California Native Plant Society

Redbud Chapter CNPS

Mr. Matt Kelley

Senior Planner

Nevada County Planning Department

950 Maidu Avenue, Suite 170

Nevada City, CA 95959-7902 (530) 265-1423

Via email: Idaho.MMEIR@co.nevada.ca.us

Dear Mr. Kelley,

Thank you for the opportunity to comment on the Draft Environmental Impact Review for the Idaho Maryland Mine.

This letter, submitted on behalf of the California Native Plant Society and its local Redbud Chapter, is focused on the flaws in the DEIR relating to Biological and Aquatic Resources for the Centennial and Brunswick sites.

1. The DEIR’s use of a project definition that excludes the Centennial Cleanup violates CEQA.

The DEIR fails to meet CEQA requirements by omitting the cleanup in its analysis of impacts. Because the preparation for reopening and subsequent operation of the IMM  cannot proceed without the cleanup, the two constitute  a single project for the purposes of CEQA and their environmental impacts must be analyzed together.

The Guidelines for Implementation of the California Environmental Quality Act  define the term “project” broadly: “’Project’ means 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, and that is any of the following: … (3) An activity involving the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.” 14 CCR Sec. 15378 (a).

The DEIR has excluded the cleanup of the Centennial site and improperly defined the Idaho Maryland Mine “project” as everything but the cleanup plan that is currently under review by the Department of Toxic Substances Control (“DTSC”). This is contrary to CEQA: “The term ‘project’ refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term ‘project’ does not mean each separate governmental approval.” 14 CRR Sec. 15378 (c) (Emphasis added.)

CEQA’s broad definition of “project” is intended to prevent “a proponent or a public agency from avoiding CEQA requirements by dividing a project into smaller components which, when considered separately, may not have a significant environmental effect. …” Nelson v. County of Kern, 190 Cal. App. 4^th 252 (2010).

In Nelson, the Federal Bureau of Land Management  had conducted an environmental review of a request for a permit for a surface mining operation and had issued the permit.  Kern County then limited its review to a consideration of whether it should approve the reclamation plan for that mine. The Appellate court concluded that the County was required to review “both the mining operations and the reclamation plan. Both aspects were integrally related and constituted the whole of the action or the entire activity for which approvals were being sought. … [T]he reclamation plan was simply the final phase of the overall usage of the land proposed by [the applicant] … .” 190 Cal. App. 4^th 272.

Here, the cleanup is “simply the [first] phase” of the land usage; the mine and the cleanup are “integrally related” and constitute “the entire activity for which approvals [are] being sought.”

In treating the cleanup as “separate,” the DEIR focuses on “isolated parts of the whole” of the IMM project, “overlooking” and distorting its cumulative impacts and failing to inform the public and decision makers of significant environmental impacts. In so doing, it thwarts the purposes of CEQA. McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136, 1144.

This flaw – excluding the Centennial site cleanup from the DEIR’s CEQA review –  is inherent in the original Notice of Preparation (“NOP”) issued July 17, 2020. The NOP declares that that the “project applicant” is working with DTSC to clean up the Centennial site “separate from the proposed project.” (Emphasis added) (NOP p. 5)

After declaring the cleanup to be “separate” from the mine, the NOP describes the mine project in such a manner that it is clear the mine is dependent on the cleanup, not a separate project.  Thus, the Centennial site “currently cannot be developed” because of contamination caused by historic “deposition of mine tailings on the site” (NOP p. 5), but the IMM will nonetheless (1) use the Centennial site (after the cleanup) for depositing 1.6 million tons of additional mine waste, and (2) reclaim the Centennial site for reuse or sale after the mine closes 80 years later.

Specifically, the NOP Site Plan for the Centennial Site calls for 44 acres of the 56-acre site to be buried in new mine waste after the cleanup. (NOP p. 2; see also NOP Figure 7, “Site Plan – Centennial Industrial Site”) (“Attachment A.”)  This same Figure is later used in the DEIR (Chapter 3, Page 3-16, Figure 9, “Site Plan”).

