DPC Letter: Contra Costa County General Plan Update

The Delta Protection Commission reviews hundreds of local and regional land use projects in the Primary and Secondary zones of the Delta for consistency with the Land Use and Resource Management Plan (PDF) and submits comment letters to ensure projects stay on track with the Plan. Under state law (Public Resources Code Sections 29770-29772), any action taken by a local government or agency in the Primary Zone that is inconsistent with the Plan can be appealed to the Commission. Appeals may be brought by any interested person, or by the Commission itself. Learn more here.

April 8, 2024

William R. Nelson
Principal Planner, Contra Costa County
Department of Conservation and Development
30 Muir Road
Martinez, CA 94553

Dear Mr. Nelson:

The Delta Protection Commission (Commission) is providing comments on the Draft EIR (EIR) for the Contra Costa County General Plan update in anticipation of our duty to make findings required by California Public Resources Code (PRC) Section 29763.5. Our review focuses on the impact analysis sections and conclusions that would materially affect our ability to endorse findings that the General Plan update is consistent with Section 29763.5, and our duty to minimize impacts in the area of our jurisdiction (the Delta Primary Zone) as a CEQA responsible agency. We first discuss the scope of our review and the necessary findings we must prepare before we can submit a staff report proposing that the General Plan is consistent for Delta Protection Commission (Commission) approval. We then provide specific comments.

Scope of Review and Required Findings

The Delta Protection Act requires the Commission to review General Plan updates for “local governments” as defined in the Delta Protection Act (PRC Section 29763.5). Because Contra Costa County is a “local government” within the meaning of the Act, your update requires these findings (PRC Section 29725). The findings required in Section 29763.5 are limited to the Primary Zone. In addition, we may rely upon your CEQA analysis to support our approval of the General Plan, if we find it consistent with the Delta Protection Act under Section 29763.5.

Specific Comments Regarding Impacts in the General Plan EIR

Comment 1: The Draft EIR Will Support Tiering Best if It Makes Clear How General Plan Policies Will be Enforceable.

The Draft EIR (DEIR) is a program EIR as described in your text:

“This Draft EIR fulfills the requirements for a Program EIR … Once a Program EIR has been prepared, subsequent activities within the program must be evaluated to determine whether an additional CEQA document is necessary. However, if the Program EIR addresses the program’s effects as specifically and comprehensively as possible, many subsequent activities may be within the Program EIR’s scope, and additional environmental documents may not be required (CEQA Guidelines Section 15168[c]). When a lead agency relies on a Program EIR for a subsequent activity, it must incorporate feasible mitigation measures and alternatives from the Program EIR into the subsequent activities (CEQA Guidelines Section 15168[c][3]).” (DEIR at 1-3 to 1-4).

While the DEIR properly relies on General Plan policies to explain why some impacts are reduced or avoided, this approach would be reinforced if more actions were included that specifically stipulate that relevant policies or goals will be translated into Zoning Code amendments as provided for in Cal. Government Code Section 65860. This section allows cities and counties to amend their ordinances to enforce land use policies related to their general planning duties under Cal. Government Code Section 65850. This would document how the General Plan policies, goals, and actions will be enforced.

Section 1.2.2 would also better support findings of consistency with Section 29763.5 if it provided, in the text, or an appendix, a short summary of all the kinds of discretionary actions that would be tiered projects, with a citation to the relevant County ordinance or code requiring a discretionary approval. By discretionary actions we do not mean specific projects as this cannot be known at this time; we mean the kinds of approvals that would be tiered from the General Plan EIR and subject to review for consistency with the General Plan and/or zoning code. This would allow us to show how future actions would be reviewed for consistency with the General Plan and zoning code as relevant. This would then show how consistency with the Delta Protection Act would be ensured via review of future projects.

Comment 2: Buildout Projections for the Horizon Year Comments

As a global issue it is hard to determine if there is consistency between impacts in different chapters and what the potential impact of the General Plan would be without a visual depiction of the full buildout that may occur for the horizon-year projection described in page 3-24. We would appreciate a figure for our use that shows the projected buildout assumption as a graphic depicting all land that would be developed based on the methodologies used in Section 3.7.

