What's Up at the Southern California Nature Guardians: 2016

Via Electronic Mail and USPS (w/attachments)

Matt Peters

City of Temecula

Planning Department

41000 Main Street

Temecula, CA 92590

matt.peters@cityoftemecula.org

Re: Altair Specific Plan, Draft Environmental Impact Report SCH No. 2014111029

Dear Mr. Peters:

These comments are submitted on behalf of the Center for Biological Diversity (the

“Center”), the San Gorgonio Chapter of the Sierra Club, and Cougar Connection (collectively,

the “Conservation Groups”) regarding the Draft Environmental Impact Report (“DEIR”) for the

Altair Specific Plan (the “Project”). The Project is anticipated to result in many significant

environmental impacts that will degrade the current ecosystems on the Project site, interfere with

mountain lion movement, and reduce the health and quality of life in the surrounding

community. Yet, the CEQA mandated environmental review for the Project is wholly

inadequate and fails to comply with the requirements of the statute. For the reasons detailed

below, we urge approval of the Project be denied, or at the very least substantial revisions to the

DEIR to better analyze, mitigate or avoid the Project’s significant environmental impacts.

The Center is a non-profit, public interest environmental organization dedicated to the

protection of native species and their habitats through science, policy, and environmental law.

The Center has over one million members and online activists throughout California and the

United States. The Center has worked for many years to protect imperiled plants and wildlife,

open space, air and water quality, and overall quality of life for people in Riverside County.

The Sierra Club is a national nonprofit organization of over 700,000 members dedicated

to exploring, enjoying, and protecting the wild places of the earth; to practicing and promoting

the responsible use of the earth’s ecosystems and resources; to educating and enlisting humanity

to protect and restore the quality of the natural and human environment; and to using all lawful

means to carry out these objectives. The Sierra Club reports that over 190,000 members reside

in California. The San Gorgonio Chapter of the Sierra Club focuses on issues within the inland

empire, including Riverside County.

Cougar Connection is a non-profit, public interest organization that is dedicated to the

preservation of Puma concolor, Cougar populations, open space, wildlife connectivity, and

public education.

I. The Current Project Description Does Not Represent The True Scope Of The

Project And Is Misleading.

Under CEQA, a “project” is defined as “the whole of an action, which has a potential for

resulting in either a direct physical change in the environment, or a reasonably foreseeable

indirect physical change in the environment . . . .” (Tuolumne County Citizens for Responsible

Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 1222 (citing CEQA Guidelines §

15378, subd. (a).) An “accurate, stable and finite project description is the sine qua non of an

informative and legally sufficient EIR.” (Cnty. of Inyo v. City of Los Angeles (1977) 71

Cal.App.3d 185, 193; (San Joaquin Raptor Rescue Center v. County of Merced (2007) 149

Cal.App.4th 645, 655 (project description held unstable and misleading) [hereinafter “San

Joaquin Raptor”].) “However, a curtailed, enigmatic or unstable project description draws a red

herring across the path of public input.” (San Joaquin Raptor, 149 Cal.App.4th, at 655.).

An inaccurate or truncated project description is prejudicial error because it fails to

“adequately apprise all interested parties of the true scope of the project.” (See City of Santee v.

Cnty. of San Diego (1989) 214 Cal.App.3d 1438, 1454-55 [hereinafter “City of Santee”].) “Only

through an accurate view of the project may the public and interested parties and public agencies

balance the proposed project’s benefits against its environmental cost, consider appropriate

mitigation measures, assess the advantages of terminating the proposal and properly weigh other

alternatives.” (San Joaquin Raptor, 149 Cal.App.4th, at 655.)

Here, the Project Description for the South Parcel is unstable. The Project Description

does not specify what will be developed on the South Parcel, and instead lists a number of

potential uses, such as an educational facility, office/research facility, convention center,

hospital, or cultural center. Each of these potential uses presents unique impacts to the

environmental and local community.

Consequently, the DEIR provides no firm basis to assess the environmental costs and

appropriate mitigation measures of the Project. (San Joaquin Raptor, 149 Cal.App.4th, at 655.)

Traffic impacts will vary depending upon the nature and extent of civic uses at the site. In turn,

the amount of traffic – including truck traffic – is a key factor affecting the extent to which the

Project will contribute to increased air pollution. Moreover, the noise and light impacts of the

Project will vary depending upon the actual development on South Parcel – for example, a

hospital may result in emergency vehicles entering and exiting the hospital in both the daytime

and nighttime. The sirens and flashing lights of these vehicles will interfere with the behavior

and movement patterns of nocturnal wildlife, such as mountains lions. Yet, the DEIR fails to

analyze or disclose any of the impacts of these foreseeable uses.

As such, the DEIR fails to inform decision-makers and the public of the true scope of the

Project from which all interested parties could assess the direct and indirect environmental

effects of the Project. (City of Santee, 214 Cal.App.3d, at 1454-55; San Joaquin Raptor, 149

Cal.App.4th, 655; Communities for a Better Environment v. City of Richmond (2010) 184

Cal.App.4th 70, 83-86.)

II. The Project Is Not Consistent With The General Plan.

Land use decisions must be consistent with all applicable land use policies, including the

General Plan and all of its elements. (See Pfeiffer v. City of Sunnyvale City Council (2011) 200

Cal. App. 4th 1552, 1562-1563.) Unfortunately, the Project is clearly inconsistent with multiple

General Plan policies, as set forth below.

A. Development of the Western Escarpment violates Community Design Element

Policies 5.1, 5.2, and 5.3, among others.

The Community Design Element contains the following policies: (a) Policy 5.1 requires

the protection of hillside areas from inappropriate development that effects the visual backdrop

of the valley; (b) Policy 5.2 requires the retention of critical escarpment and major hillside areas

to preserve open space on the west edge of the City; (c) Policy 5.3 requires the establishment of a

program to permanently protect critical hillside areas from development. The Open

Space/Conservation element similarly contains Policy 5.1, which states that the Western

Escarpment must be conserved through the development review process.

The Project is directly at odds with these goals because it will result in intensive

development of a substantial portion of the Western Escarpment. (See RCA Letter at 6 (“The

project site is currently undeveloped and located . . . in an area known as the ‘escarpment’. . .

.”).) The DEIR claims consistency with these policies by noting that the Project would retain 85

acres of land as open space. (DEIR at 3.9-11.) Retaining a mere 85 acres in light of the 270-acre

Project is inconsistent with these policies.

B. The Project violates Open Space and Conservation Element Policies 3.2, 3.3, and

3.7, and Land Use Element Policy 6.3, among others.

Conservation Element Policies 3.2 and 3.3 require that the City coordinate with relevant

agencies in conserving biological resources and implementing the Western Riverside County

Multiple Species Habitat Conservation Plan (“MSHCP”). (DEIR at 3.3-9.) As set forth below,

the Western Riverside County Regional Conservation Authority (“RCA”) – which implements

and enforces the MSHCP – has informed the City in no uncertain terms that the Project will not

be consistent with the implementation of the MSHCP. As such, the City is not coordinating with

the RCA, but is instead frustrating the ability of the RCA to do its job. The DEIR does not set

forth any facts demonstrating that it was coordinated with RCA, but instead offers the conclusory

statement that “the project has coordinated with the County and the RCA regarding the

implementation of the MSHCP.” (DEIR at 3.9-14.)

The Project also is inconsistent with Conservation Element Policy 3.7 and Land Use

Element Policy 6.3, which requires the maintenance and enhancement of Temecula Creek,

Murrieta Creek, and the Santa Margarita River to ensure long-term viability of wildlife

movement corridors. The DEIR concedes that the Project “could” impede wildlife movement at

the intersection of Santa Margarita River and Murrieta Creek, but conclusorily asserts that the

inadequate mitigation measures discussed below will render it consistent. (DEIR at 3.9-14.) As

noted below, RCA, U.S. Fish and Wildlife Service (“USFWS”), and California Department of

Fish and Wildlife (“CDFW”) all dispute this conclusion.

The Project also violates Implementation Program OS-9, which requires that all

development proposals in MSHCP conservation areas and core linkages “provide detailed

biological assessments, assess potential impacts, and mitigate significant impacts to a level

below significance.” (DEIR at 3.3-4.) Similarly, Implementation Programs OS-33, OS-34, and

OS-35 require that all developments be consistent with the MSHCP. (DEIR at 3.3-5.) As

discussed further in section VII, the enforcing agencies have concluded that (a) the Project is not

consistent with the MSHCP; (b) the DEIR does not provide adequate biological assessments; and

C. The DEIR does not adequately explain the Project’s consistency with other general

plan policies.

In Table 3.9-4, the DEIR attempts to claim consistency with all applicable general plan

policies. Unfortunately, Table 3.9-4 does not explain in any detail how the Project is consistent

with these various policies, and instead generally refers to mitigation measures. The DEIR also

fails to offer any analysis regarding some policies, and instead states “Not applicable,” without

any explanation as to why these policies are not applicable. (See, e.g., DEIR at 3.9-12, 3.9-16,

3.9-19.)

