Monterey General Plan Update

Sierra Club Comments

January 2008

These are the Chapter's comments on the latest available version of General Plan EIR. We have been waiting for the county to release the next version of the EIR, which is due out this August.

Ventana Chapter Sierra Club Additional Comments on GPU/4 & FEIR

Comments Submitted to Board of Supervisors for January 3, 2007 Hearing

The Ventana Chapter Sierra Club has participated extensively for over seven years in reviewing and commenting upon each of Monterey County’s draft General Plan Updates. We are also a signatory group to the comments submitted by LandWatch and other resident and environmental organizations. In a ddition, we submit the following comments.

GPU4 Fails to Consider Biological Impacts of GPU4’s Slope and Growth Policies

GPU4 and the EIR have not explained, considered, analyzed, nor mitigated significant impacts to important biological resources that would occur county-wide if GPU4 is implemented. As is clear from the data on the habitat table and map, attached, Monterey County is home to an incredible, and vulnerable, array of biological resources. These resources will be even more compromised by GPU4 policies dealing with steep slope development and cultivation, and by GPU4’s allowance of development throughout the rural areas.

Development throughout rural lands: Notwithstanding GPU4’s repeated claims that development is focused in Community Areas and Rural Centers, GPU4’s policies clearly allow growth throughout the lands between Rural Centers and Community Areas, on agricultural and rangeland, and on pristine steep slopes. The FEIR comment letter and expert testimony submitted by LandWatch and other organizations including the Sierra Club document these GPU4 policies. Such policies will result in significant development and conversion of the environmentally-rich rural lands and steep slopes of Monterey County.

Cultivation on slopes: GPU/4 proposes to eliminate existing county ordinances that prohibit conversion of steep slopes for cultivation. Currently, the dominant county-wide slope ordinance under the 1982 General Plan prohibits conversion of hillsides 25% or greater for cultivation.

See Title 21.66.030 (C) (1) (“Conversion of uncultivated land to cropland shall not be permitted on slopes over twenty-five (25) percent”). A few local Area Plans, like Cachagua’s, allow a maximum of 30%, but require use permits for anything between 15% and 30%. In no case is conversion for cultivation allowed on any slopes anywhere in the county on slopes over 30%.

Development on slopes: GPU4 also proposes to weaken policies covering conversion of slopes for development purposes. The 1982 General Plan prohibits development on over 30% slopes, with only narrow exceptions (see 26.1.10, page 115 of 1982 GP). In the proposed GPU4, development on slopes over 30% is allowed with far less constraints than the 1982 General Plan and existing policies. (see OS 3.5, page 532 of the GPU4 FEIR)

EIR fails to disclose these critical changes in policy: In covering the issue of slope conversion, which was raised by many commentators, the EIR actually explicitly denies these changes to slope policy are even being made in GPU4 (see in particular the FEIR response on this issue to LandWatch comment #17-106, page 292 of the FEIR.) This is a significant lapse in the responsibility for full disclosure and analysis of possible GPU4 impacts.

EIR Fails to provide information and analysis: The EIR fails to provide critical information on plant and animal species, habitats and wildlife corridors that would be impacted by these slope policy changes. Because that information is totally lacking, the EIR has not done its job of informing, discussing, analyzing, and mitigating GPU4’s impacts.

Many of these biological resources are known to be significantly unprotected and threatened (as shown in the attached table,) and yet the EIR neglects to reveal this information, let alone analyze it or consider appropriate policy changes or mitigations in response to it. The cumulative impacts of such wholesale conversion are also not recognized nor analyzed in the EIR.

We have collected information about some of these biological resources (vegetation and wildlife habitats) that are threatened by GPU4 policies. We submit that information in a table and an overview, attached as Addendums A & B, titled:“Distribution of Native Vegetation by Slope Categories in Monterey County.” Also attached is a map (Addendum C) compiled by The Nature Conservancy based on the Central Coast Ecoregional Plan Update, 2006. It depicts land on slopes 25% and greater that is not “protected.” These lands are therefore vulnerable to GPU4’s slope policy impacts. Approximately 44% (or 932,199 acres) of the county lands are on steep slopes. Of that steep slope land, approximately 504,830 acres are on unprotected land.

