One victory and possibly more for the environment

1. San Jose City Council's Committee on Economic Development voted 4-0 to recommend the City Council pass a ban on plastic bags from retailers and groceries (with limited exceptions) and a ban on paper bags with less than 50% recycled content. The City Council will also consider a 10 to 25 cent fee on paper bags as well (media reports saying the Committee recommended the fee are wrong, the actual stance is neutral). Seven of the 11 council members have now publicly supported this position. CGF and Save the Bay were the only major environmental groups that spoke at the meeting. This is a good step for stream protection and would put San Jose at the forefront of this issue with a stronger position than even what San Francisco did. More info is at the Mercury News.

I'll just add that the plastic bag industry may be shooting itself in the foot - they've opposed fees on takeout bags, relying on voter resistance to anything that resembles a tax, but that has pushed the reform direction towards an outright ban instead. Maybe next time the bag people will be more reasonable.

2. Second piece of possibly good news is that one of the four applications to expand Gilroy outward has been dropped after they received extensive critiques from CGF and others on their environmental documents. This was Gavilan's application to expand development of its main campus in Gilroy, completely separate from the other controversy over a proposed new campus in Coyote Valley. I only call it "possibly" good news because Gavilan has asserted they are not legally required to get Gilroy's permission, so they might have a Plan B in mind, but we'll be ready to react if Plan B comes around.

-Brian

Read more!

Comments on Gilroy expansion SEIRs for Lucky Day, Gavilan, and Wren Investor proposals

The Committee for Green Foothills submitted comment letters below (click "Read More" to see the full letters) on proposed outward expansions of the City of Gilroy. There's no reason to do this, and the environmental documentation is inadequate.

The letters reference appendices that I haven't attached due to length, but I can send them to anyone who's interested.

-Brian


(Letter re Lucky Day DSEIR)
August 20, 2009

Stan Ketchum, Senior Planner
City of Gilroy Planning Division

Re: Lucky Day Urban Service Area Amendment (07-01) SCH#2009022046

Dear Stan:

The Committee for Green Foothills ("Committee") submits the following comments regarding the Lucky Day USA amendment ("Lucky Day Project" or "Project"). As an initial matter, we thank the City for the two-week extension of time to comment. We continue to believe, however, that more time would have been appropriate, at a minimum the 30-day extension we understand was requested by Santa Clara County. There is no pressing urgency for this or any other of the proposed USA amendment projects.

The Committee supports the position of SOS Gilroy and their counsel that the Draft SEIR for the Project ("DSEIR") does not comply with CEQA law and Guidelines. We support this position for the reasons stated in their letters and as further explained below.


I. The DSEIR fails to analyze adequately climate-change related impacts and mitigation associated with the Project

A. The DSEIR fails to consider effects of climate change on the Project and its residents and visitors.

We note as an initial matter that the DSEIR entirely fails to discuss how the Project, residents, and visitors could be affected by climate change relative to how the area and people could be affected by climate change under the unchanged baseline use of little to no occupancy. As stated in Association of Environmental Professionals' 2007 report, Alternative Approaches to Analyzing Greenhouse Gas Emissions and Global Climate Change in CEQA Documents:

CEQA Projects Affected by Climate Change Impacts

The effects that GCC may have on a specific project also need to be considered in CEQA reviews.
Care is needed to determine if there is a connection between a project’s location or character and the
potential for impacts on the project to occur that are caused by GCC. Mandating mitigation to lessen
the environmental impacts of climate change on a project-level analysis without clear disclosure of
the relationship between the project and the environmental impact would not comply with CEQA.
Section 21002.1 of the California Public Resources Code states, “the purpose of an environmental
impact report is to identify the significant effects on the environment of a project…” Without
establishing what those effects are for residents in the State of California, and the relative degree of
certainty of those effects, an adequate disclosure of GCC impacts on a project would not be realized.

The precise timing, nature, and magnitude of climate change impacts at specific locations is not
certain, although projections with wide confidence limits have been developed for some parameters
such as sea level rise and meteorology. However, effects of climate change specifically mentioned in
AB 32, such as rising sea levels, modified meteorology and flood hydrographs, and changes in
snowpack could be addressed in CEQA documents. How GCC may affect species ranges may also
be considered. CEQA documents should address whether projected changes in sea level,
meteorology, flooding, snow pack, and other identifiable consequences of GCC may create hazards
for or otherwise adversely affect a project. The degree of uncertainty should also be addressed.

Potential health effects from GCC may arise from temperature increases, climate-sensitive diseases,
extreme events, and air quality. There may be direct temperature effects through increases in average
temperature leading to more extreme heat waves and less extreme cold spells. Those living in
warmer climates are likely to experience more stress and heat-related problems (e.g., heat rash and
heat stroke). In addition, climate sensitive diseases (such as malaria, dengue fever, yellow fever, and
encephalitis) may increase, such as those spread by mosquitoes and other disease-carrying insects.

GCC-related meteorological changes and sea level rises are expected to lead to other adverse impacts.
Extreme events, such as flooding and hurricanes, can displace people and damage property and
agriculture. Drought in some areas may increase and snowpack may decrease, which would decrease
water and food availability. Rising sea levels would increase stress on levees and exacerbate storm
wave run-up and coastal erosion. GCC may also contribute to air quality problems from increased
frequency of smog and particulate air pollution (EPA 2006c).

Some agencies have begun to assess potential risks from climate change in various regions of the
State. The California Climate Change Center uses three IPCC climate change scenarios to assess
risks from climate change to California (CCCC 2006). The report indicates GCC could result in the
following changes in California: poor air quality; more severe heat; increased wildfires; shifting
vegetation; declining forest productivity; decreased spring snowpack; water shortages; a potential
reduction in hydropower; a loss in winter recreation; agricultural damages from heat, pests,
pathogens, and weeds; and rising sea levels resulting in shrinking beaches and increased coastal
floods (CCCC 2006).

The California Department of Water Resources published a report that describes the progress on
incorporating climate change into existing water resources planning and management tools and
methodologies (DWR 2006). While it does not focus on CEQA, the report does describe potential
impacts of climate change on California’s water resources. The California Coastal Commission
published a Discussion Draft titled Global Warming and the California Coastal Commission (CCC
2006), which recommends that the Commission address GCC because the Coastal Act protects
resources that are threatened by global warming.

It is hoped that a greater number of California agencies will assess climate change risks. Once
information is made available by State government agencies, it could be used to determine more
precisely to what extent a project is affected. Until then, environmental documents could make a
good faith effort to assess the potential effects of GCC on projects. In some cases, such as coastal
developments, an evaluation could be feasible, with recognized limitations related to uncertainties. In
other locations, specific impact analysis may not be feasible.

