HomeMy WebLinkAbout10/19/2021 Item 7a, Schmidt (2)October 16, 2021
Re: CEQA documentation for night use of SL Mountain
Dear Council Members,
This letter is limited to comments on the CEQA documentation for the night use "project." I have
submitted a separate letter on other matters.
The CEQA ER has BIG PROBLEMS. I'm amazed such sleight of hand has made it this far. That
does not speak well of the city CEQA process's trustworthiness.
Here's the BIG overarching problem: the ER deliberately misdefines the "scope of project." It
alleges the "project" is only about one tenth its actual size, and it apparently does this to avoid
having to do an EIR, which is the only appropriate level of CEQA analysis for this permanent
expansion of human exploitation of natural systems and disruption of natural wildlife habitats.
Doing the ER this way provides the appearance of smaller impacts than will actually occur. In other
words, it's not telling the truth.
To illustrate what the problem is, let me pose a question. Has anyone ever appeared before the
council and asked for the right to night -use the city -owned Cerro San Luis Obispo Natural Reserve,
a little piece of mostly grassland along and right above the noisy Highway 101 freeway? No.
They've asked to night -use ALL of San Luis Mountain.
But the ER pretends "the project" is ONLY on the 118 acre city -owned "natural reserve," and
pretends to ignore the fact the reserve is not a sought-after visitation place in its own right but
merely the front door to approximately 1,118 acres of wild land that is the REAL LOCUS OF
"THE PROJECT." No analysis of impacts on that larger parcel — the actual project locus --
has been conducted.
This fib about "the project" scope is breath -taking chutzpah on the city's part! The ER is thus
invalid for its stated purpose.
I do not have the time or stomach to do line by line critique of this faulty document, but I will offer
an overview critique. Its mega -problems are its fatal flaws.
Summary Critique
1. The project's environmental determination, signed by Shawna Scott, states: "On the basis of
this initial evaluation: I find that the proposed project COULD NOT have a significant effect on the
environment, and a NEGATIVE DECLARATION will be prepared." (emphasis original)
On this presumption staff prepared an unmitigated Neg Dec. Had the facts -on -the -ground of the
project not been so intentionally skewed, making this determination would have been impossible.
Had there been citation of potential unmitigable significant impacts, which it is obvious there in
fact are, an EIR would have been required.
Later on, in #3 below, I will show why the statement "the proposed project COULD NOT have a
significant effect on the environment" is clearly incorrect, and show how non -advocacy analysis
would have led to the opposite conclusion.
2. The overarching big whopper: The actual project area is nearly 10 times larger (977% larger)
than the "project" area subjected to the ER. In presenting this falsification of project extent, the ER
sets up an argument, unsupported by facts, that there are no significant environmental impacts.
Everybody knows night use is not about accessing city -owned property along the freeway, what the
ER would have us believe. Everybody knows the night -use project actually involves accessing ALL
the rest of San Luis Mountain -- about 1,118 acres of wildland, habitat, and wildlife corridors away
from the freeway, linking richly on the north to the Morros, Chorro Valley, Los Padres National
Forest, and on the west to the Los Osos Valley and Irish Hills, Diablo lands and Montana de Oro
State Park (i.e., very wild coastal ranges). So this fib about extent enables the city to claim no
impact on wildlife when in fact there's huge impact.
You name any of our charismatic mega fauna, and until this night use "pilot" started 3 years ago, we
had it on San Luis Mountain; now wildlife are, observationally, all messed up -- base -of -pyramid
prey are diminished due to human disturbance (including dogs turned loose by their hiking owners,
chasing through habitat, killing, frightening — and not a word about this in the ER!), base predators
are largely gone due to diminished prey, deer (once common) have been scared off and now are
comparatively rare, nobody's spotting coyotes and foxes (previously common daily) or
cougars' (previously present though not so common), and with all this disruption, turkeys alone are
thriving due to lessened predation combined with their discovery of urban -edge food sources.