Comment 3: Impact 5.1-2: Development under the proposed project would alter visual appearance in the county but would not substantially degrade its existing visual character or quality [Threshold AE-3] May Benefit from Additional Substantiation or Mitigation

This impact statement concludes the impact would be less than significant before mitigation (DEIR at 5.1-15). This conclusion is at odds with Figure 5.2-4 which shows farmland conversion in the Delta Primary Zone and other areas. In addition, Impact 5.2-1 concludes that up to 13,816 acres of farmland could be converted (total, not just in the Delta Primary Zone).

Based on conversations with your agency we understand that some or all of the agricultural land conversion shown in the Primary Zone on Figure 5.2-4 may be, in fact, under the jurisdiction of special districts or other entities and may be attributed to projects that are under way. If the adoption of the General Plan will not itself contribute to these conversions, that should be clarified in the Final Environmental Impact Report (FEIR) so that it is clear that the impact conclusion in Impact 5.1-2 is sound, and that these conversions are not attributable to your project.

The current document as it exists in the DEIR, suggests that you will cause agricultural land conversion in the Delta Primary Zone. Agricultural land is the primary constituent of the visual landscape in the Primary Zone and conversion of that land is a visual impact. If these conversions are effects of the project, it undermines the credibility of your impact conclusion. The text of the impact thus needs to better substantiate the impact conclusion. Note that a leading desk book states “an EIR must set forth the bases for its findings on a project’s impacts; a bare conclusion without explanation of its factual and analytical basis is not sufficient analysis of an environmental impact” (Kostka and Zischke 2023, Section 13.27, citing Laurel Heights Improvement Association v. Regents of University of California, 1988, 47 Cal. 3d. 376, 404).

Comment 4: Impact 5.1-3: The proposed project would not generate substantial light and glare [Threshold AE-4], Requires Better Substantiation

Please provide a citation to the relevant County Code with the CalGreen building standards to support this impact. This impact states that these standards will be enforced but a search of the County Code we found online does not contain the sections 74-8.002 to 74-8.006 that correspond to this material in the “CODE COMPARATIVE TABLE AND DISPOSITION LIST.” The online version may be out of date; please clarify. This statement regarding CalGreen building standards supports the overall conclusion that the General Plan will not generate substantial light or glare. This conclusion needs to support the conclusion that the project will not adversely affect aesthetic resources in the Delta Primary Zone which we must also confirm for our findings. The relatively dark, rural character of the Delta Primary Zone is an integral aspect of the feeling of the landscape.

Comment 5: Impact 5.2-1: The proposed project could convert approximately 13,816 acres of Important Farmland to nonagricultural use, [Threshold AG-1] Requires Additional Explanation, Mitigation, and Possibly Policy Controls

This impact includes farmland conversion in the Delta Primary Zone near Discovery Bay, near Knightsen, and on Jersey Island, in the Delta Primary Zone (see Figure 5.2-4 and 5.11-1).

The text of the DEIR for this impact, in its current form, will not support our required findings under PRC Section 29763 subsections (a) “The general plan, and any development approved or proposed that is consistent with the general plan, are consistent with the resource management plan”, and (h) “The general plan, and any development approved or proposed that is consistent with the general plan, will not adversely impact agricultural lands. . .”

The text in the DEIR states: “Agricultural conservation easements are a possible mitigation measure under CEQA. Programs that establish agricultural conservation easements and in-lieu fees for mitigation banking are most effective when determined concurrent with project approval. However, the effectiveness and extent to which future projects would opt-in to agricultural conservation easements as mitigation measures cannot be determined in this analysis; therefore, this impact would remain significant and unavoidable.”

We have concerns regarding this language and your need to support CEQA findings for significant and unavoidable impacts required in PRC Section 21081, which require a showing that:

• Mitigation has been adopted to reduce the impact (PRC Section 21081(a)(1), or
• That mitigation is the responsibility of another entity or agency (PRC Section 21081(a)(2), or
• Such mitigation is infeasible (PRC Section 21081(a)(3)).