The EIR utterly failed to deal with both the localized impacts of individual projects as a result of these policy changes, as well as the cumulative impacts of such massive land conversion over time. And, in addition to the weakened slope policies and policies that would allow development to occur throughout the county’s rural lands, the Winery Corridor is expected to be a catalyst for more conversions of rangeland and pristine open space -- to viticulture and to viticulture-related commercial development proposed in that Winery Corridor Plan. This massive conversion of land has not been considered nor analyzed in the EIR.

Extent of potential harm:

With the GPU4 slope policy as now proposed (no upper limit, anything can be converted with only a permit required on some slopes) the impacts would be enormous. As noted above, the attached map shows approximately 44% of the county is on slopes greater than or equal to 25%, which encompasses 932,199 acres. Of that, approximately 504,830 acres are on unprotected slopes. The attached Table of habitats also indicates some of the rich biological resources that would be compromised, some severely, throughout the county under GPU4 policies. As noted above, since that information has not been analyzed in the EIR, those impacts are not addressed.

Types of Impacts:

The Sierra Club has repeatedly raised many significant issues surrounding the proposed historic slope policy change, including impacts to biological resources, such as habitat, which we cover above. As we noted in our comments on the previous versions of the General Plan Update, potentially significant impacts would reasonably be expected to occur to the following:

Water quality, from downstream effects like siltation and slides and degradation of stream-bed quality, as well as pollution from chemicals like herbicides, pesticides, fungicides, etc.
General erosion, on creeks, streams and rivers, and their fisheries and other aquatic species, and on downstream neighbors and downstream uses
Watershed infiltration (ability to recharge)
Water supply, from putting into irrigation that which currently and historically has not been in cultivation
Air quality and air pollution, from chemical applications as well as dust from clearing/grading and agricultural operations
Wildlife corridors
Natural biodiversity
Listed species
Locally-important species and native plants, animals, birds and fish
Habitats of all kinds
Noise from grading, clearing and harvesting operations
Viewsheds
New access roads and services (roads to newly-converted land,) and development patterns in general
Incompatibility of uses. (When steep slopes are opened up in residential or rural residential neighborhoods, incompatibility results. This has been an ongoing problem in Carmel Valley and elsewhere where violations of the existing policies created conflicts of health and safety for neighbors, resulting in litigation.)

History and evidence of problem

Some examples from our local history, and that of other areas of California (below) provides ample evidence that these impacts can be expected to occur:

Pesticides/pollution: In 2000, a study released by the nonprofit Pesticide Action Network reported that Monterey County ranked sixth out of 58 counties in total pounds of pesticide used. Crops requiring the most pesticide use in the county were wine grapes, strawberries and head lettuce – and viticulture is expected to be the main industry taking advantage of the removal of the steep slope conversion prohibition. Growers applied more acute toxins to Monterey County fields than any place else in the state. Increased acreage devoted to grape cultivation has increased the use of pesticides. (Herald, 5/4/00, attached)

Oak destruction: In Santa Barbara, vineyard expansion has resulted in the removal of thousand of oak trees, a situation that prompted a public uproar when Kendall-Jackson bulldozed hundreds of oaks while clearing the way for a vineyard operation near Los Alamos. (Santa Barbara News-Press, 7/5/99, attached) California’s oak woodlands are already under siege, and the experience of Santa Barbara and Monterey County is that oaks will be removed, sometimes en mass, for viticulture.

Oak woodlands alone provide habitat for about 2,000 plant, 5,000 insect, 160 bird, 80 amphibian and 80 mammal species. (UC Berkeley Report, 1998, as noted in the Herald, 5/9/99, attached) The pace of conversion has increased rapidly.

Water use: According to viticulture representatives in Salinas Valley, viticulture operations utilize an average of 1 acre foot per acre of planted grapes, with 1-1/2 acre per acre for hot areas. Frost protection water use is approx. 1 acre foot per year. In cooler valleys, dewatering of streambeds due to groundwater pumping for frost control is another potential negative impact. As is widely recognized, the county is already experiencing major water problems from over pumping, without the wholesale conversion of previously-uncultivated land to irrigated land GPU4 policies would usher in.