AEP Report at 16-17 (attached as Appendix A).

The fact that the AEP Report says analysis in some locations may not be feasible does not excuse the City here, because the DSEIR made no attempt to determine if specific impact analysis is feasible. Increased air temperatures and associated pollution from increased temperatures, as well as decreased water availability are foreseeable impacts on the project site and proposed residents that should be addressed, as well as the other potential impacts described above.

In fact, the DSEIR at page 2-25 actually cites some consequences of climate change for California as a whole, including: increase in temperature, reduced water supply from Sierra Nevada snowpack, and potential negative impact rise in sea level will have on surface water quality. While the DSEIR fails to analyze these impacts on the Project, they can foreseeably harm access to water. Both the golf course and residents will require a lot of water.


B. Refusing to make a CEQA significance determination on cumulative climate change impacts is unlawful.

As stated in the August 5, 2009 letter from Shute Mihaly & Weinberger LLP to the City ("SMW Letter"), it is unlawful for the City to refuse to make a determination as to whether a project's non-speculative impacts are significant. CEQA Guideline s. 15064(b) requires the City to exercise "careful judgment…based to the extent possible on scientific and factual data" while Guideline s. 15144 notes that the lead agency "must use its best efforts to find out and disclose all that it reasonably can."

As the (attached as Appendix B) June 19, 2007 letter from California Department of Justice to the City of San Jose ("DOJ Letter") states, "it is inappropriate for the City to find, as it did in the [Coyote Valley] DEIR, that it is excused from making a significance determination under CEQA." The DOJ Letter expressly applied CEQA Guideline s 15064(b) to the identical failure by San Jose to determine whether climate change impacts are significant:

While the City is correct that there are currently no regulatory thresholds for significance relating to global warming impacts, this does not relieve a lead agency of its statutory obligation under CEQA to determine whether or not a project’s impacts are significant. As the CEQA Guidelines note, “[a]n ironclad definition of significant effect is not always possible ....” In the future, there may well be “an approved plan or mitigation program which provides specific requirements that will avoid or substantially lessen the cumulative problem” of GHG emissions and global warming impacts, but until that time, lead agencies must rely only on their own “careful judgment ... based to the extent possible on scientific and factual data” in determining whether a project’s global warming-related impacts are significant.

DOJ Letter at 5-6 (internal citations omitted).

The failure in the DSEIR to exercise "careful judgment ... based to the extent possible on scientific and factual data" under Guideline s. 15064(b) match the case where the DOJ Letter indicated to San Jose regarding its (ultimately-withdrawn) DEIR that it was inappropriate in determining whether a project’s global warming-related impacts are significant.


1. Significance thresholds exist, yet the SEIR fails to exercise judgment to apply them.

While significance thresholds may not have been finalized, they indisputably exist, as acknowledged in the DSEIR. DSEIR at 2-17. Two thresholds that could be used and have been suggested are zero increase in emissions and 900 ton CO2 Equivalent. SMW Letter at 9. The DSEIR offers no evidence in support of its refusal to adopt a threshold, despite the substantial evidence by experts in the field that either of these thresholds would be appropriate. Id. This fails to comply with CEQA.

As stated by the Attorney General's office, California law AB 32, "the Global Warming Solutions Act of 2006, which set State targets to reduce emissions to 1990 levels by 2020, and to 80% below 1990 levels by 2050, provide a relevant benchmark for determining significance." DOJ Letter at 7. Any impact of the project that reduces the likelihood of compliance with AB 32 justifies a determination of significance.

California currently is not trending towards compliance with AB 32, as seen on page 22 of the Inventory of California Greenhouse Gas Emissions ("California Inventory") cited in the DSEIR:


Any net increase in emissions resulting from the Project would move away from AB 32 compliance. We further note that Gilroy's increasing population indicates that Gilroy itself is also unlikely to be moving in the direction toward compliance with AB 32.


2. The DSEIR must make determinations of significance even in the absence of finalized thresholds created by other agencies.

As noted above, lead agencies must use their own determinations and judgment, backed by substantial evidence, to determine whether impacts are significant, and these commonly occur in situations where no significance thresholds have been created by other agencies. For example, a lead agency may need to determine whether removing a number of trees from a parcel in order to develop it is a significant impact, and whether the size, proximity, and visibility of a development make the visual impacts significant. In neither case can the lead agency rely on simple application of a regulatory threshold developed by expert agencies, yet significance determinations such as these are commonplace. Here, where draft thresholds and guidance from professionals and the State Attorney General are available, the City has even less excuse in its unlawful failure to apply a significance threshold.


3. Failure to make a significance determination is contrary to the purpose of CEQA and contrary to the purpose of exempting EIRs from speculative determinations.

The purpose of CEQA is to ensure the public and decision-makers are adequately informed when making decisions and that feasible mitigations are applied. Speculative determinations are not required under CEQA because from the nature of being speculative, they would not inform decisionmakers whether the project's benefits exceed its environmental costs. That is not the case here, where the DSEIR does not deny impacts but only refuses to draw conclusions about them. The DSEIR deprives the City and the public from the opportunity to determine whether the project should go forward, as well as unlawfully denying the protection under CEQA of requiring feasible mitigations that reduce significant impacts.


C. The DSEIR underestimates climate change impacts from the Project.

Not only does the DSEIR fail to properly apply a significance threshold to climate change impacts, it underestimates those impacts and fails to adequately measure and describe what in fact is a cumulatively significant impact. The DSEIR states its estimate of greenhouse gas ("GHG") emissions is "likely to be quite conservative". DSEIR at 2-30. This is both incorrect and contradicted by information on the same page of the DSEIR that acknowledges additional GHG sources that were not included in the calculations. Id.

While the DSEIR claims these other sources would be insubstantial, it provides no information to support it. To the contrary, it acknowledges that only 82% of California GHG emissions come from CO2 (id. at 2-26), and the DSEIR does not measure all CO2 emissions from the Project, but only those from transportation and electricity production. Emissions that were left out that could substantially increase the Project's impacts include:

• Construction, especially with cement, emits substantial amounts of CO2. California Inventory at 11. Construction emissions on site were not quantified.

• Nitrous oxide results from "soil management" in agricultural sectors. California Inventory at 10. Application of fertilizer can increase nitrous oxide. See http://www.epa.gov/nitrousoxide/sources.html. The Project's golf course and residential development will foreseeably result in significant in significant fertilizer use compared to present conditions. See, e.g., http://www.brodheadwatershed.org/drinkingwaterthreats.html ("Homeowners use four to eight times the amount of fertilizer and pesticides per acre than farms. Golf courses are another potential source of groundwater contamination from overuse of fertilizer and pesticides.")