There is a feasible mechanism for the County to avoid this farmland conversion: a policy against farmland conversion in the Primary Zone. If the agricultural conversion in the Delta Primary Zone show on Figure 5.2-4 is, in fact, an effect of the General Plan policies and buildout, the County cannot rely on the second and third prongs of PRC Section 21081 (i.e. that the mitigation that could reduce the impact is the responsibility of another entity or agency, or that such mitigation is infeasible). See PRC Section 21002, which states that public agencies shall not approve projects if there is feasible mitigation that would reduce significant effects.

Communications with the County suggest these farmland conversions are under the jurisdiction of special districts and may already be underway. The impact language for agricultural and conversion is problematic and highlights the need to clarify this issue. Please work with us to resolve this issue and update the impact text for the FEIR accordingly.

Comment 6: Impact 5.2-5: The proposed project could potentially result in other agricultural impacts not related to the above, such as diminishing available water quality and supply for agricultural uses. [Threshold AG-5] Would Benefit from Better Substantiation.

This impact states that “future development under the proposed General Plan would increase water demands, as further described in Section 5.17, Utilities and Service Systems, which would diminish the available water supply for agricultural uses. Such development would occur throughout the county, which spreads the impact over a large geographic area” (EIR at 5.2-24).

It is clear that the General Plan itself does not approve a “project” subject to a water supply analysis as required in Cal. Water Code Section 10912 (which requires strong proof of adequate water availability). Nonetheless more analysis is required. The assertion that the distribution of the development would occur “over a large geographic area” as support for its insignificant water demand would benefit from additional support.

The EIR projects 23,200 housing units and 65,600 residents in the county for the horizon-year project at page 3-25. Assuming a water usage of 48 gallons per person per day, this results in a total additional consumption, assuming full buildout, of 3,160 acre-feet of water per year. While water consumption varies by agricultural land use type and is becoming more efficient over time, using 1.6 acre-feet per acre per year as a rough metric, this is equivalent to water that could support roughly 1,975 acres of irrigated farmland. While not all of this water would be diverted from Delta sources, the multiple demands on Delta water supplies and connected groundwater basins as well as the general water scarcity in the state suggest more facts are needed to substantiate this conclusion. This is especially important because the water consumed by residential buildout would not be available for other uses, including agricultural uses.

Please provide stronger support for this assertion showing how the water consumption is accounted for, at least at a program level of analysis, by briefly summarizing relevant water supply planning for utilities serving unincorporated areas of the County. In the alternative or in addition to these revisions, please clarify the status and seniority of water rights held by water districts serving the Delta Primary Zone in Contra Costa County. Communications with the County suggest that these rights may be “pre-1914 rights,” i.e. very senior rights that are likely to be stable over time and relatively immune to curtailment to fulfill other water needs. If these facts are correct, please provide them in the FEIR.

In the FEIR, please also provide a citation to and summary of the requirement that future developments above relevant thresholds must satisfy the requirements of Cal. Water Code Section 10910 in the impact analysis. See Section 10910 for the general requirement and Section 10912 for the definition of “projects” subject to the requirement. This information will better support the conclusion of less than significant, and in turn support our ability to rely on your impact analysis and also make our findings.

Comment 7: Impact 5.4-1: Implementation of the proposed project would not have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special-status species in local or regional plan, policies, or regulations or by the CDFW or USFWS [Threshold B-1] is Not Consistent with the Facts Provided in Other Impact Analysis Sections

The biological resources chapter provides a summary of a robust set of policies designed to avoid impacts on natural resources. However, the significant and unavoidable impact for agricultural and conversion in Impact 5.2-1 contradicts this impact conclusion (5.4-1).

Agricultural land also typically provides foraging habitat for raptors and dispersal habitat for other species. Table 5.4-3 indicates Swainson’s hawk and other raptors are present in Contra Costa County. Swainson’s hawk is a state-listed species.

CDFW must make the determination for a “threatened” listing based on facts demonstrating the presence of one or more of the factors provided in California Code of Regulations Title 14, Section 670.1(i)(1)(A), including “present or threatened modification or destruction of [a species’] habitat.” The primary threat to Swainson’s hawk is loss of suitable foraging habitat, including suitable agricultural foraging habitat (CDFW 2016:3).