3. The second overarching whopper: the project "cannot have any impacts" because it continues
the "existing condition" level of night use, established allegedly by outlaw hikers/bikers and
allegedly documented in a study referred to again and again in the ER as Riggs et al.
This "existing condition" argument — and that's what it is, an "argument," not a fact — is on its face
absurd and must be dismissed, for many reasons.
A. The first problem is the ER's ad nauseum citation of Riggs et al., a style of citation suggesting
this is reputable published academic work. All citations in an ER should be publicly accessible.
Riggs et al. is not publicly accessible. I was able to get ahold of it only after extensive email
' Yes cougars were present. A young one lived one summer on the patio of an unoccupied house in the 100 block of
Broad, going up the mountain to hunt at night. Recently, somewhat before the night use "pilot," a news story told about
a cougar eating "piglets" in a yard along Old Garden Creek near Mission St. Note, both these locations involved animal
use of a designated wildlife corridor linking mountain and creek whose importance the ER dismisses as not of interest
because it's outside the "project" area even though it's in the middle of and in full endangerment from the night use
proposed to be made permanent. .
z Riggs et al. is identified as a study done for the city, so my search began at slocity.org, where there were zero
responses. A global internet search found a hit at CalPoly, but that turned out to be not Riggs et al. but PowerPoint
slides by Riggs and Hill. At that time my email exchange with Hill began. He gave me the same CalPoly link I'd
already found, but as stated above, that is not Riggs et al. Ultimately he had to email me a private copy of Riggs et al.
When I found it did not contain the data on which the ER conclusions are based, he sent me the spreadsheet of alleged
user counts at SL Mtn. Quite a runaround for anyone to pursue, and I doubt many others than myself would have done it
or even known how to do it. One wonders why studies done for the city are not available on the city website, and why
their data are hidden from public review if they're used in policy and environmental documents.
exchange with staff, and then when I discovered Riggs et A did not contain the numbers the
ER attributes to it to allege the "second whopper," it took more exchange of email to get a
private Excel spreadsheet, which is not part of Riggs et al., containing the alleged numerical
evidence for the "second whopper." So the data alleged to provide evidence of an "existing
condition" argument which forms the central basis for claiming no environmental impact for "the
project" is not publicly available. This makes it impossible for the public, or for the council,
to weigh the veracity of the ER's claims.
B. Despite what one would be led to conclude from the style of its repeated citation, Riggs et al.
is not a published academic paper. It is a short-term student project.
C. The ER alleges "historic" night use of the ER "project area" (remember, that's about one-
tenth of the actual night -use project area) is 65, allegedly based on Riggs et al. (and remember
it's in fact not mentioned in Riggs et al.). On that basis the ER concludes issuing 65 permits per
night continues historic nighttime disruption to wildlife habitats, and therefore has zero impact!
This, of course, would be nonsense even if the number were true, for CEQA requires study of
new impacts and cumulative impacts, and anyone looking at SL Mtn throughout the year can
testify that during the night use "pilot" periods there was a huge uptick of nocturnal human
activity — activity at a level never before seen -- on wildland areas excluded from analysis by this
ER's false definition of the project area. Call those impacts new or cumulative, they are huge;
and the significant recent reduction in observed mountain wildlife corresponds temporally with
the years of night use.
D. So, the number "65" does not appear in Riggs et al. Nor does it appear on the
spreadsheet of Riggs data.
E. Deciphering any meaning that might reside in the spreadsheet data takes several steps
and considerable deconstruction.
1) The spreadsheet indicates a total daily "average" from 12/17/2014 to 3/31/2015 of 164
"after dark" users on the mountain (NOT on the ER "project" area, but on the mountain)!