• Landfill methane emissions from the project should be included, and the California Inventory notes this as an important issue with data expected available in 2008. California Inventory at iii.

• The Project will result in substantial increases in water usage. In addition to all other aspects of water impacts, the GHG emissions needed to provide the water from local and distant sources should be quantified.

• “The General Plan EIR identified that development consistent with the general plan would increase wastewater generation that would exceed the existing treatment and disposal capacity of the WWTP. DSEIR at 2-42. Feasibility and desirability wastewater system expansion, considering expected reduction in availability of water due to climate change, must be considered. Energy impacts from wastewater treatment and from expanding the wastewater infrastructure must also be included.


D. Feasible climate change mitigation measures were unlawfully excluded from the DSEIR.

Because this Project in fact has cumulatively significant climate change impacts, it should have required mitigation measures that are absent from the DSEIR. These include the following:

• Minimizing and/or adapting to climate change will require alterations to existing regional transportation system. Mobility will most likely include increased use of public transportation, carpooling, biking, and/or walking. The effect that expanding the developed land area within Gilroy will have on the feasibility of alternative transportation methods should be considered. The DSEIR does not adequately address the role of alternative transportation, nor does it analyze whether a feasible alternative exists by channeling development in existing City boundaries where alternative transportation is more likely to succeed.

• The statement that future development should be constructed to LEED or Build It Green standards "where feasible" (DSEIR at 2-31) has an exemption of "feasibility" that swallows the rule. If the mitigation is simply found "infeasible" then the project could have significant impacts without any finding of overriding circumstances required under CEQA.


II. The DSEIR underestimates or omits other significant impacts.

The DSEIR states that the General Plan EIR found that increased flooding, erosion, and siltation from the Project area and other development, absent mitigation, would be significant. DSEIR at 2-46. It said mitigation to contain runoff to predevelopment levels would reduce the impact to less than significant levels. Id. (referencing the General Plan EIR). The DSEIR says independently of the General Plan EIR that the "California Regional Water Quality Control Board will require future development to be designed to ensure that post-development runoff is contained to pre-development levels." Id. This is incorrect.

National Pollutant Discharge Elimination Systems (NPDES) permits under Water Quality Control Boards have not, in fact, required a match between pre- and post- development runoff, permit systems that have changed substantially since the General Plan EIR. See, e.g., Controlling Cumulative Impacts from Impervious Surfaces: Analysis and Recommendations for Santa Clara County (attached as Appendix C). Generally, they allow post-development hydrology to differ from pre-development for the effects of large storms, for situations where mitigation costs exceed a certain percentage of the cost of the project, and to completely differ from pre-development hydrology for any project smaller a certain maximum size. Id. The exact permit requirements for the Gilroy area should be examined, and they hydrological impacts including siltation, impacts on salmonids, etc., should also be examined in light of this new information that was missed by the DSEIR. The new information indicates the presence of unexamined impacts in violation of CEQA.


III. Conclusion.

The City of Gilroy cannot approve the Project based on this inadequate DSEIR, and we request that no further consideration of the Project be given to it.


Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt, CGF Legislative Advocate
Shari Pomerantz, CGF Volunteer

Appendix A: Alternative Approaches to Analyzing Greenhouse Gas Emissions and Global Climate Change in CEQA Documents
Appendix B: June 19, 2007 letter from California Department of Justice to the City of San Jose ("DOJ Letter")
Appendix C: Controlling Cumulative Impacts from Impervious Surfaces: Analysis and Recommendations for Santa Clara County

-------------------------
(Letter re Gavilan DSEIR)

August 20, 2009

Stan Ketchum, Senior Planner
City of Gilroy Planning Division

Re: Gavilan Joint Community College District Urban Service Area Amendment (08-02) SCH#2009022045

Dear Stan:

The Committee for Green Foothills ("Committee") submits the following comments regarding the Gavilan USA amendment ("Gavilan Project" or "Project"). As an initial matter, we thank the City for the two-week extension of time to comment. We continue to believe, however, that more time would have been appropriate, at a minimum the 30-day extension we understand was requested by Santa Clara County. There is no pressing urgency for this or any other of the proposed USA amendment projects.

The Committee supports the position of SOS Gilroy and their counsel that the Draft SEIR for the Project ("DSEIR") does not comply with CEQA law and Guidelines. We support this position for the reasons stated in their letters and as further explained below.


I. The DSEIR fails to analyze adequately climate-change related impacts and mitigation associated with the Project

A. The DSEIR fails to consider effects of climate change on the Project and its residents and visitors.

We note as an initial matter that the DSEIR entirely fails to discuss how the Project, residents, and visitors could be affected by climate change relative to how the area and people could be affected by climate change under the unchanged baseline level of less-intense use than proposed. As stated in Association of Environmental Professionals' 2007 report, Alternative Approaches to Analyzing Greenhouse Gas Emissions and Global Climate Change in CEQA Documents:

CEQA Projects Affected by Climate Change Impacts

The effects that GCC may have on a specific project also need to be considered in CEQA reviews.
Care is needed to determine if there is a connection between a project’s location or character and the
potential for impacts on the project to occur that are caused by GCC. Mandating mitigation to lessen
the environmental impacts of climate change on a project-level analysis without clear disclosure of
the relationship between the project and the environmental impact would not comply with CEQA.
Section 21002.1 of the California Public Resources Code states, “the purpose of an environmental
impact report is to identify the significant effects on the environment of a project…” Without
establishing what those effects are for residents in the State of California, and the relative degree of
certainty of those effects, an adequate disclosure of GCC impacts on a project would not be realized.

The precise timing, nature, and magnitude of climate change impacts at specific locations is not
certain, although projections with wide confidence limits have been developed for some parameters
such as sea level rise and meteorology. However, effects of climate change specifically mentioned in
AB 32, such as rising sea levels, modified meteorology and flood hydrographs, and changes in
snowpack could be addressed in CEQA documents. How GCC may affect species ranges may also
be considered. CEQA documents should address whether projected changes in sea level,
meteorology, flooding, snow pack, and other identifiable consequences of GCC may create hazards
for or otherwise adversely affect a project. The degree of uncertainty should also be addressed.

Potential health effects from GCC may arise from temperature increases, climate-sensitive diseases,
extreme events, and air quality. There may be direct temperature effects through increases in average
temperature leading to more extreme heat waves and less extreme cold spells. Those living in
warmer climates are likely to experience more stress and heat-related problems (e.g., heat rash and
heat stroke). In addition, climate sensitive diseases (such as malaria, dengue fever, yellow fever, and
encephalitis) may increase, such as those spread by mosquitoes and other disease-carrying insects.

