Why County Parkland Shouldn't Be Considered Mitigation for County Road Impacts

Below is a video running through CGF's PowerPoint on the mistake that Santa Clara County is making by balancing the impacts of the County roads and airports with parkland acquired by through the Parks Charter Fund. A letter we wrote is here, and I'm happy to send the PowerPoint file to anyone who wants it.

-Brian

(Well, that didn't work. Will try again later.)

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CGF Comments on Admin Draft County Habitat Plan

(Below are CGF's comments on the Santa Clara County Habitat Plan's Second Administrative Draft. They're imported from an Excel file so may be hard to understand the context, bu the first number refers to the Draft Chapter number (e.g., Chapter 9), and further numbers if any refer to chapter sections (9.2.1) and/or page numbers in a particular chapter (page 9-27). Then the comment follows. -Brian)

9 There is a systematic problem with Chapter 9 failing to distinguish between funding for enhancement and funding for impact mitigation. For example,.page 9-7 discusses the possibility of donated lands to reduce costs. Any sophisticated donor will require the donation be used for enhancement only. Funding partners such as the Open Space Authority and non-profits will similarly limit their contribution to enhancement components only. Whether the budget is sufficient to pay for mitigation is unclear, and needs a separate accounting for mitigation and funding for enhancement.

9 3.2 45 Open Space Authority section should contain language similar to County Parks language, that the value of the OSA contribution can be used only to offset OSA impacts and to provide environmental enhancement.

9 3.2 9-44 Committee for Green Foothills and other environmental organizations do not support using Parks Charter fund acquisitions to offset mitigations that would otherwise be required of County Roads and Airports. We note that this is an unstable source of funding as it expires in 2021 and environmental organizations that have supported the Parks Charter fund will oppose use of parkland to mitigate road and airport impacts at the time of reauthorization. Furthermore, County Supervisors approved use of Parks funding for road mitigation in 2008 by a 3-2 vote which indicate the close margin could be reversed by a future Board of Supervisors. At a minimum, therefore, the Habitat Plan should discuss what funding sources would be used in case Parks Charter fund acquisitions cannot be used for Roads and Airports mitigation.

9 3.2 9-44 Amount of land and monies from Park Charter fund for land acquisition are based on historical acquisition rates and the 2003 Strategic Plan, but the 2006 reauthorization reduced the percentage required to be spent on acquisition. I don't know if the 2003 Strategic Plan anticipated this reduction, but if not, the "conservative" estimates need to be reworked.

9 Costs of mitigation of impacts should be identified separately from the costs of environmental enhancements

9 Costs to mitigate impacts caused by each permittee should be identified for each permittee

9 Costs to mitigate impacts caused by private development operating under the authority of each permittee should be identified as separate total amounts for each permittee (separate from the costs to mitigate that permittee's impacts). If costs exceed development impact fees, that excess cost should be identified.

9 9.1 9-1 "Adaptive management" should be reinserted as a bullet point, either independently or together with "remedial measures"

9 9.2.2 9-7 fn 5 The best use of sites with haz mat present may be as wildlife habitat. Suggest changing to "will not be added to the Habitat Plan Reserve System IF CLEANUP WOULD BE LEGALLY REQUIRED."

9 9.2.11 9-56 Creation of an endowment fund from cost savings over estimated Plan costs should be mandatory until and unless a funding plan for costs in perpetuity has been approved by DFG, USFWS, and NMFS.

9 9.2.11 9-56 One of the conditions of approval of the Plan should be acceptance of the post-Permit funding plan by the wildlife agencies.

9 general All cost savings over estimated Plan costs should be used for adaptive management or for an endowment fund for permanent reserve management. No fees should be reduced until a permanent funding plan for reserve management has been approved by wildlife agencies.

8 8.6 8-24 Draft says Stay-Ahead "will only apply two years after the last local ordinance takes effect." A time-certain deadline is needed or delays in local ordinances could postpone Stay-Ahead indefinitely. We suggest three years from Habitat Plan approval and permit issuance.