While vintners have argued that much of the land converted to grapes was previously in row crops, in fact 4,600 acres of irrigated land was added from 1996-1998 alone, with an estimated 95% of this being planted in grapes. And, if you consider this county historically, most of the land now planted in grapes was once grazing or dry farming land. In the 1970s a lot of cattle ranches and dry farms were converted. This trend continues and its impacts on water supply must be revealed and fully analyzed. The EIR should have provided up to date information on conversion of land to more water-intensive uses.

Recharge. Runoff and Erosion: The FEIR provides no information, analysis or consideration of how this slope policy change would impact the watersheds of Monterey County. Recharge can be expected to be affected by conversion of natural chaparral and native flora with their adapted root systems and particular soil types. Chaparral is rich with habitat for many species of birds, insects and animals. It is also a very dense canopy cover providing peculation (a sponge-like effect) that helps recharge the aquifers. The runoff from vineyards is much higher than chaparral, causing bank and channel erosion to occur.

Napa and Sonoma experience: In January 1999, the Napa Board of Supervisors were pressured by requests for a hillside moratorium due to ongoing problems with viticulture. As noted by Chris Malan, Founder of Concerned Citizens for Napa Hillsides:even then Napa was “seeing vast swaths of forested lands harvested and deep soil ripping for conversion to vineyards. During deep soil ripping, the land is ripped open 3-5 feet deep, destabilizing the slope and causing erosion.” (Redwood Needles, 8/1/99, attached)

In May 1999, problems of steep slopes in Sonoma County led to adoption of a significant regulatory measure targeting the wine industry, which subjects all new vineyards to new government scrutiny.

EIR Response Inadequate:

In spite of the public repeatedly raising these issues (see especially Sierra Club’s comments on the GPU DEIR, on previous versions of the GPU and the article “Sierra Club Seeks Grape Study.” (Herald, 3/27/98, attached) The EIR has not recognized, identified nor analyzed these potentially huge impacts.) This is a major violation of CEQA.

Direct project-related impacts: The county’s only nod to environmental oversight is to require a use permit for some individual parcels that would be converted. Such permitting would be ineffective, and therefore unfeasible, even for erosion -- the one factor the county occasionally has acknowledged can be an issue with steep slope conversions. The county’s history of dealing with permitting and enforcement has been very weak. The county lacks the expertise, mechanism and staffing for fashioning erosion-control plans and programs, and for monitoring them. See permit/enforcement section, below.

Cumulative impacts of steep slope conversion are not addressed at all, and it is there that the most severe impacts of this dangerous policy change would be felt. Individual permitting would not and could not consider and mitigate for all the impact categories noted above on a mass, county-wide basis. It is ludicrous for the county to contend they could consider parcel by parcel what would happen to the county’s dwindling water resources and water quality, for instance, one vineyard conversion at a time, not to mention considering impacts to important habitat or wildlife corridors in such a piecemeal manner.

Comments (attached) by Reed Noss, Ph.D, Conservation Science, Inc., in his “Habitat Fragmentation as a Cumulative Impact of Winery Expansion and Other Developments in Napa County,” bear directly on Monterey County and on cumulative impacts:

“With increasing global demand for California wines, vigorous expansion of wineries in Napa County threatens to degrade the environmental values that drew many residents and tourists to this area. What once was a rural, agrarian setting with an aesthetically pleasing mosaic of vineyards, dwellings, and wildlands is rapidly changing to a more fragmented landscape dominated by intensive agriculture – chiefly vineyards – and expanding urban zones. Moreover, expansion of wineries outside of Napa Valley proper into the adjacent foothills increases the impacts on natural and semi natural ecosystems and poses grave threats to the native flora and fauna. Vineyard development on steep slopes is already accelerating soil erosion and compromising the hydrology and aquatic ecosystems of the county (R. Currie and R. Noss, unpublished observations). Moreover, the vineyards and their associated roads, fences, buildings, and other artifacts are fragmenting the natural vegetation of the foothills on either side of the Valley, threatening the wildlife of the region.“

