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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 G'd/Yt�n�ssi�n/ Gt� ��fcs o EAR oUE® PN IA CITIES 1400 K Street, Suite 400 • Sacramento, California 95814 Phone:916.658.8200 Fax:916.658.8240 www.cacities.org 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). d` J w +aco rs® arwr�t 77 6w ��