The impact conclusion of less than significant for Impact 5.4-1 is not consistent with the impact conclusions of significant and unavoidable for Impact 5.2-1 because the magnitude of farmland loss in the Delta Primary Zone suggests, absent other facts, that you are contributing to the factors that have caused the of threatened status of certain raptor species per the CDFW listing criteria and analysis. This reinforces the need to clarify the cause of and jurisdiction over the agricultural land conversion you depict in Figure 5.2-4. Please revise the relevant agricultural impact language text and Impact 5.4-1, to show that this conversion is not an effect of the General Plan itself, if true.

Comment 8: Please Provide Mapping of Pacific Flyway Habitat in the Delta Primary Zone to Support Our Review and Ensure Impacts Are Minimized by Policy of Mitigation Measure

Please include in the EIR some mapping or analysis of Pacific Flyway habitat. We need this impact analysis for our consistency review process.

PRC Section 29726 states:

• “Pacific Flyway” means the identified migratory bird flight path, including feeding and nesting habitat, as described in the Central Valley Habitat Joint Venture component of the North American Waterfowl Management Plan (NAWMP-1986).

PRC Section 29763.5 requires us to show that:

• “The general plan, and any development approved or proposed that is consistent with the general plan, will not result in the degradation or reduction of Pacific Flyway habitat.”

If the existing mapping is not sufficiently granular to allow us to show it is being avoided by comparison with your Urban Limit Line and buildout assumptions, please work with us to adopt policy language for protection of Pacific Flyway habitat and mitigation, as need be, in the Delta Primary Zone.

Comment 9: Impact 5.4-4: Implementation of the proposed project could interfere substantially with the movement of any native resident or migratory fish or wildlife species, or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites. [Threshold B-4] Would Benefit from Additional Policy Language to Support the Impact Analysis

We support the overall policy approach of avoiding impacts on wildlife movement corridors in the General Plan EIR. The proposed Mitigation Measure BIO-1 states the County will “Encourage development plans that maximize wildlife movement,” which is not adequately specific. We support this mitigation measure but feel it could go further. The County could also adopt a general plan policy that new roads will assess the potential to impact wildlife movement and incorporate crossing opportunities as relevant. This will reduce impacts on wildlife movement in the Delta Primary Zone and other locations.

The Federal Highway Administration (FHWA) reports that “roads are a serious obstacle to maintaining population connectivity and a threat to the long-term survival of some regionally important wildlife populations” (FHWA 2011:1). This is an especially important issue in light of climate change, which will change the location of suitable habitats and require opportunities for populations to shift accordingly (Costanza et al. 2020). These facts suggest a policy framework for mitigating the effect of any new roadway development would be beneficial from a conservation perspective.

Comment 10: Impact 5.5-1: Implementation of the proposed project could cause a substantial adverse change in the significance of a historic a historical resource pursuant to CEQA Guidelines, Section 15064.5. [Threshold C-1] and Impact 5.5-2: Implementation of the proposed project could cause a substantial adverse change in the significance of an archaeological resource pursuant to CEQA Guidelines, Section 15064.5. [Threshold C-2] Are Not Consistent

The cultural resources policies in the draft General Plan are mostly a robust and sound approach to managing cultural resources impacts. We want to offer minor clarifications regarding the language in the chapter and suggestions regarding the impact conclusions and mitigation approach.

The impact analysis for Impact 5.5-1 concludes impacts on “historical resources” are potentially significant and unavoidable. Under California law, a “historical resource” is “any object, building, structure, site, area, place, record, or manuscript which is historically or archaeologically significant, or is significant in the architectural, engineering, scientific, economic, agricultural, educational, social, political, military, or cultural annals of California” (Cal. Public Resources Code Section 5020.1). The eligibility criteria for the California Register of Historical Resources includes but is not limited to resources that have information important in prehistory (i.e. archaeological resources, Cal. Public Resources Code Section 5024.1(c)(4)) – thus “historical resources” include archaeological resources.

Impact 5.5-2 then concludes that impacts on archaeological resources are less than significant (EIR at 5.5-15), based on mitigation consisting of a record search and retention of an on-call archaeologist.