GCC-related meteorological changes and sea level rises are expected to lead to other adverse impacts.
Extreme events, such as flooding and hurricanes, can displace people and damage property and
agriculture. Drought in some areas may increase and snowpack may decrease, which would decrease
water and food availability. Rising sea levels would increase stress on levees and exacerbate storm
wave run-up and coastal erosion. GCC may also contribute to air quality problems from increased
frequency of smog and particulate air pollution (EPA 2006c).

Some agencies have begun to assess potential risks from climate change in various regions of the
State. The California Climate Change Center uses three IPCC climate change scenarios to assess
risks from climate change to California (CCCC 2006). The report indicates GCC could result in the
following changes in California: poor air quality; more severe heat; increased wildfires; shifting
vegetation; declining forest productivity; decreased spring snowpack; water shortages; a potential
reduction in hydropower; a loss in winter recreation; agricultural damages from heat, pests,
pathogens, and weeds; and rising sea levels resulting in shrinking beaches and increased coastal
floods (CCCC 2006).

The California Department of Water Resources published a report that describes the progress on
incorporating climate change into existing water resources planning and management tools and
methodologies (DWR 2006). While it does not focus on CEQA, the report does describe potential
impacts of climate change on California’s water resources. The California Coastal Commission
published a Discussion Draft titled Global Warming and the California Coastal Commission (CCC
2006), which recommends that the Commission address GCC because the Coastal Act protects
resources that are threatened by global warming.

It is hoped that a greater number of California agencies will assess climate change risks. Once
information is made available by State government agencies, it could be used to determine more
precisely to what extent a project is affected. Until then, environmental documents could make a
good faith effort to assess the potential effects of GCC on projects. In some cases, such as coastal
developments, an evaluation could be feasible, with recognized limitations related to uncertainties. In
other locations, specific impact analysis may not be feasible.

AEP Report at 16-17 (attached as Appendix A).

The fact that the AEP Report says analysis in some locations may not be feasible does not excuse the City here, because the DSEIR made no attempt to determine if specific impact analysis is feasible. Increased air temperatures and associated pollution from increased temperatures, as well as decreased water availability are foreseeable impacts on the project site and proposed residents that should be addressed, as well as the other potential impacts described above.

In fact, the DSEIR at page 2-10 actually cites some consequences of climate change for California as a whole, including: increase in temperature, reduced water supply from Sierra Nevada snowpack, and potential negative impact rise in sea level will have on surface water quality. While the DSEIR fails to analyze these impacts on the Project, they can foreseeably harm access to water.


B. Refusing to make a CEQA significance determination on cumulative climate change impacts is unlawful.

As stated in the August 5, 2009 letter from Shute Mihaly & Weinberger LLP to the City ("SMW Letter"), it is unlawful for the City to refuse to make a determination as to whether a project's non-speculative impacts are significant. CEQA Guideline s. 15064(b) requires the City to exercise "careful judgment…based to the extent possible on scientific and factual data" while Guideline s. 15144 notes that the lead agency "must use its best efforts to find out and disclose all that it reasonably can."

As the (attached as Appendix B) June 19, 2007 letter from California Department of Justice to the City of San Jose ("DOJ Letter") states, "it is inappropriate for the City to find, as it did in the [Coyote Valley] DEIR, that it is excused from making a significance determination under CEQA." The DOJ Letter expressly applied CEQA Guideline s 15064(b) to the identical failure by San Jose to determine whether climate change impacts are significant:

While the City is correct that there are currently no regulatory thresholds for significance relating to global warming impacts, this does not relieve a lead agency of its statutory obligation under CEQA to determine whether or not a project’s impacts are significant. As the CEQA Guidelines note, “[a]n ironclad definition of significant effect is not always possible ....” In the future, there may well be “an approved plan or mitigation program which provides specific requirements that will avoid or substantially lessen the cumulative problem” of GHG emissions and global warming impacts, but until that time, lead agencies must rely only on their own “careful judgment ... based to the extent possible on scientific and factual data” in determining whether a project’s global warming-related impacts are significant.

DOJ Letter at 5-6 (internal citations omitted).

The failure in the DSEIR to exercise "careful judgment ... based to the extent possible on scientific and factual data" under Guideline s. 15064(b) match the case where the DOJ Letter indicated to San Jose regarding its (ultimately-withdrawn) DEIR that it was inappropriate in determining whether a project’s global warming-related impacts are significant.


1. Significance thresholds exist, yet the SEIR fails to exercise judgment to apply them.

While significance thresholds may not have been finalized, they indisputably exist, as acknowledged in the DSEIR. DSEIR at 2-2. Two thresholds that could be used and have been suggested are zero increase in emissions and 900 ton CO2 Equivalent. SMW Letter at 9. The DSEIR offers no evidence in support of its refusal to adopt a threshold, despite the substantial evidence by experts in the field that either of these thresholds would be appropriate. Id. This fails to comply with CEQA.

As stated by the Attorney General's office, California law AB 32, "the Global Warming Solutions Act of 2006, which set State targets to reduce emissions to 1990 levels by 2020, and to 80% below 1990 levels by 2050, provide a relevant benchmark for determining significance." DOJ Letter at 7. Any impact of the project that reduces the likelihood of compliance with AB 32 justifies a determination of significance.

California currently is not trending towards compliance with AB 32, as seen on page 22 of the Inventory of California Greenhouse Gas Emissions ("California Inventory") cited in the DSEIR:


Any net increase in emissions resulting from the Project would move away from AB 32 compliance. We further note that Gilroy's increasing population indicates that Gilroy itself is also unlikely to be moving in the direction toward compliance with AB 32.


2. The DSEIR must make determinations of significance even in the absence of finalized thresholds created by other agencies.

As noted above, lead agencies must use their own determinations and judgment, backed by substantial evidence, to determine whether impacts are significant, and these commonly occur in situations where no significance thresholds have been created by other agencies. For example, a lead agency may need to determine whether removing a number of trees from a parcel in order to develop it is a significant impact, and whether the size, proximity, and visibility of a development make the visual impacts significant. In neither case can the lead agency rely on simple application of a regulatory threshold developed by expert agencies, yet significance determinations such as these are commonplace. Here, where draft thresholds and guidance from professionals and the State Attorney General are available, the City has even less excuse in its unlawful failure to apply a significance threshold.


3. Failure to make a significance determination is contrary to the purpose of CEQA and contrary to the purpose of exempting EIRs from speculative determinations.