In addition, the “reclamation plan” described in the NOP notes that after the closure of the mine, the Brunswick and Centennial “fill slopes would be revegetated with an erosion-control seed mix to reduce erosion and maintain fill slope stability. The fill pads would be maintained until they are used or sold for future industrial purposes.” (NOP p. 9; see also DEIR Chapter 3, pp. 3-42, 3-46 and 3-47.)

Clearly, neither the dumping of 1.6 million tons of additional mine waste on the Centennial site nor the reclamation of land “to be used or sold for future industrial purposes” after the mine closes is possible without the cleanup. There is no basis whatsoever for the County to claim the cleanup is a “separate”  project.

Such a separation of the mine project into arbitrary segments is explicitly forbidden by CEQA.  Accordingly, the County’s assertion that the cleanup is a “separate project” clearly must fail.  The separation of the cleanup from the mine is artificial and misleading.

1. The CEQA Review of the Cleanup and the Mine Reopening Must Encompass the “Whole Project” and Must Not be Segmented or Reviewed in a “Piecemeal” Manner.

 Under CEQA, “a project must not be broken into smaller parts, each of which alone might qualify for a Negative Declaration, in an attempt to avoid preparing an EIR.” Mitigated Negative Declarations, CEQA Technical Advice Series, California Office of Planning and Research, p.2  https://opr.ca.gov/docs/MND_Publication_2004.pdf.  See also Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal. App.3d 151. 

“CEQA forbids ‘piecemeal’ review of the significant environmental impacts of a project.” Berkeley Keep Jets Over the Bay Committee v. Board of Port Commissioners (2001) 91 Cal.App.4th 1344, 1358.  Agencies cannot allow “environmental considerations [to] become submerged by chopping a large project into many little ones—each with a minimal potential impact on the environment—which cumulatively may have disastrous consequences.” Bozung v. Local Agency Formation Com (Cal. 1975) 13 Cal.3d 263, 284 (superseded by statute on other grounds).

The California Supreme Court set forth a piecemealing test in Laurel Heights Improvement Assn. v. Regents of University of California (Cal. 1988) 47 Cal.3d 376. “We hold that an EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.” Laurel Heights, 47 Cal.3d 376, 396.

There may be improper piecemealing when the reviewed project legally compels or presumes completion of another action.  (Nelson v. County of Kern (2010) 190 Cal.App.4th 252, 272 [When reviewing a reclamation plan, the County should have included mining operations that necessitated it];  San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 732 [32 Cal.Rptr.2d 704] [EIR for residential development should have included sewer expansion that was a “crucial element” of development].

Here, the cleanup and the mine reopening application are part of one project requiring a single EIR. The same proponent, Rise Gold, dba Rise Grass Valley (RGV), sponsored the RAP and is also the applicant for the mining permit. The completion of the RAP is a prerequisite to the mine reopening, and the DEIR “presumes” the approval and completion of the RAP.  The County has used the separate RAP review not only as a basis to disregard the wetlands and other biological resources at the Centennial site, but also as a tactic to justify using a hypothetical future “adjusted baseline” in the DEIR to avoid any assessment of the true environmental impacts of the mine.

The cleanup has been treated as a separate project even though it is on the same property as the Mine Project, with the same aquatic resources and environmental issues, and despite the fact that the mine cannot be reopened and operated without the cleanup.

Instead, the DEIR conveniently wipes the wetlands off the map. See, for example, DEIR Chapter 4.4 Biological Resources page 4.4-12, Figure C “IMM Project Baseline after DTSC Cleanup” which includes a blank 28-acre area labeled “Clean-up Area – DTSC Project.” (Attachment “B”)

The separation of the review of the cleanup from the mine project has enabled the County, with the aid of the DTSC, to attempt to evade any meaningful evaluation of the cumulative environmental impacts of the cleanup and the mine on the wetlands, riparian areas, and other important natural resources of the Centennial Site.

