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Ms. Pamela Townsend
Senior Planner
Mendocino County
Department of Planning and Building Services
501 Low Gap Road, Room 1440
Ukiah, CA, 95482

October 20, 2005

SUBJECT:   COMMENTS ON DRAFT UKIAH VALLEY AREA PLAN DRAFT PROGRAMMATIC ENVIRONMENTAL IMPACT REPORT

Dear Ms. Townsend:

Grassetti Environmental Consulting (GECo) has been retained by the Willits Environmental Center to provide assistance in reviewing and commenting on the Draft Ukiah Valley Area Plan Draft Programmatic Environmental Impact Report (EIR).   As the firm's principal, with over 20 years of experience preparing and reviewing California Environmental Quality Act (CEQA) documents, I personally conducted this review of the EIR.   In summary, as described below, this review identified substantial deficiencies in the EIR's treatment of mitigation measures and potentially significant impacts, particularly in the areas of biological resources, hydrology, water quality, and geology.  

BACKGROUND

CEQA requires that public agencies identify the potential environmental impacts of a proposed action, and then identify feasible measures to mitigate identified potentially significant impacts.   CEQA documents are required to show the nexus between impacts and mitigations, that is, there must be a clear analytical trail leading to any CEQA conclusions that mitigations will, in fact, reduce impacts to the levels claimed in an EIR.   In this light, the EIR is a "show us" document rather than a "trust us" document.  

CEQA allows (and requires) preparation of Program-level EIR's for plans such as the Ukiah Valley Area Plan, and permits environmental review of future development under the Plan to be "tiered" off of the program EIR.   However, under CEQA, tiering "does not excuse the lead agency from adequately analyzing reasonably foreseeable significant environmental effects of the project and does not justify deferral of such analysis to a later-tier document."(Guidelines Section 15152(b)).   In fact, CEQA requires that a project's significant environmental impacts "be assessed and mitigated at the earliest possible time in the environmental review process".   (Bozung v. Local Agency Formation Com).   Under tiering, a Lead Agency may defer mitigation for site-specific projects which cannot reasonably be determined at the time   of the Program EIR, however tiering does not permit the deferral of Program-level mitigation measures that will apply to the entire Plan area, particularly when those measures are relied upon in the EIR to mitigate potentially significant impacts to a less than significant level.   The CEQA Guidelines (Section 15152, Discussion) specifically state:

This approach recognizes that not all effects can be mitigated at each step of the process. There will be some effects for which mitigation will not be feasible at an early step of approving a particular development project, and the section would allow a lead agency to defer mitigation of that kind of effect to a later step.   Such effects may include site specific effects such as aesthetics or parking, depending on the circumstances.   At the same time this section makes it clear that tiering does not excuse the lead agency from analyzing reasonably foreseeable significant effects, or justify deferring analysis to a later tier EIR or Negative Declaration.

CEQA recognizes that there are some situations where the formulation of precise means of mitigating impacts is truly infeasible or impractical at the time of project approval.   CEQA case law clearly states that "In such cases, the approving agency should commit itself to eventually working out such measures as can feasibly be devised, but should treat the impacts in question as being at the time of project approval ." (Sacramento Old City Assn. V. City Council of Sacramento, 3d Dist 1991, emphasis added)   CEQA further requires "meaningful information reasonably justifying an expectation of compliance" for any mitigation measures assumed to mitigate project impacts to a less than significant level. (Sundstrom v. County of Mendocino, 1 st Dist. 1988)

CEQA also requires that, in cases where formulation of precise mitigations is infeasible at the time of the EIR preparation, "the EIR should provide reasonable assurance that the various mitigation methods proposed are feasible from a technical standpoint.   The EIR also should articulate specific performance criteria creating a reasonable expectation that the mitigation measures will be successful in reducing the project's potential environmental impacts to a level of insignificance ." (Berkeley Keep Jets Over the Bay v. Board of Port Commissioners, 2001, emphasis added).  

CEQA requires that a mitigation monitoring or reporting program be adopted by any public agency that approves findings pursuant to Public resources Code Section 21081.   The monitoring or reporting program "shall be designed to ensure compliance during project implementation" (PRC section 21081.6).   Moreover, the mitigation measures to be monitored must be "fully enforceable through permit conditions, agreements, or other measures." (PRC section 21081.6).   Some CEQA practitioners maintain that mitigation monitoring/reporting is not required for Program-level EIRs such as those on general plans, specific plans or community plans.   This is clearly not the case - CEQA Guidelines Section 15097(b) describes how mitigation monitoring applies to these plans as follows:

When the project at issue is the adoption of a general plan, specific plan, community plan or other plan-level document (zoning ordinance, regulation, policy), the monitoring plan shall apply to policies and any other portion of the plan that is a mitigation measure or adopted alternative.   The monitoring plan may consist of policies included in plan-level documents.

In developing effective mitigation measures, expert commentators have noted that measures relying on terms such as "consult with", "submit for review", "coordinate with", "study further", "encourage/discourage", "facilitate", and "strive to" are inadequate because they do not actually assure any mitigation.   Measures such as "provide funding for", "hire staff", monitor or report", comply with existing regulations or ordinances", and "preserve already existing natural area" are "questionable" and may not assure mitigation.   Adequate mitigation measures must describe the who, what, where, why, and when of implementation.   Absent this information, implementation and effectiveness of mitigation measures cannot be cannot be assured    (Bass, Herson, and Bogdan, CEQA Deskbook, 1999, p. 113).  