The purpose of CEQA is to ensure the public and decision-makers are adequately informed when making decisions and that feasible mitigations are applied. Speculative determinations are not required under CEQA because from the nature of being speculative, they would not inform decisionmakers whether the project's benefits exceed its environmental costs. That is not the case here, where the DSEIR does not deny impacts but only refuses to draw conclusions about them. The DSEIR deprives the City and the public from the opportunity to determine whether the project should go forward, as well as unlawfully denying the protection under CEQA of requiring feasible mitigations that reduce significant impacts.


C. The DSEIR underestimates climate change impacts from the Project.

Not only does the DSEIR fail to properly apply a significance threshold to climate change impacts, it underestimates those impacts and fails to adequately measure and describe what in fact is a cumulatively significant impact. The DSEIR states its estimate of greenhouse gas ("GHG") emissions is "likely to be quite conservative". DSEIR at 2-16. This is both incorrect and contradicted by information on the same page of the DSEIR that acknowledges additional GHG sources that were not included in the calculations. Id.

While the DSEIR claims these other sources would be insubstantial, it provides no information to support it. To the contrary, it acknowledges that only 82% of California GHG emissions come from CO2 (id. at 2-12), and the DSEIR does not measure all CO2 emissions from the Project, but only those from transportation and electricity production. Emissions that were left out that could substantially increase the Project's impacts include:

• Construction, especially with cement, emits substantial amounts of CO2. California Inventory at 11. Construction emissions on site were not quantified.

• Nitrous oxide results from "soil management" in agricultural sectors. California Inventory at 10. Application of fertilizer can increase nitrous oxide. See http://www.epa.gov/nitrousoxide/sources.html. The Project's golf course and residential development will foreseeably result in significant in significant fertilizer use compared to present conditions. See, e.g., http://www.brodheadwatershed.org/drinkingwaterthreats.html ("Homeowners use four to eight times the amount of fertilizer and pesticides per acre than farms. Golf courses are another potential source of groundwater contamination from overuse of fertilizer and pesticides.")

• Landfill methane emissions from the project should be included, and the California Inventory notes this as an important issue with data expected available in 2008. California Inventory at iii.

• The Project will result in substantial increases in water usage. In addition to all other aspects of water impacts, the GHG emissions needed to provide the water from local and distant sources should be quantified.

• “The General Plan EIR identified that development consistent with the general plan would increase wastewater generation that would exceed the existing treatment and disposal capacity of the WWTP. DSEIR at 2-28. Feasibility and desirability wastewater system expansion, considering expected reduction in availability of water due to climate change, must be considered. Energy impacts from wastewater treatment and from expanding the wastewater infrastructure must also be included.


D. Feasible climate change mitigation measures were unlawfully excluded from the DSEIR.

Because this Project in fact has cumulatively significant climate change impacts, it should have required mitigation measures that are absent from the DSEIR. These include the following:

• Minimizing and/or adapting to climate change will require alterations to existing regional transportation system. Mobility will most likely include increased use of public transportation, carpooling, biking, and/or walking. The effect that expanding the developed land area within Gilroy will have on the feasibility of alternative transportation methods should be considered. The DSEIR does not adequately address the role of alternative transportation, nor does it analyze whether a feasible alternative exists by channeling development in existing City boundaries where alternative transportation is more likely to succeed.

• The statement that future development should be constructed to LEED or Build It Green standards "where feasible" (DSEIR at 2-18) has an exemption of "feasibility" that swallows the rule. If the mitigation is simply found "infeasible" then the project could have significant impacts without any finding of overriding circumstances required under CEQA.


II. The DSEIR underestimates or omits other significant impacts.

The DSEIR states that the General Plan EIR found that increased flooding, erosion, and siltation from the Project area and other development, absent mitigation, would be significant. DSEIR at 2-31 to 2-32. It said mitigation to contain runoff to predevelopment levels would reduce the impact to less than significant levels. Id. (referencing the General Plan EIR). The DSEIR says independently of the General Plan EIR that the "California Regional Water Quality Control Board will require future development to be designed to ensure that post-development runoff is contained to pre-development levels." Id. This is incorrect.

National Pollutant Discharge Elimination Systems (NPDES) permits under Water Quality Control Boards have not, in fact, required a match between pre- and post- development runoff, permit systems that have changed substantially since the General Plan EIR. See, e.g., Controlling Cumulative Impacts from Impervious Surfaces: Analysis and Recommendations for Santa Clara County (attached as Appendix C). Generally, they allow post-development hydrology to differ from pre-development for the effects of large storms, for situations where mitigation costs exceed a certain percentage of the cost of the project, and to completely differ from pre-development hydrology for any project smaller a certain maximum size. Id. The exact permit requirements for the Gilroy area should be examined, and they hydrological impacts including siltation, impacts on salmonids, etc., should also be examined in light of this new information that was missed by the DSEIR. The new information indicates the presence of unexamined impacts in violation of CEQA.


III. Conclusion.

The City of Gilroy cannot approve the Project based on this inadequate DSEIR, and we request that no further consideration of the Project be given to it.

Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt, CGF Legislative Advocate
Shari Pomerantz, CGF Volunteer

Appendix A: Alternative Approaches to Analyzing Greenhouse Gas Emissions and Global Climate Change in CEQA Documents
Appendix B: June 19, 2007 letter from California Department of Justice to the City of San Jose ("DOJ Letter")
Appendix C: Controlling Cumulative Impacts from Impervious Surfaces: Analysis and Recommendations for Santa Clara County

-----------------
(Letter re Wren Investors DSEIR)

August 20, 2009

Stan Ketchum, Senior Planner
City of Gilroy Planning Division

Re: Wren Investors Urban Service Area Amendment (00-02) SCH#99072074

Dear Stan:

The Committee for Green Foothills ("Committee") submits the following comments regarding the Wren USA amendment ("Wren Project" or "Project"). As an initial matter, we thank the City for the two-week extension of time to comment. We continue to believe, however, that more time would have been appropriate, at a minimum the 30-day extension we understand was requested by Santa Clara County. There is no pressing urgency for this or any other of the proposed USA amendment projects.

The Committee supports the position of SOS Gilroy and their counsel that the Draft SEIR for the Project ("DSEIR") does not comply with CEQA law and Guidelines. We support this position for the reasons stated in their letters and as further explained below.


