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MR Wolfe & Associates file comment letter on the Sausalito 2040 General Plan Update and DEIR

On Wednesday, August 5, 2020, attorney Mark Wolfe of MR Wolfe & Associates filed a formal comment letter on behalf of Community Venture Partners, Inc., and residents of the City of Sausalito, in response to the to the solicitation for public comments by the City, regarding the Draft Sausalito 2040 General Plan Update and its Draft Environmental Impact Report.


To: City of Sausalito, Attn: Lilly Whalen, Community Development Director 420 Litho Street, Sausalito, CA 94965 CDD@sausalito.gov

Re:Draft Environmental Impact Report for City of Sausalito 2040 General Plan

Dear Ms. Whalen:

On behalf of Community Venture Partners, Inc. (CVP), please accept the following comments on the Draft Environmental Impact Report (Draft EIR) for the Sausalito 2040 General Plan update. By way of introduction, CVP is a Marin County-based 501(c)(3) non-profit organization dedicated to assisting community-based initiatives that support social equity, environmental sustainability, and government transparency. CVP’s officers, board members, and/or donors use, frequent, and enjoy the facilities and resources of Sausalito’s Marinship area and are potentially adversely affected by the policies and programs proposed in the Sausalito 2040 General Plan Update.

We have reviewed the Draft EIR and public review draft of the 2040 General Plan in order to evaluate their consistency with the requirements of the California Environmental Quality Act (CEQA), Public Resources Code section 21000 et seq., as well as the State Planning and Zoning Law, Government Code section 65000 et seq. As part of our review, we engaged Laurel Collins of the consulting firm Watershed Sciences to review and comment on the both documents’ consideration of the potential future consequences of climate change-induced sea level rise and increased land subsidence on the buildout scenarios envisioned by the General Plan, with a focus on the Marinship. Ms. Collins is a geomorphologist with over 40 years of experience in riverine, tidal wetland, and hillslope geomorphic processes, hydrology, and landslide analysis, having consulted for numerous federal, state, and local agencies including Marin County Public Works, Marin County Flood Control and Water Conservation District, U.S. Geological Survey, and Lawrence Berkeley Laboratory. Her comments and qualifications have been submitted to the City under separate cover, and are incorporated by reference into this letter.

Introduction

The EIR states that it is a Program EIR prepared in accordance with Section 15168 of the CEQA Guidelines, Title 14 Cal.Code.Regs. § 15000 et seq. (hereafter “Guidelines”). A Program EIR is appropriate for broad planning actions such as the adoption of a general plan, particularly where site-specific, project-level information is not available or may not be feasibly obtained. CEQA is clear, however, that the choice to prepare a Program EIR does not excuse a lead agency from making a good- faith effort to investigate and disclose all it reasonably can, nor does it allow the City here to defer an analysis of reasonably foreseeable significant environmental impacts to a later stage of review to avoid addressing those impacts in a first-tier EIR.

The Draft EIR for the 2040 General Plan is, frankly, striking in its omission of actual disclosure and analysis of foreseeable environmental impacts that will result from the future development it both envisions and enables. Repeatedly throughout the document, the Draft EIR simply asserts that because future development projects will comply with applicable environmental laws and regulations, there necessarily will be no significant impacts resulting from physical buildout, and that no specific mitigation measures are necessary to formulate or implement before the Plan is adopted. While it may be reasonable to a limited extent to presume that future projects will receive some measure of scrutiny under CEQA, or will be required to adhere to governing development standards, it is not reasonable to declare categorically that this will occur in all cases, so as to avoid substantive, meaningful, present analysis of potential impacts.

As this letter and the accompanying review by Ms. Collins will explain, the Draft EIR’s summary conclusion that all impacts from General Plan buildout will be adequately mitigated simply by virtue of compliance with applicable laws, ordinances, and regulations is not supportable. This is particularly the case in the context of the acknowledged foreseeability of inundation of low lying areas due to sea level rise and land subsidence, including within the Marinship, together with other foreseeable seismic and geologic hazards. While the 2040 General Plan acknowledges the need for future studies to gauge these risks, and to devise physical solutions to mitigate them, it improperly defers this process to unspecified future periods. Both as a matter of law under CEQA and as a matter of sound planning policy, the City should complete the necessary studies now, or as soon as practicable, so that it may devise General Plan policies and programs that implement their recommendations, or at the very least factor their findings into future buildout scenarios, taking into account future infrastructure needs. Until this occurs, the Draft EIR cannot comply with CEQA’s requirements.

