Dotty
E. LeMieux
Attorney
at Law
173
E. Blithedale, Suite 3
Mill
Valley, CA 94941
(415)
383-3715
FAX
(415) 383-3718
Patti
DuMont December
31, 2002
Environmental
Co-ordinator
Cal.
Dept. of Parks and Recreation
One
Capitol Mall Suite 500 Via fax: (916) 445-9100
Sacramento,
CA 95814 Original
to follow
Re:
Proposed Coastal Trails Rehabilitation Project at Mt. Tamalpais State Park.
Neg. Dec.
Dear
Ms. DuMont:
As
you know, I have been retained by the Tamalpais Conservation Club to comment on
the recently completed Mitigated Negative Declaration (MND) for the proposed
Coastal Trails Rehabilitation Project at Mt. Tamalpais State Park. I have
reviewed the document and find it to be legally deficient in several crucial
ways. First and perhaps most importantly, the document fails to inform the
reader of the scope of change this project signals for recreational use within
the Mount Tamalpais State Park (MSTP). A conversion of Fire Roads into narrow trails
that continues to allow vehicular usage marks a dramatic change of policy for
this fragile environment. Neither the so-called Notice of Availability sent on
November 25 nor the MND itself discusses this historic and potentially
environmentally consequential change in use.
The
California Environmental Quality Act (Pub. Res. Code section 21080 et seq. -
CEQA) requires an adequate Project Description that provides actual notice to
the public and an opportunity to comment on the potential adverse environmental
impacts of a Project. The faulty notice, as well as the deficient MND, has
effectively robbed environmental groups, hikers, equestrians and other
interested members of the public of any meaningful chance to be heard, as
discussed in detail below.
The
Project Description is Inadequate:
The
Project Description in the Mitigated Negative Declaration (MND) for this
Project states that it is to decommission approximately 3.1 miles of existing
fire roads, and restore the natural drainage patters, convert .5 miles of fire
roads to a narrow trail, construct 4.8 miles of new shared use narrow trails.
(MND p. 6.) On page 8, the Summary of the proposed work claims it will
decommission 4.8 miles of the Lone tree and Coastal fire roads and
"construct new trails to replace the poorly aligned portions of the
existing roads that are contributing to drainage problems and erosion of the
road surface." These statements offer contradictory information, which
fails to accurately describe the project so that the reader can understand its
true implications.
The
fire roads currently are the only shared use trails within the Mt. Tamalpais
State Park. The Fire Roads are currently at least seven feet wide in all
places. The new trails would have a 48 inch minimum width. This conversion will
mark the first time multiple users, including mountain bicyclists, are
permitted on trails narrower than 7 feet in width. Such a major change must be
examined thoroughly for environmental, safety and enforcement consequences.
The
Project Description fails to discuss this change in policy and in actual use.
Instead it speaks only of the conversion process. While it admits the new
trails would be "shared use and barrier free" it does not describe
what that means. At no point in the MND is the word bicycle or cyclist used.
This
major omission cannot be mere oversight. The omission colors the whole of the
MND. so that potential environmental impacts resulting from the addition of
bicycle use on narrow trails are completely ignored throughout the document.
To
be legally sufficient, an Initial Study must contain an "accurate and
complete" Project Description. (CEQA Guidelines section 15063, subdivision
(d)(1).)
The
Negative Declaration must contain a full environmental analysis that informs
the reader of the potential impacts which may result from the Project:
"The
negative declaration is inappropriate where the agency has failed to provide an
accurate project description or to gather information and undertake an adequate
environmental analysis. An accurate and complete project description is
necessary for an intelligent evaluation of the potential environmental impacts
of the agency's action. ‘Only through an accurate view of the project may
affected outsiders and public decision-makers balance the proposal's benefit
against its environmental cost, consider mitigation measures, assess the
advantage of terminating the proposal . . . and weigh other alternatives in the
balance.'" (City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th
398, 406-407, quoting County of Inyo v. City of Los Angeles (1977) 71
Cal.App.3d at pages 192-193, emphasis added)
Here,
as in Redlands, "[d]espite this benign description, the changes themselves
reveal far broader consequences." (Id. at 407.)
