David
Mohlenbrock
Senior
Planner
City
of
-
sent via facsimile (916) 625-5195 and United States Postal
Service –
Dear
Mr. Mohlenbrock:
We
thank you again for the opportunity to comment on the above document. As the
State Office of Historic Preservation (OHP) we have broad responsibility for
the
implementation
of federal and state historic preservation programs in
The
City of
The
project under consideration is a request for a Large Lot Tentative Subdivision Map
to subdivide 622+ vacant acres into 33 large lots. The large lots would
establish individual units being further subdivided by the proposed small lot
tentative subdivision map which would result in 558 single family residential
lots. Additionally, a General Plan Amendment and Rezone are also being
requested to address modifications to the open space area and residential
components of the proposal. Also a Circulation Element Amendment is proposed to
reduce the street from four lanes to two, an encroachment into the 50-foot
creek setback area along
Cultural Resources
As
a recap, CEQA requires the following for the identification and mitigation of
cultural resources. A lead agency is required to determine whether the project
does involve a significant adverse impact on an historical resource.
Furthermore, a lead agency “shall, after having identified a significant
impact, identify potentially feasible mitigation measures to mitigate
significant adverse changes in the significance of an historical resource.”
(CEQA Guidelines § 15064.5)
When
a project will impact an archeological site, a lead agency shall first
determine whether the site is an historical resource as defined under § 15064.5
(a). If a lead agency determines that the archeological site is an historical
resource, it shall refer to the provisions of Section 21084.1 of the Public
Resources Code and section 15126.4 of the CEQA Guidelines (CEQA Guidelines §
15064.5 (c) (1-2)). Your consultant has made the determination that the Clover
Valley Lakes District is an historical resource for purposes of CEQA. (RDEIR –
Appendix G).
Furthermore,
according to § 15126.4 (a) (b) (3) an EIR shall describe feasible mitigation
measures which could minimize significant adverse impacts and public agencies
should, whenever feasible, seek to avoid damaging effects on any historical
resource of an archeological nature. The following factors shall be considered
and discussed in an EIR for a project involving such an archeological site: preservation
in place such as resource avoidance, incorporation of sites into open spaces,
parks, etc., capping or deeding sites in to permanent conservation
easements. Data recovery as the only
feasible mitigation is the last option after the preparation of and adoption of
a data recovery plan, including provisions for sites known to have human
remains following Section 7050.5 of the Health and Safety Code.
The RDEIR and the FEIR have not complied
with the requirement of CEQA to provide the information required by the public including
this office under CEQA to offer meaningful comment. The RDEIR and FEIR do not
provide an adequate description of the archeological sites and their
significance because the cultural resources report is not made available. One of CEQA’s main objectives is the
disclosure of significant effects of proposed activities to decision makers and
the public. An EIR is a fundamental disclosure document. As such, a lead agency is required to make
all documents cited in the EIR available for public review. (Public Res. Code §
21092 (b)) And an EIR must cite all documents used in its preparation (CEQA
Guidelines § 15148). While
sensitive information such as archeological site records, sacred sites or maps
by law should not be made available, a redacted, but complete version of the
reports used in the preparation of a DEIR is required to either be circulated
or made available. Moreover, the City uses the same argument in
conjunction why neither the SHPO (letter by David Mohlenbrock to SHPO,
The FEIR has not complied with CEQA’s
requirements for determining effects and mitigating adverse effects to cultural
resources. The
US Army Corps of Engineers (COE) has identified as part of its compliance with Section
106 the existence of an archeological district, the Clover Valley Lakes
Archeological District, consisting of minimally 34 cultural resources in
concurrence with SHPO. Under
However, no mitigation measures as required
per CEQA for adverse impacts to the district have been developed in the
RDEIR/FEIR. In
the Master Response section 7 of the FEIR on Cultural Resources, the City
states that a Historic Properties Treatment Plan (HPTP) in consultation with
Native Americans and consultations with other agencies is under development and
that this plan would provide for mitigation measures and preservation planning
subject to section 106 of the NHPA. In addition, also being drafted is an Open
Space Management Plan (OSMP) that will manage the open space and the majority
of the cultural resources in the open space. “The City believes the review
required pursuant to federal NHPA Section 106 process and the management and
treatment measures issuing there from will provide adequate protection of the
resources.” (FEIR – 3.2 -27) Moreover, the City cites CEQA allowing for mitigation measures to
be developed in the future so long as the EIR includes performance standards
for the mitigation to be developed. (FEIR-3.2-27) However, the City has cited the CEQA
Guidelines § 15126.4 (a) (1) (B) out of context.
CEQA says, the lead agency shall
describe feasible mitigation measures in the EIR process, shall distinguish
between mitigation measures proposed by the lead agency, responsible or trustee
agency and describe measures for each significant impact. Where several measures are
available to mitigate an impact, each should be discussed and the basis for
selecting a particular measure should be identified. Formulation of mitigation
measures should not be deferred to some future time. However, measures may
specify performance standards which would mitigate the significant effect of
the project and which would mitigate the significant effect of the project and
which may be accomplished in more than one specified way. “(CEQA Guidelines §
15126.4 (a)) In short, the EIR process requires the
development of mitigation measures, requires that their implementation should
not be deferred to the future, that they are in place and that a performance
standard is optional.