The fact that these two environmental reviews are taking place in tandem has obscured the impacts of the mine on aquatic and other biological resources at the Centennial site. The DEIR reflects the fundamental defects of this process; it omits any assessment of major environmental impacts on the Centennial site.

The results of this fragmented process include a DEIR that denies the existence of any protected wetlands and riparian areas at the Centennial site, premised on a flawed draft RAP that has not been approved.

Indeed, if the DEIR and RAP are approved in their current forms, the protected Centennial aquatic resources will be destroyed without any evaluation of environmental impacts. This is a textbook case demonstrating why  CEQA policy prohibits “piecemeal” review. The Centennial Site and the Mine project are a single “project” and must be reviewed as such under CEQA. See Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 1222.

• The County Improperly defers to DTSC’s review of the cleanup as proposed in Rise Gold’s Remedial Action Plan (RAP) in its MND.

Instead preparing its own EIR for the cleanup (as part of this DEIR), the County is deferring to the DTSC’s use of a Mitigated Negative Declaration (“MND”) process to review the cleanup plan. This amounts to splitting the analysis of the IMM project’s environmental impacts across two types of environmental review documents, which is prohibited by CEQA.

The California Court of Appeals in Farmland Protection Alliance v. County of Yolo 71 Cal. App. 5^th 300 (2021) reaffirmed that “‘once evidence is presented that a project might have a substantial impact on the environment — in any area — the lead agency must proceed to prepare an environmental impact report ‘for the proposed project.’ ” (Citing Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372.)

An MND is appropriate only if there is no substantial evidence that a project might have a significant effect on the environment. (Pub. Res. Code Section 21064.5). Here, there is clearly substantial, indisputable evidence that the mine project “might have a significant effect on the environment.” One specific example is the cleanup’s environmental impact on the Centennial site wetlands and streams. This substantial evidence was presented during the  DTSC process, and in the DEIR (including Appendices) itself.

The June 19, 2020, Technical Memorandum for Centennial Industrial Site: Remedial Action Plan Project – Biological Resources Impact Assessment submitted as part of the DTSC MND review shows that 4.35 acres of the 4.37 acres of mapped wetlands and .19 acres of the .6 acres of mapped streams would be “impacted” by the cleanup project (See p. 7, Tables 3.0 and 4.0 of the Technical Memorandum).  At page 13, it is made clear that the wetlands will cease to exist: “Disturbance within the Centennial Industrial Site from the implementation of the RAP Project is estimated to fill a maximum of 4.35 acres of mapped wetlands and 0.19 acres of intermittent and ephemeral streams within the Centennial Industrial Site.”

Thus, the plan is to dredge and fill essentially all the wetlands and almost 30% of the mapped streams on the property. These impacts clearly constitute “significant environmental impacts.”

Circulated for comment in July, 2021, the DTSC’s draft MND and Draft Final Remedial Action Plan (“RAP”) offered no alternatives that would preserve any of the mapped wetlands on the Centennial site. Instead, the plan is to use over 129,000 cubic yards of soil from these uncontaminated wetlands and streams as clean fill to “cap” and backfill the contaminated areas being remediated.  See green dotted line surrounding wetlands on the “Overview of Proposed Remedial Action” map of the Centennial area (RAP Fig. 5).  (Attachment “C”) This area matches the outline of the “Clean-up Area – DTSC Project” on Attachment B. None of the alternative cleanup plans considered by the RAP called for using offsite sources of “clean fill” so that these wetlands could be preserved. Instead, they are to be destroyed.

Numerous comments on the MND and RAP were submitted, by Redbud CNPS and others, specifically challenging the failure to include the cleanup as part of the DEIR and presenting substantial evidence that the cleanup project as proposed could (and would) have significant environmental impacts in several areas.

Several comments also challenged the failure to consider alternatives that would preserve any portion of the wetlands. The DTSC is still reviewing the draft RAP and consulting with legal counsel, and has not approved the cleanup plan, or selected any of the alternative options described in the draft MND.

