Badlands Journal

The attempted change should be seen for what it is: a final Bush administration gift to those who benefit when environmental laws are weakened.-– Concord Monitor

Below, we've included the Associated Press story by Dina Cappiello on Aug. 22 about more than 100 conservation groups throughout the nation (including three from Merced) that opposed the Bush administration's latest attempt to gut the Endangered Species Act. Three groups came from the Merced: San Joaquin Raptor Rescue Center, San Joaquin Valley Conservancy and San Joaquin Et Al. The story was widely distributed throughout the nation and even in the UK -- a partial list is also included. Finally, there is some information about a number of local business and political leaders, large Republican fundraisers, who stand to benefit from this last-minute attempt by the Bush administration to reward its contributors.

Badlands Journal editorial board

--------------------------

Associated Press
Groups: Bush rushing to rewrite species rules...(AP) DINA CAPPIELLO...8-22-08
http://ap.google.com/article/ALeqM5hkF1lWZoKQaqIgrv4XHs4RAorcQgD92NHQMG6
WASHINGTON (AP) — The Bush administration is providing insufficient time for public comment as it seeks to loosen rules protecting endangered species, representatives of more than 100 conservation groups charged Friday.

Thanks to Sacramento’s man on the U.S. Supreme Court, Judge Anthony Kennedy, who created the meaningless “significant nexis” to determine the connectivity of waters to navigable streams, federal resource agencies have been up a creek as far as knowing their jurisdiction to enforce the Clean Water Act. The EPA has done nothing about more than 400 CWA enforcement cases since the Supreme Court ruling called the “Rapanos Decision.” Kennedy’s middle ground stood between four conservative justices who wanted CWA enforcement only on permanent streams and four liberals who voted for intermittent streams as well, including wetlands and vernal pools.

Jim Marshall, city manager of the City of Merced, intoned theologically in the UK Financial Times on Tuesday that there “should be a special place in hell for” speculators, mainly from the Bay Area, who bought McMansions in Merced, took out subprime loans and tried to flip them before the first balloon payments hit.

In fact, Marshall knew well there was no local market for the subdivisions of McMansions the city was approving weekly during the speculative real estate boom, the collapse of which has made Merced nationally famous for its foreclosure rate, and now internationally famous, or infamous, along with Modesto and Stockton.

For immediate release:
30 July 2008

Contact:
Bill Jennings, CSPA Executive Director, 209-464-5067, 209-938-9053 (cell)
Mike Jackson, CSPA Attorney, 530-283-0712, 530-927-7387 (cell)

CSPA Protests State Board’s Elimination of Key Delta Protection

Stockton, CA. Today, the California Sportfishing Protection Alliance (CSPA) submitted a formal petition to the State Water Resources Control Board (State Board) asking it to reconsider its issuance of a “secret” Order allowing export pumping to be increased despite violation of Delta water quality standards. The Order was issued in response to a petition from the California Department of Water Resources (DWR) and U.S. Bureau of Reclamation (USBR). South Delta Water Agency has also asked the State Board to reconsider the decision.

And he is too humble to take the responsibility for thinking. The whole structure of his world would be endangered if he permitted himself to think. The pieces must stick within their pattern or the whole thing collapses and the design is gone. We wonder whether in the present pattern the pieces are not straining to fall out of line; whether the paradoxes of our times are not finally mounting to a conclusion of ridiculousness that will make the whole structure collapse. For the paradoxes are becoming so great that leaders of people must be less and less intelligent to stand their own leadership. John Steinbeck, The Log from the Sea of Cortez (1941), p. 46.

Continued from: node/474

From: MCCORRYM
To: pkhiek@co.merced.ca.us, rgabriele@co.merced.ca.us
CC: rlewis@co.merced.ca.us, jfincher@co.merced.ca.us, CALFMAN1, MCCORRYM
Sent: 3/31/2008 10:55:31 A.M. Pacific Daylight Time
Subj: Request to view active files pertaining to Felix Torres

Mr. Khiek and Mr. Gabriele,

On March 28, 2008, we received an email from Mr. Gabriele. In the body of the email was a reference to our potential request to view all files associated with the Felix Torres Child Development Center. We are confirming in this email our right to view these files.