That, it is immediately apparent, is a false number (double count) since it is the sum of
users -in (97) and users -out (67). Now those in -out numbers raise another question: are these
numbers anywhere near accurate, because they indicate "on average" 30 persons per night
(about one-third of the total) seem to have disappeared into the wilderness and never
returned! If true, surely that would be a police matter well -reported by the media.
2) The "counting" was done with trail -mounted EcoCounters, which are notoriously
inaccurate. Riggs et al. estimated a 30% over -count, but their raw data from Bishop's Peak
suggest over -count of more than 40%.3 So all numbers based on these inaccurate machines
must be taken with several grains of salt. But the ER doesn't do that — for example, it includes
a daily use count on SL Mtn of 800 persons, which is the spreadsheet in -out sum, and deploys
this number unedited by realizing this is a double count, and unadjusted by some EcoCounter
error factor.
3 Based on comparing machine count with hand count during a counter test period.
3) The data on the Excel spreadsheet indicates "after dark" usage as a separate entry. But what
is "after dark?" Daylight is shown on the spreadsheet as 7 a.m. to 5 p.m., with no seasonal
adjustment. Everything else is "after dark." On December 17, that's probably about right,
since that's 4 days short of the year's shortest day. But by March 31, days are much longer
(the Equinox has passed by then) and those "after dark" hours would include a lot of daylight
hours. So the spreadsheet's numbers substantially overstate "after dark" use by failing to
adjust for seasonal daylight shifts.' When adjusted for this change in daylight hours, I find the
actual scofflaw double -count from the EcoCounters isn't 164, but is about 24. (Most alleged
scofflaw "after -dark" use occurs in the time immediately before sunrise and immediately after
sunset.) Half that, the number of counted users, gives us 12, not the 65 claimed in the ER.
Adjusting further for known EcoCounter error brings the actual number of alleged law-
breaking night users to about 7, which is a mere 11% of the alleged "existing condition"
on which the false no -impact conclusions of the ER are based.
This is consistent with what those of us who live below the mountain witness: In normal
times, night use indicators are rare, but during the "pilot" program, the mountain was literally
covered with users almost every night. Sometimes "statistics" aren't nearly so truthful as
simple observation.
4) Bear in mind also that although the data are divided into daylight and after dark categories,
not all "after dark" use is illegal; open space regulations give an hour's leeway into
darkness on both ends of the day. Presence on the mountain during those hours is not a
violation. The spreadsheet data do not deal with this subtle fact, but instead lump ALL after
dark use into one pile. It is the ER, not the spreadsheet attributed to Riggs et al., that alleges
this undifferentiated pile of numbers has "existing condition" relevance. As already
mentioned, what the spreadsheet numbers do show is the preponderance of "after dark" use is
within the allowed one-hour limits on either side of dawn and dusk. So it is questionable if
the alleged "scofflaw data" indicate any significant quantity of actual law breaking. It's
possible that on most nights we may have experienced zero scofflaws historically.
F. The weirdest part of the "existing condition" rationale for permanently opening the mountain
to night use is that having known since 2014-2015 there was suspicion of substantial illegal
night time use, the city did nothing to stop it by enforcing its protective open space
regulations .5 (Perhaps the city knew all along the "numbers" were meaningless — that's the city's
best defense.) Instead, the city waited 6 years, then trotted out alleged illegal use as an excuse to
legalize it with permit issuance.
We need an analogy to see how utterly wrong this. Say the police department has determined
there may be 65 red light runs per day in the city. Many cause no harm beyond fright, but some
cause injury and death. Rather than crack -down and enforce the law, the police come up with the
idea they should issue 65 red -light -run permits per day, since that simply recognizes the alleged
status quo of law breaking. In their program analysis they determine such action will have no
impact on Vision Zero, since it merely continues "existing conditions" of street mayhem.
4 In fairness to Riggs, I doubt he ever contemplated his raw numbers could be manipulated for this ER's purposes.
5 Interestingly, the ER places great faith in the public's future adherence to these regulations even as it claims their past
violations led to the "existing conditions" whereby rule -breaking is a rationale for the proposed permit system. The ER
states, for example, that there need be no concern about night users under the permit system going off -trail because the
rules state one should stay on trails.