Standards of Adequacy for a Program EIR under CEQA

When a lead agency is preparing an EIR for a broad planning action such as adoption of a general plan, development of detailed, site-specific information may not be feasible. The City may to some extent leave a detailed analysis to later EIRs prepared for projects that implement the plan or policy, e.g., for the future zoning code update and/or for individual development projects. Guidelines, § 15152(c). See, e.g., Chaparral Greens v City of Chula Vista (1996) 50 Cal.App.4th 1134; Koster v County of San Joaquin (1996) 47 Cal.App.4th 29. This approach does not, however, permit the City to defer an analysis of reasonably foreseeable significant environmental impacts to a later stage of review to avoid addressing those impacts in a first-tier EIR. Guidelines, §15152(b). While a program EIR allows the lead agency to defer analysis of some of the details of later phases of long-term projects until they come up for approval, CEQA’s information disclosure requirements are not satisfied by simply asserting that analysis will be undertaken at some point in the future. Vineyard Area Citizens for Responsible Growth v City of Rancho Cordova (2007) 40 Cal.4th 412, 431; Santa Clarita Org. for Planning the Env’t v County of Los Angeles (2003) 106 Cal.App.4th 715, 723.

A potentially significant environmental impact is ripe for evaluation in a Program EIR when it is a “reasonably foreseeable consequence of the action proposed for approval,” and the agency has “sufficient reliable data to permit preparation of a meaningful and accurate report on the impact.” Los Angeles Unified Sch. Dist. v City of Los Angeles (1997) 58 Cal.App.4th 1019, 1028. See Vineyard Area Citizens, 40 Cal.4th at 431 (analysis of future water sources for large community plan that would be developed over several decades and environmental effects of exploiting those water sources are not type of information that may be deferred for later analysis). See also Stanislaus Natural Heritage Project v County of Stanislaus (1996) 48 Cal.App.4th 182 (analysis of future water sources to supply development under specific plan cannot be deferred for later analysis).

A program EIR that is prepared to support approval of an overall program, and to simplify later environmental review as activities within the program are considered, may focus on program-wide issues and leave to later EIRs detailed analysis of issues specific to particular program components. Guidelines, §15168(d)(2), (3). See e.g., City of Hayward v Board of Trustees of Cal. State Univ. (2015) 242 Cal.App.4th 833, 849; Town of Atherton v California High-Speed Rail Auth. (2014) 228 Cal.App.4th 314, 345. By contrast, a program EIR that is designed to allow approval activities within the program without the need for further CEQA review should provide description of the activities that would implement the program and a specific and comprehensive evaluation of the program's foreseeable environmental impacts, so that later activities can be approved on the basis of the program EIR. Guidelines, §15168(c)(1)–(2), (5); Center for Biological Diversity v Department of Fish & Wildlife (2015) 234 Cal.App.4th 214, 237. Program EIRs may also combine the two approaches, examining the program as a whole at a programmatic level of detail, while also examining some activities within the program at a project-specific level of detail. See, e.g., Mission Bay Alliance v Office of Community Inv. & Infrastructure (2016) 6 Cal.App.5th 160.

As with any EIR, a program EIR must provide decision-makers with “sufficient analysis to intelligently consider the environmental consequences of the project,” and designating the EIR as a program EIR in itself does not decrease the level of analysis otherwise required. Cleveland Nat’l Forest Found. v San Diego Ass’n of Gov'ts (2017) 17 Cal.App.5th 413, 426. A lead agency preparing a program EIR must disclose what it reasonably can, and any determinations that it is not feasible to provide specific information must be supported by substantial evidence. Id. at 440 (rejecting air quality baseline discussion and impact analysis because substantial evidence did not support agency decision to omit more detailed analysis). See generally Center for Biological Diversity v Department of Conserv. (2019) 36 Cal.App.5th 210, 231,citing Sierra Club v County of Fresno (2018) 6 Cal.5th 502, 516, and stating that a program EIR must include enough detail “to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.”

