indicates that they do not agree with one or more of the assumptions used in the air quality
model; however, the comment does not identify any specific assumptions or other issues with the air quality
model that can be addressed by the Applicant's environmental team. Thus, this comment is considered an
unsubstantiated opinion of the project that does not identify any new significant information or make any fair
argument for unaddressed environmental impacts.
1.2 The reviewer further indicates that the results of the air quality assessment identify NOx emissions of 52
pounds per day (Ibs/day) that are less than the threshold of 55 Ibs/day. The reviewer continues that because
the emissions are so "close" to the threshold that there is fair argument that the project could result in a
significant environmental impact. This assertion is incorrect both in the context of the California Environmental
Quality Act and industry practices in evaluating environmental impacts. CEQA does not require nor specify any
margin of error or tolerance by which an effect that is on the precipice of being significant is to be considered
as such. A project's effect is either below or above a threshold. The reviewer provides no evidence supporting
the claim that the proximity between project emissions and the threshold constitutes a potentially significant
impact. Furthermore, the reviewer includes reference to CEQA case law that is misleading and incorrectly used
to support their argument. The case law identified is related to the potential for the lack of a complete record to
provide opportunity for fair argument because fair argument increases conversely with an increase in limited
facts in the record. The reviewer does not identify any failure on the part of the City in estimating, analyzing,
and concluding the impacts of NOX emissions are less than significant that would limit facts or conjure
plausibility of other impacts. It is conjecture and unreasonable to assume that slight changes in a project will
result in significant environmental impact as it is to assume that slight changes in a threshold of significance
would do the same.
1.3 Finally, the reviewer indicates that the project will result in significant cumulative NOX impacts without
providing any substantive evidence in support of this claim. The reviewer indicates that the Initial Study failed
to include a proper cumulative impact analysis because the project emissions were not combined with those of
other warehouses in the Basin, such as would to use the "list method" of cumulative impact analysis identified
in CEQA. This shows a failure on the part of the reviewer in understanding how air quality impacts are
addressed in CEQA. First, the daily thresholds used for evaluation in the Initial Study are established to
SCIENCE
1500 IOWA AVENUE, SUITE 110 1 RIVERSIDE, CALIFORNIA 92507 1 USA 951-787-9222 1 WWW.MIGCOM.COM
December 14, 2016
Oakmont Santa Anita
determine regional impacts related a to a project's potential to result in a violation of applicable air quality
standards in the Basin. Thus, the evaluation of air quality impacts provided in the Initial Study is inherently a
cumulative impact analysis in terms of regional context. Secondly, use of the list method to evaluate pollutant
emissions would be prohibitively expensive and largely speculative considering the magnitude of like -
developments throughout the Basin. It is more appropriate to use the "projection method" of evaluating
cumulative impacts by evaluating a project's consistency with the AQMP which by extension would ensure that
cumulative impacts would not occur in both a spatial and temporal context.
2 In conclusion, the comments submitted by the reviewer do not identify any new significant information
regarding the impacts of the project in regards to air quality. The issues raised in the comment letter are not
supported by evidence or reasonable inference. The issues are loosely connected with marginally relevant or
completely irrelevant case law and CEQA guidelines references but do not support any fair argument due the
speculative and unsubstantiated nature of the claims. No new mitigation or additional analysis is required.
Thank you for the opportunity to assist the City of Rancho Cucamonga in the environmental review and
clearance of the proposed project. Please contact me at 951-787-9222 if you have any questions or need
additional information.
Regards 0
Christopher Brown
1 PAGE 2
2016.12.14
12:19:19-08'00'
Director of Environmental Services
Innovation Done Right_ We Make a Difference
I N T E R N A T 1 0 N A L
December 13, 2016
CITY OF RANCHO CUCAMONGA
PLANNING DEPARTMENT
Attn: Mr. Dominick Perez
10500 Civic Center Drive
Rancho Cucamonga, California 91730
SUBJECT: Responses to Comments by Lozeau Drury on the Santa Anita Warehouse Project
Dear Mr. Perez:
I have reviewed the comments provided by Lozeau Drury and offer the following responses:
Comment 1: Author was concerned that impacts to San Diego black -tailed jackrabbit were not being
mitigated.