III. The DEIR Fails to Adequately Analyze The Impacts To Aesthetics.

The Aesthetics section of the DEIR contains numerous deficiencies and inaccuracies.

For instance, the DEIR claims that the City “planned for development at the Project site and did

not expect for it to remain as undeveloped, open space.” (DEIR at 3.1-17.) This is misleading.

The DEIR is correct that the Westside Specific Plan was approved by the City in 1995, and that

the Plan would have permitted mixed used development adjacent to the Project site. (DEIR at 1-

1.) However, the City’s 2005 General Plan contains the policies discussed above, which prohibit

development on the Western Escarpment. To the extent that the Westside Specific Plan conflicts

with the 2005 General Plan, the 2005 General Plan supersedes the Westside Specific Plan. (See

Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 541 (a land use

planning decision that was originally consistent with the general plan but has become

inconsistent must be brought into conformity with the general plan).)

The DEIR does not set forth adequate measures to mitigate the substantial light pollution

caused by the Project. While the DEIR proposes a number of mitigation measures such as

directing nighttime construction light downward (see DEIR at 3.1-18), there is no way to

mitigation the light impacts of installing thousands of people in an undeveloped wildlife area.

The DEIR fails to cite any studies or biological opinions indicating that the meagre mitigation

measures proposed are sufficient to mitigate impacts on wildlife. (See DEIR 3.1-19.)

Furthermore, the aesthetic simulations in Figure 3.1-2 and Figure 3.1-3 do not appear to

be accurate. These figures appear to downplay the actual size of the development, and also do

not specify whether these figures depict the Project with a four to five story buildout, as

discussed in the Project Description section. The figures also appear to have omitted to the

Western Bypass.

In any event, the DEIR is wrong in claiming that scenic views of the hills and Western

Escarpment will not be impacted by the Project. (See DEIR 3.1-17.) The DEIR admits as much

sentences later, when it states that “the visual character of the project site would change

substantially from undeveloped, open space to a high-density urbanized development.” (Id.)

Contrary to the DEIR’s unfounded conclusion, such intensive development on the Western

Escarpment cannot be mitigated to less than significant levels by “adherence to the design

guidelines and development standards . . . .” (See DEIR at 3.1-18.)

IV. The DEIR Does Not Adequately Analyze The Project’s Impacts On Air Quality.

The DEIR’s air quality impacts analysis is flawed because it fails to take into account all

sources of air quality impacts resulting from the Project and fails to adopt all feasible measures

to reduce the Project’s significant air quality impacts. Californians experience the worst air

quality in the nation, with annual health and economic impacts estimated at 8,800 deaths and $71

billion per year. (Cayan 2006.) The Project will further degrade the region’s air quality by

generating considerable emissions from the construction phase, ongoing operations, and the

many miles of vehicle trips generated by the Project.

In particular, the DEIR’s significance analysis is flawed because it uses the “Localized

Significance Threshold” or “LST” methodology. (DEIR at 3.2-15.) This is not a proper

threshold for this Project. According to South Coast Air Quality Management District

(“SCAQMD”), LSTs only apply to project that must undergo CEQA or NEPA review and “are

five acres or less.”1 In contrast, the Project would develop at least 100 acres.

The DEIR fails to disclose the origin of construction emissions data cited in the DEIR.

More specifically, the DEIR sets forth a chart of “Proposed Regional Construction Emissions”

with various statistics which are described as estimated maximum daily emissions. Yet, the

DEIR does not explain how these statistics were calculated, and instead lists the source as “ESA,

2015.” (DEIR at 3.2-21.) Some of these statistics do appear on PDF page 1062 of the

Appendices to the DEIR, and PDF page 104 lists “assumptions” that were used, presumably in

calculating these statistics. However, these “assumptions are not explained in any detail. For

example, PDF page 104 lists an assumption of “2 mile trip.” Does that mean that construction

trips were calculated as being only 2 miles? PDF page 105 contains an assumption that the

calculations include “internalization reduction,” but does not describe this reduction or explain

its basis.

1 South Coast Air Quality Management District, “Localized Significance Thresholds,” (available at

http://www.aqmd.gov/home/regulations/ceqa/air-quality-analysis-handbook/localized-significance-thresholds).

2 The Appendixes document does not include page numbers, such that citations refer to the PDF page number.

A. The DEIR fails to disclose or analyze the impacts of the Project on sensitive

populations.

The DEIR does admit that the Project would result in emissions above the SCAQMD

significance thresholds, and claims these significant impacts are “unavoidable.” (DEIR at 3.2-

23.) The DEIR warns that the Project’s ROG and NOx emission increases could contribute to

“additional air quality violations” or result in air quality levels that are unhealthy for sensitive

populations. (DEIR at 3.2-24.) Nonetheless, the DEIR does not include any analysis, studies, or

surveys to disclose the extent of these impacts on sensitive populations.

The failure to include such analysis is a serious error in the DEIR, given that the Project

involves the installation of a freeway within a few feet of residential developments and within

close proximity to Old Town Temecula. As discussed below, the DEIR indicates that residential

development may occur within 45 feet of the “centerline of the Western Bypass” (DEIR at 3.10-

45), meaning that residential development may occur immediately next to the Bypass, with no

buffer. The Western Bypass also will be sited in very close proximity to the proposed

elementary school, which will be occupied by approximately 700 children. Each of these 700

children are classified as “sensitive receptors.” Numerous studies have documented the air

pollution and health impacts associated with siting expressways and freeways in close proximity

to residential development, particularly upon sensitive receptors such as children and the elderly.

(Lin 2000.) Nonetheless, the DEIR fails to offer any analysis of these significant impacts

associated with the Project.

B. The DEIR does not require all feasible measures to mitigate the air quality impacts

of the Project.

In light of these major air quality impacts, “the EIR must propose and describe mitigation

measures that will minimize the significant environmental effects that the EIR has identified.”

(Napa Citizens for Honest Gov’t v. Napa County Bd. Of Supervisors (2001) 91 Cal.App.4th 342,

360.) CEQA requires that agencies “mitigate or avoid the significant effects on the environment

of projects that it carries out or approves whenever it is feasible to do so.” (Pub. Res. Code §

21002.1(b).) Mitigation of a project’s significant impacts is one of the “most important”

functions of CEQA. (Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 41.) Only

when the mitigation measures are “truly infeasible” can the lead agency reject mitigation

measures for significant impacts. (City of Marina v. Board of Trustees of California State

University (2006) 39 Cal. 4th 341, 369.)

Here, despite acknowledging that the Project will result in significant air quality impacts,

the Project includes only six mitigation measures (MM-AQ-1a through MM-AQ-1e and MMAQ-

2), most of which provide few specific details and lack adequate enforcement mechanisms.

(DEIR at 3.2-23 – 3.2-28.) Mitigation measures must be “fully enforceable through permit

conditions, agreements, or other measures” so “that feasible mitigation measures will actually be

implemented as a condition of development.” (Federation of Hillside & Canyon Ass’ns v. City of

Los Angeles (2000) 83 Cal.App.4th 1252, 1261.) Potential harmful environmental impacts from

the mitigation measures, effectiveness of the mitigation measures and important specifics on

implementation of the mitigation measures are all missing from the DEIR. Without the

incorporation of all feasible mitigation measures through permit conditions, agreements, or other

measures, the DEIR mitigation measures are insufficient and inadequate.

The DEIR also fails to analyze and adopt all feasible mitigation measures that would

reduce the admittedly significant air quality impacts of the Project. In particular, the DEIR fails

to perform even a cursory analysis of available mitigation measures for reducing air quality

impacts, such as those provided by the California Air Pollution Control Officer’s Association

and California Office of the Attorney General to reduce GHG emissions, which also facilitate the

reduction of criteria pollutants. (Attorney General 2010; CAPCOA 2008). Those mitigation

measures, as well as others, should be analyzed as a means to reduce the significant air quality

impacts and fully adopted if feasible.

For example, MM AQ-1d states that buildings shall implement energy efficiency

standards that render them 15 percent more efficient than the 2013 Building Standards. (DEIR at

3.2-24.) However, the 2016 Building Standards, which are effective on January 1, 2017 already

require that buildings are 28 percent more efficient the 2013 Building Standards.3 Thus, MM

AQ-1d is not even as stringent as existing law.

MM AQ 2 similarly will do little to mitigate air pollution or protect sensitive populations

from health impacts. The DEIR admits that construction emissions may cause significant

impacts to sensitive receptors, but does not attempt to quantify these impacts. (DEIR at 3.2-27.)

The DEIR claims that MM AQ 2 – which requires watering of the construction site – will render

these impacts less than significant. The DEIR fails to cite any studies or analysis supporting this

conclusion that mere watering will reduce such impacts to less than significance.

C. The DEIR fails to cite substantial evidence in claiming that consistency with the

SCAG Regional Transportation Plan renders the Project consistent with the

AQMP.