EIR DEFICIENCIES

My review indicates that the EIR is substantially deficient in that it relies on vague, ill-defined, or inappropriately deferred mitigation to reduce numerous impacts to less than significant levels.   The EIR includes no mitigation prohibiting development until deferred mitigation is developed and adopted and therefore does not assure that significant adverse impacts identified prior to mitigation would not occur.   In several cases (i.e. development of a grading ordinance), the previous General Plan included the same mitigation, which was not developed or implemented at any time during the 25 year period covered by that plan.  

Specific deficiencies identified include:

  • Assumed implementation of stream enhancement plans for which no implementation has occurred, no funding is available, and no concrete plans exist to fund or implement
  • Assumed mitigation resulting from studies of watersheds, streams, and habitats.   As noted above, studies do not constitute mitigation
  • Assumed Plan compliance with riparian/flood plain setbacks despite the lack of any requirements in the plan that such setbacks be respected, and the fact that the Plan would permit violation of those setbacks.
  • The EIR inappropriately fails to consider conflicts with fisheries conservation/restoration plans as criteria for significant impacts.
  • Assumes amendment of Land Development Code to include provisions to 'respect the natural terrain and habitat", absent any language to that effect or idea of what these amendments would be.
  • Assumes amendment of the land Development Code to include setbacks or performance standards without providing any information on what those setbacks or standards should be.
  • Assumes mitigation from policy to "strive to conserve riparian vegetation".   As described above, qualifiers such as "strive to" does not assure mitigation, therefore the impact must still be considered significant.
  • Similarly, mitigations such at OC-5.4.1, stating "Require additional mitigation measures' but failing to provide any performance criteria or basic concept of what those measures might be clearly cannot be assumed to actually mitigate any impact whatsoever.
  • Deferral of mitigation for endangered species to possible future review by CDFG or USFWS may mitigate the impacts, but there is no assurance that such mitigation actually will occur, therefore this impact remains significant.
  • Mitigations such as "support efforts." of other agencies to maintain fisheries do not assure mitigation, and, given the failure of past efforts to maintain mitigation, it must be assumed that declines would continue under this plan.
  • Reliance on possible unspecified future changes to the Land Development Code (Policies OC-8.1 through 8.4) as mitigation for loss of riparian habitat and fisheries is inappropriate; the mitigation must either be detailed or the impacts must be considered significant.
  • Similar mitigation applied to Impacts 3.3-F and G also fails to mitigate, and those impact must be considered significant.
  • Hillside development guidelines and guidelines for landslide-prone areas are assumed to mitigate for seismic and geologic impacts, yet no such guidelines exist or are specifically proposed in the plan, and no performance standards are included in the mitigation.   Therefore the impacts relying on this mitigation remain significant.
  • Measures to "support land management programs." and "work with applicants" (e.g. Implementation Measures OC-12.2.1, OC-8.4) do not assure mitigation, therefore the impact must be considered significant.  
  • Mitigation relying on the non-existent "Grading Ordinance' (i.e. Geology Mitigation 1d) do not mitigate.  
  • Mitigation measures such as Mitigation SF-2.1.2 that include wording such as "To the extent feasible" are inadequate because they do not assure mitigation.
  • Implementation measures SF-2.3.2, 2.3.3, and 2.3.4 fail to mitigate because they do not provide any performance standards for the proposed development code amendment, nor any assurance that the code will, in fact, be amended.
  • Implementation measure OC-12.2.2 similarly requires facility review for compliance with unspecified and unadopted standards, and therefore does not mitigate anything.
  • Implementation measure OC-11.1.2 requires preparation of a comprehensive groundwater protection program but, again, includes no performance standards for the program and therefore fails to mitigate.   Therefore Impact 3.2G remains significant.
  • Mitigations for Impact 3-2.H also are lacking in substance or implementation assurance, therefore this impact remains significant.

CONCLUSIONS

In order to remedy these deficiencies the County has two options, either provide real mitigation measures that comply with CEQA requirements detailed in this letter, or consider all of the impacts purportedly mitigated by these inadequate measures to be significant.   CEQA envisions the former approach.   All mitigations should be clearly spelled out.   Draft ordinance change text should be included as appendices to the Draft Area Plan to allow public review.   As described above, it is inappropriate to defer this sort of mitigation to future environmental review because it is an integral part of the plan itself, and applies to the entire plan area.   It would not appropriately be subject to a tiered environmental review because such review would be appropriate only to implementation of specific development proposals under the Area Plan.    Once the mitigation measures are revised, the EIR should be re-circulated to permit the public and decision-makers to evaluate the adequacy of the new mitigation measures.

Please feel free to call me at (510) 849-2354 if you have any questions regarding this letter.

Sincerely;

Richard Grassetti
Principal

Cc:
Mendocino County Board of Supervisors
Mendocino County Planning Commission
Ukiah City Council
City of Ukiah Planning Commission
Mendocino County Farm Bureau
Ukiah Valley Smart Growth Coalition
Mendocino Commons
Ukiah Area Chapter Audubon Society




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