A Program EIR may include mitigation measures that address broad impacts at a programmatic level; because project-specific specific mitigation measures often cannot be formulated early in the planning process, a Program EIR may also include policies, standards, or performance criteria governing mitigation measures to be included in later environmental documents. See Koster v County of San Joaquin (1996) 47 Cal.App.4th 29; Rio Vista Farm Bureau Ctr. v County of Solano (1992) 5 Cal.App.4th 351, 377. See also Guidelines, §15126.4(a)(2) (in the case of a plan, policy, or regulation, mitigation measures can be incorporated into the plan, policy, regulation, or project design); Sacramento Old City Ass’n v City Council (1991) 229 Cal.App.3d 1011, 1023. Although the Program EIR approach may allow the details of mitigation measures to be deferred, it does not excuse a failure to adopt adequate policies, standards, or performance criteria defining those measures. California Clean Energy Comm. v City of Woodland (2014) 225 Cal.App.4th 173, 201.

Note that when a Program EIR does not provide a detailed evaluation of project-level impacts, EIRs on subsequent projects will have to provide an independent analysis of the significant environmental impacts specific to those later projects. See In re Bay-Delta Programmatic Envt'l Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143, 1173.

The 2040 General Plan Draft EIR Omits Necessary Impact Analysis

Here, the EIR is notable for its nearly complete lack of any analysis whatsoever of potential impacts from buildout under the 2040 General Plan. The EIR’s seems to have applied a cookie-cutter approach for each topic, reciting the applicable laws, regulations, and ordinances, noting the potential for a significant impact, and then simply declaring that any impacts would be mitigated to less-than- significant levels simply by complying the applicable laws, ordinances or regulations.

The EIR does acknowledge its limited analysis to some extent, stating:

"This Draft EIR will be used to evaluate subsequent projects and activities under the proposed 2040 General Plan. This Draft EIR is intended to provide the information and environmental analysis necessary to assist public agency decision-makers in considering approval of the proposed 2040 General Plan, but not to the level of detail to consider approval of subsequent development projects that may occur after adoption of the proposed 2040 General Plan."

However it goes on to state:

"Additional environmental review under CEQA may be required for subsequent projects and would be generally based on the subsequent project’s consistency with the proposed 2040 General Plan and the analysis in this Draft EIR, as required under CEQA. It may also be determined that some future projects or infrastructure improvements may be exempt from environmental review. When individual subsequent projects or activities are proposed under the proposed 2040 General Plan, the lead agency that would approve and/or implement the individual project would examine the projects or activities to determine whether their effects were adequately analyzed in this Program EIR (CEQA Guidelines § 15168." Draft EIR, p. 1-2, [underline added]

It is axiomatic under CEQA’s tiering provisions that the less analysis is undertaken at the program level, the more will be required at the project level. The EIR should acknowledge this expressly. Stating that additional review “may” be required at the project level, while invoking the possibility that future projects may be CEQA-exempt and thus evade environmental review, does not assure the public that the City has committed to taking the requisite “hard look” at the program’s environmental effects.

The City should explicitly acknowledge that the Draft EIR contains no detailed analysis whatsoever that could be relied upon for future project-level environmental review, and correspondingly commit to detailed review of individual projects as they are brought forward.

Project Description

The Draft EIR projects growth under General Plan buildout in terms of additional number of housing units for residential uses, and additional square footage for non-residential uses. Table 2-2, 2-3. The Draft EIR also includes the land use map from the General Plan. What is missing is information showing where precisely in the City the new development may or will occur.

Therefore:

The Draft EIR and 2040 General Plan project 146,124 new square feet for industrial uses and 340,061 for waterfront uses. All or most presumably will be within the Marinship. “Industrial” is an extremely broad category of land use that encompasses a variety of different enterprises with different types of magnitudes of potential environmental impact. See Table 10.26-1 in Sausalito’s Zoning Ordinance. Some industrial uses generate more air pollution than others, while others employ more people per square foot, increasing VMT.