Yet the County’s DEIR continues to attempt to sever the cleanup from the mine. The January 29, 2021 DEIR Appendix F-3, “Updated Technical Memorandum for Centennial Industrial Site: Idaho-Maryland Mine Project – Biological Resources Impact Assessment” notes in passing the mapped wetlands and streams at the Centennial Site mentioned above, then dismisses them as part of the so-called “separate” cleanup.

“The environmental cleanup work at the Centennial Industrial Site will be completed under the DTSC voluntary cleanup program and is outside the scope of the IMM Project. It is estimated that the cleanup program will cause a surface disturbance of 26.56 acres … which will incorporate impacts to approximately 4.35 acres of mapped wetlands and 0.19 acres of mapped streams within the Centennial Industrial Site. Therefore, the impacts and associated mitigation of approximately 4.54 acres of wetlands and streams within the Centennial Industrial Site will be incorporated into the DTSC voluntary cleanup project and is outside the scope of the IMM Project.” DEIR Appendix F-3 p. 2.

The above statement makes it clear that there will be no remaining wetlands to protect or mitigate on the Centennial site because the wetlands will no longer exist.  If the plan were to retain any existing wetlands, or to restore or recreate wetlands elsewhere on the site, the DEIR would be required include them in the Updated Technical Memorandum and in the Centennial aquatic resources management plan. It does not.

As noted previously, maps of the on-site Centennial “borrow areas” (the designated sources of the 129,100 cubic yards of “clean fill”) make it clear that the fill will be  taken from wetlands and riparian areas, not from other uncontaminated areas of the site.  (See, e.g., Attachment C)

CEQA requires that options to avoid and minimize adverse impacts to uncontaminated wetlands be considered and adopted, unless the impacts are unavoidable.  Here, the adverse impacts can be avoided  and there are alternatives. Clean fill can be brought in from off-site, or from other areas of the Centennial site, and the uncontaminated wetlands and riparian areas can be preserved.

Neither DTSC’s Final CEQA Initial Study or the DEIR addresses adverse impacts to the wetlands caused by the cleanup, and there is no analysis of how such impacts can be minimized or avoided. Instead, the Centennial Biological Resources Impact Assessment (Nov. 12, 2019) states that  the mine project “would have no impact on mapped wetlands within the Centennial Industrial Site given that any fill or dredge of mapped wetlands … will occur as part of the site remediation project approved through DTSC prior to the development of the IMM Project.” P. 5. (Emphasis added.) In other words, there will be no wetlands left after the cleanup, so the EIR for the mine project is not required to identify, analyze, or mitigate any adverse environmental impacts to wetlands.

Thus, the DEIR itself, as well the DTSC MND for the RAP, includes substantial evidence that many aspects of the Centennial cleanup project mandate preparation of a full DEIR.  As lead agency, the County cannot ignore that evidence.  The County must prepare a new DEIR that analyzes the impacts of the project in its entirety, including both the cleanup and the mine construction and operations.

1. The DEIR Fails to Establish an Appropriate Environmental Baseline

An EIR is required to describe the baseline physical conditions on the project site which the lead agency will use to determine whether an impact is significant. (CEQA Guidelines,           §15125(a)(1)). An EIR is deficient when it “completely fails to properly establish, analyze, and consider an environmental baseline.” See Communities for a Better Environment v. City of Richmond, 184 Cal.App.4th 70, 89 (Cal. Ct. App. 2010). “When an EIR omits relevant baseline environmental information, the agency cannot make an informed assessment of the project’s impacts.” Id.

This project fails to accurately describe the environmental baseline in several ways:     (1) the “adjusted baseline” is speculative, improper, and hides from the public the true environmental impacts to the Centennial site; (2) the DEIR’s use of an adjusted baseline for the Centennial Site obfuscates the actual impacts of both the cleanup and the IMM on plants and habitats at both sites; and (3) the Centennial and Brunswick aquatic and biological resources assessments and management plans do not meet CDFW, CNPS, and other protocols and standards.  For example, botanical and aquatic resources surveys were conducted late in the summer, outside many plant species’ blooming period, and during the dry season when not all species and wetlands would be observable. Accordingly, they cannot be relied on as evidence that all special-status plants and all wetlands on the project site have been identified.