In Redlands, the Project consisted of changes
in "land use policies relating to unincorporated territory within a city's
sphere of influence and to clarify the County's authority and discretion
relating to land use planning and development." (Ibid.) There, the
amendments constituted "substantive changes to the County's policies and
procedures in making land use and development decisions involving
unincorporated territory within a city's sphere of influence. In essence, the
amendments eliminated the requirement that the County give substantial weight
to and even implement the standards provided in an affected city's general
plan." (Id. at 408.)
Similarly,
here, the description of a rehabilitation of existing fire roads into narrower
trails following the contour of the hillsides sounds benign and even
environmentally enhancing. Although the MND states that the same user groups
would be permitted on the reconfigured trail, it fails to note that this
constitutes a change in policy for use of narrow trails on Mt. Tamalpais. It is
this change in policy, not simply the change in configuration, that should
trigger full environmental review, because the potential impacts of high
intensity multiple use of the narrow trails differs radically from those on wider
fire roads.
In
Christward Ministry v. Superior Court (1986) 184 Cal.App.3d 180, 196-197, a
project described as a "waste-to-energy" plant omitted crucial
information, mischaracterized the project, and failed to acknowledge evidence
of significant environmental impacts. There, a City adopted a General Plan
Amendment's "definition of a solid waste management facility designation
[which] includes uses which did not exist at the landfill site at the time the
amendment was adopted, e.g., transfer stations, and waste-to-energy facilities.
The amendment does not, as City contends, merely ratify an existing use for
which an EIR had been prepared in the past, but authorizes potential new uses
at the site." (Ibid. at 190, emphasis added.)
Because
the Project Description fails to adequately describe the Project, the potential
impacts are minimized. There is no discussion, for example, of how allowing
multiple user groups, including mountain bicyclists, on the narrow trails may
result in a different type of environmental impact than allowing them on the
fire roads. Those differences are discussed below.
Failure
to Provide Documentation for the Assertion that the Project will Result in Less
than Significant Environmental Impacts:
An
Initial Study relied upon by the lead agency in determining that no
environmental impacts will result must "[p]rovide documentation of the
factual basis for the finding in a Negative Declaration that a project will not
have a significant effect on the environment." (Guidelines section 15063,
subdivision (c)(5).)
Conclusory
language will not substitute for a reasoned analysis supported by
documentation. The MND fails to provide such analysis.
Section
IX Land Use and Planning:
The
Initial Study finds no conflict with any "applicable land use plan,
policy, or regulation of any agency with jurisdiction over the project..."
(MND p. 44.) It states that the project is consistent with both the Marin
Countywide Trails Plan of 1984 and the Mt. Tamalpais State Park General Plan of
1984.
Both
of these documents identify the Lone Tree and Coastal Fire Roads as appropriate
for multiple users. "Fire Roads" is the operative phrase. By this
conversion, the two roads will be turned into narrow trails. The guidelines for
trail use differ from those for fire roads for several reasons, among them
safety considerations (narrower trails provide little opportunity for multiple
users to avoid mishaps), potential for erosion from single track bicycle tires,
especially through high speed use, displacement of the more passive users in
favor of the more aggressive bicyclists, potential for increased use through
creating an attraction for bicyclists from outside the area, and demonstrated
increase in the building of illegal trails. (See articles and letters attached
and submitted.)
No
supporting documentation is provided. The MND merely cites the two Plans and
states the Project is consistent. This kind of conclusory statement provides
"no basis for a comparison of the problems involved with the proposed
project and the difficulties involved in the alternatives." (People v.
County of Kern (1974) 39 Cal.App.3d 830, 841-842, quoting Silva v. Lynn (1973)
482 F.2d 1282, 128; see also Laurel Heights Improvement Assn. v. Regents of
University of California (1988) 47 Cal.3d 376, 404: "but neither can we
countenance a result that would require blind trust by the public, especially
in light of CEQA's fundamental goal that the public be fully informed as to the
environmental consequences of action by their public officials;" and City
of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 415 "
The County's conclusory evaluation of the amendments fail to support its
decision to adopt a negative declaration.")
The
MND fails to provide a factual basis for the finding and therefor the MND must
be set aside in favor of a full EIR. (Guidelines 15063 (c) (5).)
Section
XIV. Recreation:
The
MND finds that there would be no substantial increase in use or demands to this
or any other park or recreational facility in the area. It states that
"more visitor use of these trail routes may occur, but overall trail use
in the park is not expected to increase." (MND p. 54.)