8 8.6.1 to 8.6.2 8-28 The "Jump Start" provision conflicts with the Stay-Ahead concept unless the baseline for measuring Stay-Ahead starts at the same time as Jump-Start, in October 2005. Failing to do so means the negative impacts of since 2005 are ignored while positive enhancements are counted, and a false impression of net benefit created. If this is rejected, planners should indicate what degree of uncompensated impact degradation is expected between October 2005 and plan issuance.

4 4.2 4-2 There is a conceptual gap between the definition of "permanent" and "temporary" impacts, because temporary impacts are defined as lasting less than three years. "Permanent" impacts should be defined as "impacts that permanently, OR FOR MORE THAN THREE YEARS, remove or alter a land cover...."

5 Table 5-14 and elsewhere I may have missed where the Plan discusses mitigating for temporary impacts, but fn1 to Table 5-14 states impact estimates are based on permanent impacts only. Temporary impacts also require mitigation. We suggest mitigation should at a minimum be dependent on the amount of time of impact in relation to the permit term, so that a one-year impact requires zt leasts 1/50th the mitigation of a permanent impact.

4 4.4.1 4-44 parcels "anticipated to be permitted by the time of Plan implementation" and excluded from impact analysis provides no context for analysis and could be extremely large. Only previously-identified interim projects that are still under consideration (thereby excluding the now-withdrawn Coyote Valley Specific Plan) should fit this category. Absent such a change, there should be identifying information about what parcels and projects form part of this category.

4 4.4.1 4-44 Regarding permitted parcels and anticipated permitted parcels, there should be clarification that because these parcels are excluded from impact analysis, these parcels and any future permits issued are not covered by the Habitat Plan and take permits. This discusssion should specifically reference the Coyote Valley Research Park (note this is not the Coyote Valley Specific Plan) and any potential reauthorization permits for the Research Park.

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A PowerPoint presentation on why Parks Charter Funding shouldn't be used for road mitigation

We've written repeatedly on why using Parks Funding as credit against impacts from road impacts in the Habitat Conservation Plan is a bad idea. Below the fold is a PowerPoint explanation of the problem.

-Brian

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Opposing the Bush Administration attempt to weaken the Endangered Species Act

We sent out an Urgent Alert to supporters over the weekend, asking them to contact the Bush Administration and announce their opposition to proposed rules that would weaken the Endangered Species Act. We contacted the Interior Department as well, and wrote the following.

The Committee for Green Foothills represents over a thousand families in Santa Clara and San Mateo Counties in its mission of protecting open space and natural resources in those counties. We at the Committee oppose the proposed revisions to Section 7 consultations. These revisions will reduce the use of valuable expertise and bias evaluation of endangered species impacts against their actual import, as the action agencies will be inclined to downplay environmental impacts. For the above reasons, we oppose the proposed rule revisions.

Below is a copy of the Urgent Alert:

The endangered species of the Bay Area and of the rest of the country need your help. In its last months in office, the Bush Administration proposes to dramatically weaken the Endangered Species Act by letting federal agencies considering actions that harm species avoid consultation and oversight from with expert wildlife agencies. This reverses 30 years of federal regulation designed to restrain federal agencies whose mission and political culture is focused on other things besides protecting species. Please use the website below to submit a comment opposing the proposed changes. Comments must be submitted by Monday, September 15, to be considered.

What's Happening

The Interior Department has proposed the change to limit "Section 7" consultations between federal agencies considering an action ("action agencies") and the expert wildlife agencies (the Fish and Wildlife Service and the National Marine Fisheries Service).

Why This is Important

Contrary to Administration claims, the action agencies do not have the same level of expertise about effects on endangered species as the wildlife agencies. In addition, the action agencies inevitably prioritize achieving their main missions over endangered species so they will often interpret evidence in such a way as to reduce its significance. Locking out the agencies with the most expertise and the most interest in protecting species will mean more species will fall through the cracks.

What You Can Do

In another change to previous policy, the Interior Department refuses to accept emailed comments on its proposed rule, but it will accept comments submitted on a government website. Tell them you oppose the proposed new rule and that the Endangered Species Act should be strengthened, not weakened.