1. The DEIR’s choice of an “adjusted” baseline using only hypothetical future conditions violates CEQA.

The DEIR’s use of a future “adjusted baseline,” set after the cleanup has theoretically been completed, violates CEQA. In general, the baseline for evaluating the environmental impacts of a project is the existing condition of the site. Although a future baseline may be used in addition to the existing conditions when appropriate, the California Supreme Court held in Neighbors for Smart Rail v Exposition Metro Line Construction Authority  (2013) that a DEIR may not substitute a future baseline for an existing baseline unless there is substantial evidence that using an existing conditions baseline would be “misleading” or “uninformative” to the decision maker and the public.

Here, the reverse is true:  it is the use of a solely future baseline that is “misleading” and “uninformative.”  Indeed, the DEIR’s maps of aquatic resources and vegetation communities  on the Centennial site appear to be deliberately misleading: both maps have a large blank area (characterized as 28.25 acres of the 56-acre site) described as “Area Previously Disturbed by DTSC clean-up project (Estimated)” (Emphasis added).  This description creates the false impression that these future conditions are in fact the current conditions.

This “future-only adjusted baseline” is used for five of the 13 environmental issues reviewed, including Biological Resources, without providing any substantial evidence to justify this choice.  The premise of the adjusted baseline is that because the Centennial site “will” be cleaned up at some indeterminate time in the future, the environmental impacts of the mine should be measured as if the cleanup has already been completed.

As explained above, the premise underlying the “adjusted” baseline is unfounded for several reasons. First, the DTSC has not selected a specific cleanup plan, has never approved the proposed RAP, and the RAP may never be approved. Second, the DTSC MND review process is flawed and is based on a segmentation that is improper under CEQA. Third, as held in a 2021 California Court of Appeals case, applying two different types of environmental review (an MND and an EIR) to different portions of the same project violates CEQA. Farmland Protection Alliance v. County of Yolo (2021) 71 Cal. App 5^th 300. The remedy is to start over and review all portions of the project using an EIR.

Based on this improper definition of project which excludes the Centennial cleanup, the DEIR and several of the supporting biological resources assessments and management plans flatly and repeatedly assert that the IMM will have “no impact on the wetlands” at the Centennial site, an assertion which is patently false.

1. The DEIR’s Use of an Adjusted Future Conditions Baseline for the Centennial Site Obfuscates the Project’s Impacts on Plants and Habitats.

Section 4.4.2 of the DEIR states that: “for the purposes of this biological resources analysis, the environmental baseline for the Centennial Industrial Site has been adjusted to be consistent with anticipated site conditions at the completion of the separate Centennial Industrial Site Clean-up Project.  It is estimated that approximately half of the Centennial Industrial Site will consist of graded and revegetated areas under the post-remediation condition.” (DEIR p. 4.4-2).

CEQA Guidelines make clear that “A lead agency may use projected future conditions (beyond the date of project operations) baseline as the sole baseline for analysis only if it demonstrates with substantial evidence that use of existing conditions would be either misleading or without informative value to decision-makers and the public. Use of projected future conditions as the only baseline must be supported by reliable projections based on substantial evidence in the record.” (14 C.C.R. § 15125(a)(2)).

There is no substantial evidence to support the use of a future baseline this case.  The cleanup has not taken place, the wetlands are presently intact, and the intermittent and ephemeral streams still exist. Moreover, as noted above, the draft Remedial Action Plan for the Centennial site has not been approved, and no specific plan has been selected.