In a previously scheduled meeting, we had incorrectly anticipated the timing of a Hearing Officer hearing. Typically, they have lasted between 30 minutes to one hour — this particular hearing ran nearly 2 hours - in which we were actively participating (February 25, 2008). As a result, Mr. Khiek, seems to have interpreted our actions as disrespectful to staff as we were late for our appointment (we met him after the meeting was over). Unfortunately, despite our good faith attempts, we have been unable to accurately predict the duration of County hearings — no disrespect to staff time, it is/was beyond our control.

Badlands is declaring the coming days a Sunshine Week to post a number of documents submitted to Merced County government in the last few months. Some of these documents have been included in the official packets of information for Board of Supervisors and Planning Commission meetings. Others have been suppressed.
This material is best understood by reference to the audio or video archives of supervisors’ and planning commission meetings and we encourage readers seriously interested in understanding their local government to go to the Merced County webpage, http://www.co.merced.ca.us/CountyWeb/, to seek out these hearings, particularly the two board of supervisors meetings on July 1 and July 8.
The following correspondence and public comment letters concern the approval of a Merced County Housing Authority project.

At the end of Joseph Kanon's The Good German (Picador, 2001), there is an interview with the author. The interviewer asks Kanon, whose novel superbly depicts the labyrith of bureaucracies among Allied Armed Forces in the first weeks of the occupation of Berlin at the end of WWII:

As a writer whose work often centers on shrouded governmental activity, do you consider yourself prone to conspiracy theories?

Kanon. No. Conspiracies exist largely in the world of melodrama. In the real world of government, we're more likely to find the less exciting mix of incompetence, special interests, political expediency, and plain, dumb carelessness.

The California Department of Water Resources announced on June 27, after the largest fire in Northern California history had been raging for a week:

On behalf of San Joaquin Raptor Rescue Center and Protect Our Water, two local environmental groups, attorney Marsha A. Burch filed the following letter to the Merced Local Agency Formation Commission on June 26, regarding Planada Community Services District proposals to extend its sphere of influence to annex the new Felix Torres farm worker housing project.

In addition to Ms. Burch's letter, Maureen McCorry, on behalf of San Joaquin Et Al, submitted the following documents in addition to oral testimony:

1) Planning Commission Minutes 2.27.08
2) Planning Commission Minutes 3.26.08
3) 4.12.08 Articles
4) Planning Commission Minutes 4.09.08
5) Amendment to Real Party Exchange Felix Torres
6) Badlands Felix Torres, Raptor/POW
7) Felix Torres Background:
Felix Torres 3.26.08 Farm Bureau letter
Felix Torres 4.09.08
Felix Torres 11.29.07
Felix Torres 12.29.07
Felix Torres 12.13.07
Felix Torres USDA 12.13.07
Merced County 4.04.08
Planning Commission Transcript
Owens/Corser Comments
2.06.06 Agency Letter
8) Felix Torres CUP 2.27.08
9) Access to Working Files
10) Comment on proposed subdivision
11) MSR Planada
12) Graves letter
13) Felix Torres 3.26.08
14) Mary Stillhan 3.18.08
15) Planada CSD Final Petition
16) Lawsuit filed over the Planada Community Plan
17) Planada Settlement Agreement, SJRRC, POW, and the PCSD
18) PCSD ledger of Can and Will Serve Letters 1992-2008;

and Bryant Owens submitted these documents in addition to oral testimony:

“A” 2002 Preliminary Engineering Report for Planada WWTF Expansion
“B” Can and Will Serve Ledgers and related e-mail (13 pages)
“C” E-mail from PCSD to David Capron (1pg)
“D” Letter from Ken Mackie LAFCo (2pg)
“E” 11/7/03 Modification of Escrow, 21 acre Felix Torres Parcel (1pg)
“F” Community Plan Update Map Showing Felix Torres on Gerard Ave (1pg)
“F-1” Planada Community Plan Update 2003, Included by Reference
“G” PHRC Letter to Robert Lewis dated 8/3/06 (2pgs)
“H” Tom Nevis to Terry Allen re: Planada/Tatum Inquiry, Grand Jury Notes (2pgs)
“I” Villages of Geneva EIR Guidance Package (13pgs)
“J” Merced County Municipal Service Review, 2007, Planada (6pgs)
“J-1” Local Agency Formation Municipal Service Review Guidelines August 2003
(Govt. Publication included in its entirety)
“K” Settlement Agreement between Bryant Owens and PCSD dated 5/27/08 (5pgs)
“L” CA Regional Water Quality Control Board Administrative Liability Order (6pgs)
“M” 1993 Bear Creek Village CUP and amendments
“N” LAFCo Sphere of Influence Amendment 1055B.

The LAFCo board voted unanimously for continuance until Aug. 28 to consider new information.

All in all, it was not a good day for Merced County officials, who believe that the proper public-comment letter is a hand-written note by a pencil stub on toilet paper tacked to a fence post as far away as possible from 2222 M. St., Merced.

-- Badlands editorial staff
-----------------------------------------------------

MARSHA A. BURCH
ATTORNEY AT LAW
131 South Auburn Street
GRASS VALLEY, CA 95945
June 25, 2008
Via Email
Mr. Bill Nicholson, Executive Officer
Merced County Local Agency Formation Commission
2222 M Street
Merced, CA 95340

Re: Proposed Sphere of Influence Amendment No. 1055C to the Planada Community Services District and Planada Community Services District Annexation No. 2008-1, Planada, Merced County, California LAFCo File No. 0645

Dear Mr. Nicholson:

This office, in conjunction with the Law Office of Donald B. Mooney, represents the San Joaquin Raptor Rescue Center and Protect Our Water, groups with an interest in the above-referenced proposed sphere of influence amendment and annexation (“Proposal”). We apologize for the late hour of these comments, but we were unable to obtain a copy of the Planada Municipal Services Review (“MSR”) until this afternoon. We submit the following comments on the Proposal.

By previous letters and comments to the Merced County Planning Commission our clients have raised concerns that the Merced County Housing Authority’s (“MCHA”) CEQA documentation related to the above-referenced Proposal is inadequate. The following comment provides additional detail regarding the flaws in reliance upon the Environmental Assessment/Initial Study prepared by the MCHA. This comment further describes the legal obligation of the LAFCo as a CEQA responsible agency to assume the role of lead agency and prepare subsequent environmental review before approving the Proposal.

I. Required Subsequent Environmental Review

A responsible agency may not grant a discretionary approval for a project for which a negative declaration has been prepared without first considering the environmental impacts outlined in the negative declaration. (CEQA Guidelines § 15096(f); cf. Endangered Habitats League, Inc. v. State Water Resources Control Board (1997) 63 Cal.App.4th 227.) A responsible agency must decide for itself how to respond to a project’s significant effects that will directly or indirectly result from the responsible agency’s own decision to approve an aspect of the project. (CEQA Guidelines § 15096(g)(1); and Pub. Res. Code § 21002.1(d).) The responsible agency must adopt any feasible mitigation measures that will substantially lessen such effects. (CEQA Guidelines § 15096(g)(2).)

When a responsible agency believes that a lead agency has improperly relied on a negative declaration it may elect from options set forth in CEQA Guidelines section 15096 as follows: (1) take the matter to court within the applicable limitations period; (2) prepare its own “subsequent EIR” if permissible under CEQA Guidelines section 15162; or (3) assume the role of lead agency if permissible under section 15052. (Guidelines § 15096; and see City of Redding v. Shasta County Local Agency Formation Comm. (1989) 209 Cal.App.3d 1169, 1179-1181.)

As discussed in detail below, the initial study and negative declaration for the project failed to analyze certain impacts, and new information regarding potentially significant impacts has come to light since the MCHA approved the project. Thus, if the MCHA refuses to supplement the inadequate environmental
review, the LAFCo should assume the role of lead agency and evaluate the impacts of the project prior to approval.