The DEIR claims that (1) because the Southern California Association of Governments’

(“SCAG”) regional growth forecasts are based upon regional land use plans, then a project that is

consistent with regional land use plans is consistent with SCAG; (2) if a Project is consistent

with SCAG, then it is consistent with the Air Quality Management Plan (“AQMP”). (DEIR at

3.2-15 & 3.2-20.) The FEIR fails to cite any authority supporting the proposition that mere

consistency with regional land use plans equates to consistency with the AQMP. Even if

compliance with regional land use plans equated to compliance with the AQMP, the DEIR still is

required to disclose, explain, and analyze such purported consistency.

3See California Energy Commission, 2016 Building Energy Efficiency Standards Frequently Asked Questions,

(available at

http://www.energy.ca.gov/title24/2016standards/rulemaking/documents/2016_Building_Energy_Efficiency_Standar

ds_FAQ.pdf).

V. The DEIR Fails To Adequately Analyze Or Mitigate The Impacts Of The

Project On Biological Resources.

The DEIR must analyze and mitigation all impacts on special status species, including

CDFW species of special concern. The CDFW defines a species of special concern as a species

that, among other things, “is experiencing, or formerly experienced, serious (noncyclical)

population declines or range retractions (not reversed) that, if continued or resumed, could

qualify it for State threatened or endangered status.”4 CDFW aims to “achieve conservation and

recovery of these animals before they meet California Endangered Species Act criteria for listing

as threatened or endangered.” (Id.) CDFW states that species of special concern “should be

considered during the environmental review process.” (Id.; CEQA Guidelines § 15380(b)(B).)

An impact to wildlife is significant where it “substantially reduce[s] the number or restrict[s] the

range of an endangered, rare or threatened species.” (CEQA Guidelines, § 15065.) CDFW

interprets this provision to apply to species of special concern. The City must mitigate

significant effects whenever feasible. (Cal. Pub. Res. Code § 21080.5(d)(2)(A).)

The DEIR fails to adequately mitigate impacts to special status species because it does

not even analyze or disclose those impacts. For example, the DEIR lists various special status

species that were “not detected during various biological surveys” even though suitable habitat

occurs the site. (See Table 3.3-3.) The DEIR never explains whether the surveyors were

searching for these species or whether they were qualified to identify them. The DEIR even

admits that many of these species have a “high” potential to occur on the Site; thus, there is a

high potential they inhabit the site even if they were not observed during a survey.

A. The DEIR fails to disclose, analyze, or mitigate the Project’s impacts on special

status plant species.

San Diego ambrosia. The DEIR claims that suitable onsite habitat for the San Diego

ambrosia is “limited,” but concedes that 300 San Diego ambrosia individuals were mapped on

the central portion of the site. (DEIR 3.3-12.) The DEIR claims these plants will be

“transferred,” but does not indicate to where they will be transferred. (DEIR 3.3-36.) This

mitigation measure is therefore impermissibly vague. More importantly, this mitigation measure

is unenforceable because the DEIR characterizes this translocation effort as a “voluntarily”

commitment. (DEIR at 2-20.)

Paniculate tarplant. The DEIR reports that Paniculate tarplant were observed on the

Northern portion of the site, but does not provide any detail on how many individuals were

observed. (DEIR 3.3-12.) The DEIR claims that impacts will be “less than significant” even

though the Project will be destroying an unspecified number of Paniculate tarplant individuals.

((DEIR 3.3-36.) This conclusion is not based upon substantial evidence because destruction of a

special status species or its habitat qualifies as a significant impact. Nonetheless, the DEIR

offers absolutely no mitigation measures to limit this impact.

4 See California Dep’t of Fish & Wildlife, Species of Special Concern (available at

https://www.wildlife.ca.gov/Conservation/SSC/).

The DEIR also lists various special status plants that were “not found during various

biological surveys.” (See Table 3.3-2.) However, the DEIR does not indicate whether the

surveyors were looking for these specific types of plants or qualified to identify them. This is a

serious problem with the DEIR, given that the DEIR concedes that the site contains suitable

habitat for these special status plants. (See Table 3.3-2.)

B. The DEIR fails to set forth adequate or enforceable mitigation measures to protect

special status birds.

The DEIR concedes that the Project will have significant impacts on special status birds

such as Cooper’s hawk, northern harrier, white-tailed kite, and California horned lark. (DEIR at

(3.3-36.) However, MM-BIO-1 only requires that clearing activities take place outside of

breeding season “to the extent feasible.” (Id.) As a preliminary matter, the DEIR fails to state

whether the specified February 1 to September 15 date range is in fact the breeding season for all

four special status bird species. Moreover, if clearing activities do take place during breeding

season, the claimed 300-foot construction setback can be altered to any length decided by a

“qualified biologist.” This does not specify what qualifications a biologist will have, or whether

the biologist will be an expert on the bird species at issue. Even these setbacks can be ignored if

“not feasible,” in which case “noise attenuation devices may be installed . . . .” (DEIR at 3.3-

37.) MM-BIO-1 thus makes every accommodation for the developer if protection of special

status birds is “not feasible,” but nonetheless comes to the false conclusion that impacts would be

“less than significant.” More importantly, the broader issue that the Project will be destroying

the habitat of these birds is never adequately addressed.

Likewise, the DEIR sets forth weak steps to protect the burrowing owl, even as it admits

that burrowing owls may be killed during construction activities. (DEIR at 3.3-37.) The DEIR

ignores the fact that the Project would be forever destroying habitat for the burrowing owl. The

DEIR claims that any burrowing owls onsite will be translocated, but fails to provide any facts

suggesting that such translocation will be successful. (DEIR at 3.3-38.) In fact, there have been

very few – if any – successful translocation projects for burrowing owls.

In addition, while translocation could minimize immediate direct take of burrowing owls,

ultimately the burrowing owls’ available habitat is reduced, and relocated birds are forced to

compete for resources with other resident burrowing owls and may move into less suitable

habitat, ultimately resulting in “take.” Additionally, the mitigation measures needs to explicitly

include long-term monitoring of passively relocated birds in order to evaluate survivorship of

relocated birds.

The DEIR fails to take any steps to mitigate impacts on the federally threatened coastal

California gnatcatcher and the yellow warbler, which is a species of special concern. (Table 3.3-

3.) This constitutes a serious deficiency in the DEIR because both species have been

documented on the Project Site, and will accordingly suffer habitat loss if the Project moves

forward.

C. The DEIR fails to set forth adequate or enforceable mitigation measures to protect

other aquatic species, such as the Western Pond Turtle.

The DEIR notes the Site’s proximity to Murrieta Creek and the Santa Margarita River,

but does not contain an adequate discussion of aquatic species that may inhabit the streams or

adjacent land. For instance, the DEIR only notes in passing the importance of maintaining water

quality for the Western Pond Turtle (“WPT”). The WPT is never mentioned in the DEIR again,

even in the section on Riparian/Riverine wildlife. (See DEIR at 3.3-31.) The only mention of

the WPT comes in the MSCHP Consistency Report, which claims that no WPT or California

red-legged frog (“CRLF”) habitat will be impacted because the Project “lies entirely outside

Murrieta Creek.” (Appx. C at 34.) This is false because the WPT regularly occupy areas outside

of creeks, as discussed below.

The WPT uses upland habitat for hibernation and refuge. WPT also make wide-ranging

use of their aquatic habitat, sometimes migrating more than one kilometer per year. (Pilliod et al.

at 207.) WPT are listed as species of special concern because their numbers have decreased due

to increasing habitat destruction and disturbance, especially from farming operations, and

depredation from invasive species, such as bullfrogs and bass. (Jennings et al. (1994); Spinks et

al. (2003); Pilliod et al. (2013).) Despite the WPT’s use of both aquatic and upland habitat –

which would constitute portions of the Project area – the DEIR fails to analyze, disclose, or

mitigate impacts on WPT.

Similarly, the DEIR claims that no suitable habitat occurs within the Project area for

CRLF, Arroyo Toad (“AT”), or Mountain Yellow Legged Frog (“MYLF”). However, the DEIR

does provide any facts, biological opinions, or surveys supporting this claim. Contrary to the

DEIR, the Federal Register indicates that the Santa Margarita River and Temecula Creek both

contain critical habitat for the toad.5

D. The DEIR’s other mitigation measures are vague, unenforceable, and/or illusory.

The DEIR does not set forth adequate mitigation measures to protect wildlife from

polluted runoff. The DEIR merely states the Project will comply with applicable NPDES

permits, and that “measures” shall be implemented to avoid discharge of untreated runoff.

(DEIR at 3.3-32.) This is unenforceable and vague. The DEIR also does not comply with the

request by the RCA that measures should be implemented to “avoid discharge of untreated

surface runoff from developed and paved areas into MSHCP Conservation Areas,” including

Murrieta Creek, Temecula Creek, and the Santa Margarita River. (RCA Letter at 9.)

Likewise, the DEIR contains no specific mitigation measures to safeguard wildlife from

toxic chemicals generated by the Project. The DEIR again only promises that unspecified

“measures” will ensure that toxic chemicals are not discharged into MSHCP Conservation Areas.

(DEIR at 3.3-32.) The DEIR contains similarly vague mitigation measures to protect MSHCP

Conservation areas from lighting, noise, and invasive species. (DEIR at 3.3-33.)