I. The DSEIR fails to analyze adequately climate-change related impacts and mitigation associated with the Project

A. The DSEIR fails to consider effects of climate change on the Project and its residents and visitors.

We note as an initial matter that the DSEIR entirely fails to discuss how the Project, residents, and visitors could be affected by climate change relative to how the area and people could be affected by climate change under the unchanged baseline use of low levels of development. As stated in Association of Environmental Professionals' 2007 report, Alternative Approaches to Analyzing Greenhouse Gas Emissions and Global Climate Change in CEQA Documents:

CEQA Projects Affected by Climate Change Impacts

The effects that GCC may have on a specific project also need to be considered in CEQA reviews.
Care is needed to determine if there is a connection between a project’s location or character and the
potential for impacts on the project to occur that are caused by GCC. Mandating mitigation to lessen
the environmental impacts of climate change on a project-level analysis without clear disclosure of
the relationship between the project and the environmental impact would not comply with CEQA.
Section 21002.1 of the California Public Resources Code states, “the purpose of an environmental
impact report is to identify the significant effects on the environment of a project…” Without
establishing what those effects are for residents in the State of California, and the relative degree of
certainty of those effects, an adequate disclosure of GCC impacts on a project would not be realized.

The precise timing, nature, and magnitude of climate change impacts at specific locations is not
certain, although projections with wide confidence limits have been developed for some parameters
such as sea level rise and meteorology. However, effects of climate change specifically mentioned in
AB 32, such as rising sea levels, modified meteorology and flood hydrographs, and changes in
snowpack could be addressed in CEQA documents. How GCC may affect species ranges may also
be considered. CEQA documents should address whether projected changes in sea level,
meteorology, flooding, snow pack, and other identifiable consequences of GCC may create hazards
for or otherwise adversely affect a project. The degree of uncertainty should also be addressed.

Potential health effects from GCC may arise from temperature increases, climate-sensitive diseases,
extreme events, and air quality. There may be direct temperature effects through increases in average
temperature leading to more extreme heat waves and less extreme cold spells. Those living in
warmer climates are likely to experience more stress and heat-related problems (e.g., heat rash and
heat stroke). In addition, climate sensitive diseases (such as malaria, dengue fever, yellow fever, and
encephalitis) may increase, such as those spread by mosquitoes and other disease-carrying insects.

GCC-related meteorological changes and sea level rises are expected to lead to other adverse impacts.
Extreme events, such as flooding and hurricanes, can displace people and damage property and
agriculture. Drought in some areas may increase and snowpack may decrease, which would decrease
water and food availability. Rising sea levels would increase stress on levees and exacerbate storm
wave run-up and coastal erosion. GCC may also contribute to air quality problems from increased
frequency of smog and particulate air pollution (EPA 2006c).

Some agencies have begun to assess potential risks from climate change in various regions of the
State. The California Climate Change Center uses three IPCC climate change scenarios to assess
risks from climate change to California (CCCC 2006). The report indicates GCC could result in the
following changes in California: poor air quality; more severe heat; increased wildfires; shifting
vegetation; declining forest productivity; decreased spring snowpack; water shortages; a potential
reduction in hydropower; a loss in winter recreation; agricultural damages from heat, pests,
pathogens, and weeds; and rising sea levels resulting in shrinking beaches and increased coastal
floods (CCCC 2006).

The California Department of Water Resources published a report that describes the progress on
incorporating climate change into existing water resources planning and management tools and
methodologies (DWR 2006). While it does not focus on CEQA, the report does describe potential
impacts of climate change on California’s water resources. The California Coastal Commission
published a Discussion Draft titled Global Warming and the California Coastal Commission (CCC
2006), which recommends that the Commission address GCC because the Coastal Act protects
resources that are threatened by global warming.

It is hoped that a greater number of California agencies will assess climate change risks. Once
information is made available by State government agencies, it could be used to determine more
precisely to what extent a project is affected. Until then, environmental documents could make a
good faith effort to assess the potential effects of GCC on projects. In some cases, such as coastal
developments, an evaluation could be feasible, with recognized limitations related to uncertainties. In
other locations, specific impact analysis may not be feasible.

AEP Report at 16-17 (attached as Appendix A).

The fact that the AEP Report says analysis in some locations may not be feasible does not excuse the City here, because the DSEIR made no attempt to determine if specific impact analysis is feasible. Increased air temperatures and associated pollution from increased temperatures, as well as decreased water availability are foreseeable impacts on the project site and proposed residents that should be addressed, as well as the other potential impacts described above.

In fact, the DSEIR at page 2-20 actually cites some consequences of climate change for California as a whole, including: increase in temperature, reduced water supply from Sierra Nevada snowpack, and potential negative impact rise in sea level will have on surface water quality. While the DSEIR fails to analyze these impacts on the Project, they can foreseeably harm access to water.


B. Refusing to make a CEQA significance determination on cumulative climate change impacts is unlawful.

As stated in the August 5, 2009 letter from Shute Mihaly & Weinberger LLP to the City ("SMW Letter"), it is unlawful for the City to refuse to make a determination as to whether a project's non-speculative impacts are significant. CEQA Guideline s. 15064(b) requires the City to exercise "careful judgment…based to the extent possible on scientific and factual data" while Guideline s. 15144 notes that the lead agency "must use its best efforts to find out and disclose all that it reasonably can."

As the (attached as Appendix B) June 19, 2007 letter from California Department of Justice to the City of San Jose ("DOJ Letter") states, "it is inappropriate for the City to find, as it did in the [Coyote Valley] DEIR, that it is excused from making a significance determination under CEQA." The DOJ Letter expressly applied CEQA Guideline s 15064(b) to the identical failure by San Jose to determine whether climate change impacts are significant:

While the City is correct that there are currently no regulatory thresholds for significance relating to global warming impacts, this does not relieve a lead agency of its statutory obligation under CEQA to determine whether or not a project’s impacts are significant. As the CEQA Guidelines note, “[a]n ironclad definition of significant effect is not always possible ....” In the future, there may well be “an approved plan or mitigation program which provides specific requirements that will avoid or substantially lessen the cumulative problem” of GHG emissions and global warming impacts, but until that time, lead agencies must rely only on their own “careful judgment ... based to the extent possible on scientific and factual data” in determining whether a project’s global warming-related impacts are significant.

DOJ Letter at 5-6 (internal citations omitted).

The failure in the DSEIR to exercise "careful judgment ... based to the extent possible on scientific and factual data" under Guideline s. 15064(b) match the case where the DOJ Letter indicated to San Jose regarding its (ultimately-withdrawn) DEIR that it was inappropriate in determining whether a project’s global warming-related impacts are significant.


1. Significance thresholds exist, yet the SEIR fails to exercise judgment to apply them.

While significance thresholds may not have been finalized, they indisputably exist, as acknowledged in the DSEIR. DSEIR at 2-12. Two thresholds that could be used and have been suggested are zero increase in emissions and 900 ton CO2 Equivalent. SMW Letter at 8. The DSEIR offers no evidence in support of its refusal to adopt a threshold, despite the substantial evidence by experts in the field that either of these thresholds would be appropriate. Id. This fails to comply with CEQA.

