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22221 McClellan Road, Cupertino, CA 95014 Phone: (408) 252-3748 * Fax: (408) 252-2850 Email: scvas@scvas.org * www.scvas.org

Santa Clara Valley Audubon Society Founded 1926

Oct 31st, 2011

Via Email Rebecca Tolentino City of Morgan Hill Development Services Center 17575 Peak Avenue Morgan Hill, CA 95037 Re: Santa Clara Valley Audubon Society Comments on the Monterey-South of Watsonville Project Mitigated Negative Declaration Dear Ms. Tolentino, The following are comments by the Santa Clara Valley Audubon Society (SCVAS) on the Mitigated Negative Declaration (MND) for the Monterey-South of Watsonville Project. SCVAS has over 3500 members in Santa Clara County. Our Mission is to preserve, to enjoy, to restore and to foster public awareness of native birds and their ecosystems, mainly in Santa Clara County. Our members enjoy open space, nature and wildlife, and are concerned with projects that have the potential to disrupt open space and habitat. We are particularly concerned with loss of habitat for burrowing owls in Santa Clara County and the impact of habitat loss on the effort to recover the population of burrowing owls here. Our review of the Mitigated Negative Declaration (MND) and the associated documents shows inadequate mitigations for burrowing owls and the loss of habitat. The mitigations proposed in the MND are based on the City of Morgan Hill Burrowing Owl Habitat Mitigation Plan. This Plan should be revised, since the California Department of Fish and Game (CDFG) no longer consider the proposed mitigations adequate. (Please see Attachment 1, SCVAS correspondence with CDFG, which describes some of the changes of policy). Loss of habitat The Initial Study (IS) (Page 31) identified agricultural land as well as ruderal land, developed land, and large trees at the site. These features normally support shelter, foraging and breeding habitat for a variety of avian and other species. There is also a riparian corridor that supports a functional wildlife movement corridor (West Little Llagas Creek) on site, used for migratory or foraging animal movements. Trees in the riparian corridor include coast live oak, valley oak, and

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22221 McClellan Road, Cupertino, CA 95014 Phone: (408) 252-3748 * Fax: (408) 252-2850 Email: scvas@scvas.org * www.scvas.org

walnut – species important for shelter, foraging and nesting of avian species. The creek itself provides intermittent flow and puddles, a potentially important water source for wildlife. While the IS attempt to diminish the value of the site for wildlife and wildlife movement, it is apparent from the provided inventory that a rich wildlife community uses all or portions of the project site. The IS/MND relies on the Santa Clara County Habitat Conservation Plan / Natural Communities Conservation Plan (HCP/NCCP) to mitigate for loss of habitat (including the loss of trees) and impacts to listed species. The project area may not be included in the revised HCP/NCCP study area (the current 2011 version map indicates that the valley floor may be excluded from the plan). Therefore, the MND should provide mitigation for loss of habitat as well as impacts to covered species. Since the HCP/NCCP is offered as mitigation, the findings of “Less Than Significant Impacts With Mitigation Incorporated” cannot be made. MM BIO-1. Deferred wetland delineation. All jurisdiction habitats should have been identified as part of the IS/MND, and mitigation developed for any impact to these habitats. A Mitigated Negative Declaration must show that mitigation is feasible and that avoidance, minimization, and/or compensation measures CAN reduce impacts to any jurisdictional waters and the associated riparian woodland habitat to a less than significant level. The MND should not defer mitigation. MM BIO-3. Trees. Trees provide three-dimensional space for avian species that use them for shelter, foraging and nesting. The MND should provide mitigation for loss of mature trees. Burrowing Owls The IS (p. 41 and 42) found no burrowing owls on the site, but identified suitable habitat. The IS cautions that burrowing owls could potentially overwinter or otherwise occupy the site prior to development, and thus project-related activities could result in direct mortality to these birds. The MND refers to the City of Morgan Hill Burrowing Owl Habitat Mitigation Plan to “avoid direct impacts to burrowing owls and to offset impacts to non-native grassland habitat.” 1. Loss of habitat. The City of Morgan Hill Burrowing Owl Habitat Mitigation Plan specifies loss of non-native grassland habitat as a potentially significant impact to burrowing owls and their habitat. The MND provides no analysis or mitigation for loss of habitat for burrowing owls and/or other species. 2. MM BIO-4: Pre-construction surveys. The MND proposed that preconstruction surveys be conducted “within the footprint of the proposed grading area, no more than 30 days prior to initiation of any construction-related activities.” This mitigation is inadequate because:

• Burrowing owls in the vicinity, but outside the footprint of the proposed grading area may be impacted by construction activity

• Preconstruction survey should be biologically relevant. Since burrowing owls may inhabit a burrow anytime, pre-construction surveys should be conducted within 24 hours prior to any disturbing activity on the site as per the CDFG recommendations in the