5 See Department of Interior, Endangered and Threatened Wildlife and Plants; Revised Critical Habitat for the

Arroyo Toad; Final Rule (Feb. 9, 2011) 76 Fed. Reg. at 7249, 7264, 7308 (available at

https://www.gpo.gov/fdsys/pkg/FR-2011-02-09/pdf/2011-1703.pdf ).

By the same token, the DEIR vaguely states that “Project impacts” could result in the

Project being inconsistent with Urban/Wildland Interface Guidelines, and then lists a variety of

mitigation measures that have limited or no relevance to the Guidelines. The DEIR should list

each Guideline and explain how the DEIR will be complying with it.

E. Neither the City nor the Applicant conducted adequate surveys for endangered

species.

The DEIR states that no surveys were conducted for amphibian or mammal species

because the site is not in a Criteria Area Species Survey Area (“CASSA”). (DEIR at 3.3-34.)

Whether the site is located in a CASSA is irrelevant to the City’s duty to ascertain the

environmental baseline under CEQA.

The DEIR further states that various riparian plant species – including Lemon lily, San

Jacinto Valley crownscale, Mojave tarplant, Parish’s meadowfoam, Santa Ana River woolly-star,

and Brand’s phacelia – occur outside the site and were not observed on the site. However, the

DEIR does not provide any information as to whether suitable habitat exists on the site for these

plant species. In addition, the DEIR does not indicate whether the surveyors were qualified to

identify these species, or were looking for them. The DEIR nevertheless discounts the

importance of these species and concludes that “These species are not discussed further in this

EIR.” (DEIR at 3.3-30.)

F. The DEIR fails to adequately mitigate impacts on riparian habitat because the City

has not prepared a Determination of Biological Equivalent or Superior Preservation

(DBESP).

The DEIR states that the Project will “permanently impact” 1.24 acres of

Riparian/Riverine habitat. (DEIR at 3.3-40.) The DEIR does not specify how these impacts

would be mitigated, except that the Project would prepare a Determination of Biological

Equivalent or Superior Preservation (“DBESP”) per the MSHCP and a Habitat Mitigation and

Monitoring Plan if required by CDFW. The DEIR states that specific mitigation activities – such

as offsite habitat restoration of purchase of credits from a mitigation bank – would be determined

through “discussions with the City, USFWS, and CDFW.” (DEIR at 3.3-41.) This

impermissibly defers mitigation.

The DEIR similarly claims that MM-BIO-4b would require the preparation of a DBESP

to address impacts to riparian habitat, but does not specify how the Project will actually comply

with this DBESP. In particular, MM-BIO-4b states that the DBESP will include a “written

description of project design features and mitigation measures that reduce indirect effects” – this

does not provide the public with adequate detail regarding this proposed mitigation measure, or

explain whether the author of the DBESP has any authority to require mitigation measures

necessary to keep impacts to less than significant levels.

The City’s refusal to prepare a DBESP is inexcusable because the RCA already requested

a DBESP two years ago on November 10, 2014. (RCA Letter at 7.) The RCA also found

various deficiencies with the HELIX’s report; HELIX’s report fails to (a) provide an “analysis of

the functions and values of the riparian and riverine resources on-site as required by Section

6.1.2 of the MSHCP” (RCA Letter at 8); (b) analyze the Project’s impacts on Conserved Habitats

or riparian species listed in section 6.1.2 of the MSHCP, which include the AT, MYLF, and

CRLF; (RCA Letter at 8); and (c) analyze the “biological equivalency of the mitigation relative

to the functions and values of the riparian impacts on-site as is required in a DBESP.” (RCA

Letter at 8.) The RCA concluded that the failure to submit a DBESP renders the Project

inconsistent with section 6.1.2 of the MSHCP. The Conservation Groups share the RCA’s

concerns and agree with the RCA’s conclusion.

MM-BIO-4b also defers specifying any ratios for mitigating riparian habitat and claims

such ratios will be determined during the wetland permitting process. (DEIR at 3.3-43.)

Similarly, the DEIR does not explain whether any specific mitigation measures will be

implemented to protect onsite wetlands, and instead refers back to MM-BIO-4a and MM-BIO-

4b, and generally states that a section 404 permit will be required.

G. The DEIR fails to adequately mitigate impacts on sensitive natural communities.

The DEIR claims that impacts on sensitive natural communities will be mitigated to less

than significant because the developer will be mitigation fees as determined by the City and the

Project will “conserve” at least 82.77 acres in Criteria Cells. (DEIR at 3.3-45.) However, there

is no evidence in the record indicating that this paltry amount of “conservation” will mitigate the

extensive impacts of installing hundreds of houses on undeveloped land.

VI. The Project Will Severely Constrict Wildlife Corridors And Interfere With

Mountain Lion Movement.

Dr. Winston Vickers – a well-known mountain lion expert – has already repeatedly

informed the City of the serious impacts on mountain lion movement of the Project as proposed.

He sent you an email on November 6, 2014, and wrote:

I wanted to write to make sure that my professional opinion relating to the proposed

Altair development is clear to all the parties. . . . the development is highly likely to

reduce use of the escarpment by mountain lions. Adult resident males and adult females

without kittens are expected to be negatively impacted to the greatest degree

(significantly reduce use or stop using, especially certain behaviors), with similar

negative impacts also expected for females with kittens and young dispersing animals

but to a lesser degree than for adult males and females without kittens. Nevertheless,

significantly reduced use is expected for a distance of a [sic] least 150 meters from the

development for all classes, and for the entire escarpment for some.

Development of the southernmost pad area is expected to have the most negative

impact, especially on mountain lion use of the escarpment just north of Temecula Creek

and Murrieta Creek. Movement in Temecula Creek toward the Temecula Creek bridge

beneath 1-15 may also be negatively impacted by development at the southern-most site.

Since this bridge is the only currently (possibly) functional safe passage under 1-15 for

mountain lions that is likely to allow introduction of critically needed fresh genetic

material into the Santa Ana mountain lion population (and genetic exchange the other

direction), any further reduction in its potential functionality is unwise at best….

The CDFW wrote separately to you on December 15, 2014 to reiterate the concerns expressed in

Mr. Vicker’s email. (See DEIR, Appx. A at PDF p. 80.) CDFW further stated that it expected

the City to consult with Mr. Vickers. (Id.).

The DEIR’s conclusions regarding mountain lion movement are not supported by

substantial evidence. The DEIR cites a study published by Dr. Vickers which found that

impermeable barriers to mountain lion movements result in genetic restriction and demographic

isolation of mountain lions. (DEIR at 3.3-47.) The DEIR concedes that both Dr. Vickers and

HELIX anticipate reduction in overall suitable of Proposed Linkage 10 due to reduction in

linkage width, and that reproductive behaviors would be most negatively impacted, or possibly

eliminated. (DEIR at 3.3-49 & 50.) Nonetheless, the DEIR concludes that the Project would not

preclude use of the Proposed Linkage 10. (DEIR at 3.3-52.)

The only support for this “not preclude” finding is HELIX’s “corridor” model. Yet,

Figure 3.3-4 shows heavy use by mountain lions of the Project Site, as well as Linkages 10, 13,

and 14. The utility of HELIX’s corridor model is unclear, given that substantial data already

exists which demonstrates that these areas are in fact used by mountain lions. The utility of

HELIX’s model further is questionable because the model presumes habitat suitability and

habitat permeability are synonymous, even though they are not. (DEIR at 3.3-48.) In addition,

the HELIX model does not determine whether a linkage is “viable,” but merely where the “best

locations are” based on the model. (DEIR at 3.3-48.) The conclusions of the HELIX study and

model also should be rejected because none of the authors have demonstrated that they have any

expertise or experience in studying mountain lions.

The need to preserve the existing wildlife corridors is particularly great in light of the

threats that the Santa Ana mountain lions are facing. A peer-reviewed study co-authored by Dr.

Vickers concluded that Santa Ana mountain lions have some of the lowest genetic diversity of all

mountain lions in California. (Ernest et al. (2014).) The study warned that connectivity between

the Santa Ana range and inland ranges may continue to be eroded by development near the I-15

corridor. (Id.) The genetic diversity of the Santa Ana mountain lions will be further eroded if

this Project moves forward, which may lead to the extinction of this population. The Santa

Monica mountain lions are already facing imminent extinction because development frustrates

their ability to maintain movement and genetic diversity.6

None of the proposed mitigation measures will ensure that mountain lions are able to

continue to use the wildlife corridors in Linkages 10, 13, and 14. For example, MM-BIO-3

prohibits the collection of plants and feeding of wildlife, and requires daily trash removal and

limiting construction equipment idling to 45 minutes. (MM-Bio-3.) Even if these measures are

strictly complied with, they do not address the fact that the Project will bring intensive

development into a wildlife corridor.

6 See Los Angeles Times, “L.A.’s mountain lions could be near extinction in 50 years” (Aug. 31, 2015) (available at

http://www.latimes.com/science/sciencenow/la-sci-sn-mountain-lions-threat-20160830-snap-story.html).