The DEIR adjusted baseline relies on  “estimates” of the aquatic resources and vegetation communities that will exist on site once the cleanup is completed, yet the parameters of the estimates are vague:

“[T]he exact acreages of each aquatic resource type cannot be precisely established for the baseline condition given that the baseline has been adjusted to account for the planned remediation efforts that will be conducted under DTSC oversight pursuant to the RAP that has been prepared and publicly reviewed for DTSC approval. Final disturbance acreages to aquatic resources as a result of remediation activities may vary from current estimates. As a result, the disturbance acreages identified herein are conservatively estimated.” (DEIR 4.4-10)

This statement asserts that using the adjusted baseline makes it impossible for the DEIR to provide specific or accurate estimates of amount of each aquatic resource type that will be impacted by the project.

In other words, because the RAP has not been approved, and because no specific cleanup plan has been chosen, it is unknown what remediation “efforts” will be undertaken, or what the effects of those “efforts” will be.

This means that the baseline fails to provide any way to accurately measure the resulting environmental impacts. Accordingly,  the DEIR has chosen a future baseline that is purely hypothetical.

This lack of certainty undermines the purposes of CEQA. By relying on an undefined future baseline, the DEIR fails to properly analyze the project’s potential impacts to wetlands and special status plant species on the Centennial site, among other environmental impacts. Indeed, it is the proposed future baseline, and not the existing conditions, that is misleading and “uninformative” to decision makers and the public.

The future environmental baseline also violates CEQA’s intent and its requirement of public disclosure. “An EIR is an informational document which will inform public agency decision-makers and the public generally of the significant environmental effect of a project, identify possible ways to minimize the significant effects, and describe reasonable alternatives to the project.” (14 C.C.R. § 15121(a)). The public should be given a clear idea of the environmental impacts on the actual environmental setting, not conservative estimates that are subject to change because the DEIR failed at the outset to accurately describe the environmental setting.

This uncertainty is in stark contrast to DEIR Appendix F-1, “Aquatic Resources Delineation of Waters of the United States and State of California” for the Centennial Site, which clearly delineates 4.37 acres of mapped wetlands and .6 acres of streams, including intermittent and ephemeral streams, on the Centennial site. (pp. 5-1 to 5-4)

See also DEIR Appendix F-5, “Centennial Aquatic Resources Management Plan” (“ARMP”).  As noted above in Section III, the plan notes that 4.54 acres of wetlands and streams “inside the area of disturbance for the IMM Project” will be impacted, but that the “impacts and associated mitigation” for these aquatic resources “will be incorporated into the DTSC voluntary cleanup project and is [sic] outside the scope of the IMM.”  Appendix F-5 p. 5-1.

The ARMP goes on to state that “After the environmental cleanup work at the Centennial … Site is complete, … engineered fill  [will be trucked from the Brunswick … Site to the Centennial Site.”  There would be a total surface area disturbance of approximately 44 acres, “including the previously disturbed area from the DTSC cleanup project…” The portion of the disturbance assigned by the DEIR to the IMM Project “would disturb approximately 0.033 acres to mapped streams.”

The DEIR thus proposes mitigation only for this 33/100 of an acre (~1472 sq feet, about the size of a small house) of mapped streams, and no mitigation whatsoever for the 4.54 of wetlands and streams mapped in the Aquatic Resources Delineation.

The use of a future “adjusted baseline” together with the “piecemeal” project description obscures the actual impacts to wetlands and other biological resources on the Centennial Site. It also prevents any meaningful evaluation of those environmental impacts or appropriate mitigations for those impacts. These are all serious violations of CEQA that undermine and obstruct its purposes.

1. The Botanical and Wetland Surveys and Management Plans Do Not Meet CEQA Standards

1. Botanical and Wetland Surveys Were Not Seasonally Appropriate to Identify Plants and Wetlands on the Project Site.

Reconnaissance surveys for this project were done in December 2018, and protocol-level surveys were conducted in July and August 2019. The wetland surveys were done in December, July, 2019, and August 27, 2020. The late-summer surveys fall outside of the blooming periods for many of the special-status plants that have potential to occur on the project site, and at a time that many wetland features would not be evident. Because the surveys were deficient, they may have failed to confirm special-status plants and wetland features that are in fact present on site. Any analysis, conclusions, or mitigation measures for impacts to special-status plants and to wetlands are inaccurate and not based on substantial evidence.