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22221 McClellan Road, Cupertino, CA 95014 Phone: (408) 252-3748 * Fax: (408) 252-2850 Email: scvas@scvas.org * www.scvas.org

attached correspondence (Attachment A). 3. MM BIO-4: Buffers. The MND proposed exclusion zones with a 250-foot radius from occupied burrows during breeding season (February 1 through August 31). CDFG no longer recommends a fixed buffer zone, but examines each case individually. 4. MM BIO-4: Eviction. The MND proposes that during the non-breeding season, burrowing owls may be relocated upon approval of the California Department of Fish and Game. CDFG no longer approves eviction of burrowing owls in Santa Clara County (Attachment A). Because there is no mitigation for loss of habitat and trees, and because the proposed actions included in MM BIO-4 have been shown to be ineffective in protecting burrowing owls and are no longer recommended by the California Department of Fish and Game, we believe that potential impacts to burrowing owls and their habitat have not been reduced to a less than significant level. Thank you for the opportunity to comment on the proposed project. Please keep SCVAS on the notification list for the proposed project site. Sincerely,

Shani Kleinhaus, PhD. Environmental Advocate, Santa Clara Valley Audubon Society 22221 McClellan Rd. Cupertino, CA 95014 shani@scvas.org Resources: Johnston, David. Senior Scientist with the CA Department of Fish and Game, Email

Correspondence (see Attachment A) Attachment A: Correspondence with Mr. David Johnston, CDFG. While this exchange of

emails does not address the proposed project specifically, it does describe current CDFG recommendations regarding mitigation for burrowing owls.

1. From: David Johnston <DJOHNSTON@dfg.ca.gov> Date: May 26, 2011 9:46:58 AM PDT To: Shani Kleinhaus <shani@scvas.org> Subject: Re: Burrowing Owls and San Jose Dry Frementation Anaerobic Digestion facility

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22221 McClellan Road, Cupertino, CA 95014 Phone: (408) 252-3748 * Fax: (408) 252-2850 Email: scvas@scvas.org * www.scvas.org

Good Morning Ms Kleinhaus: Thanks you for your contact, I have responded to each of your inquiries below, as appropriate. As a general observation, it should be noted that the overall avoidance/mitigation plan is based

on the existing DFG guidelines adopted some time ago. These guidelines are currently being replaced and we have not been using them for a little more than a year, primarily because our experience has been that they do not achieve the necessary goals of avoiding take or adequately mitigating for any take. Until the new guidelines are in place, each project will be evaluated independently using the best currently available scientific data and conservation techniques to achieve the stated goals.

1. We currently don't have an agreed upon definition for what a protocol for surveys would be.

There are three reasons for carrying out surveys: a). To determine if there are owls present, b). To determine if there is a historical use of the site and c). To determine if habitat is present. The survey techniques and reasons for completing them are different in each case.

a. It should be determined if owls are present and, if so, what they are doing there. Since BO

can use the same piece of land for different things and use can also vary depending on the time of year, it can be most useful to carry out several surveys to make this determination. Generally, it is best to survey a site well in advance of project commencement to avoid surprises. At the same time, since birds in general, and BO in particular, can occupy a nest overnight, a preconstruction survey should be carried out no more than 24 hours before any site activity. Basically, they first survey gives you a snapshot and informs the planning process, wherein all the various options will be laid out on how to respond to each potential circumstance. The preconstruction survey informs which of the options will be followed.

b. Historical use also informs the planning process and helps determine if a loss of utilized

habitat will occur. If it will, mitigation should be proposed. This is done by examination of various databases and consulting with local experts to determine what might have happened on the site.

c. This is a habitat assessment that provides information about what might be reasonablely

expected on a site. Doing just the preconstruction surveys will not provide a full evaluation under CEQA since it

will not result in any mitigation for loss of historical site use and it can lead to project postponement, depending on the location, intensity and nature of BO occupancy that might be present.

2. + 3. Likewise, we don't currently have buffer recommendations. It's important to remember

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22221 McClellan Road, Cupertino, CA 95014 Phone: (408) 252-3748 * Fax: (408) 252-2850 Email: scvas@scvas.org * www.scvas.org

that buffers are proxies for a belief that a certain distance will provide the requisite protection. The real issue, however, is will owls be injured or will a nesting/rearing attempt fail because of the work. How this is monitored will vary considerably according to the situation. For example, an individual owl on wintering habitat near a fixed project will be of significantly less concern than six pairs with young in the vicinity of a project that varies considerably in noise, activity and distance from the birds (like a road or pipeline project). General guidelines are that for any situation, there should be enough monitoring of any birds to provide assurance that there won't be displacement as a result of project activities. For a single wintering bird, this might be an occasional check to ensure the project remains far enough awy from the bird not to injure or seriously disturb it. A more extreme example would require full time monitoring to constantly observe behavior to ensure project activities are not causing behavioral changes. For a road or pipeline project near to breeding birds for example, the first step would be to establish a behavioral baseline with no project related disturbances, generally a day or two of monitoring by a qualified biologist. In this case, 'qualified' means someone who is familiar enough with BO to recognize behaviors and how they might change. Then you begin the project and start monitoring the birds to see if there's any effect. If, after 2-3 days, there is not, the monitoring can be reduced. If there will be any changes, either to the project or to the birds (such as project activities getting closer or eggs hatching), more intensive monitoring should continue or recommence.

