DPC Letter: Iron House Sanitary District Giant Garter Snake Mitigation Bank

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.

November 13, 2024

Tyson Zimmerman, Assistant General Manager
Ironhouse Sanitary District (ISD)
450 Walnut Meadows Drive
Oakley, CA 94561

Dear Mr. Zimmerman:

We are providing comments on the proposed Initial Study/Mitigated Negative Declaration for the Giant Garter Snake Mitigation Bank (Initial Study).

The Delta Protection Commission (Commission) is a state agency charged with ensuring orderly and balanced conservation and development of Delta land resources and improved flood protection in the Primary Zone. The Commission performs planning work to further the state’s basic goals for the Delta consistent with the Delta Protection Act (California Public Resources Code Section 29700 et seq.). The Commission is thus commenting as a state agency concerned with the best environmental outcomes for the Delta, consistent with state policy as defined in the Delta Protection Act.

Our Review of the Initial Study and Comments

We have reviewed the draft Initial Study posted by your agency. We commend Ironhouse Sanitary District (District) on preparing a robust document based on facts that are reasonably available to the District. Part of the process for initial studies under the California Environmental Quality Act (CEQA) is the public review period, of which you are aware. The purpose of the public review period is to allow the public, state and federal agencies, and other stakeholders, to provide comments. The comment process thus allows public agencies to consider information they did not have nor could be reasonably expected to have in preparing the draft study. With this in mind, we are submitting comments to add to the record in front of the District and support your environmental analysis.

Thresholds for Considering Impacts on Agriculture

At page 14, the Initial Study makes the statement that “Conversion of Farmland of Local Importance is not a significant impact for purposes of CEQA” (Ironhouse Sanitary District 2024:14). We would like to take this opportunity to clarify the nature of CEQA significance thresholds and the Appendix G checklist for purposes of CEQA review. The leading desk book on CEQA practice states “the questions in the checklist do not necessarily cover all potential impacts that may result from a particular project” (Kostka and Zischke 2023:13.15). CEQA common law echoes this rule (Joshua Tree Downtown Bus. Alliance v. County of San Bernardino, [2016] Cal.5th 677,689). Courts have overturned CEQA conclusions based on a literal reading of the Appendix G checklist when other impacts beyond the checklist were not fully analyzed (Protect the Historic Amador Waterways v. Amador Water Agency [2004] 116 CA4th 1099, 1110-1112). Put another way, the District’s reliance on the Appendix G checklist is a reasonable starting point for analysis but is not, by itself, adequate to screen for all potential environmental impacts.

Agricultural Land Use in the Delta, and State Policy

Agriculture is a significant driver of the Delta economy. Agriculture is economically important and conversion of agricultural land threatens this economy. Between 2014 and present, over 12,000 acres of farmland have been lost in the Delta (Delta Stewardship Council 2024). Our planning work documents that agriculture is the main economic driver of the Delta economy (Delta Protection Commission 2012:274). A dollar of agricultural crop revenue generates three to five times greater regional income than other leading revenue sources such as recreation or tourism (Delta Protection Commission 2012:274).

The policy of the State of California is to protect the agricultural economy of the Delta (Cal. Public Resources Code Section 29702(b)). Grazing is a significant part of that economy. Irrigated pasture alone covered 41,000 acres in 2013 (Delta Stewardship Council 2013:184). Dry pasture (i.e., grazing land that is not irrigated) contributes significantly to total grazing land in the Delta. The conversion of agricultural land of any type can lead to diminished viability of associated and necessary processing and transportation facilities required for the ultimate agricultural product. Put another way, conversion of farmland may undermine the viability of associated services, making the primary agricultural practice less viable.

Conversion of Farmland Generally, and Grazing Land in Particular, is Cumulatively Considerable in the Delta

The Delta Protection Commission tracks land use patterns and agricultural land use conversion on an ongoing basis. In 2024, the list of proposed projects that would convert agricultural land in the Delta, includes, but is not limited to:

• The Zanker Greenwaste Processing Facility (Sacramento County)
  • This facility would convert 39 acres of grazing land in Sacramento County.
• The Tide’s End Multibenefit Project
  • This project will convert 2,212 acres of agricultural land, including land suitable for grazing in Yolo County.
• The Department of Water Resources Habitat Conservation Plan to Support Maintenance Activities of the State Water Project
  • This project spans the entire Delta and will convert agricultural land of all types over a sustained period as specific conservation actions are identified and implemented.
• The Cache Slough Mitigation Bank
  • This project would convert 350 acres of grazing land to create wetlands and special status species habitat in Solano County.