MM-BIO-7b is unlikely to adequately protect mountain lions and other wildlife. MMBIO-

7b states that permanent fencing along the Western Bypass will keep animals within the

wildlife corridor. (DEIR at 3.3-53.) However, the fencing plan has yet been developed, and

there is no evidence in the DEIR that the fence will be tall enough to protect mountain lions from

jumping over it. The City should require that a fencing system which is similar to the system

installed on the 241 toll road be used on the Western Bypass – the 241 toll road fencing is 10 to

12 feet high and runs two feet into the ground to prevent mountain lions from digging under it.

The fencing should also have exit points and ramps in the event that mountain lions do find

themselves on the Western Bypass.

By siting intensive development in a wildlife corridor used by mountain lions, the Project

will result in conflicts between mountain lions and people. Such conflicts often result in the

killing of mountain lions, which will further reduce the genetic diversity of mountain lions in the

area.

VII. The Project Cannot Be Approved Because The Wildlife Agencies Have

Concluded That This Project Will Violate The MSHCP.

The Project should be rejected by the City because the RCA, USFWS, and CDFW all

agree that the Project will violate the MSHCP. The Project will significantly interfere with the

functionality of MSHCP linkages and therefore frustrate movement of wildlife, including

mountain lions.

A. The RCA has concluded that the Project will violate the MSHCP.

On April 1, 2015, the RCA sent detailed comments to the City on the Project as part of

the Joint Project Review (“JPR”) process (the “RCA Letter”). The RCA issued the following

conclusions regarding the Project:

 The Project would preclude Cell Criteria for Cell 7164 from being met by making

it impossible to conserve the mid-point amount of 120 acres on the cell. (RCA

Letter at 3.)

 The Project would preclude Cell Criteria for Cell 7166 from being met by

impacting all remaining acreage available for conservation. (RCA Letter at 3.)

 The Project would preclude Cell Criteria for Cell 7264 and Proposed Linkage 10

by conserving far less than the mid-point amount of 120 acres on the cell. (RCA

Letter at 4.)

 The Project would encroach into the negative zone of influence for mountain lion

movement – which is one the primary objectives of Cell 7355 and Proposed

Linkage 10 – such that it is in conflict with reserve assembly goals. (RCA Letter

at 4.)

 The Project would preclude the ability to meet the target conservation range for

Cell 7356 of 88 acres. (RCA Letter at 5.) The RCA Letter further notes that the

City should analyze the cumulative impacts of the I-15/State Route 79 South

interchange, but the City has failed to do this. (See id.)

 Proposed Linkage 10 was intended to provide linkage for movement of bobcats

and mountain lions, as well as live-in habitat for them. The Project will

significantly reduce the viability of Proposed Linkage 10 for these purposes by

reducing the width of Proposal Linkage 10 from 1200 to 2700 feet to less than

500 feet.

The RCA further concluded that (a) the reduction in Proposed Linkage 10 was “particularly

critical” because of the concentrated mountain lion use at the southern end of the Project at the

confluence of Temecula Creek, Murrieta Creek, and the Santa Margarita River (RCA Letter at

6); (b) the City’s plan to offer MSHCP fee credits to the Applicant in exchange for 270 acres of

offsite land is an “inappropriate use of MSHCP fee credits” since these credits are designed for

onsite conservation (RCA Letter at 7); (c) the Project must be conditioned upon fencing of

proposed Conservation Areas, and the fencing plan must be reviewed and approved by RCA,

USFWS and the CDFW.

The RCA’s determinations are entitled to deference because, as the DEIR notes, the RCA

oversees, administers, and enforces the MSHCP. (DEIR at 3.3-10.) The DEIR claims that the

RCA has no authority to prevent the City – a permittee of the MSHCP – from approving a

discretionary project. (DEIR at 3.3-10.) While this may be true, failure to comply with the

MSHCP means that the City is violating the Federal Endangered Species Act, and – by extension

– CEQA.

B. USFWS and CDFW have concluded that the Project violates the MSHCP.

In a joint letter to the City dated April 15, 2015 (the “USFWS Letter”), USFWS and

CDFW informed the City that that they concurred with the RCA’s conclusion: “The Wildlife

Agencies concur with the RCA's determination and consider the project to be inconsistent with

the MSHCP criteria for reserve assembly in terms of both area and function. (USFWS Letter at

1.) The USFWS Letter further explains how the Project will degrade biological connectivity

between Proposed Linkage 10 and Constrained Linkage 14 and preclude MSHCP reserve

assembly goals. (USFWS Letter at 2.) Proposed Linkage 10 would be narrowed to 600 feet,

which is not sufficient to provide movement for mountain lions and bobcats. (Id. at 2.)

Like Dr. Vickers and the RCA, the USFWS Letter contradicts the conclusions of the

Applicant’s consultant, HELIX. In particular, HELIX ignored existing development in analyzing

acreage goals for each Criteria Cell and improperly implied that the reserve assembly criteria can

be discounted merely because the Western Bypass is a Covered Activity. (USFWS Letter at 2.)

And while the HELIX acknowledges that the Project will inhibit the intended reserve functions,

HELIX somehow arrives at the contradictory conclusion that the Project is consistent with

reserve assembly and connectivity needs. (See USFWS Letter at 2.)

USFWS and CDFW also disagree with HELIX’s legal interpretation of MSHCP

requirements. While USFWS and CDFW note that the Project would result in a reserve

assembly shortfall of approximately 200 acres (USFWS Letter at 3), HELIX and the Applicant

have concluded that “acreage requirements are not the only criteria used when determining

overall consistency with the MSHCP.” (See DEIR, Appx. C at 44.) USFWS and CDFW

rejected this conclusion, and clarified that “the other MSHCP elements are additive to the

acreage requirements not substitutes for them.” (USFWS Letter at 3, emphasis added.) In

other words, neither the City nor the Applicant may evade acreage requirements by claiming that

they are fulfilling other MSHCP-related goals. The City and Applicant’s efforts to do so violate

the law.

USFWS and CDFW further concurred with RCA that the Applicant’s proposed

conservation of 270 acres near Corona (which the Applicant has claimed is “voluntary”) will not

address the target acreage shortfalls in Subunits 1 and 6. (USFWS Letter at 3.) Moreover, the

City’s attempts to offset the Applicant’s purchase costs with MSHCP credits violates the

MSHCP. (Id. at 3.)

USFWS and CDFW note in their letter that they already discussed the conflicts with the

MSHCP at multiple meetings with the City and “expressed strong reservations” about the

Project. Incredibly, the City and the Applicant have ignored the USFWS and CFDW’s

conclusions, and are attempting to move forward with the Project as proposed. Given that all of

the relevant agencies have already concluded that this Project violates the MSHCP, the City’s

self-serving interpretation of the MSHCP is not supported by substantial evidence.

VIII. The DEIR Fails To Demonstrate Consistency With The MSHCP.

In addition to the mountain lion movement issues discussed above, the DEIR violates the

MSHCP in a myriad of other ways. As a preliminary matter, the DEIR states that compliance

with the MSHCP provides assurances that the Project is in compliance with the Federal ESA and

CEQA. (DEIR at 3.3-58.) By the same token, non-compliance with the MSHCP indicates noncompliance with the FESA and Federal ESA and CEQA.

The Project accordingly violates both the Federal ESA and CEQA for the reasons set

forth below:

A. The DEIR does not cite facts, evidence, or analysis for its conclusion that the Project

is consistent with the MSHCP.

The DEIR repeatedly claims consistency with the MSHCP, but fails to offer any real

analysis or facts supporting this claim. For example, the DEIR claims that the significant

impacts on Proposed Linkage 10 and Proposed Constrained Linkage 13 will be mitigated by light

and glare standards, fencing, conservation of land, and adherence to noise standards. (DEIR at

3.3-62.) The DEIR does not cite any evidence supporting this claim, and the analysis of CDFW,

USFWS, RCA, and Dr. Vickers cited above directly contradict this claim.

The DEIR claims that the Project is consistent with the MSHCP even though the DEIR

concedes that the Project fails to meet specific Criteria Cell acreage goals. (DEIR at 3.3-64.)

The DEIR notes that the RCA has concluded that the Project is inconsistent with the MSHCP.

(Id.) Nonetheless, the DEIR claims that in light of the “broader analysis set forth above,” the

Project is consistent with the MSHCP. This claim is not based upon substantial evidence.

The DEIR admits that the Project will have an onsite shortfall of served acres for impacts

to riparian and grassland habitat, and states that these impacts are significant such that mitigation

is required. (DEIR at 3.3-59.) The DEIR then states that MM-BIO-4a, MM-BIO-4b, MM-BIO-

6a, and MM-BIO-6a will mitigate these impacts. (Ibid.) Yet, none of these mitigation measures

has anything to do with mitigating grassland habitat, such that it is difficult to ascertain how they

could mitigate impacts to less than significant levels.

B. The Project fails to comply with the MSHCP Planned Roadway Criteria Guidelines.

The DEIR incorrectly asserts that the Project is consistent with MSHCP Planned

Roadway Criteria Guidelines. (DEIR at 3.3-64.) However, the DEIR concedes that the Western

Bypass associated with the Project will result in impacts to wetlands, southern willow scrub, and

other habitats. (DEIR at 3.3-65.) The DEIR lists percentages next to the acreage of each

impacts, but does not explain what these percentages refer to. The DEIR also does not explain

why it was infeasible to avoid these sensitive areas. (Id.)