This is exactly what the night use ER proposes regarding environmental impacts. Mayhem and
death for wildlife from the city's proposed action is rationalized away with a false claim it
already exists in the exact amount it will with permanent night use. (Remember, the main impact
areas are not even included in the ER's "project.")
Potentially significant effects on the environment: The ER denies there are any. As indicated
above, this is untenable given the incomplete/inaccurate definition of the "project" and the likewise
untenable argument any impacts are part of the "existing condition."
It is illegitimate for an agency to simply declare there are no impacts without doing studies to show
that's the case.
Under CEQA, the existence of "potentially significant" effects on the environment -- unless those
effects are mitigated by changes in the project — mandates that the proper path forward is
completion of an EIR, not an unmitgated Neg. Dec. such as the city has prepared. The CEQA
initial study instructions are quite clear on this: "If there are one or more `Potentially
Significant Impact' entries when the determination is made, an EIR is required."
Here are a few potentially significant impacts of the project which are unmitigated because they are
either not dealt with, misrepresented, or claimed not to exist.
Biological resources. This is where there are many unexamined impacts because the ER's incorrect
definition of project area and erroneous argument about "existing conditions" provide an excuse to
ignore them.
1) Impacts on "special species" and species in general. The ER states there are numerous
species of interest or special status on the city property. There would be more of their numbers in
the 10 -times -larger actual project area. The ER says not to worry about them: "The potential for
species individuals to be physically injured or killed by visitors through trampling is extremely
low because visitors would utilize existing trails instead of treading through habitat that
individuals may be using as refugia, which refers to a location that wildlife may utilize to escape
danger or adverse weather conditions."
This is poppycock analysis. Visitors do not stay on trails, visitors do tramp through
"refugia," and visitors set their dogs loose to chase wildlife everywhere, even within
"refugia."
Will night use make this worse? Well, it clearly does. Since the early 1970s I have lived at the
base of the mountain with a good view of its northeast flank. I pay attention. What I saw during
the night use "pilot" was horrifying. Up to that time night use indicators (mainly lights) were
zero to minimal -- contrary to the ER's allegation of "existing conditions" being the same over
time. During the pilot, night use was constant, night after night, and the northeast flank
(none of which is within the area analyzed by the ER) was lit up by biker, hiker, and
probable hunter lights. I saw bikes not only on the main backside trail to the top and the
circumferential trail but also on little animal tracks through "refugia." I saw people
bushwhacking cross-country through "refugia." I saw bright spotlights being swept across
non -trail areas, sweeping the hillside in an apparent effort to flush out animals. And I heard
gunshots, suggesting illicit hunting was taking place. None of this is so much as mentioned in
the ER. By omission, it seems, actual adverse impacts are supposed to be non-existent.
This observed increase in night activity impact is evidence of potential significant impacts. An
EIR is needed to deal with them.
2) Impacts due to interference with foraging and feeding and breeding during post -dusk
hours. It is well-known these hours are crucial for many foragers' survival. Yet the ER dismisses
this matter with its unsupported allegation of "existing conditions." This interference, mountain -
wide, is obvious from my description of the pilot program's activities above.
Post -dusk interference with animal movement during those crucial early -dark hours is a potential
significant impact. An EIR is needed to deal with it.
3) Impacts on breeding of "special species." The ER would lead us to believe this is a non -
issue, stating that breeding season for these species is "almost entirely outside" the night -use
dates (and "the proposed project would not increase the existing level or times of visitation to the
Reserve" — citing again the old "existing conditions" canard). But ER Table 1- Special Status
Wildlife Typical Reproductive Season clearly shows breeding season for all 5 species listed
there falls within the night use time period.