To submit the comments, click on this link:

http://www.regulations.gov/fdmspublic/component/main?main=SubmitComment&o=09000064806c5826

You will need to fill out the submitter information at the top of the web page, and then at the bottom of the page you can inform them of your comment opposing the proposed rule.

For more information, see the Sierra Club's Take Action webpage:

http://action.sierraclub.org/site/PageServer?pagename=ProtecttheEndangeredSpeciesAct

Thanks for speaking up for our coastal wetlands and environmental protections! Your voice does make a difference!

- The folks at Committee for Green Foothills

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Yet another problem with the Parks Charter Fund/Habitat Plan issue

Yesterday someone pointed out to me a problem with counting parkland purchases as mitigation for road impacts that I hadn't thought of before: the Habitat Plan treats the amount of road impacts as a fixed quantity (somewhat simplified but accurate enough for these purposes), when in fact it could be higher or lower. If the County Roads Department uses parkland to count as mitigation for road impacts rather than paying for it from the Roads budget, it has just lost any incentive it has to minimize the impacts. In other words, we'll get far more impacts than would otherwise be the case. True, those impacts will be mitigated, but that's inadequate for two reasons: first, mitigation isn't as good as avoiding impacts, and second, the mitigation has the effect of eliminating a net benefit of more endangered habitat.

Let's walk through two cost scenarios as an example, where the County Roads Department has to choose between widening a road into endangered habitat riparian zone on one side, or encroaching into a hillside on the other:

Scenario 1: Costs of widening a road into riparian zone:
Construction and non-habitat costs: $1.0 million
Habitat mitigation cost: $0.5 million
Total: $1.5 million

Scenario 2: Costs of widening a road into a hillside:
Construction and non-habitat costs: $1.1 million
Habitat mitigation cost: none
Total: $1.1 million

The rational choice if the Roads Department considered (meaning, "had to pay for") all costs would be Scenario 2. But if the Roads Department just gets free credit for land purchased by the Parks Department, then Scenario 2 looks more expensive to it, and it will choose Scenario 1 instead. I was fumbling toward this idea when I repeatedly told the County that it's bad policy to shift costs between departments, but this points it out really well.

So what's the likely County response? If I were them, I'd point to toothless and unenforceable provisions in the Habitat Plan that say "where economically feasible, impacts should be avoided" and claim that meant something. I expect they believe that to be true in the abstract, but when it gets down to the specifics of each budget, the real choice will always default to Scenario 1.

(More reasons here for why using Parks Charter Fund is a bad idea.)
-Brian

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Why Santa Clara County shouldn't reduce the benefits of the Parks Charter Fund

(Below is a display we used in a so-far-unsuccessful effort to get the County Roads Department to keep its hands off of the Parks Charter fund. -Brian)

Reasons why the Roads Fund, not the Parks Charter Fund, should pay for roads impacts

1. Parks Fund meant to be a net benefit, but used as a mitigation means the environment is no better off

2. Better management principle is to reduce cross-subsidies, in this case using Parks funding to subsidize road development.

3. Using Parks funding may interfere with the future selection of parkland in order to maximize mitigation of roads impacts.

Alternative:

Parks Dept. pays for park impacts

Roads Dept. pays for road impacts

Parks can purchase recreational use on lands bought by Roads Dept.

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Bad decision by Santa Clara County Supervisors on Parks

We told them not to convert the Parks Charter Fund from an environmental benefit to a kind of mitigation bank that pays for environmental impacts from road widening. Unfortunately we haven't been able to persuade them so far.

Below is a recent letter on this issue in the Mercury News:

Parks Charter Fund not meant for roads

On Tuesday, the Santa Clara County Board of Supervisors decided to pilfer $14 million from the Santa Clara County Parks Charter funds to pay for non-park-related expenses. This is a dangerous precedent and goes against the will of the voters. The Parks Charter Fund was passed specifically by the voters, since 1972, to set aside funds to buy and maintain county parks and nothing else. But the supervisors (Pete McHugh, Don Gage and Ken Yeager - for; Blanca Alvarado and Liz Kniss - against) decided to use those funds to pay for obligations incurred by the county roads department to meet their mitigation obligation under the proposed county habitat plan. This is irresponsible, and the decision should be rescinded immediately.