Intent to convert/likelihood of development

In 2001, County Agricultural Commissioner Eric Laurentzen said, “There is a potential of opening up 100,000 acres of land for vineyards.” (Herald 8/1/01, attached) Clearly there is a history of interest in conversion, and that is highlighted by Mr. Laurentzen’s comments. He considered the limit to conversion to be water availability, not lack of interest or market. However, regarding his statement that water availability would limit viticulture, we note that the county continues to process and approve applications for projects whose water supplies are in doubt (September Ranch, Carmel Valley Ranch, North County subdivisions) and while the county is already experiencing water shortages, nitrate and salt-water contamination, dry wells, river dry-outs and state cut-back orders (Carmel River), and even trucked-in water for residents. Water constraints will not stop pumping for expanded viticulture, as is evident by the county’s water history and county officials’ well-known lack of oversight in that critical area of their responsibility.

There is ample evidence over the past decade that the wine industry is eager to convert steep slopes. During county meetings held in 2003 with agriculture/viticulture businesses, references were made to the desire to make Monterey County “the next Napa”. This sentiment has been in evidence in other forums and in news articles. Given this desire, and the history of pressure to remove the steep slope prohibitions, there can be no doubt that the environment and public health and safety impacts we detail above are a real potential and should have been analyzed before considering such an onerous policy.

Even with the wine-glut scare, the Gallo project recently converted 380 more acres to vineyards in their existing operations near Soledad. It is reasonable to conclude that big corporate interests like Gallo and even smaller ones will continue to look for places to expand up into the hills. We are also seeing the continuance of interest in “vanity vineyards,” where wealthy property owners on smaller parcels want to put in vineyards, and have their own label, winery and wine tasting, etc. In short, the demand is clearly there.

History of county’s failure to address these environmental issues:

Previous attempts to weaken the ordinance show the county is alarmingly eager to avoid CEQA review, and is adept at that avoidance. We submit as attachments some correspondence over the past nine years detailing attempts to have the county address this issue in a legitimate manner. These represent a long history of attempts to weaken or eliminate the existing protections, by individuals, businesses, and county officials. And yet with each attempt the county never analyzes the impacts of doing so, in spite of repeated and strenuous objections from The Sierra Club, the California Native Plant Society, resident groups from around the county, and individuals. Each time the county tries or allows a new angle to undermine the existing protective ordinances, the public has to rise to object and to lay out the many impacts to the environment, and to public health and safety, of doing so, and to call for environmental analysis. That analysis has never been conducted, despite county promises (Herald, 5/19/99, attached)

For example:

March, 1998: The county attempted to weaken the slope prohibition ordinance. The Sierra Club, California Native Plant Society, the League of Women Voters of the Monterey Peninsula and others made the environmental issues clear in numerous letters to the county (3 letters attached.

December, 1998: The Sierra Club and California Native Plant Society learned that the county, without any analysis whatsoever and despite the aforementioned public outcry that year, had placed on the Consent Agenda for the Board of Supervisors an item to overturn the long-standing county policy against conversions of land over 25%. (attached letters Dec. 7, 1998 from CNPS, The Sierra Club and the Leage of Women Voters of the Monterey Peninsula). Over the strenuous objections of those groups and others, and without any environmental review, the Board adopted a resolution that effectively overturned the steep slope prohibition for viticulture. (2 letters attached)

January, 1999: The Sierra Club and California Native Plant Society file a joint lawsuit against

the county for its failure to do the required environmental analysis in the above action. We presented extensive information to the county that a back-door change to the county’s steep slope conversion prohibition should not be allowed and that it would violate CEQA. The county’s own planning staff and the Director of Planning and Building agreed that a vineyard planted on slopes over 25% was a violation of the ordinances. The precedent and cumulative impacts issues were of paramount concern. (Press Release, attached)

May, 1999, In response to the Sierra Club/CNPS litigation, the county reversed its decision that overturned the historic steep slope prohibition.