It bears noting that the MCHA adopted the negative declaration for the project two and a half years ago on November 15, 2005. There is substantial evidence showing that the Felix Torres Housing Center is significantly different today in its construction phase than the project that was reviewed and approved
by the MCHA. Further, there is substantial evidence showing that the Planada Community Services District’s (“CSD”) plans to expand the wastewater treatment capacity have changed considerably, and the planned expansion formed a large portion of the MSR prepared by the LAFCo in April of 2007.

There is new information showing that the project will likely have significant impacts that were not addressed by the MCHA. (See Supporting Document Packet submitted by San Joaquin Raptor Rescue Center and Protect Our Water.)

Under CEQA Guidelines section 15052, the LAFCo as a responsible agency, shall assume the role of the lead agency when any of the following conditions occur:

(1) The Lead Agency did not prepare any environmental documents for the project, and the statute of limitations has expired for a challenge to the action of the appropriate Lead Agency.

(2) The Lead Agency prepared environmental documents for the project, but the following conditions occur:

(A) A subsequent EIR is required pursuant to Section 15162;

(B) The Lead Agency has granted a final approval for the project;
and

(C) The statute of limitations for challenging the Lead Agency's action under CEQA has expired.

(3) The Lead Agency prepared inadequate environmental documents without consulting with the Responsible Agency as required by Sections 15072 or 15082, and the statute of limitations has expired for a challenge to the action of the appropriate Lead Agency.

Under Section 15052(1)(A), a subsequent environmental review is required because new information has come to light (see Supporting Document Packet) which was not known at the time the negative declaration was adopted by the MCHA, and the new information shows that significant effects to utilities and service systems will be more severe. (CEQA Guidelines § 15162(a)(3).) This requirement applies to a negative declaration, and as a responsible agency, LAFCo may not grant a discretionary approval for the project until the subsequent negative declaration or EIR is adopted. (CEQA Guidelines § 15162(b) and (c).)

Accordingly, if the MCHA is unwilling to prepare the supplemental environmental review necessary to bring the review into compliance with CEQA, the LAFCo must step into the role of the lead agency and prepare the necessary review before considering and approving the project. (CEQA Guidelines §
15052(a), subsections (1), (2) and (3).)

A. New Information and Changed Circumstances

The initial study/negative declaration is outdated with respect to its analysis of the CSD’s capacity for wastewater treatment and cumulative impacts. Since the MCHA approved the project, in March of 2008, the CSD settled a CEQA action in the Merced County Superior Court and agreed to limit treatment plant expansion to a maximum of 900,000 gallons per day (“GPD”).

The MSR adopted in April of 2007 assumed that the CSD would move forward with the expansion. The MSR also concludes that the community of Planada will likely grow to a population of 8,500 within the next seven years. (MSR, p. 74.)

None of these assumptions is correct at this point, and the erroneous information in the MSR should be identified and revised, or at least discussed.

Changes to the Felix Torres Project itself have also arisen. Project construction apparently began and deviated significantly from the configuration approved by the MHCA and so the Merced County Building Division halted construction. The MCHA applied for approval to deviate from the project as approved in the Conditional Use Permit and on April 9, 2008, the Planning Commission did not approve that application. It is our understanding that the Planning Commission’s decision has been appealed.

In summary, the LAFCo may not rely upon the negative declaration prepared for the Felix Torres Project because that project has evolved and transformed so significantly that additional environmental review is necessary.

The new information triggers the need for subsequent environmental review under Guidelines section 15162(a), and therefore triggers the responsible agency obligation to assume the role of lead agency and prepare the necessary review. (Guidelines § 15052.)

B. Impacts not Previously Addressed

The staff report concludes that the Proposal will not have a significant impact on agricultural lands. This conclusion violates CEQA, and also the Cortese-Knox-Hertzberg Act (discussed below). With respect to CEQA, the conclusion that conversion of agricultural land is not significant is simply false, as the extension of the sphere of influence and infrastructure into the proposed annexation areas will remove a boundary to development on surrounding agricultural areas.