These
statements are in direct contradiction with the Application made by DPR for
funding to create this project. In that Application the following statements
anticipating increased use are made:
"It
is anticipated that the new trails will attract greater visitation as park
users seek more aesthetically pleasing pathways that provide the intimate
experience of meandering through the countryside, following the natural
contours of the hills, while taking in the world class views of the San
Francisco Bay Area." (Application, p. 3-4.)
"Once
completed, this project will increase visitation through improved access..."
(Application, p. 6.)
"MTSP
has yet to realize its full recreational potential." (Ibid.)
The
Application also notes that new access will be afforded to other areas of the
Park by these trials:
"Access
to areas of MTSP such as the Frank Valley Horse Camp and nearby hiking
equestrian trails will provided by the project." (Application, p. 5.)
"Currently
the multi-use trail system within MTSP is very limited and involves short
distance travel only. Construction of this project provides important links to
city, county and state roadways that lead to other recreational use areas and
the surrounding communities..." (Application, p. 6.)
"The
new Lone Tree Trail will provide access to the popular Rocky Point area of the
park that contains a public campground and cabins overlooking the
Pacific." (Application, p. 7.)
"Many
different loops and connections are available from the proposed trails."
(Ibid.)
No
discussion of the potential environmental impacts caused by either the
increased use or improved access is provided in the MND. Specifically, there is
no discussion of the impacts of bicycle usage on these new trails. Since the
creation of these new trails marks the first time bicycles will be allowed on
any trails (as opposed to Fire Roads) within the MTSP, the omission is all the
more glaring.
The
Application provides the only discussion of impacts resulting from addition of
bicycles to narrow trails by analogy to a similar project in Annadel State
Park. That discussion demonstrates the increased use that results, but fails to
show how the two projects are similar. It states that visitor use has
increased, but accidents have been reduced, with no supporting documentation to
back up the statement. The fact that fewer accidents have resulted in a
roads-to-trail conversion project in one State Park, assuming the statement to
be correct, sheds little light on the environmental impacts of a project in
another State Park, without a discussion of topography, user profiles,
attractiveness of the facility, and other factors that may allow the reader to
judge whether the comparison is justified.
In
any event, NO discussion of potential impacts, not even the favorable Annadel
experience is provided in the MND.
The
Tamalpais Conservation Club, by its Corresponding Secretary Larry Minikes, in a
December 24, 2002, letter and accompanying documents, has provided ample
evidence of the adverse environmental impacts that may result from this project
to support a fair argument that a full EIR is required. (Pub. Res. Code section
21064.5; 21080 (c); Guidelines 15073.5; City of Redlands, supra, at 405.:
"Under this test, the agency must prepare an EIR whenever substantial
evidence in the record supports a fair argument that a proposed project may
have a significant effect on the environment." Quoting Gentry v. City of
Murrieta (1995) 36 Cal.App.4th 1359, 1399-1400.)
Section
XV. Transportation/Traffic:
The
MND states "A significant increase in overall visitation to Mt. Tamalpias
SP is not anticipated as a result of the proposed project...." This
statement is contradicted by the Application cited above; as well as the
discussion provided in the December 24, 2002, Minikes letter.
The
MND concludes that "the impact on congestion resulting from additional
visitor or construction vehicles to normal traffic on Hwy 1 or Panoramic
Highway would be minimal, therefore the project would result in a less than
significant impact." (MND p. 57.)
In
light of the statements in the Application, including the demonstrated increases
at Annadel State Park, and the discussion in the Minikes letter and
accompanying documentation, substantial evidence exists that this project may
result in significant traffic increases. That is all that is required for a
full EIR to be prepared.
Cumulative
Impacts:
Under
Chapter 4, Mandatory Findings of Significance, the MND finds no cumulative
impacts, while noting that "[o]ther restoration, maintenance and
road-to-trail conversions projects are underway or planned within the [nearby]
Redwood Creek Watershed on Mt. Tamalpais." (MND, p. 61.)
CEQA requires that a lead agency must discuss
"cumulative impacts" of the project. Guideline 15064 (i)(1). This
means that the agency must determine whether an impact which may be
individually limited, when viewed in connection with the effects of past,
present or "probable future projects" the effects may be
considerable. (Ibid.)