The more intense standards would apply to any reduction of buffers, the reason being that those

buffers are assumed to be minimal standards and any reduction should only be allowed if supported by direct observation.

4. DFG does not recommend exclusion, even for wintering owls. The reason for this is that the

overwhelming majority of what data exists indicates that relocations are almost never successful. There are a wide variety of reasons for that, but the evidence is fairly clear, relocation very often results in death, either of the displaced organisms or of organisms at the introduction point. This applies equally to passive relocation which differs only in that the organism carries itself somewhere else instead of humans doing it.

5. DFG does not use the 6.5 acres any longer and we wish we had never brought it up to begin

with. The number appears to be based on the area inside the buffer for disturbance and has no applicability to the ecological needs of the owls. As a general rule, mitigation should always be of commensurate biological value to whatever impact occurred. For example, if a project displaces a pair of BO, even after the breeding season, what is really being lost is an occupied breeding site. 'Occupied breeding site' means one of the few remaining areas where owls nest with confidence they will be able to fledge young. That means the site is reasonably protected from predators and disturbances, and has enough nearby forage. Our best guess at this point is that the amount of forage needed to support one pair of owls is around 140 acres. Please note that tjis isn't multiplied if additional owls pairs are present, we don't know how many pairs the 140 acres can support, but it does appear to be a minimum figure. As with all mitigation, the further away you get

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22221 McClellan Road, Cupertino, CA 95014 Phone: (408) 252-3748 * Fax: (408) 252-2850 Email: scvas@scvas.org * www.scvas.org

from the impact site, the less relevant the mitigation is to the impact, so that appropriate mitigation is usually calculated by applying a multiplyer. Finally, I don't believe there are any mitigation bank credits available and DFG can no longer recommend out of the area mitigation, making mitigation very difficult locally.

What type of mitigation is appropriate can also vary. For example, mitigation for an occupied or

historically occupied site should be considerably higher than for a potentially occupied site.

Second 5. There should be mitigation for the loss of foraging habitat. Dave Johnston Calif. Department of Fish and Game (831) 464-6870 2. From: Shani Kleinhaus <shani@scvas.org> 5/25/2011 1:00 PM >>> Dear Mr. Johnston, The City of San Jose has is proposing to construct a Dry Frementation Anaerobic Digestion

facility on the old nine-par landfill site on Los Esteros Road in North San Jose. A Mitigated negative Declaration (MND) has been proposed for the project. The MND identified

one potential impact on burrowing owls ("Construction of the proposed project could result in impacts to burrowing owl individuals and/or occupied habitat").

At SCVAS, we are very concerned, and would like your input on the analysis and mitigations as

proposed in the MND: 1) Protocol-level surveys for burrowing owls were not performed, and the Initial Study provides

no baseline data on the site's use by burrowing owls. Instead, a mitigation proposes "pre-construction surveys to be conducted following DFG protocols, no longer than 30 days prior to the start of any ground-disturbing activity within 250 feet of suitable habitat that could disturb nesting burrowing owls".

2) The mitigation proposes that if the pre-construction survey identifies burrowing owls during

the non-breeding season, a 150-foot buffer zone would be created in which no NEW project-related activity be permitted, specifying that a reduced buffer is permissible as long as construction avoids direct impact to burrows used by the owls.

3) The mitigation proposes that if the pre-construction survey identifies burrowing owls during

the breeding season, a 250-foot buffer will be maintained between project activities and occupied burrows, in which no NEW project-related activity be permitted, until the end of the breeding season or owlets are foraging independently.

4) If ground-disturbing activities will directly impact occupied burrows, the mitigation allows

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22221 McClellan Road, Cupertino, CA 95014 Phone: (408) 252-3748 * Fax: (408) 252-2850 Email: scvas@scvas.org * www.scvas.org

eviction of the owls during the non-breeding season, unless evidence indicates that nesting is not actively occurring (examples are that the early in the season owls have not yet began nesting, or after young have fledged).

5) The mitigations propose that if roosting or breeding owls (after the nesting season) must be

"relocated", mitigation for the loss of habitat for relocated owls would consist of 6.5 acres for pair or single unpaired owl by the purchase of credits in a burrowing owl mitigation bank or the preservation and management of the required habitat acreage "off site".

If an "off site" mitigation is needed, a management plan will be prepared by a qualified biologist and implemented. This plan will detail the location of mitigation land, means of conservation, and any hbitat enhancement and management measures.

5) The IS identifies "low quality" foraging habitat (areas of tall weeds, areas of bare ground).

There is no mitigation for foraging habitat. 6) The MND provides no consideration of cumulative impacts on burrowing owls, considering

planned development in North San Jose and the Water Pollution Control Plant. More information is available at http://www.sanjoseca.gov/planning/eir/mnd.asp (project SP09-

057) Thanks, Shani Kleinhaus ---------------------------------------------------- Shani Kleinhaus Environmental Advocate Santa Clara Valley Audubon Society shani@scvas.org (650) 868 2114