July 26, 2007


David Mohlenbrock

Senior Planner

City of Rocklin

3970 Rocklin Rd.

Rocklin, CA 95677


-          sent via facsimile (916) 625-5195 and United States Postal Service –


Clover Valley Large and Small Tentative Subdivision Maps Final Environmental Impact Report (FEIR) # 1993122077


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 California. My office has been receiving continued communications from the Clover Valley Foundation and the public regarding the project.


The City of Rocklin has circulated the FEIR for final comments and the document will be heard before the Planning Commission July 30 & 31, 2007. My office has the following serious concerns: project mitigation is a non-existent Historic Properties Management Plan (HPMP); the Cultural Resources survey is inadequate; and implementing any action prior to conclusion of Section 106 may threaten a 404 permit. The California Environmental Quality Act (CEQA) requires that the above project shall develop mitigation measures and submit these for comment in the FEIR. The assumption a HPMP for Historical Properties under Section 106 can substitute for the requirement of complying with CEQA is incorrect. Section 106 is a federal law and a separate process. The HPMP and Open Space Management Plan (OSMP) alluded to have not been completed. Therefore, the FEIR is inadequate.  Furthermore, the FEIR does not meet CEQA’s fundamental basic disclosure requirement, the law’s intent to provide information for meaningful public comment. 


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 Nature Trail Way at two locations and the construction of an off-site sewer line.


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, March 8, 2006) nor the public are afforded access to the tentatively existing HPMP.  The withholding of salient information renders the CEQA process inadequate. The communication of information about an historical resource/site of an archeological nature without releasing the sensitive nature of their locations in the CEQA process is required for compliance with CEQA in order to provide for meaningful opportunity to comment.


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 California law, a consensus determination for the National Register automatically placed the district on the California Register of Historical Resources; thus the Clover Valley District is an historical resource for purposes of CEQA pursuant to Pub. Res. Code 21084.1; CEQA Guidelines §15064.5 (a) (1).


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 Clover Valley.  While walking the site, several historical features were found (water-conveyance ditch, stone-lined well, redwood culvert). These resources were not identified in the Determination of Eligibility and Effect on Cultural Resources within the Clover Valley Lakes Project Area, Peak (2002) report.  Additionally, Native American artifacts, such as pestles, arrow heads, hammer stones, etc. were found on the valley floor. Moreover, questions arose over the methodology of the report: what the ground cover was like during the November 2 and 7, 1998, which portions were selected for inspection, which


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), July 12, 2007, to Elaine O’Deegan, the Corps had just received the Historic Properties Treatment and Management Plan (HPMP).  My office has neither seen a copy of the HPMP nor has been involved in its drafting. But in the City’s FEIR comments there is an implied assumption that the HPMP will be an acceptable mitigation for the Section 106 process; but, the content of the HPMP is not known to anyone, neither the public nor the SHPO. Moreover, the City assumes further, that the mitigation measures and treatment proposals of the HPMP also will suffice as mitigations under CEQA.  The City assumes incorrectly because there are no facts in the record and neither CEQA nor the section 106 process are built on faith.



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 Clover Valley it has become very apparent that the Determination of Eligibility and Effect on Cultural Resources within the Clover Valley Lakes Project Area, Peak (2002) is less than adequate because of the resources that were discovered during the site visit. Therefore, the basis of discussion, the resource identification pursuant to the section 106 process, requires reevaluation; there is a need for a new survey.


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 Rocklin to resurvey the project area and issue a new cultural resources study which looks at the existence of historical resources which clearly have been overlooked to date, to make clearer boundary determinations and develop mitigation measures and alternatives which feasibly mitigate most adverse project impacts per CEQA’s substantive mandate.  Please submit a complete, un-redacted copy of the new cultural report to my office for review.


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.                                                                                                               







Milford Wayne Donaldson, FAIA

State Historic Preservation Officer





Cc:  Don Perara, Clover Valley Foundation

       Elaine O’Deegan, Clover Valley Foundation

       Marilyn Jasper, Clover Valley Foundation

       Duane Wilson, Clover Valley Foundation

       Patti Johnson, Regulatory Branch Archeologist, Sacramento District, U.S. Army

       Corps of Engineers

       Tanis Toland, Chief, Regulatory Branch, Sacramento District, U.S. Army

       Corps of Engineers

       John Eddins, Cultural Resource Specialist, Advisory Council on Historic


       Sally Torpy, Coordinator, North Central Information Center

       State Clearinghouse