In addition, the Project does not appear to be consistent with MSHCP Planned Roadway

Criteria for endemic plant species. The MSHCP states that narrow endemic plant species will be

avoided, and if not feasible, then the Project will comply with the Narrow Endemics Plant

Policy. The DEIR merely states that San Diego ambrosia will be “voluntarily” be translocated.

(DEIR at 3.3-65.) The DEIR’s claim that such translocation is “voluntary” is misleading because

such relocation is mandatory, not voluntary. In addition, the DEIR fails to provide any

explanation as to how the Project will be complying with the Narrow Endemics Plant Policy.

The DEIR’s position also appears to conflict with USFWS and CDFW’s direction that the

population of San Diego ambrosia supported on Criteria Cell 7166 must be conserved.

The Project fails to comply with the MSHCP Planned Roadway Criteria Guideline for

breeding season. The Guidelines provide, “Any construction, maintenance and operation

activities that involves clearing of natural vegetation will be conducted outside the active

breeding season (March 1 through June 30).” In contrast, the DEIR only promises that this

condition will be complied with “to the extent feasible,” and provides no explanation as to what

constitutes “feasibility.” (DEIR at 3.3-66.) The DEIR accordingly does not assure compliance

with this Guideline.

IX. The DEIR Fails To Adequately Analyze, Disclose, And Mitigate The Project’s

Greenhouse Gas Emissions.

The Project will undisputedly result in substantial greenhouse gas (“GHG”) emissions.

The DEIR concedes that the Project’s 24,953 MTCO2e of GHG emissions would exceed the

SCAQMD threshold of significance, and claims that these impacts would be significant and

unavoidable. (DEIR at 3.6-15.) It is unclear, however, whether the 24,953 MTCO2e figure is

accurate, as the source of the figure is not described; Table 3.6-2 opaquely lists the “source” as

“ESA, 2015.” (DEIR at 3.6-15.) The EIR should provide a detailed explanation for the 24,953

MTCO2e figure.

A. The DEIR improperly relies upon the discredited “business as usual” methodology.

The Project’s GHG emissions impacts analysis impermissibly relies upon the “business

as usual” or “BAU” method. When the California Air Pollution Control Officers Association

(“CAPCOA”) issued a “CEQA & Climate Change” white paper intended to serve as a resource

to assist lead agencies in analyzing GHG impacts under CEQA, CAPCOA determined that

significance analysis relying on reductions from project business-as-usual emissions, had “low”

GHG emission reduction effectiveness and consistency with state emission reduction targets.

(CAPCOA 2008.) Similarly, the California Resources Agency cautioned against using the

Scoping Plan’s “business as usual” objective to determine significance under CEQA in its Final

Statement of Reasons. The Resources Agency specifically warned that “a comparison of the

project against a ‘business as usual’ scenario as defined by [CARB] in the Scoping Plan . . .

would confuse ‘business as usual’ projections used in [CARB’s] Scoping Plan with CEQA’s

separate requirement of analyzing project effects in comparison to the environmental baseline.”7

Additionally, the Attorney General has argued that because the “business as usual”

approach “would award emission reduction ‘points’ for undertaking mitigation measures that are

already required by local or state law,” it results in “significant lost opportunities” to require

meaningful mitigation. (See Letter from California Attorney General to SJVACD re: Final Draft

Staff Report on Greenhouse Gas Emissions Under CEQA at 1, 3 (Nov. 4, 2009).) The analysis

done in the DEIR flies in the face of the findings in the Scoping Plan, which recognize that local

governments “are essential partners” in achieving California’s emissions reduction goals, further

highlighting the lack of legitimacy of the DEIR’s significance criteria. (Scoping Plan at 26; see

also Californians for Alternatives to Toxics v. Dept. of Food & Agric. (2005) 136 Cal.App.4th 1,

17 (compliance with existing environmental laws or regulations is not sufficient to support a

finding that a project will not have significant environmental impacts) [hereinafter

“Californians”].)

Moreover, the DEIR’s approach is not consistent with Center for Biological Diversity v.

Department of Fish & Wildlife (2015) 62 Cal.4th 204 (hereinafter “Newhall”). Newhall held that

the EIR must set forth substantial evidence that the project’s “project-level” emissions reductions

are consistent with achieving the state-wide goal of a 29 percent reduction from business as

usual. (Id. at 225.) Newhall further explained that reductions based on “business-as-usual”

comparisons do not comply with CEQA unless they are supported by substantial evidence on

how the individual project, in its location supports of finding of less than significant.

Accordingly, in order to adequately analyze GHG emissions under CEQA, the DEIR must

include information and analysis how this Project’s emissions fits in with local, regional and

state level targets before making its less than significance finding. Moreover, while the

significance threshold and analysis may have been based in part of existing thresholds,

compliance with the law is not enough to make a finding of less than significant under CEQA.

(See Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal. App. 4th

1099, 1107.) Instead “the EIR’s discussion of impacts must “provide[] sufficient information

and analysis to allow the public to discern the basis for the agency’s impact findings. Thus the

7 See California Natural Resources Agency, “Final Statement of Reasons for Regulatory Action” (Dec. 2009)

(available at http://resources.ca.gov/ceqa/docs/Final_Statement_of_Reasons.pdf).

EIR should set forth specific data, as needed to meaningfully assess whether the proposed

activities would result in significant impacts.” (Sierra Club v. Tahoe Reg’l Planning Agency

(2013) 916 F. Supp. 2d 1098, 1146-1147 (Sierra Club).)

The DEIR does not contain an adequate analysis of this issue. For instance, the DEIR

does not adequately explain why greater emissions reductions are not required for the Project,

given that designing new buildings and infrastructure for maximum energy efficiency and

renewable energy use is easier than achieving the same savings from older structures. (See

Newhall, 62 Cal.4th 204, 226.)

B. The DEIR Fails to adopt any meaningful mitigation measures to reduce the

Project’s GHG emissions.

Mitigation of a project’s environmental impacts is one of the “most important” functions

of CEQA. (Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 41.) Therefore, it is

the “policy of the state that public agencies should not approve projects as proposed if there are

feasible alternatives or feasible mitigation measures which will avoid or substantially lessen the

significant environmental effects of such projects.” (Pub. Res. Code § 21002.)

Although the DEIR includes a curtailed list of measures directed at reducing emissions

and promoting sustainability, these strategies are severely limited and do not include adequate

mitigation measures. The meager steps incorporated into the Project do not include effective

enforcement mechanisms and omit many feasible mitigation measures completely. Except for

assuming that new technology will reduce emissions in the future, the DEIR does nothing to

explain or analyze how the Project will meet future reduction targets.

For example, MM-GHG-1 states that the applicant will apply for LEED certification;

however, the applicant “will be deemed to have exercised best efforts to achieve full certification

even if certification is denied, and “no further action” would then be required. (DEIR at 3.6-18;

S-19.) The DEIR also proposes to “mitigate” GHG emissions through prohibiting fireplaces,

requiring low VOC cleaning supplies, and including an option for onsite renewable energy such

that a mere 9% of onsite energy consumption is “offset.” (DEIR at S-19, 3.2-23, 3.2-24.) These

limited mitigation measures will not mitigate the Project’s GHG impacts, and the DEIR fails to

demonstrate that stronger mitigation measures are not feasible.

The DEIR similarly claims that the proposed mitigation measures will ensure that the

Project does not conflict with applicable plans for reducing GHG emissions. (DEIR at 3.6-19.)

Yet, the DEIR only provides general details regarding these plans – such as the CARB Scoping

Plan and Temecula Sustainability Plan – and does not explain how the Project is actually

consistent with these plans. (See Newhall, 62 Cal.4th 204, 225.)

C. The DEIR should include further mitigation measures to reduce the Project’s

energy demands and increase use of renewable energy onsite.

Mitigation measures to reduce vehicle miles traveled, energy use, waste, water

consumption as well as use of solar power could lower the Project’s impact on climate change

(as well as air pollution and water use). CAPCOA has identified existing and potential

mitigation measures that could be applied to projects during the CEQA process to reduce a

project’s GHG emissions. (CAPCOA 2008). The California Office of the Attorney General also

has developed a list of reduction mechanisms to be incorporated through the CEQA process.

(CAPCOA 2008 at Table 16.) These resources provide a rich and varied array of mitigation

measures to be incorporated into the Project. Potential mitigation measures include ease of

access to public transit, alternative construction materials, and onsite energy generation, as

discussed below:

In general, the EIR should consider mitigation measures that will ensure the planned

community will use energy efficiently and conservatively. In doing so, it should analyze

incorporating “green building” in the development. Green buildings are those buildings that

lower energy consumption, use renewable energy, conserve water, harness natural light and

ventilation, use environmentally friendly materials and minimize waste. (Commission for

Environmental Cooperation 2008.)