July, 2001: The county once again proposed changes to weaken the grading and erosion control ordinances for development and cultivation. Once again, these changes were being moved forward in a confusing, below-the-radar and unclear manner, making it hard for the public to be involved (letter attached)

May, 2003: Major proposal came from the wine industry to the county for expansion of the industry, special regulations to streamline permitting, avoidance of review, etc. Extensive meetings with county Supervisors, planners, and viticulture executives were held. The public was only allowed limited participation. The environmental issues that were raised were deflected, saying they would be dealt with later, in the GPU process (which as we document, they have not been.)

July, 2003: County proposes to raise slope level from 25% to 30%. Groups submit letters opposing move due to impacts to many resources. (letter attached)

Summary of history: This history and news articles are presented to point out that this issue is not new, and is not unknown to the governing entities in this county, who in fact have gone to great lengths to avoid the appropriate environmental review for such a change. Clearly, this failure in the EIR is deliberate and has resulted in the public having to provide some of the research, expert testimony and legal opinion that by rights is the responsibility of the county. We believe this avoidance is due to the understanding that a real environmental review of this proposed change would show significant and unacceptable impacts that cannot be mitigated and that the public would not support.

Failures in Permitting and Enforcement: Permitting won’t mitigate individual impacts and is therefore infeasible as mitigation. The county’s dependence upon permitting to deal with specific project-level issues is unreasonable given the history of this area, other areas, and the county’s proven lack of ability to enforce codes and ordinances, and to monitor permit requirements.

Napa’s attempts to manage just some of the issues of conversion (those related to erosion/infiltration) have been a struggle. According to Geologist, Hydrologist and soil scientist Robert Curry’s 2000 Evaluation of Current Napa County Regulations -- Cumulative Effects of Conversion of Upland Woodlands and Chaparral to Vineyard:

“Misapplication of fundamental principles of soil science and hydrology has lead to a dangerous loss of upland infiltration capacity in the upland areas of Napa Valley that were formally oak woodlands, chaparral and mixed conifer woodlands. Continued approval of conversions of native vegetation and undisturbed natural soil units to vineyards will likely lead to increases in downstream flood hazards and sediment yields.”

Here in Monterey County, the Winery Corridor proposed in GPU/4 seeks to pull in huge numbers of visitors. The Winery Corridor will further push the conversion of steep slopes and rural open space, and this conversion will further fuel this tourism engine.

The Monterey County Planning and Building Inspection Department has been the subject of inquiry by Civil Grand Juries. After receiving citizen complaints, the 2000 Monterey County Civil Grand Jury began an investigation. In February 2000, the County Administrative Officer (CAO) initiated a major reorganization of the Planning and Building Inspection Department. As part of the reorganization, the task of enforcing existing planning and zoning laws was given to the Monterey County Department of Environmental Health. Previous to this change, the Department had not been enforcing the laws consistently. After this change citizens expected improvement in Code Enforcement for both zoning and building permits. However, the reorganization caused internal conflicts among staff and was a failure.

Realizing that Code Enforcement of both building and zoning laws as well as the failure to enforce and monitor conditions placed on use permits was still a huge problem, citizens from all around Monterey County banded together. They shared cases that had impacted the environment, critical habitat and steep slopes, and public health and safety. After individual attempts to work with Code Enforcement staff failed, a citizen’s group, Advocates for Code Compliance (ACC), was formed in 2003. The mission of ACC was to work with the county staff to strengthen Code Enforcement and to develop a swift and fair process for enforcement of the current County Codes. To date, this has failed, as detailed below.

ACC had meetings with its members, the group drafted a set of suggestions and presented them to Supervisor Dave Potter, the Director of Planning and Building and the Assistant Director. Over the years, the attempts to get a fair and strengthened enforcement process have failed. There has been a direct attempt by other Supervisors to thwart the process for enforcement, and to allow redrafts of suggested new Code Enforcement ordinance language by land use attorneys, some with clients in violation of the very ordinances in need of strengthening. The county allowed the work to drag on for years, when it could have been accomplished in 2003. ACC has continued to participate, but its attempts to accomplish the goals of the group have not been successful.