The staff report indicates that the County has denied applications for residential developments outside of the SUDP boundaries, but the fact that the County has denied applications in the past provides no assurance that such applications will be denied in the future. Thus, approval of the Proposal may
result in conversion of agricultural lands.

The Legislature has determined that the preservation of the limited supply of agricultural land is necessary for the maintenance of California’s agricultural economy and the state’s economy. (Gov’t Code § 51220.) The Legislature found and declared that "the preservation of land in its natural, scenic, agricultural, historical, forested, or open-space condition is among the most important environmental assets of California." (Civ. Code § 815.)

The Proposal’s impacts to agriculture must be evaluated in a subsequent environmental review. Gaps in the initial study and negative declaration for the project may not be overlooked, and must be addressed before the Proposal may be considered for approval.

II. The Proposal Is Inconsistent with Cortese-Knox-Hertzberg Statutory
Requirements

As discussed above, the sphere amendment and annexation will result in the potential for conversion of additional agricultural land. The initial study for the Felix Torres Project does not adequately assess this potential and is insufficient under CEQA. It is also insufficient to approve the annexation under
Cortese-Knox-Hertzberg.

Section 56377 of Cortese-Knox-Hertzberg sets forth the following requirements for LAFCo approval of annexations that convert open space and agricultural lands:

56377. In reviewing and approving or disapproving proposals which could reasonably be expected to induce, facilitate, or lead to the conversion of existing open-space lands to uses other than open-space uses, the commission shall consider all of the following policies and priorities:

(a) Development or use of land for other than open-space uses shall be guided away from existing prime agricultural lands in open-space use toward areas containing nonprime agricultural lands, unless that action would not promote the planned, orderly, efficient development of an area.

(b) Development of existing vacant or nonprime agricultural lands for urban uses within the existing jurisdiction of a local agency or within the sphere of influence of a local agency should be encouraged before any proposal is approved which would allow for or lead to the development of existing open-space lands for non-open-space uses which are outside of the existing jurisdiction of the local agency or outside of the existing sphere of influence of the local agency.

This section requires the Commission to guide development away from prime agricultural lands. Subsection (b) requires that development of existing vacant land within a sphere be encouraged before annexation of open-space land outside of the existing sphere.

To comply with these mandatory requirements, most LAFCo’s require a vacant land inventory and absorption analysis. This information is essential to determine if there is adequate vacant land already within the urban boundaries for the proposed development or whether there is a need to convert additional open space or agricultural land.

There is no such analysis done for this project. There is absolutely no evidence in the record to indicate that there is insufficient vacant and developable land within the urban boundaries and sphere of influence of the CSD that would justify further conversion of agricultural land outside the boundaries. In the absence of such information, Merced LAFCo cannot make the findings necessary to justify such a conversion.

III. The Proposal Is Inconsistent with Cortese-Knox-Hertzberg Statutory Requirements

The staff report indicates that Cortese-Knox-Hertzberg requires review of various factors for all reorganization proposals, citing Government Code section 56668. (Staff Report, p. 4.) The report goes on to say that certain Merced LAFCo policies provide a more focused review for rural service districts, and so
provides an analysis under the policy rather than the Government Code.

The mandatory requirements of CKH may not be so lightly disregarded.

Section 56668(d), for example, requires that the anticipated effects of the Proposal must be reviewed for consistency with adopted LAFCo policies on providing orderly, efficient patterns of urban development, and the policies and priorities set forth in Section 65377. These are the very priorities that were ignored by the MCHA in approving the Felix Torres Housing project at its present location, and they may not be ignored by the LAFCo.

IV. Conclusion

We appreciate the opportunity to provide the above comments. We respectfully request that the Commissioners carefully evaluate the shortcomings of the underlying CEQA document, and its inadequacy to support a discretionary determination by the LAFCo at this time. We respectfully request
that the LAFCo deny the Proposal.

Very truly yours,

Marsha A. Burch
Attorney
cc: San Joaquin Raptor Rescue Center
Protect Our Water
Donald B. Mooney, Esq.