Buildings create environmental impacts throughout their lifecycle, from the construction

phase to their actual use to their eventual destruction. (Commission for Environmental

Cooperation 2008.) In the United States, buildings account for 40 percent of total energy use, 68

percent of total electricity consumption, and 60 percent of total non-industrial waste.

(Commission for Environmental Cooperation 2008.) Buildings also significantly contribute to

the release of greenhouse gases. In the U.S. they account for 38 percent of total carbon dioxide

emissions. (Commission for Environmental Cooperation 2008.) More specifically, residential

buildings cause up to 1,210 megatons of carbon dioxide, while commercial buildings create

approximately 1,020 megatons. (Commission for Environmental Cooperation 2008.) This is

because buildings require a lot of energy for their day to day operations. Most of the coal-fired

power plants – one of the biggest sources of GHG emissions – slated for development in the

United States will supply buildings with the energy they need. In fact, 76 percent of the energy

these plants produce will go to operating buildings in the U.S. (Commission for Environmental

Cooperation 2008.)

Using green building techniques, however, can substantially reduce buildings’ influence

in increasing GHG emissions. Green buildings help reduce the amount of energy used to light,

heat, cool and operate buildings and substitute carbon-based energy sources with alternatives that

do not result in GHG emissions. (Commission for Environmental Cooperation 2008.) Currently

green buildings can reduce energy by 30 percent or more and carbon emissions by 35 percent.

(Commission for Environmental Cooperation 2008.) The technologies available for green

building are already in wide-use and include “passive solar design, high-efficiency lighting and

appliances, highly efficient ventilation and cooling systems, solar water heaters, insulation

materials and techniques, high-reflectivity building materials and multiple glazing.

Specific mitigation measures for the GHG emissions generated by the Project’s energy

consumption include, but are not limited to:

 Requiring that the Applicant seek and obtain the U.S. Green Building Council’s LEED

or comparable standards for energy- and resource efficient building during pre-design,

design, construction, operations and management;

 Designing buildings for passive heating and cooling, and natural light, including building

orientation, proper orientation and placement of windows, overhangs, skylights, etc.;

 Designing buildings for maximum energy efficiency including the maximum possible

insulation, use of compact florescent or other low-energy lighting, use of energy efficient

appliances, etc.;

 Reducing the use of pavement and impermeable surfaces;

 Requiring water re-use systems;

 Installing light emitting diodes (LEDs) for traffic, street and other outdoor lighting

 Limiting the hours of operation of outdoor lighting;

 Maximizing water conservation measures in buildings and landscaping, using drought

tolerant plants in lieu of turf, planting shade trees;

 Ensure that the Project is fully served by full recycling and composting services;

 Ensure that the Project’s wastewater and solid waste will be treated in facilities where

GHG emissions are minimized and captured;

 Installing the maximum possible photovoltaic array on the building roofs and/or on the

project site to generate all of the electricity required by the Project, and utilizing wind

energy to the extent necessary and feasible;

 Installing solar water heating systems to generate all of the Project’s hot water

requirements;

 Installing solar or wind powered electric vehicle and plug-in hybrid vehicle charging

stations to reduce emissions from vehicle trips;

The Project should further utilize the following mitigation measures related to construction:

 Utilize recycled, low-carbon, and otherwise climate-friendly building materials such as

salvaged and recycled-content materials for building, hard surfaces, and non-plant

landscaping materials;

 Minimize, reuse, and recycle construction-related waste;

 Minimize grading, earth-moving, and other energy-intensive construction practices;

 Landscape to preserve natural vegetation and maintain watershed integrity;

 Utilize alternative fuels in construction equipment and require construction equipment to

utilize the best available technology to reduce emissions.

Rooftop solar power is the most energy efficient, least-environmentally damaging form

of renewable energy available for the Project and is ideal for the Project’s location. Nonetheless,

the Project proposes only limited onsite solar energy. The Conservation Groups urge that on-site

renewable energy be used to meet at least 75 percent of the Project’s energy use. All other

emissions should be reduced to extent possible, offset on-site and if that is not possible, offset

using off-site mitigation. New construction, like this Project, has a unique opportunity to fully

embrace and incorporate the use of renewable energy in its design, construction and operation.

We urge the City to take full advantage of those opportunities, if it chooses to move forward with

the Project.

X. The DEIR Fails To Disclose Or Analyze The Environmental Impacts Of The

Project’s Fuel Modification Plans.

The DEIR states that the Project is “near” a “High Fire Hazard Area,” but never discloses

where this area is in relation to the Project. This fails to inform the public as to the fire dangers

associated with the Project.

MM-HAZ-1 states that the applicant will prepare a “fuel modification plan” prior to

issuance of building permits. According to the County’s Fire Department, fuel modification

plans involve replacing native plants with drought resistant alternatives.8 As such, it is

reasonable to assume that these fuel modification plans would result in significant impacts on

plants, wildlife, and other biological resources. Nonetheless, the DEIR does not provide any

information regarding the specifics of these fuel modification plans, nor does the DEIR analyze

the environmental impacts on biological resources of implementing these plans.

The DEIR should include areas impacted by fuel modification plans as part of the

development “footprint” of the Project, and be analyzed as such. Moreover, no fire

clearance/thinning activities should occur within the boundaries of any federally designated

critical habitat, open-space, natural area or wildlife movement corridor. Finally, fuel

modification plans must ensure that no invasive species are planted as part of the plans.

XI. The DEIR’s Analysis Of The Project’s Impacts On Water Quality Is Flawed.

The Project will likely result in substantial impairment of the water quality in Murrieta

Creek, as well as Temecula Creek and the Santa Margarita River. The DEIR explains that the

Project will cause untreated runoff to flow from the Project site directly into Murrieta Creek.

Untreated runoff often contains toxic metals, grease, trash, and other substances that are harmful

to water quality and wildlife. Such dumping of untreated runoff is unacceptable, especially

given that Murrieta Creek already is an impaired waterbody. While the DEIR claims that runoff

from “developed” portions of the site would be treated, the DEIR provides no detail which

portions of the site will be considered “developed” or what types of treatment the stormwater

will undergo. The DEIR also is unclear as to what extent runoff will discharge directly into

Murrieta Creek – on the one hand, it claims that runoff from the development will be “treated,”

but also states that “the majority of the project discharges directly into Murrieta Creek…” (DEIR

at 3.8-19.)

The DEIR does not include sufficient data regarding existing water quality conditions to

provide adequate baseline information from which to assess Project impacts on local and

regional water quality. All that is provided in the DEIR is a list of substances for which the

Murrieta Creek is impaired under section 303(d) of the Clean Water Act. (DEIR 3.8-3.) The

DEIR does not provide information regarding any other substances, or provide adequate water

quality information regarding Temecula Creek and the Santa Margarita River, which also are

8 Riverside County Fire Department Fire Protection Planning Section, “Information Bulletin,” (April 8, 2008)

(available at

http://www.rvcfire.org/stationsAndFunctions/AdminSppt/FireMarshal/Documents/Informational%20Bulletins/IB_0

8-05_Fuel_Modification_Rev_1.pdf).

adjacent to the Project site. Without this data, the DEIR fails to provide sufficient baseline

information that would allow the public to evaluate significant adverse impacts the Plan will

have on the environment. (CEQA Guidelines § 15125(a); Communities for a Better Environment

v. South Coast Air Quality Management District (2010) 48 Cal.App.4th 310, 315[hereinafter

CBE SCAQMD].)

The DEIR also understates the impacts on water quality of the Project. For instance, the

DEIR concludes that runoff patterns during and prior to construction will be the same. (DEIR at

3.8-18.) This claim is not credible because intensive grading of the site is very likely to change

runoff patterns; the DEIR later admits that the Project’s grading activities will require four

million cubic yards of cut and fill. (DEIR at 3.8-29.)

The mitigation measures proposed in the DEIR are not described in sufficient detail to

ascertain whether they will be effective. The DEIR states that “BMPs” have been proven

effective in reducing construction runoff, such that impacts would be less than significant. This

is not an adequate analysis; the types of BMPs that the Project will utilize are not disclosed, nor

is the effectiveness of the BMPs. This is a serious inadequacy in the DEIR given the Project’s

close proximity to three different streams – Murrieta Creek, Temecula Creek, and the Santa

Margarita River, all of which are home to aquatic wildlife.

The “mitigation” measures set forth in the DEIR impermissibly defer actual development

of the mitigation measures. MM HYD-1 states that a drainage study will be prepared and will

verify capacity of existing drainage facilities. (DEIR at 3.8-19.) Deferring this study until after

the environmental review process is completed leaves the public in the dark regarding the true

impacts of the Project, and violates CEQA. Even after this study is conducted, there is nothing

in the DEIR that requires the developer to take steps to follow the recommendations of the study.

Instead, if the study determines that facilities receiving stormwater are insufficient, then “onsite

detention would be considered.” (DEIR at 3.8-20.) CEQA requires that mitigation measures

legally enforceable, not just “considered.” MM-HYD-3 also defers development of the Project’s

Water Quality Management Plan because the Applicant is not required to submit the Plan until

immediately prior to issuance of building or grading permits. (DEIR at 3.8-28.)