The
MND states that "[i]mpacts from these ongoing and future projects, along
with other environmental issues addressed in this evaluation, would not overlap
in such a way as to result in cumulative impacts that are greater than the sum
of the parts." (Ibid.)
No
analysis of this statement is offered. To the contrary, additional similar
projects already in the works or planned are exactly the types of cumulative
impacts that need to be included in an environmental review for a project. At
the very least a discussion and identification of these other projects and
their relation to the proposal here needs to be provided.
In
(San Franciscans for Reasonable Growth v. City and County of San Francisco
(1984) 151 Cal.App.3d 61, 75 the court stated the test for when a cumulative
analysis is required: "[W]e find it illogical that an EIR should carefully
evaluate the direct impacts of one project which is "under environmental
review," but completely ignore the cumulative impacts of that project's
siblings in the same category. Nothing makes the EIR's subject project more
"probable" or "foreseeable" than any of the other projects
under review, just as nothing makes them less so."
Additionally,
the TCC has shown evidence of the types of impacts that can occur from such
projects, including the construction of illegal trails, additional visitor
usage and safety and enforcement problems. (see article packet attached and
Minikes letter with accompanying documentation.).
In
City of Antioch v. City Council (1986) 187 Cal.App.3d 1325, 1337, the court
found that approval of a site development permit for construction of a road and
sewer lines would have the effect of "opening the way for future
development," and that a cumulative impact analysis was required. The
changes proposed here for the conversion of fire roads to narrow
"trails" is likely to have the effect of "opening the way"
for future recreational uses not contemplated in the MND.
It
is irresponsible for the DPR to ignore such potential impacts altogether.
Alternatives:
No
alternatives are given for this project. There is no discussion of other
configurations, such as trails without the addition of bicycle users,
decommissioning the roads without rebuilding them as trails or a no-project
alternative.
While
a Mitigated Negative Declaration does not need to evaluate every possible
alternative or mitigation, it must look at those which are
"feasible." (Long Beach Savings and Loan Assoc. v. Long Beach
Redevelopment Agency (1986) 188 Cal.App.3d 249, 264.) Evidence has been
produced that other alternatives are feasible, including the ones suggested in
the preceding paragraph. Thus, it is error to fail to include a discussion of
them.
The
TCC has Made a Fair Argument that a significant Environmental Impact may Result
from this Project and a full EIR is Required:
Public
Resources Code section 21080 (d) states that If there is substantial evidence,
in light of the whole record before the lead agency, that the project may have
a significant effect on the environment, an environmental impact report shall
be prepared. (Also see CEQA Guidelines, at Title 14 of the Cal. Code of
Regulations, 15064 (a) (1).
And:
"As CEQA guidelines make clear, an agency "shall adopt the proposed .
. . mitigated negative declaration only if it finds on the basis of the whole
record before it (including the initial study and any comments received), that
there is no substantial evidence that the project will have a significant
effect on the environment and that the . . . mitigated negative declaration
reflects the lead agency's independent judgment and analysis." (Cal. Code
Regs., tit. 14, § 15074, subd. (b).)" (Arviv Enterprises Inc. v. South
Valley Area Planning Com. (2002) [__ Cal.App.4th __].)
The
record, on the whole shows that significant environmental impact MAY result
from this project and a complete EIR is required. In summary, the unprecedented
conversion of fire roads into narrow mountain pathways for multi-use cannot be
considered to have no significant environmental impact without full study. The
cumulative impacts when considered in conjunction with other projects and uses
in the area, the potential for increased usage by high impact user groups, soil
erosion, wildlife and plan life impacts, must be studied. The MND fails to do
this. Instead it makes conclusory statements that no impact or less than
significant impact will result. In light of the record as whole, the
requirements of Cal. Code Regs., tit. 14, § 15074, subd. (b) are not met, and a
full environmental impact report is required for this project.
"CEQA
requires a governmental agency [to] prepare an environmental impact report
(EIR) whenever it considers approval of a proposed project that 'may have a
significant effect on the environment.' (§ 21100) In addition to the intent to
require governmental decisionmakers to consider the environmental implications
of their decisions, the Legislature in enacting CEQA also intended to provide
certain substantive measures for protection of the environment....