Note that sale of cattle and calves (rangeland agricultural products) accounts for $4.76 billion annually in California (California Department of Food and Agriculture: 2024). The California Department of Conservation reports a total loss of California grazing land of 1.6 million acres between 1984 and 2018 (Department of Conservation: 2024). Urbanization is a leading cause of grazing land loss identified by the Department of Conservation, with ecological restoration projects being another significant cause (Department of Conservation: 2024). While grazing land and grazing are significant drivers of the California agricultural economy, it is relatively rare in the Delta (Delta Stewardship Council 2013: Chapter 5, Figure 5-3), which also weighs in favor of preserving grazing when it can be harmonized with other land uses.

Based on these facts, the ongoing conversion of farmland of all types is a cumulatively considerable problem. The decline in farming also has a synergistic effect. Agricultural land conversion (a physical impact) fuels the loss of individual farm revenue (an economic impact) that in turn fuels ongoing farmland conversion (a physical effect on the environment) as agricultural viability is diminished because the web of services and processing that support agriculture is undermined. Economic effects are relevant under CEQA to the extent they cause physical environmental changes (14 Cal. Code of Regulations Section 15131(b)).

In addition, the CEQA Guidelines require that public agencies make a mandatory finding of significance when:

The project has possible environmental effects that are individually limited but cumulatively considerable. “Cumulatively considerable” means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects (14 Cal. Code of Regulations Section 15065(a)(3)).

The total size of the proposed mitigation bank is 189 acres and the existing land use on site includes grazing (Ironhouse Sanitary District 2024:1). Here because the bank has the potential to alter the land use and end an agricultural practice, it has the potential to effectively convert land from agricultural use. While the Initial Study states no permanent conversion would occur (Ironhouse Sanitary District 2024:18), the facts are slightly more complex. The bank proposes to create aquatic habitat for giant garter snake accompanied by upland basking habitat by grading to create a sinuous landscape of waterways and berms. This land will then be sold on credit basis for mitigation purposes to mitigation consumers. If grazing is not a project commitment through either environmental commitments or adopted and enforceable mitigation, the bank creation may effectively lock in a new land use where grazing is disallowed or discouraged and create a significant cumulative impact.

Communications with the District indicate that grazing would be compatible with the mitigation bank functions of the site. We encourage and welcome a land use approach where the District affirmatively commits to continued grazing in a manner that is consistent with the mitigation bank function. Absent such a commitment, the conversion of 189 acres would constitute an incremental effect that contributes to the cumulatively considerable loss of agricultural land triggering CEQA Guidelines Section 15065(a)(3)). Our review of the framework for CEQA analysis provided above demonstrates that the fact that farmland of local importance is not in the Appendix G checklist is not, by itself, persuasive that the project’s potential for conversion of farmland is insignificant. Here because the change in land use has the potential to diminish agricultural land use, it will make a significant contribution to a cumulatively considerable loss of agricultural land unless mitigated[1].

The most succinct and direct means of addressing this issue isto make minor revisions to the impact analysis in the agricultural and cumulative sections and adopt a mitigation measure committing to continuing grazing to avoid a cumulative impact.

Closing Comments

We appreciate the opportunity to comment on your document and to provide facts regarding Delta-wide trends. To reiterate, we appreciate the District’s analysis in the draft document, and simply intend to provide facts to support your administrative record in making a robust and well supported mitigated negative declaration, with an appropriate suite of mitigation.

If you have any questions, feel free to contact Mike Aviña at Mike.Avina@delta.ca.gov or at (530) 750-6727.

Sincerely,

Bruce Blodgett, Executive Director
Delta Protection Commission

[1] Note that CEQA imposes an affirmative duty to mitigate environmental effects where feasible (Cal. Public Resources Code Section 21002). Where mitigation is necessary to avoid significant effects, and that mitigation is not adopted, an Environmental Impact Report is required (No Oil, Inc. v. City of Los Angeles (1974) 13 C3d 68, 75).

References Cited

California Department of Conservation. Fast Facts. 2024. Available: https://www.conservation.ca.gov/dlrp/fmmp/Pages/Fast-Facts.aspx

California Department of Food and Agriculture. California Agricultural Production Statistics. 2024. Available: https://www.cdfa.ca.gov/Statistics/#:~:text=California’s%20Top%2010%20Agricultural%20Commodities,the%202023%20crop%20year%20are:&text=Dairy%20Products%2C%20Milk%20%E2%80%94%20$8.13%20billion,Almonds%20%E2%80%94%20$3.88%20billion

Delta Protection Commission. Economic Sustainability Plan for the Sacramento-San Joaquin Delta. 2012. West Sacramento, California.

Delta Stewardship Council. The Delta Plan. 2013. Sacramento, California

Ironhouse Sanitary District. Initial Study/Mitigated Negative Declaration for the Giant Garter Snake Mitigation Bank. 2024. Oakley, California.

Kostka, Stephen L, and Michael H. Zischke. Practice Under the California Environmental Quality Act. 2023. Oakland, California