Furthermore, the DEIR claims that stormwater runoff would not cause a significant

impact because MM-HYD-1 requires compliance with the MS4 permit. Such promises are not

sufficient to demonstrate that the Project will not have a significant impact. (See Californians,

136 Cal.App.4th at 17 (compliance with existing environmental laws or regulations is not

sufficient to support a finding that a project will not have significant environmental impacts).)

Likewise, MM-HYD-2 and MM-HYD-3 – which require compliance with a SWPPP,

“potential” BMPs, and the MS4 permit – will purportedly render impacts less than significant.

(DEIR 3.8-21, Table 3.8-5, 3.8-26.) The Project must already comply with these regulations

such that these “mitigation” measures are not additional to actions already required by the

Applicant and the City. The purpose of the EIR is not just to explain how the Project will

comply with existing laws; the EIR must disclose the Project’s specific environmental impacts,

and explain how these impacts will be mitigated. The DEIR fails to do this.

XII. The DEIR Fails To Accurately Disclose The Project’s Impacts On Water Supply.

The DEIR is the correct place to raise issues regarding adequacy of water supply under

CEQA, and the proper occasion for decisionmakers and members of the public to challenge

conclusions contained in a water district’s Water Supply Assessment (“WSA”). (See California

Water Impact Network v. Newhall County Water District (2008) 161 Cal.App.4th 1464, 1488

(“The lead agency has a separate and independent responsibility to assess the sufficiency of

water supplies for the proposed project.”).)

The DEIR does not adequately analyze the impacts of the Project on water supply. On

the one hand, the DEIR acknowledges that the local water agency has issued an “Extreme Water

Supply Warning” which requires substantial cutbacks in water usage. (DEIR at 3.14-14.) On the

other hand, the DEIR myopically claims that adding over 4,000 people to a City of

approximately 100,000 (a 4 percent increase in population) will have no significant impact on

water supplies.

The DEIR indicates that groundwater recharge and “local groundwater” will substantially

contribute to the water supplies for the Project. (Table at 3.14-5 and Table 3.14-1.) Yet, there is

no analysis in the DEIR as to whether the groundwater basin can sustain continued pumping,

especially in the event of prolonged droughts, which will become more common as the impacts

of climate change intensify.

Furthermore, the DEIR’s water supply analysis does not adequately plan for the

possibility that the state and regional water agencies will curtail water deliveries to the Rancho

California Water District (“RCWD”), which provides water to the City and its residents. As the

WSA admits, the Project will rely upon water deliveries from the State Water Project, Colorado

River, and groundwater, including through the Metropolitan Water District of Southern

California (“MWD”). (DEIR, Appx. J at ES-5.) As the WSA further admits, MWD recently

reduced water deliveries to RCWD by 15 percent. (DEIR, Appx. J at ES-10.) It is possible that

MWD could further reduce water deliveries, or that the State Water Project could reduce or

entirely eliminate water deliveries. Nonetheless, there is no discussion in the DEIR or WSA as

to whether adequate water supplies exist for the Project in the event that MWD or other agencies

further reduce water supply deliveries to RCWD.

At a time when Temecula residents are subject to mandatory reductions in water usage, it

is unfortunate that the City is pushing forward with a Project that will force Temecula residents

to share their limited water allocations with thousands of additional residents.

XIII. The DEIR Fails To Adequately Assess Or Mitigate The Project’s Noise Impacts.

The DEIR is required to analyze whether the energy conservation mitigation measures in

Appendix F of the CEQA Guidelines could be adopted as part of the Project. (See California

Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173, 209 (an EIR is

defective when it fails to include a detailed statement setting forth the mitigation measures

proposed to reduce wasteful, inefficient, and unnecessary consumption of energy in accordance

with Appendix F of the CEQA Guidelines) [hereinafter “CCEC”].) Nonetheless, the DEIR fails

to include any mention or analysis of the conservation mitigation measures in Appendix F of the

CEQA Guidelines.

The DEIR also fails to adequately describe the transportation energy impacts of the

Project. (See Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal. App. 4th 256, 264

(EIR invalid because it failed to disclose the transportation energy impacts of vehicle trips

generated by the project).)

Perhaps most importantly, Appendix F of the CEQA Guidelines requires the DEIR to

analyze the viability of adding renewable energy systems to the Project in order to mitigate its

impacts and “increase[e] reliance on renewable energy sources…” Yet, the DEIR contains no

discussion of the appropriateness of renewable energy options for the Project. Instead, MMAQ-

1d states that buildings must either exceed the energy efficiency of the 2013 Building

Standards or offset energy use with 9 percent renewable energy. As noted above, the 2016

Building Standards already exceed the energy efficiency of the 2013 Building Standards by a

substantial margin. As such, mere compliance with current law would equate to compliance with

MM-AQ-1d, such the Applicant can entirely avoid incorporating any renewable energy into the

Project. By omitting any discussion or analysis of renewable energy options for the Project, the

City has violated CEQA. (See CCEC, 225 Cal.App.4th at 213.) This omission is particularly

unfortunate because onsite solar energy could power most – if not all – of the Project’s energy

needs.

XIX. Conclusion

Given the possibility that the Conservation Groups will be required to pursue appropriate

legal remedies in order to ensure enforcement of CEQA, we would like to remind the City of its

duty to maintain and preserve all documents and communications that may constitute part of the

“administrative record.” As you may know, the administrative record encompasses any and all

documents and communications which relate to any and all actions taken by the City with

respect to the Project, and includes “pretty much everything that ever came near a proposed

[project] or [] the agency’s compliance with CEQA . . . .” (County of Orange v. Superior Court

(2003) 113 Cal.App.4th 1, 8.) The administrative record further contains all correspondence,

emails, and text messages sent to or received by the City’s representatives or employees, which

relate to the Project, including any correspondence, emails, and text messages sent between the

City’s representatives or employees and the Applicant’s representatives or employees.

Maintenance and preservation of the administrative record requires that, inter alia, the City (1)

suspend all data destruction policies; and (2) preserve all relevant hardware unless an exact

replica of each file is made.

Thank you for the opportunity to submit comments on the Project. We look forward to

working to assure that the Project and environmental review conforms to the requirements of

state law and to assure that all significant impacts to the environment are fully analyzed,

mitigated or avoided. In light of many significant, unavoidable environmental impacts that will

result from the Project, we strongly urge the Project not be approved in its current form. Please

do not hesitate to contact the Center with any questions at the number listed below. We look

forward to reviewing the City’s responses to these comments in the Final EIR for this Project

once it has been completed.

Sincerely,

J.P. Rose

Staff Attorney

Center for Biological Diversity

PMB 447, 8033 Sunset Blvd.

Los Angeles, CA 90046-2401

Ph: (408) 497-7675

jrose@biologicaldiversity.org

Kim F. Floyd

Conservation Chair

San Gorgonio Chapter Sierra Club

/s/

Vicki Long

President

Cougar Connection

References

(Attached on USB Drive)

California Energy Commission, 2016 Building Energy Efficiency Standards Frequently Asked

Questions.

http://www.energy.ca.gov/title24/2016standards/rulemaking/documents/2016_Building_

Energy_Efficiency_Standards_FAQ.pdf).

CAPCOA. 2008. California Air Pollution Control Officer’s Association. CEQA & Climate

Change, Evaluating and Addressing Greenhouse Gas Emissions from Projects Subject to the

California Environmental Quality Act.

Cayan 2007, California Climate Change Center, Our Changing Climate: Assessing the Risks to

California CEC-500-2006-077 (2006).

http://meteora.ucsd.edu/cap/pdffiles/CA_climate_Scenarios.pdf.

Commission for Environmental Cooperation, Greenbuilding in North America: Opportunities

and Challenges (2008)

http://www3.cec.org/islandora/en/item/2335-green-building-in-north-americaopportunities-

and-challenges-en.pdf.

Ernest et al., 2014, Fractured Genetic Connectivity Threatens a Southern California Puma

(Puma concolor) Population, PLUS ONE.

http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0107985

Jennings et al. (1994), Amphibian and Reptile Species of Special Concern in California, CAL.

DEP’T. OF FISH & WILDLIFE 101, 102 (1994).

https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=83971

Lin et al., 2002, Childhood Asthma Hospitalization and Residential Exposure to State Route

Traffic, 88 ENVIRONMENTAL RESEARCH 2 (2002).

Los Angeles Times, “L.A.’s mountain lions could be near extinction in 50 years” (Aug. 31, 2015)

http://www.latimes.com/science/sciencenow/la-sci-sn-mountain-lions-threat-20160830-

snap-story.html.

Pilliod et al. (2013), Terrestrial Movement Patterns of Western Pond Turtles (Actinemys

marmorata) in Central California, 8 HERPETOLOGICAL CONSERVATION & BIOLOGY 207,

207.

South Coast Air Quality Management District, Localized Significance Thresholds.

http://www.aqmd.gov/home/regulations/ceqa/air-quality-analysis-handbook/localizedsignificance-

thresholds.

Spinks et al. (2003), Survival of the Western Pond Turtle (Actinemys marmorata) in an Urban

California Environment, 113 BIOLOGICAL CONSERVATION

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