That being the case, facts have to overrule an advocacy argument in favor of the project on
whether this may be a potentially significant impact, and an EIR needs to be done to resolve the
matter.
4) Impacts on riparian habitats. The ER claims there are none, overlooking the fact that proper
definition of the project site would yield clear evidence of adverse impacts on downstream
rainbow trout spawning conditions.
The numerous small streams that run down the east and north sides of San Luis Mountain are
tributary to Old Garden Creek, an all -year waterway that hosts among others dace and trout, and
not so long ago steelhead. The little mountain animal trails much misused by mountain bikers
ride through these streams; the bikes make mud, the mud runs downhill, and silts -in the gravel
spawning bottoms of Old Garden Creek. The little tributary streams, once clear, now run
brown most of the wet season. Since night use falls during the wet season, and by darkness
makes it impossible for even a conscientious biker to keep from making a mess when riding
through streams, this project causes impacts to the larger waterway greater than daytime biking
might.'
6 At some point the city must address that our open spaces are being overrun with mountain bikes, endangering not only
waterways and other environmental features but also hikers. Having two trail systems, one for foot people and one for
bikers, would seem like a good plan. The bike trails could have bridges to minimize stream damage, and be located in
areas of minimal wildlife conflict. But that's another matter than this ER.
Also, you should know that bikers on hiking trails are chasing people like me off trails I've hiked several times a week
for decades. Beyond the fear of being hit, bike use has destroyed the trail surface, turning it to slippery loose scree.
The downstream impacts of the project are potentially significant impacts, and an EIR is needed
to deal with this issue.
Other non -Bio Impacts.
5) Impacts on planning policies: environment and neighborhoods. San Luis Obispo has strong
planning documents for protecting the environment. These include, among others, a waterways
conservation ordinance, the General Plan COSE, an open space ordinance, and policy documents
for particular open space areas. The thrust of all of these is to promote good stewardship and
environmental protection as the top goal.
The open space ordinance explicitly states that open space is first of all for preserving natural
resources like wildlife and plants and geology, and that passive recreation may be allowed ONLY
to the extent it doesn't conflict with the primary purpose of environmental conservation, nor with
neighborhood quality of life.
This project ignores both of those priorities: environment and neighborhood quality of life.
Environmentally, it promotes habitat -degrading nocturnal human recreation as a top goal. This is
contrary to our open space ordinance, rules, regulations and policies.
The ER completely ignores the impact on neighborhoods by pretending the "project" is only
about city property above the freeway instead of the whole of the mountain. People will hear
night use is approved, and ignore the ER's silly pretension all access will be via permit at Fernandez
Road. People will enter the mountain anyplace they can. In fact, the actual level night use will be
some multiple of the 65 issued permits due to entry elsewhere.
Among the "other" entries to the actual 1,118 acre project area are Hill St., Mission Lane, Bressi,
Serrano, Tassajara, Luneta, San Jose, Madonna lands, Laguna Lake — and those are just the ones I
know about; looking down from above, foot trails suggest even more.
There is absolutely no way the city can control night use from these locations. Approving
night use opens up all of them to exploitation.
Almost all of these other entries are within neighborhoods. Night use attracts hordes through
these unmonitored -by -he -city entries to the mountain. Many of the entries involve using private
driveways or actual trespassing. During the pilot, neighbors of the mountain had strangers in
their yards, people nosing around their homes in the dark, noisy groups on their driveways,
flashlights shined into windows, and one person reported lost hikers banging on her door and
scaring the dickens out of her.
This is totally contrary to the city's regulation that open space use must not impact
neighborhood quality of life.
Summer before last, we did a favorite hike, and despite having a good biking pole, I fell twice because of the scree. This
drives older people off their mountain. Now, instead of walking out my front door to hike, I must drive the belchmobile
to go someplace else.
This neighborhood chaos is also perfect cover for more nefarious activity such as vandalism,
theft or even home invasion and homicide.