An independent peer review by Madrone Ecological Consulting found many deficiencies in the biological aquatic resources assessments and management plans.

These include failure to conduct appropriately timed surveys for special status plants at both the Centennial and Brunswick sites. The Madrone Peer Review noted that surveys were only conducted in July and Aug 2019. Botanical surveys were conducted for the Centennial Industrial Site on July 1, 10 and 14, 2019, and for the Brunswick Area, on July 1, 14, and August 16, 2019.

California Department of Fish and Wildlife (CDFW) “Protocols for Surveying and Evaluating Impacts to Special Status Native Plant Populations and Sensitive Natural Communities” require that botanical field surveys be conducted in a manner that maximizes the likelihood of locating special status plants and sensitive natural communities that may be present.  Surveys must be conducted at the times of year when plants will be both “evident” and “identifiable,” usually during flowering season.

The Protocols also provide that:

*Surveys are to be spaced throughout the growing season to accurately determine what plants exist in the project area, which usually involves multiple visits to the project area in early, middle and late season.

*When special status plants are known to occur in the types of habitat present in a project area, reference sites are to be observed to determine if the special status plants are identifiable at the times of year the surveys take place.

*Additional botanical field surveys may be necessary [if], for example, … surveys were not conducted at the appropriate time of year; were not conducted during a sufficient number of years to detect plants that are not evident and identifiable every year [e.g., fritillaries]; or if fire history or other conditions have changed since the last botanical survey was conducted.

*Because adverse conditions from yearly weather patterns may prevent botanical field surveyors from finding or accurately identifying some special status plats in a given year, all adverse conditions should be discussed in the survey report.

The Madrone Peer Review concluded that the field surveys for several potential special-status species were not conducted in accordance with the CDFW Special-Status Plant Survey Protocols in several respects:

1. “Surveys were not conducted during the identifiable season of all target species. Outside of the “identifiable season” plant species may no longer be visible … may be less evident (easily overlooked), and are often not possible to identify to a level necessary to determine rarity.”

The only surveys were done in July and August 2019, which is later than the blooming season of several flowers.  Citing data from the California Consortium of Herbaria, the Madrone review noted that  Stebbins’ morning glory, Butte County fritillary, and Cedar Crest popcornflower have never been documented as blooming as late as July or August, and thus they would not have been both evident and identifiable at the time the surveys were conducted.  [ “Stebbins’ morning glory is almost always documented in May or early June, Butte County fritillary is almost always documented in March or April, and Cedar Crest popcorn flower has only been collected in April or May.” Madrone Report p. 4.]

The Madrone Review also identified Red Hills soaproot, finger rush, and dubious pea as plants typically  identifiable earlier than July.

The Review concluded that “Surveys were not conducted during the identifiable season of all target species” and recommended   that “full, protocol-level surveys for [six] plant species be conducted.” It appears that no such  additional surveys were conducted.

1. The Madrone Review also noted that “The CDFW survey protocol requires site visits for special-status plants with potential to occur on a project site … [yet] Reference visits were conducted for only one of the target plant species. … Without reference site visits, it is hard to know if the target plants were identifiable when the surveys were conducted.” It appears that no additional reference site visits were conducted.

5. Citing CDFW Protocol requirements that surveys and plant lists be comprehensive, the Madrone Review identified a number of plant species that had been omitted from the pant list. In addition, the Review observed that no species from the genera Sidalcea and Fritillaria. The Review expressed concern regarding these omissions, because species of these two genera (Sidalcea and Fritillaria) appear on the list of special-status plants with potential to occur within the Study Area.  The Review expressed concerns that the Biological Resources Reports failed to identify and document these genera, and recommend that an additional special-status plant survey be conducted during the blooming period for the special status species in these genera.” Madrone Review p. 5. It appears that no additional special-status plant surveys for these species were conducted.