As stated by the Attorney General's office, California law AB 32, "the Global Warming Solutions Act of 2006, which set State targets to reduce emissions to 1990 levels by 2020, and to 80% below 1990 levels by 2050, provide a relevant benchmark for determining significance." DOJ Letter at 7. Any impact of the project that reduces the likelihood of compliance with AB 32 justifies a determination of significance.

California currently is not trending towards compliance with AB 32, as seen on page 22 of the Inventory of California Greenhouse Gas Emissions ("California Inventory") cited in the DSEIR:


Any net increase in emissions resulting from the Project would move away from AB 32 compliance. We further note that Gilroy's increasing population indicates that Gilroy itself is also unlikely to be moving in the direction toward compliance with AB 32.


2. The DSEIR must make determinations of significance even in the absence of finalized thresholds created by other agencies.

As noted above, lead agencies must use their own determinations and judgment, backed by substantial evidence, to determine whether impacts are significant, and these commonly occur in situations where no significance thresholds have been created by other agencies. For example, a lead agency may need to determine whether removing a number of trees from a parcel in order to develop it is a significant impact, and whether the size, proximity, and visibility of a development make the visual impacts significant. In neither case can the lead agency rely on simple application of a regulatory threshold developed by expert agencies, yet significance determinations such as these are commonplace. Here, where draft thresholds and guidance from professionals and the State Attorney General are available, the City has even less excuse in its unlawful failure to apply a significance threshold.


3. Failure to make a significance determination is contrary to the purpose of CEQA and contrary to the purpose of exempting EIRs from speculative determinations.

The purpose of CEQA is to ensure the public and decision-makers are adequately informed when making decisions and that feasible mitigations are applied. Speculative determinations are not required under CEQA because from the nature of being speculative, they would not inform decisionmakers whether the project's benefits exceed its environmental costs. That is not the case here, where the DSEIR does not deny impacts but only refuses to draw conclusions about them. The DSEIR deprives the City and the public from the opportunity to determine whether the project should go forward, as well as unlawfully denying the protection under CEQA of requiring feasible mitigations that reduce significant impacts.


C. The DSEIR underestimates climate change impacts from the Project.

Not only does the DSEIR fail to properly apply a significance threshold to climate change impacts, it underestimates those impacts and fails to adequately measure and describe what in fact is a cumulatively significant impact. The DSEIR states its estimate of greenhouse gas ("GHG") emissions is "likely to be quite conservative". DSEIR at 2-25 to 2-26. This is both incorrect and contradicted by information on the same page of the DSEIR that acknowledges additional GHG sources that were not included in the calculations. Id.

While the DSEIR claims these other sources would be insubstantial, it provides no information to support it. To the contrary, it acknowledges that only 82% of California GHG emissions come from CO2 (id. at 2-22), and the DSEIR does not measure all CO2 emissions from the Project, but only those from transportation and electricity production. Emissions that were left out that could substantially increase the Project's impacts include:

• Construction, especially with cement, emits substantial amounts of CO2. California Inventory at 11. Construction emissions on site were not quantified.

• Nitrous oxide results from "soil management" in agricultural sectors. California Inventory at 10. Application of fertilizer can increase nitrous oxide. See http://www.epa.gov/nitrousoxide/sources.html. The Project's golf course and residential development will foreseeably result in significant in significant fertilizer use compared to present conditions. See, e.g., http://www.brodheadwatershed.org/drinkingwaterthreats.html ("Homeowners use four to eight times the amount of fertilizer and pesticides per acre than farms. Golf courses are another potential source of groundwater contamination from overuse of fertilizer and pesticides.")

• Landfill methane emissions from the project should be included, and the California Inventory notes this as an important issue with data expected available in 2008. California Inventory at iii.

• The Project will result in substantial increases in water usage. In addition to all other aspects of water impacts, the GHG emissions needed to provide the water from local and distant sources should be quantified.

• “The General Plan EIR identified that development consistent with the general plan would increase wastewater generation that would exceed the existing treatment and disposal capacity of the WWTP. DSEIR at 2-38. Feasibility and desirability wastewater system expansion, considering expected reduction in availability of water due to climate change, must be considered. Energy impacts from wastewater treatment and from expanding the wastewater infrastructure must also be included.


D. Feasible climate change mitigation measures were unlawfully excluded from the DSEIR.

Because this Project in fact has cumulatively significant climate change impacts, it should have required mitigation measures that are absent from the DSEIR. These include the following:

• Minimizing and/or adapting to climate change will require alterations to existing regional transportation system. Mobility will most likely include increased use of public transportation, carpooling, biking, and/or walking. The effect that expanding the developed land area within Gilroy will have on the feasibility of alternative transportation methods should be considered. The DSEIR does not adequately address the role of alternative transportation, nor does it analyze whether a feasible alternative exists by channeling development in existing City boundaries where alternative transportation is more likely to succeed.

• The statement that future development should be constructed to LEED or Build It Green standards "where feasible" (DSEIR at 2-27) has an exemption of "feasibility" that swallows the rule. If the mitigation is simply found "infeasible" then the project could have significant impacts without any finding of overriding circumstances required under CEQA.


II. The DSEIR underestimates or omits other significant impacts.

The DSEIR states that the General Plan EIR found that increased flooding, erosion, and siltation from the Project area and other development, absent mitigation, would be significant. DSEIR at 2-42. It said mitigation to contain runoff to predevelopment levels would reduce the impact to less than significant levels. Id. (referencing the General Plan EIR). The DSEIR says independently of the General Plan EIR that the "California Regional Water Quality Control Board will require future development to be designed to ensure that post-development runoff is contained to pre-development levels." Id. This is incorrect.

National Pollutant Discharge Elimination Systems (NPDES) permits under Water Quality Control Boards have not, in fact, required a match between pre- and post- development runoff, permit systems that have changed substantially since the General Plan EIR. See, e.g., Controlling Cumulative Impacts from Impervious Surfaces: Analysis and Recommendations for Santa Clara County (attached as Appendix C). Generally, they allow post-development hydrology to differ from pre-development for the effects of large storms, for situations where mitigation costs exceed a certain percentage of the cost of the project, and to completely differ from pre-development hydrology for any project smaller a certain maximum size. Id. The exact permit requirements for the Gilroy area should be examined, and they hydrological impacts including siltation, impacts on salmonids, etc., should also be examined in light of this new information that was missed by the DSEIR. The new information indicates the presence of unexamined impacts in violation of CEQA.


