HomeMy WebLinkAbout10/17/2017 Item 10, Schmidt (2)
Christian, Kevin
From:Richard Schmidt <slobuild@yahoo.com>
Sent:Tuesday, October
To:E-mail Council Website
Subject:Item 10 CEQA non-compliance
Attachments:council sl mtn night use CEQA.doc
Dear Council Members,
The MND before you tonight fails to properly discharge the city's CEQA responsibilities regarding this project, and thus the
project must not proceed.
Please see the attached note.
Richard Schmidt
1
Dear Council Members,
I wish to make short note of objection to the adequacy of CEQA documentation and
studies for the night biking/hiking project. These documents are inadequate and an
unfortunate display of environmental unconcern for a city that claims to be
environmentally friendly.
Many have written to you regarding the fact protection of wildlife and natural resources,
not recreation, is the pre-eminent purpose for our Natural Reserves, as spelled out in
ordinances, plans and regulations. Given that fact, one would expect a robust CEQA
EIR to precede an invasive resource-bashing recreation program that violates the city’s
open space ordinance and policy documents.
Instead we have a mitigated negative dec that fails utterly to pass even the most
cursory CEQA muster.
Here are a few among many salient deficiencies:
1. The scope of the MND is entirely too circumscribed. It neglects even to consider
significant impacts for many “factors potentially affected.” For example, the MND claims
only “biological resources” may experience significant impact.
(Screen shot of MND checklist.)
Even worse, those potentially affected biological resources are improperly defined in a
most limited manner. For example, although siltation originating from the Natural
Reserve that is largely due to one of the recreational activities being promoted (biking)
is such that it impacts both the endangered southern steelhead run and the introduced
salmon run and native rainbow trout in the SL Creek watershed, it is not studied nor
considered potentially significant.
There should be checks in many blank checklist boxes, including aesthetics, air quality,
cultural resources, geology/soils, hazards, hydrology/water quality, and tribal cultural
resources. It is not needed here to enumerate why each of those should be added to
the considerations, though some thought on your part would enable you to do so.
2. The MND states – tautologically – that there will be no significant impacts because
there are three project mitigations. CEQA mitigations are understood to be modifications
to a project to lessen or eliminate impacts, but there have been NO modifications to the
proposed project. In fact, these mitigations couldn’t possibly mitigate impacts since the
Terra-Verde consultant report states quite clearly there’s no baseline data by which to
judge even wildlife impacts, though “it is likely” there will be significant impacts to
wildlife. The extent and severity of those impacts are unknown, states Terra-Verde, so
how could those “unknown” impacts be mitigated by this MND’s alleged “mitigations?”
3. The three “mitigations” claimed to reduce impacts to non-significant levels are not
legitimate CEQA mitigations.
(Screen shot of MND’s “mitigations.”)
Mitigations 2 and 3 aren’t mitigations and aren’t germane to the “unknown” impacts they
claim to “mitigate.”
#2 is very nice – wildlife in a desert can always use water sources, but this has nothing
to do with mitigating wildlife impacts from night-time recreation in the Natural Reserve.
In fact, poor placement might exacerbate those impacts by attracting wildlife to
populated areas. This “mitigation” has nothing to do with the matters being mitigated.
#3 is also very nice, but it’s nonsensical. We are told public education, via means of
debatable effectiveness, will mitigate impacts that aren’t known. And who will be doing
the “educating” that mitigates potentially significant impacts? Why, the same people
who admit they don’t know what the impacts will be. More tautology.
Neither #2 or #3 modifies the “project” to mitigate anything. They are perhaps fun things
to do, but neither is a project mitigation.
Mitigation #1 purports to offer mitigation, but in fact offers mainly rationalization for the
project. Terra-Verde said a baseline study to understand and enumerate wildlife using
the Reserve does not exist and creating one would need to be “long-term” and extend
over “multiple seasons and conditions.” Rather than undertake such a study as part of
the needed project EIR, however, the city has decided to take a short cut and run a
future study of “impacts” after approving and starting the project, despite the
nonsensicality of claiming such impacts can be measured, or mitigated, when there’s no
baseline data from which to work.
A major CEQA faux pas thus emerges: “future studies,” with a few circumscribed
exceptions which don’t apply here, are not legitimate mitigations. That’s not my opinion.
The courts have been very clear on this. What the city proposes is an unlawful deferral
of environmental analysis that must take place prior to project approval. Allowing
a project to proceed and performing post-MND-certification verification of baseline data
is contrary to law and allows an environmental decision to be made outside an arena
where public officials – you -- are accountable.
What’s being offered by the MND is voodoo CEQA compliance.
Claiming that the project will be shut down IF a future study finds there are impacts is
nonsensical, since there’s no baseline study with which to determine IF there are
impacts. Besides, who’s going to shut the project down? The MND offers no clue.
Words are cheap, actions of the sort “promised” challenging. Mitigation #1 is
propaganda, not mitigation.
4. But it gets worse. To pass muster, CEQA compliance must be based on a project that
conforms to law. Clearly, this project violates the law – to wit, MC 12.22.050B. Here is
how the staff report rationalizes this fact:
(Screen shot of staff report.)
In the vernacular, a reasonable response would be “Are you kidding?”
The law is spectacularly clear: “It shall be unlawful to enter or remain within such lands
between one hour after sunset and one hour before sunrise…”
To adopt the staff report’s ludicrous rationale that staff can add hours of regular use,
one would have to believe the following:
1. That a previous Council was so stupid as to include contradictory provisions within
the ordinance.
2. That such Council intended to give the Parks Director the authority to unilaterally
rewrite the law without so much as consulting them.
Both propositions are silly, yet your buying into staff’s rationale would show that
you hold the intelligence and integrity of your predecessor Councils in low
regard.
To be internally consistent, as well as consistent with the law’s legislative history, the
clause cited as giving the director permission to allow temporal variances must be
viewed as some sort of temporary “relaxation” for urgency reasons, not as carte blanche
permission to disregard the basic premise and language of the ordinance’s setting
explicit protective hours of non-use. Otherwise the ordinance itself makes no sense: if it
meant what the staff report alleges, it would simply state “The Director shall set hours of
operation of open space trails,” and skip all the rest. That is not what it says. Instead the
wording clearly shows the subsidiary, rather than primary, relationship of director’s
ability to allow temporal exceptions to Council’s explicit dictate about hours.
Anyway, if staff really believed what their report tells you, they’d never have brought this
item to your agenda. There’d be no need for tonight’s hearing – they’d unilaterally
change hours of operation without so much as consulting you, since they claim
that’s what the ordinance means. That they chose not to do that confirms that even
staff realizes this rationalization is a sham.
This sort of CEQA manipulation and failure to actually address environmental impact
issues is not what the citizens of our city expect from you.
This needs to change. Is the only means to achieve change taking the city to court?
Since all of you ran for office claiming to be environmentalists, the question arises why
you are not demanding a better quality of CEQA work from your staff instead of the
perennially fundamentally flawed products you’ve been reviewing of late.
Sincerely,
Richard Schmidt