The Draft EIR’s findings that all impacts under General Plan buildout will be mitigate to less-than-significant levels depends in great part on the assumption that future projects will require discretionary approvals from the City that in turn will trigger environmental review under CEQA. However, as the Draft EIR acknowledges (p. 1….), some future projects may be exempt from CEQA based one or more statutory or categorical exemptions. Thus, future environmentally impactful projects that the Draft EIR assumes will be subject to mitigation requirements in fact may not be.

Air Quality

The Draft EIR acknowledges that buildout under the General Plan could expose sensitive receptors to unhealthy concentrations of air pollutant emissions. The Draft EIR states:

"Sensitive population groups include children, the elderly, the acutely ill, and the chronically ill, especially those with cardiorespiratory diseases. Residential areas are also considered sensitive receptors to air pollution because residents (including children and the elderly) tend to be at home for extended periods of time, resulting in sustained exposure to any pollutants present. Other sensitive receptors include retirement facilities, hospitals, and schools." Draft EIR at p. 3.2-15

The Draft EIR relies on CalEEMod to estimate air pollutant emissions for the project buildout year 2040. The modeling files in Appendix B indicate that the City used the model’s “Industrial Park” land use category to calculate emissions from all industrial sources; and “Strip Mall” to calculate commercial emissions. According to documentation developed by the California Air Pollution Control Officers Association (CAPCOA), CalEEMod incorporates land use categories “that are mainly based on ITE land use classifications.”[1] ITE’s Trip Generation Manual (10th Ed.) includes eleven other industrial land use classifications in addition to “Industrial Park,” including “General Light Industrial,” “Warehousing,” and “Specialty Trade Contractor.” See Land Use Codes 100-199. For commercial/retail uses, the ITE Manual includes over 40 distinct land use classifications. See Land Use Codes 800- 899.

Biological Resources

The Draft EIR reports that five special-status plant species and six special status animal species have been recorded to occur within the Sausalito Planning Area, namely two bird species, one fish species, two invertebrate species, and one mammal species. The Draft EIR states that subsequent development under the proposed 2040 General Plan could result in the direct/indirect loss or indirect disturbance of special- status plant or animal species or their habitats that are known to occur, or have potential to occur, in the region.

Soils/Geotechnical Impacts

The DEIR states:

“The Landslide Task Force made recommendations to the Sausalito City Council regarding unstable geologic units, some of which have been incorporated into the recommendations was to map local geology and geologic hazards for both slope stability and seismic hazards. The hazard maps would assist the city in identifying public drainage systems that need updates and repairs. The maps are also likely to identify open space areas upslope of city infrastructure or residential structures that have a potential for failure. Such areas could then be prioritized for stabilization measures to minimize or eliminate future failures. Other task force recommendations included creating a mechanism for residents to report emerging landslide risks, the development of new building and remodeling guidelines, and the formation of a GHAD. Draft EIR," p. 3.6- 14.

From a planning policy standpoint, it is critical to understand the locations and relative risk levels of geologic hazards within the City if future development is to proceed safely. The referenced hazards map should therefore be developed and incorporated into the General Plan. The Draft EIR has provided no explanation or justification for its omission.

The Draft EIR further states that “[t]he proposed 2040 General Plan also includes programs to delineate geologic hazards and mitigation plans for those hazards.” Draft EIR, p. 3.6-14.

The Draft EIR further states that: “[t]he proposed 2040 General Plan includes policies and programs to map areas with high susceptibility to erosion and protect water quality, which also address soil erosion. Program HS-1.2.7 requires the city to develop a citywide GIS layer that maps the city’s drainage and erosion hot spots related to geologic weathering.” Draft EIR, p. 3.6-15.