Clearly, there are potentially significant impacts on (and contradictions with) our community's
planning documents. An EIR is required to deal with these.
6) Cumulative impacts. One of CEQA's strong features is its requirement that projects not be
studied in isolation and not be minimized to understate impacts, and that the cumulative sum of
impacts of which a project's direct impacts may be only a part be analyzed as a whole.
Directions on the CEQA initial study form state this: "All answers must take account of the whole
action involved, including off-site as well as on-site, cumulative as well as proiect-level, indirect as
well as direct... " This ER fails utterly to do as directed.
What this ER does is called "piece-mealing," a process by which a "project" (night use of the city
property above Highway 101) is separated from the bigger thing enabled by the "project" (night use
of ALL of San Luis Mountain), and then pretending there are no cumulative impacts to analyze.
There are potentially huge significant cumulative impacts here that must be analyzed by an EIR.
CEQA categorizes cumulative impacts as "Mandatory Findings of Significance" which
require an EIR and may not be satisfied with an ER.
Summary and Conclusions.
The ER has been shown to be deficient in numerous ways:
1. It misdefines the project area, claiming it is less than 10% of the actual area directly and
intentionally affected by the project. This allows the ER to ignore potentially serious environmental
impacts on about 1,000 acres of high quality naturally rich habitat and its inhabitants.
2. The ER alleges no environmental impact from night use on grounds historic illegal night use has
occurred at the same level alleged for this project. The ER offers no evidence for this allegation, and
when pressed for some, staff provided a Riggs spreadsheet, which does not in any way verify the
ER's claimed level of illegal night use. In fact, analysis of the spreadsheet indicates actual
"counted"' illegal use in the brief counting period was on the order of 0 to 7 illegal users daily
rather than the 65 claimed in the ER. Furthermore, nearly 50 years of observing the back side of San
Luis Mountain (northeast quadrant) enables this observer to state categorically the claimed historic
level of night use is baloney, and that night use during the "pilot" night use program exceeded by
orders of magnitude any that had ever occurred before. This new project will replicate night use on
the order of the pilot, not at the scant historic illegal use level. And that new level of use has
potentially huge negative impacts. Conclusion: the "existing condition" rationale that the project has
no environmental impact is 100% incorrect.
' Counting was with highly inaccurate EcoCounters. See discussion above.
3. CEQA mandates an EIR for a project with this project's potentially significant environmental
impacts and "mandatory findings of significance." A number of potentially significant impacts are
enumerated above. An unmitigated Negative Declaration is not a proper way for the city to fulfill its
CEQA obligations for this project.
4. This ER is not an environmental analysis. It is an advocacy argument for the project. CEQA
documents are supposed to be impartial, as complete as possible, and analytical, not advocacy
arguments.
5. This ER is a careless document. It is fraught with error and poor judgment (see 1 and 2 above, for
example) at both the macro scale and the micro scale. It omits obvious issues (like dogs vs.
wildlife), and adopts a level of laughable naivete (people will stay on trails because the rules say to
stay on trails; the rules also say to keep dogs leashed!) to brush aside potentially serious impacts
that need to be studied and resolved. It is almost beyond belief that the ER describes the project
(defined correctly elsewhere as allowing night use when daylight time is not in effect) in a manner
that turns it around 180 degrees: the project is "in winter when daylight savings time is in effect."
When I read that, I thought "typo," but reading on I found the same twist -around every time
daylight savings was mentioned. I find it embarrassing that such things make it through internal
staff review. I find it embarrassing a staff planner signed off on this document. It suggests the city
doesn't care one bit about the content quality of its CEQA documents, only that they conform to the
law's minimum tolerances of going through the motions.
6. This ER is unfit for its purpose. Council adoption would be disgraceful.
7. The proper CEQA level of analysis for a project with such huge potential impacts is an EIR.
8. The Council should order preparation of an EIR, or drop the project.
Yours,
Richard Schmidt
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