1. The Madrone Review noted that CDFW Protocols require that special-status plant surveys include a discussion of sensitive natural communities, and that the biological assessments did not include any discussion of sensitive natural communities. Madrone recommended that sensitive natural communities be discussed.” It appears that no discussion of sensitive natural communities was added to the biological resources assessments.

In addition to these observations of the Madrone review, a wildfire in August, 2021, burned substantial portions of the Centennial Site; this fire triggered the “changed conditions” provisions of the CDFW.  Some of the special status plants present or potentially present on the Centennial site are fire adapted. Such adaptations include seeds that germinate after fire, or basal resprouting of burned plants.  Biological surveys were required  after the fire to locate new post-fire seedlings.

See Effects of a firebreak on plants and wildlife at Pine Hill, a biodiversity hotspot, J.M. Klip, M.R. Caldwell, D.R. Ayres, and V. Meyer California Fish and Wildlife, Fire Special Issue, pp.  58-81 (2020) (Pine Hill Flannelbush seeds are cued to germinate by fire’s heat; over 1,100 Pine Hill Flannelbush seedlings were found within 13 months of 1983 experimental fire, with no additional seedlings sighted until 2020 when several piles of vegetation were burned a year earlier in 2019.)

See also Effects of Fire on the Demography of Three Rare Chaparral Plants (Calystegia stebbinsii [and two others]), Conference paper at Symposium of the Botanical Society of America (2009)(D.R. Ayres) (in plot that had no Calystegia stebbinsii [Stebbins’ morning glory] before fire, C. stebbinsii germinated profusely the first spring after the fire, and began blooming heavily three years after fire).

Accordingly, a new survey is necessary to determine the effects of the fire on the existing Pine Hill Flannelbush and on seedbanks that may contain dormant C. stebbinsii seeds at the Centennial site.  An additional survey needs to be done for post-fire seedlings of the protected rare C. stebbinsii.  In addition, the Management Plan for the Pine Hill Flannelbush requires updating to determine which if any of the Pine Hill Flannelbush were killed or damaged by the fire; whether any resprouted, and whether there are new seedlings that need to be protected and incorporated into the management plan.

The DEIR does not indicate that any post-fire surveys have been done; early spring of 2022 would be the best time to initiate such surveys.

2. Mitigation Measures Improperly Defer Plant Surveys

Deferring surveys is improper under CEQA for numerous reasons. Deferring environmental assessment to a future date is contrary to the “policy of CEQA which requires environmental review at the earliest feasible stage in the planning process.” Sundstrom v. County of Mendocino, 202 Cal.App.3d 296, 307 (Cal. Ct. App. 1988). “Environmental problems should be considered at a point in the planning process ‘where genuine flexibility remains.’ . . . A study conducted after approval of a project will inevitably have a diminished influence on decision making. Even if the study is subject to administrative approval, it is analogous to the sort of post hoc rationalization of agency actions that has been repeatedly condemned in decisions construing CEQA.” Id. (internal quotations and citations omitted).

CEQA also gives the public the right to review projects before they are approved and provide public comment. The public is entitled to be informed of the results of plant surveys and how the project will impact plants and vegetation present on the project site. Delaying surveys until some vague, undefined time in the future after the project has been approved is contrary to these principles. Finally, delaying surveys until immediately prior to construction can make avoidance of special-status plants impracticable. If species are discovered during the survey that were not accounted for in the project design, last minute changes to project design are often prohibitively expensive, or impossible altogether.

The DEIR should not rely on preconstruction surveys to make up for the late-season or botanical surveys conducted in 2019 or for the lack of post-fire surveys in 2022.

Conclusion

For the reasons described above, we respectfully request that the DEIR be redone, and that it include a review of the entire IMM project and cleanup, so that a full and accurate assessment of the true environmental impacts of this project can be completed and re-issued for public review.

Sincerely,

Isabella Langone                                                         Jeanne Wilson

Conservation Program Manager                                Co-Chair, Conservation Advocacy

California Native Plant Society                                   Redbud Chapter, CNPS

ilangone@cnps.org                                                     jxwmotes@icloud.com