"If
there is no substantial evidence a project 'may have a significant effect on
the environment' or the initial study identifies potential significant effects,
but provides for mitigation revisions which make such effects insignificant, a
public agency must adopt a negative declaration to such effect and, as a
result, no EIR is required. (§§ 21080, subd. (c), 21064.) However, the Supreme
Court has recognized that CEQA requires the preparation of an EIR 'whenever it
can be fairly argued on the basis of substantial evidence that the project may
have significant environmental impact.' [Citations.] Thus, if substantial
evidence in the record supports a 'fair argument' significant impacts or
effects may occur, an EIR is required and a negative declaration cannot be
certified." (Quail Botanical Gardens Foundation, Inc. v. City of Encinitas
(1994) 29 Cal.App.4th 1597, 1601-1602.)
"The
"fair argument" test is derived from Public Resources Code section
21151. This section "creates a low threshold requirement for initial
preparation of an EIR and reflects a preference for resolving doubts in favor
of environmental review when the question is whether any such review is
warranted." (Stanislaus Audubon Society, Inc. v. County of Stanislaus
(1995) 33 Cal.App.4th 144, 151; quoting Sierra Club v. County of Sonoma (1992)
6 Cal.App.4th 1307, 1316-1317.)
The
TCC has amply complied with this test. It has supplied documentation of
environmental effects resulting from similar projects; it has provided specific
instances of incompatibility of multiple uses on narrow trails; it has shown
that cumulative impacts may result which have not been studied, and it has
provided anecdotal evidence.
The
DPR's own Application for funding of this project shows that adverse
environmental impacts may result in the form of additional users of the trails
and the Park as a whole. The existence of contrary evidence does not outweigh
the amount of evidence of potential environmental consequences.
As
shown above, the MND is woefully lacking in actual evidence that the Project
will not produce adverse environmental effects, while substantial evidence has
been produced to show adverse environmental impacts may result.
Therefor,
in light of the record as a whole, substantial evidence requires the
preparation of a full EIR for this Project.
Notice
was Defective:
CEQA
Guidelines at 14 Cal. Code of Regulations section 15072 provide that:
"(a)
A lead agency shall provide a notice of intent to adopt a negative declaration
or mitigated negative declaration to the public, responsible agencies, trustee
agencies, and the county clerk of each county within which the proposed project
is located, sufficiently prior to adoption by the lead agency
of the negative declaration or mitigated negative declaration to allow the
public and agencies the review period provided under Section 15105. [thirty day
review period for draft EIR]."
By
my prior letters of December 18 and 23, I have explained the confusing and
contradictory notice letters which had been received, albeit not in a timely
manner, by the TCC. It was only on December 24, 2002, that I or my clients were
apprized of an entirely different notice letter apparently sent to the State
Clearinghouse and the County Clerk for posting on November 25.
However,
even assuming this letter to be the official notification required by CEQA, it
too is inadequate to provide actual notice of what the Project is. CEQA
Guideline 15072 (f) (1) requires the lead agency provide a "brief
description" of the project in its notice to the public.
Here
the only description given was to decommission 3.1 miles of fire roads,
recontour them to restore natural drainage patters, convert .5 miles of fire
roads to trail and construct 4.8 miles of new trail to accommodate the
"average park user."
No
mention of allowing vehicular access, i.e. mountain bicycles, on these new
trails is mentioned at all. Historical precedent, State Park policy, MMWD
policy and the Marin County Trails Element all instruct that hikers and
equestrians only are permitted on narrow trails on Mt. Tamalpais.
Nothing
in the Notice alerted the public to a change in policy and the potential for
significant environmental impacts that may result form it. Accordingly, this
notice, assuming timeliness is not an issue, is itself inadequate to put the
public on notice of the magnitude of the proposed project.
As
you are also aware, a number of user and environmental groups were caught
unawares by this MND through lack of adequate notice, and have asked that an
extension of time to comment be granted. It would be in the DPR's best interest
to at the very least grant such requests.
If
a full EIR is not prepared for the Project, the MND should be revised and
recirculated to address the issues in this and other letters of concern
received by the DPR.
Thank
you very much for your consideration.
Sincerely,
(signature
on original)
Dotty
E. LeMieux
Attorney
for the Tamalpais Conservation Club
cc: Shaelyn Raab Strattan, Statewide
Environmental Co-ordinator
Dave Boyd, State Parks Ecologist,
Marin District
Assemblymember
Joe Nation
Clients
Press