Greenhouse Gas Emissions

The Draft EIR concludes that buildout under the 2040 General Plan would have no significant impacts with respect to greenhouse gas (GHG) emissions because future development would comply with the requirements of the proposed General Plan itself, applicable BAAQMD regulations, the City’s Climate Action Plan, and the Sausalito Municipal Code, that aim to reduce GHG emissions levels in the Planning Area. Draft EIR, p. 3.7-31. The Draft EIR specifically references several programs and policies contained in the 2040 General Plan’s Environmental Quality Element and Sustainability Element that are crafted for this purpose. Draft EIR, pp. 3.7-13 – 3.7-19.

Sea Level Rise & Subsidence

The 2040 General Plan’s Sustainability Element states:

“BayWAVE projects that Marin County could experience 10 inches of sea level rise by 2030, 20 inches by 2050, and 60 inches by 2100. Sea level rise will exacerbate the impacts of other coastal hazards, such as storms, flooding, and erosion. [¶] BayWAVE’s estimates show Sausalito with as much as 149 acres, or 11 percent of the City’s land area, exposed by the end of the century. This would include most of the industrial land in Sausalito, which could lead to serious financial problems – particularly as many of those industrial sites may require expensive cleanup in order to prevent contaminants from entering Richardson Bay. Sea level rise could be understood as an existential issue for Sausalito.” HS-5.

The Health, Safety, and Community Resilience Element similarly provides:

“Subsidence is an issue throughout the city, but it is of concern in the Marinship which is sinking at a rate of 0.5 to 0.75 inches per year according to the Waterfront and Marinship Committee’s 2010 Sausalito Waterfront and Marinship Vision. Subsidence can lead to groundwater intrusion and intensify flooding and the effects of sea level rise, making development and infrastructure in these areas more vulnerable.” HS-18.

The impacts of future development in the Marinship against this backdrop of inevitable sea level rise and ground subsidence is of paramount importance to Community Venture Partners, Mr. Flavin, Ms. Zuch, and numerous other business owners and operators that will be most directly affected. The Marinship is, as the General Plan acknowledges, the City’s principal employment engine and a major source of tax revenue.

To its credit, the Draft EIR underscores the concern of sea level rise by including the following as express Project objectives: [1] “Safeguard the natural environment and ensure community health, safety, and resilience, including addressing the inherent risks of climate change, sea level rise, and subsidence;” and [2] “Seek innovative and sustainable solutions to sea level rise in collaboration with County and regional agencies and innovators, to sustain the quality of life in Sausalito and its active waterfront uses.” Draft EIR, p. 2-4.

However, while it is of course reasonably foreseeable that sea level rise will by 2040 require “innovative and sustainable solutions” in the form of physical infrastructure projects to prevent inundation of waterfront areas, the financial and technical feasibility of such projects is an open question that the General Plan and Draft EIR do not address.

As Ms. Collins explains in her letter, the Draft EIR does not evaluate how the altered environment resulting from sea level rise and subsidence will affect future existing infrastructure, buildings, and safety of people in the Marinship, nor does it identity particular mitigation strategies that will be necessary to reduce potential hazard. Neither does the Draft EIR evaluate the potentially major environmental impacts of the mitigation strategies themselves, which will almost take the form of large-scale infrastructure projects. See Guidelines, §15126.4(a)(1)(D); Stevens v City of Glendale (1981) 125 Cal.App.3d 986.

Future increased development will require continued and increased large-scale mitigation to make it a viable environment for existing and proposed development. Sea Level Rise accommodation, subsidence remediation, and other necessary infrastructure repair/relocation projects are therefore also plainly foreseeable but have not been evaluated in the Draft EIR.

Although the General Plan includes programs and policies calling for future studies to “monitor the rise in sea level” (Program HS-1.9.1), and to “identif[y] local improvements in low lying areas to minimize current effects of sea level rise” (Program HS-1.9.2), this is not adequate from a current planning perspective. As Ms. Collins notes, even if the precise details of necessary accommodation projects may not be known at this point, the Draft EIR can identify the category or types of projects that will likely be required (sea walls, levees, dredge/fill etc.), and also the most likely locations of the projects based on projected flood areas.