Craige Edgerton
Member, Stakeholders Group Santa Clara Valley Habitat Conservation Plan/Natural Community Conservation Plan

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Problem with Santa Clara County Parks funding road and airport responsibilities

(CGF sent out the following email about the County Habitat Plan and what we consider to be an inappropriate funding mechanism using the County Parks Charter funding. We will be following this closely. -Brian)

Dear Members of the Board of Supervisors:

To clarify comments the Committee for Green Foothills submitted at yesterday's (May 6th) Board meeting, we oppose the Habitat Plan recommendation announced yesterday to use County parkland purchased through the Parks Charter funding in order to mitigate habitat loss caused by other Santa Clara County government agencies.

The County voters passed Measure C in 1972 as a tax increase they imposed on themselves to provide an environmental benefit: more and better-maintained County Parks. The voters did not provide the County with this tax increase, and reaffirm it multiple times with the broad support of the environmental community, in order to enable road and airport expansion.

Using the Parks funding in this manner would convert it from an environmental benefit to an environmental mitigation, which is more than a semantic change. Environmental benefits are intended by voters to make us better off than would otherwise be the case, while environmental mitigation only makes up for other environmental harm and provides no net benefit. Because the voters expected a benefit, it would be highly inappropriate to change what the voters asked for.

I noted yesterday that County Counsel opined that using County Parkland for mitigation would be legal, and because we have had no opportunity to study the matter, we offer no opinion of our own at this point on its legality. As a matter of policy, however, it is clearly a bad one.

Similarly, County Parks Director indicated that she did not see this as harming County Parks, but that is not the appropriate test - the real issue is whether voters will get the environmental benefit that they voted for, and this proposal transforms a benefit into a mitigation without a net benefit.

The County Executive himself indicated that problems could result from mixing or apparent mixing of Parks funding and Roads funding, and we could not agree more. We request that this proposal be rejected.

Please contact us with any questions.

Sincerely,
Brian Schmidt

Brian Schmidt
Legislative Advocate, Committee for Green Foothills

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CGF comment: Significant problems with proposal to use County Parks funding to pay for County Habitat Plan

(We submitted the following comment about Santa Clara County Habitat Plan funding. -Brian)

Dear Members of the Board of Supervisors:

To clarify comments the Committee for Green Foothills submitted at yesterday's Board meeting, we oppose the Habitat Plan recommendation announced yesterday to use County parkland purchased through the Parks Charter funding in order to mitigate habitat loss caused by other Santa Clara County government agencies.

The County voters passed Measure C in 1972 as a tax increase they imposed on themselves to provide an environmental benefit: more and better-maintained County Parks. The voters did not provide the County with this tax increase, and reaffirm it multiple times with the broad support of the environmental community, in order to enable road and airport expansion.

Using the Parks funding in this manner would convert it from an environmental benefit to an environmental mitigation, which is more than a semantic change. Environmental benefits are intended by voters to make us better off than would otherwise be the case, while environmental mitigation only makes up for other environmental harm and provides no net benefit. Because the voters expected a benefit, it would be highly inappropriate to change what the voters asked for.

I noted yesterday that County Counsel opined that using County Parkland for mitigation would be legal, and because we have had no opportunity to study the matter, we offer no opinion of our own at this point on its legality. As a matter of policy, however, it is clearly a bad one.

Similarly, County Parks Director indicated that she did not see this as harming County Parks, but that is not the appropriate test - the real issue is whether voters will get the environmental benefit that they voted for, and this proposal transforms a benefit into a mitigation without a net benefit.

The County Executive himself indicated that problems could result from mixing or apparent mixing of Parks funding and Roads funding, and we could not agree more. We request that this proposal be rejected.

Please contact us with any questions.

Sincerely,
Brian Schmidt

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