Count attempts to weaken code enforcement: Rather than strengthening the enforcement of permit and code violations, the County has insisted that an entire new Code Enforcement ordinance be written, within which they have proposed to delete some 50 or more County code sections. The county has done so without providing any analysis as to what is being deleted and why. After ACC was forced to do the analysis of these changes, it was revealed that the deletions included major protective policy provisions for the Coastal areas and for the entire County, including those requiring restoration and replanting for illegal grading and tree removal. Meanwhile Code Enforcement has continued to be a major problem, with hundreds of open cases, many of them impacting the environment and steep slopes.

Wholesale closure of unresolved code violation cases: In 2004, The Open Monterey Project (TOMP) had to file suit to obtain public records regarding code violation cases that were closed improperly. Through that action, TOMP discovered that unbeknownst to the public, over 270 cases dealing with environmental, planning and building code violations had been summarily closed, without resolution, and marked for conveyance to storage. Rather than enforce, the County simply chose to close the cases, including major violations that residents had been attempting to get resolved for years.

Again, in 2005, the deficiencies with Planning and Building Inspection’s permitting and code enforcement were highlighted by the Civil Grand Jury. See Addendum D, Grand Jury Excerpts.

As a result of the above-mentioned TOMP litigation, some of the major cases that impact slopes, removal of native vegetation and grading remain open -- however their enforcement has been largely ignored.

Some examples of failed enforcement include:

Joyce – CE020384 – Carmel Valley. Violation of 21.66.030 C.1 Conversion of uncultivated land to cropland on slopes over 25%. This case had a recordation filed on January 23, 2003 and yet to date the land has not been restored, as required by county ordinances. (Carmel Valley)

Walker Property (North County) Extensive grading, all done without any permits. Thousands of cubic yards of earth moved and trees removed without permits, leveling of an acre of earth, terrace work several feet up a hill, clearing enough to accommodate a major road, road cuts across wetlands and a creek. Property was covered with oak and madrone trees.

Allen Property (South County, Chualar Canyon APN 415-081-011-000). Vineyards on slopes in excess of 25% slope. County used this Allen slope violation as an attempt to change the slope policy, which prohibits conversion on slopes over 25% for crop cultivation, by claiming crops did not include viticulture. After Sierra Club and CNPS filed suit, citing lack of environmental review for that policy change, the county rescinded that illogical interpretation. Coast Weekly article, 7/22/99 attached.)

Holman Ranch (PLN020308) Carmel Valley – Vineyards in excess of 25% slope, removal of native vegetation and oak trees, problems with erosion and slides of mud onto neighboring property. Restoration required by ordinances still not done; property recently sold with violations unresolved.

Gallo – (PLN010188) South County Vineyards in excess of 25% slope. 12.4 acres of vineyards were planted on steep slopes. In spite of this violation, Gallo was allowed to process a permit for vineyard expansion, a large reservoir and other entitlements. This is a violation of current ordinances which require open violations be corrected prior to processing new entitlement applications. Instead, as part of the new entitlement permit, the violation was supposed to be corrected. We are not certain whether the slope violation was ever corrected.

Chateau Julien – (CE980237) Winery with numerous Code Enforcement violations. One violation, that has remained open, is a Chai (a building) that was not supposed to be utilized for public assemblage purposes, but that continues to be utilized for that purpose, and is currently advertised on the internet for the use that is not legally permitted. The County continues to turn a blind eye to the case in spite of strong protests from neighboring property owners.

Bonifas –(PLN169041004) Vineyards in excess of 25% slope and oak tree removal without permits. 27185 Los Arboles (Carmel Valley)

Summary on permitting/enforcement failures: There is a general failure on the part of the county to enforce the existing prohibitions, ordinances, and development permit conditions. With the potential for hundreds of thousands of acres to be converted with permits, it is not believable that the county would or could enforce permit requirements to address environmental and health and safety regulations. This reality is further evidence that permitting is not a feasible mitigation measure for the impacts of conversion of land.

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Gillian Taylor, Co-Chair, Conservation

Ventana Chapter Sierra Club

Addendums:

A - Table: Distribution of Native Vegetation by Slope Categories in Monterey County (pdf)

B - Overview of above Table

C - Map: Monterey County Public and Protected Lands/Slopes Greater than 25% Unprotected (pdf)

D - 2005 Grand Jury Excerpts

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