In the absence of evidence and analysis of both the financial feasibility and the technical efficacy of such “local improvements,” it is improper for the City to adopt a General Plan that assumes, without evidentiary basis, that buildout can be protected from the impacts of sea level rise. At the very least, the Draft EIR should disclose to Sausalito residents generally, and the Marinship community in particular, what kinds of major sea level rise accommodation projects they can expect to endure over the next two decades.

Ms. Collins identifies dredging, replacement of deteriorated storm drains and sewers, relocation of underground utilities, construction of levees and pump systems, and reconfiguration of evacuation routes during flood events. All such projects will create both temporary and permanent environmental impacts that are reasonably foreseeable and that should therefore be discussed in the Draft EIR.

Accordingly:

The General Plan also vaguely calls for the City to “to support studies by appropriate State agencies which monitor the rise in sea level,” and to “consider initiating and implementing a localized seas level rise study that identifies local improvements in low lying areas to minimize current effects of sea level rise. (Program HS-1.9.1, and 1.9.2). Studying an environmental impact does not reduce or avoid it. Thus, such studies must be part of the Draft EIR’s analysis of impacts, and not characterized as mitigation for impacts that may be identified in the future.

Future studies of potential impacts are permissible only when coupled with mitigation measures designed to address impacts identified by the study. See Defend the Bay v City of Irvine (2004) 119 Cal.App.4th 1261, 1275; Save Panoche Valley v San Benito County (2013) 217 Cal.App.4th 503, 524. Since that cannot occur at this time, these studies should be undertaken as soon as practicable, and their results incorporated into the General Plan before it is adopted. In their absence, the General Plan’s buildout assumptions with respect to low lying areas are effectively meaningless. Thus:

The General Plan’s Waterfront Element includes the Policy W-4.2: Bay Waters. Preserve and enhance the wetlands, open waters, and ecosystem of Richardson’s and San Francisco Bays and utilize these landscapes for sea level rise mitigation.

The 2040 General Plan’s Waterfront Element in turn provides:

“The City will implement measures from the 2015 Climate Action Plan, which includes greenhouse gas emissions reduction strategies as well as strategies to adapt to climate change. Sea level rise adaptation will be incorporated into the Capital Improvement Plan and design standards by, focusing on the communities which will realize the impacts of sea level rise the soonest."

and:

“Marinship Waterfront. Sea level rise infrastructure improvements include both green (such as stormwater basins in MLK Park and daylighting of Willow Creek) and traditional infrastructure projects.”

Please identify:

Conclusion

For the above reasons, the Draft EIR in its current form does not fulfill the information disclosure mandates of CEQA, even for a Program EIR. Buildout under the 2040 General Plan will itself generate potentially significant environmental impacts that the Draft EIR does not adequately evaluate or mitigate. More gravely, urban development in Sausalito, now and in the future, faces substantial risks from sea level rise, ground subsidence, and other foreseeable geologic and geomorphic hazards. This is especially true in the Marinship. It is therefore surprising and disappointing that the City is poised to adopt a General Plan to govern development over the next 20 years that only vaguely commits to studying these problems in the future to some undefined extent.

While there are of course several unknowns about the timing, extent, and magnitude of future sea level rise in Sausalito, a great volume of technical and scientific information exists today, as Ms. Collins’s letter documents. The City has simply chosen not to include or consider it in the Draft EIR. From both a land use planning policy perspective, and a public safety perspective, this is folly.

The City should therefore undertake a substantial overhaul of the 2040 General Plan and Draft EIR to include a thorough, meaningful disclosure and evaluation of what will foreseeably be necessary to protect existing and future development from the impacts of sea level rise, subsidence, and other geologic risks. The City should then release this information for further public review and comment in a revised Draft EIR. We respectfully submit that the 2040 General Plan cannot be adopted in any form unless and until this occurs.

Thank you for your consideration of these comments.

Most sincerely,

M. R. WOLFE & ASSOCIATES, P.C

Mark R. Wolfe, On behalf of Community Venture Partners, John Flavin and Patricia Zuch


[1] CAPCOA (2013). CalEEMod, Appx. A (Calculation Details), p. 4.