It is unclear why impacts on historical resources, which include archaeological resources by definition, are significant and unavoidable but impacts on archaeological resources are less than significant. In addition, the mitigation measure for impacts on archaeological resources could be stronger. It would be prudent, especially in the Delta Primary Zone, to require future projects to conduct an assessment for buried archaeological sites that may not be detected in a records search. Infrastructure and development projects can inadvertently damage archaeological sites and buried human remains despite a complete and robust environmental review process. Levee repairs along the Feather River, for example discovered 230 plus burials associated with extensive cultural deposits, only in the construction phase (CapRadio, 2015).

See Meyer and Rosenthal (2007) for an example of an assessment for archaeological sensitivity including the presence of buried sites. Please clarify the inconsistency between these two impacts and also work with us to ensure that mitigation and/or policy controls to minimize cultural resource impacts for any discretionary projects in the Delta Primary Zone are provided in your General Plan and/or EIR. This would also reinforce the significance analysis for Impact 5.5-3, which concludes that impacts on buried human remains would be less than significant.

In addition, mitigation for potential impacts on archaeological resources (Mitigation Measure CUL-1) should consist of a survey, recording, and evaluation of resources found in the survey, and implementation of discovery protocols if resources are inadvertently found in construction, at a minimum.

Comment 11: Impact 5.11-2: Project implementation would not conflict with applicable plans adopted for the purpose of avoiding or mitigating an environmental effect [Threshold LU-2]  Should Be Supported by Additional Analysis

The agricultural land conversion identified in the EIR as a significant and unavoidable impact occurs largely in the Delta Primary Zone. The setting and impact analysis for Impact 5.11-2 do not meaningfully summarize how consistency with the Delta Protection Act and Land Use and Resource Management Plan will be achieved. This gap diminishes the credibility of the impact conclusion for this impact (less than significant). We encourage you to work with us to prepare in revised text or in an appendix, an analysis of how consistency will be achieved to better support this impact statement.

Comment 12: Text Summarizing the Land Use and Resource Management Plan Should be Updated

The EIR provides a cursory statement regarding the Land Use and Resource Management Plan on page 5.11-12. It fails to mention the standards the County must meet for approval of their General Plan under PRC Section 29763.5. It also provides no meaningful summary of the content of the Land Use and Resource Management Plan. Please work with us to obtain proposed text revisions to better support this section.

If you have questions regarding our comments, please direct them to Mike Aviña, Senior Environmental Planner, at Mike.Avina@Delta.ca.gov, or (530)750-6727.

Sincerely,

Bruce Blodgett, Executive Director
Delta Protection Commission

References Cited

California Department of Fish & Wildlife (CDFW). Five Year Status Review for Swainson’s Hawk (Buteo swainsoni). 2016. Sacramento, California.

Capitol Public Radio (CapRadio). Indian Burial Sites Put Flood Control Agency Between Conflicting State and Federal Orders. 2015. Sacramento, California. Available: https://www.capradio.org/articles/2015/04/07/indian-burial-sites-put-flood-control-agency-between-conflicting-state-and-federal-orders/

Costanza, Jennifer K. and James Watling, Ron Sutherland Curtis Belyea, Bistra Dilkina, Heather Cayton, David Bucklin, Stephanie S. Romañach, Nick M. Haddad. Preserving Connectivity Under Climate and Land-use Change: No One-Size-Fits All Approach for Focal Species in Similar habitats.2020.  Biological Conservation Volume 248. Philadelphia, Pennsylvania.

Delta Protection Commission (DPC). Land Use and Resources Management Plan for the Primary Zone of the Delta. 2010. West Sacramento, California.

Federal Highway Administration (FHWA). Wildlife Crossing Structure Handbook. Design and Evaluation in North America. 2011. Lakewood, Colorado.

Meyer, J. and J. Rosenthal. Geoarchaeological Overview of the Nine Bay Area Counties in Caltrans District 4. 2007. Far Western Anthropological Research Group, Davis, California.

Stephen Kostka and Michael Zischke. Practice Under the California Environmental Quality Act. Continuing Education of the Bar. 2023 Oakland, California.