III. Conclusion.

The City of Gilroy cannot approve the Project based on this inadequate DSEIR, and we request that no further consideration of the Project be given to it.

Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt, CGF Legislative Advocate
Shari Pomerantz, CGF Volunteer

Appendix A: Alternative Approaches to Analyzing Greenhouse Gas Emissions and Global Climate Change in CEQA Documents
Appendix B: June 19, 2007 letter from California Department of Justice to the City of San Jose ("DOJ Letter")
Appendix C: Controlling Cumulative Impacts from Impervious Surfaces: Analysis and Recommendations for Santa Clara County

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Guest post on Coyote Valley and wildlife corridor issues

(CGF Volunteer Shari Pomerantz wrote the guest blog post below, and we're looking forward to more from her. -Brian)

Coyote Valley is one of the few remaining wildlife corridors in Santa Clara County, linking habitats in the Santa Cruz Mountains with the northern Diablo Range. Gavilan College’s proposal – the addition of a new 10,000 student campus in Coyote Valley - will have significant impacts on the cougars, badgers, raptors, and other species that migrate through Coyote Valley to access seasonal food and water supplies.

A recent SF Gate article discusses the ecological value of Coyote Valley, and highlights disagreements regarding the extent to which the new campus will reduce Coyote Valley’s functioning as a wildlife corridor.

Students at De Anza College have identified nearly 200 species of birds and mammals using the corridor, including 12 species with special statuses. The students seek to protect them through the establishment of a Coyote Valley Raptor Reserve, and do not believe Gavilan’s expansion plans to be compatible with their goals. The Committee for Green Foothills is also working to protect Coyote Valley, and agrees with the students’ assessment of its value.

Gavilan College spokeswoman Jan Bernstein acknowledges the presence of wildlife in Coyote Valley, but believes the impacts of development in Coyote Valley and Gilroy will be comparable. There are several distinctions between the areas surrounding these two campuses, which have not been adequately addressed.

The Gilroy campus borders thousands of acres of pristine wild habitat. The proposed Coyote Valley site does not. Coyote Valley is one of the few remaining wildlife corridors in the region, and the corridor is already impaired by traffic and the fact that farmland isn't quite as compatible with wildlife movement as natural habitat. While animals do stray into the Gilroy campus from adjacent habitat, we cannot realistically assume a similar ‘coexistence’ to occur with an increased human presence in Coyote Valley.

The Coyote Valley site for Gavilan College currently consists of unoccupied farmland. The College’s plan includes specific elements that will greatly increase its impact on wildlife and migration. The new campus will include a firing range, police academy, and athletic fields. Clearly, the noise and fence construction associated with these activities can harm animal migration. Furthermore, the arrival of 10,000 students to a presently unpopulated area will greatly increase traffic, and encourage additional business and residential development.

In summary: Gavilan College’s expansion plans are not compatible with the need to protect Coyote Valley’s rare value as a wildlife migration corridor.

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CGF comments on Gavilan's Coyote Campus Draft EIR

(CGF submitted the following comments on the proposal to put a large college campus in the middle of North Coyote Valley, a sprawl-inducing proposal that makes no sense given the collapse of other Coyote Valley development plans. -Brian)

April 7, 2008

Dr. Steven Kinsella,
Gavilan College

Re: Comments on Gavilan College: Coyote Campus Project DEIR, SCH No. 2007122009

Dear Dr. Kinsella;

Thank you for the opportunity to comment on the Coyote Campus Project (“Project”) DEIR. We conclude that Gavilan College (“College”) cannot legally approve the Project based on the inadequate DEIR. We understand that other groups and individuals have concerns about the wildlife analysis in the DEIR, which we share. We submit the following additional comments:

• The DEIR fails to adequately discuss effects climate change has on water availability. A Superior Court finding that the State Department of Water Resources has not established the effect of climate change on water supplies (DEIR at 133) does not eliminate the College’s obligation to discuss the potential effects to the best of its ability. The DEIR fails to discuss whether the Project might have to be closed during droughts due to the effects of climate change. This inadequate discussion that fails to identify a significant impact leaves the DEIR critically flawed.

• The discussion fails to identify whether 100-year flood plains would change as the result of climate change.

• The discussion fails to include displacement of current farming elsewhere. Other agricultural production must take place of the lost production on this land and should be included in the emission totals. The DEIR therefore substantially underestimates the Project’s climate change impacts.

• The DEIR conclusion that no individually or cumulatively significant hydrological impacts will result from the project is incorrect. Reliance on compliance with NPDES HMP standards is inadequate to justify the less-than-significant conclusion, because those standards only satisfy the “maximum extent practicable” standards of the Clean Water Act and Porter-Cologne Act, and were not designed as thresholds of significance. See the attached White Paper, “Controlling Cumulative Impacts from Impervious Surfaces,” for more information. In particular, the failure to control for hydrological impacts from storms larger than 10-year storms is not addressed by either the HMP or by this DEIR, invalidating the DEIR’s conclusions regarding hydrology.

• The DEIR’s misplaces reliance on the compatibility between the IBM campus and nearby agriculture as the reason for concluding the Project will not be incompatible with nearby agriculture. The DEIR fails to compare the number of vehicle trips and the presence of people outdoors to the IBM campus for determining whether the Project would have a larger impact. The DEIR fails to analyze cumulative impacts from the Projects and other projects to determine whether they are incompatible with agriculture. Gavilan therefore cannot rely on the DEIR’s conclusions.

• The conclusion that LESA scores show an inadequate Site Assessment scores result from a flawed analysis that understates the true agricultural value. The high land costs are irrelevant to whether the land is potentially irrigable. The water table in Coyote Valley is known to be quite high, and irrigated agriculture exists throughout Coyote Valley. The LESA scores therefore underestimate the potentially significant impact of the loss of agricultural resources.

• The conclusion that the Project has no growth-inducing impacts is simply wrong. The discussion fails to consider that the lack of infrastructure is the primary obstacle to further development in Coyote Valley. Providing the extension of utilities along Bailey Avenue to the site will facilitate additional job development in Coyote Valley, making it more likely to reach the 5,000 jobs trigger found in the City of San Jose General Plan for large-scale development of the Valley. The conclusion that community colleges only serve growth instead of stimulating growth is both circular and ridiculous. No justification is given for this conclusion, when in fact a major development like the Project will have significant impacts. The complete lack of discussion as to whether the Project will encourage further development of the Coyote Valley Research Park, other industrial projects, or of a Coyote Valley Specific Plan-level residential development, fails to meet standards of EIR adequacy.

Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt

Legislative Advocate, Santa Clara County

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