Response: It should be pointed out that San Diego black -tailed jackrabbit is not protected under the
federal or state Endangered Species Acts. It is a species of concern and requires mitigation under the
California Environmental Quality Act (CEQA). However, the applicant is mitigating for impacts to
waters of the State as well as for the loss of Los Angeles pocket mouse (LAPM) habitat as part of the
1602 permit process. San Diego black -tailed jackrabbit inhabits some of the same habitats as LAPM on
the project site, including the waters of the State. Mitigation for the loss of waters of the State and LAPM
habitat will also compensate for loss of San Diego black -tailed jackrabbit habitat.
Comment 2: Similarly, the author is concerned that the proposed relocation of LAPM, also a species of
concern, from the project site will result in impacts to a protected species that will require review and
approval outside of the CEQA process.
Response: As noted above, impacts to a species of concern is not a violation of the federal or state
Endangered Species Acts. Impacts are mitigated under CEQA. Relocation of LAPM to another site is a
common and acceptable practice and has been requested by the California Department of Fish and
Wildlife (CDFW) for this project. The relocation will be folded into the 1602 permit by CDFW. The
applicant is in negotiation with CDFW on the details of the relocation and other mitigation that may be
required but can't complete the process with CDFW until after CEQA is complete.
3536 Contours Street, Suite 100 1 Ontario, California 91764
MBAKERINTL.COM
Office: 909.974 49001 Faz:909.974.4004
Mr. Dominick Perez
December 13, 2016
Page 2 of 2
Comment 3: The author notes that CDFW was concerned about the adequacy of the Jurisdictional
Delineation (JD) submitted for this project.
Response: At CDFW's request, the biologists for the applicant met with CDFW onsite and discussed the
revisions needed to the JD. A revised JD was submitted and has been used to prepare a 1602 permit
application that is currently being reviewed by CDFW. But, as mentioned above, the 1602 permit can't be
issued until after CEQA is complete.
Please do not hesitate to contact me at (909) 974-4907 or tmceill(i,mbakerintl.com should you have any
questions or require additional information.
Sincerely,
Thomas J. McGill, Ph.D.
Vice President
Natural Resources
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1400 K Street, Suite 400 • Sacramento, California 95814
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2017 LEAGUE STRATEGIC GOALS
1. Increase Funding for Critical Transportation and Water Infrastructure.
Provide additional state and federal funding and local financing tools — such as
reducing the vote threshold for local initiatives — to support California's
economy, transportation (streets, bridges, trade corridors, active transportation
and transit) and water related needs (supply, sewer, storm water, flood control,
beach erosion, etc.) including maintenance and construction. Support
appropriate streamlining of storm water regulations and CEQA to avoid
duplication and reduce litigation.
2. Develop Realistic Responses to the Homeless Crisis. Increase state and
federal funding and support to provide additional shelter and services to
California's homeless, and advance the recommendations of the CSAC-League
Homelessness Task Force.
3. Improve the Affordability of Workforce Housing and Secure Additional
Funds for Affordable Housing. Increase state and federal financial support,
reduce regulatory barriers, and provide additional incentives and local financial
tools to address the affordability of workforce housing and increase the
availability of affordable housing.
4. Address Public Safety Impacts of Reduced Sentencing Laws, Protect Local
Priorities in the Implementation of AUMA, and Preserve City Rights to
Deliver Emergency Medical Services. Provide tools and resources cities need
to respond to recent changes in statewide criminal sentencing policies. Protect
local priorities during development of regulations and legislation to implement
the Adult Use of Marijuana Act. In addition, continue to preserve city rights to
deliver emergency medical services (Health and Safety Code 1797.201).
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