Several members of my staff had an opportunity to perform a site visit at
weren’t,
how the boundaries of the
sites where determined, whether the results of the report were based on
a reconnaissance or
intensive level survey, etc., and most importantly whether all Native American sites extant
had been identified. The report (page 1) says that test excavation
occurred during the summer of 1999.
During this weeks site visit, it was observed that the thick existing
ground cover made observations rather difficult. Moreover, there appears to be no discussion in the report
whether the Clover Valley Archeological District also contains any sacred sites.
CEQA’s
substantive mandate requires that public agencies should not approve projects as proposed if there are
feasible alternatives or feasible mitigation measures available which
would substantially lessen the significant environmental effects of such
projects (Pub. Res. Code 21002).
Since the FEIR is lacking the development of required feasible mitigation
measures and alternatives to lessen significant adverse impacts, the FEIR does
not comply with the substantive mandate of CEQA.
Section 106 process
Section
106 of the NHPA for
compliance with federal law is a parallel process to the CEQA process.
While there is some intersection of both laws, inherently they are two different laws. Section
106 only looks at National
Register eligibility for a resource. Under CEQA, the threshold is the California Register,
which is a much broader definition of what could be a historical resource. Under
CEQA, it is the lead agency’s
responsibility to make the determination of historical resources, to identify
impacts and develop, where feasible, mitigation measures which avoid or
mitigate, most adverse project impacts, mandating the public disclosure of their
findings and affording the public an opportunity to provide meaningful comment.
Under Section 106, the relationship of the
consultation includes the SHPO, the Advisory Council, the Corps Native American
groups and individuals and the public with a demonstrated interest in the
undertaking. The Corps shall seek and consider the views of the public
and grant consulting party status to certain individuals and organizations. A representative of a local government with
jurisdiction over the area in which the effects of an undertaking may occur is
entitled to participate as a consulting party.
Section
106 process for the above project was formally initiated in 2002; however, it has not commenced
since then. Other than the determination of the eligibility of the
cultural sites to the National Register of Historic Places nothing more has
occurred to date. According to an e-mail from Patti Johnson, Regulatory Branch
Archeologist, U.S. Army Corps of Engineers (COE),
Since
mitigation measures
(treatments) and management plans have neither been developed yet (the SHPO and the public under
the consulting party status have not been given an opportunity for comment
under106) nor have been developed in concordance with the requirements of CEQA
(CEQA Guidelines § 15126.4), the public has not been allowed the opportunity to
fulfill its obligation for meaningful
comment; therefore resulting in the lead agency not fulfilling its CEQA obligations.
Again,
since the OHP has had an opportunity
to visit
Please
note that any action taken
or agreed to by the developer, prior to the conclusion of the Corps’
consultation with the California State Historic Preservation Officer (SHPO) and
the Advisory Council on Historic Preservation Council, under Section 106 that
materially reduces the alternatives available to avoid, minimize, or mitigate
the project’s adverse effects on historic properties may be considered a
foreclosure on the Council’s opportunity to comment. If such an action were to occur, the Corps
would have the responsibility of notifying the SHPO and the Council of that
action, and the Council would have the option of formally reviewing the case to
determine if in fact a foreclosure had occurred. The foreclosure review process often takes
months to complete and may ultimately
jeopardize the ability of the Corps to ever issue a subject permit. If it becomes clear during the Council’s
review of a possible foreclosure that the action under review was done with
foreknowledge that the action may be in conflict with potential resolutions to
the project’s adverse effects, then the Corps could be found in violation of section 110(k) of the National
Historic Preservation Act and may forever forfeit its ability to issue
the subject permit. Please consider the foreclosure
discussion here as a public reminder to the Corps’ permit applicant, and a
public notice of concern to the Corps about said applicant’s commitment to
comply, on the Corps’ behalf, with the Part 800 regulation.
In summary, the FEIR is not adequately
fulfilling CEQA’s requirement for the identification and treatment of cultural
resources. We very strongly advise the City of
Again, we thank you for the opportunity to comment on the
above project. Please understand that our comments herein are specifically related to the
environmental review process and adequacy of documents prepared for the
environmental review
purposes. We
do not take positions in support of or against projects, but rather focus on the environmental
review process itself.
If
you have any further questions, please don’t hesitate to contact Michelle C.
Messinger, Historian II, CEQA Coordinator Local Government Unit at (916)
653-5099 or at mmessinger@parks.ca.gov.
Sincerely,
State Historic
Preservation Officer
Cc:
Don Perara,
Elaine O’Deegan,
Marilyn Jasper,
Duane Wilson,
Patti Johnson, Regulatory Branch
Archeologist,
Corps of Engineers
Corps of Engineers
John Eddins, Cultural Resource Specialist,
Advisory Council on Historic
Preservation
Sally Torpy, Coordinator,
State
Clearinghouse