Public Works

The fish

Submitted: Mar 15, 2009
Badlands Journal editorial board

"Capitalists forget the masses. Socialists forget the money." -- Mike Tharp, executive editor, Merced Sun-Star.

"Capitalists and newspaper editors work without aid of memory." Badlands Journal editoral board.

In the stirring, hairy-chested whine beneath, written on a weekend when, long after every newspaper in the region has seen all its finance, insurance and real estate flak predictions of the easing of foreclosures and the bottom of real estate prices buried by reality, Sonny Star's top editor calls for a Big public works project for Merced to provide work and restore civic confidence.

In general, Californians believe that the history of everything from the state to their subdivision began when they arrived. This appears to be doubly true of the manly Tharp, recently returned from the Green Zone in Baghdad, who calls in vigorous prose for the government to build something around Merced. Right now, if you please.

The government continues to sink hundreds of millions of weakening dollars into a win-win, public-private partnership project adjoining Merced. The project is called UC Merced. It was repeatedly presented by several generations of UC administrators, UC Merced boosters, politicians and business leaders -- and incessantly by UC Merced Bobcatflaksters -- to be a publicly funded "high-tech, bio-tech engine of growth." But we don't hear so much as a backfire, let alone a Great Purring Sound. 

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Shoot out at the OK canal

Submitted: Jan 30, 2009
Badlands Journal editorial board

Panel will debate controversial water issues Feb. 4 at Fresno State

(January 14, 2009) – A public debate on water policy in California and the Central Valley will be moderated by U.S District Judge Oliver Wanger at 7 p.m. Feb. 4, at California State University, Fresno. Agricultural and environmental advocates will face off on the issues.


The debate, which is free and open to the public, will be held in the Satellite Student Union (2485 E. San Ramon Ave. at Maple Avenue, south of Barstow Avenue). It is sponsored by Fresno State’s Political Science Student Association and the Political Science Department.


As the presiding judge for the Eastern District of California, Wanger has ruled over most of the major water cases recently in the Valley, including the controversy over preserving Delta smelt in the Sacramento Delta. Wanger will provide brief opening remarks, said Dr. Thomas Holyoke, a political science professor who is coordinating the event.


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The port-smog story mistold

Submitted: Dec 14, 2008
Badlands Journal editorial board

The Contra Costa Times, covering a story of Port of Oakland air pollution, supposedly of interest to its readers, missed the crucial political fact of the year on this issue: that Gov. Schwarzenegger, vetoed the bill that would have provided the most money for air clean up, by putting a surcharge on all full containers passing through the port. The additional fact that Gov. Sarah Palin, Barfly-AK, had something to do with persuading him to veto the bill, was also missed.

The Contra Costa Times was, until recently, owned by Knight-Ridder, which sold it to the McClatchy Co, which sold it to Denver-based MediaNews Group. Moody's has just again downgraded MediaNews's credit rating and pointed to significant challenges in the chain's near future.

Meanwhile, according to Project Finance Magazine, on Dec. 9, five multi-leteral export credit agencies pledged $5.25 billion for widening and improving the Panama Canal, another blow to westcoast ports. Shipping by sea remains the cheapest means of transport.

Another aspect of the problem of ports, pollution, and the money to improve air quality around the ports, is that the planned "inland ports," warehousing and truck depots in the San Joaquin Valley reached by rail from the ports, have lost one big pot of expected public funding as a result of Schwarzenegger's veto.

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The corruption complex in Merced

Submitted: Dec 08, 2008
Badlands Journal editorial board

“In a government of law, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.” -- US Supreme Court Justice Louis Brandeis, 1856-1941

How Washington Arrogance Helped Drive the Mumbai Attacks
Muslim Revolution

We were deeply struck by this ancient theme -- that the polis is the teacher of its citizens -- because it is as true now as it has always been.

But, what of that other institution so terribly important to the education of our citizens and others, our universities, specifically "the greatest public higher education research institution in the world" ... (listen to those trumpets blare) ... the University of California?

Is UC a good teacher?

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Wild steelhead win in Fresno Federal District Court

Submitted: Oct 30, 2008
Badlands Journal editorial board

Fresno Bee
Fish policies upheld in court ruling
Judge says feds have steelhead discretion...John Ellis
A federal judge in Fresno ruled Monday that the U.S. government has discretion to recognize differences in steelhead fish populations when determining whether they are eligible for listing under the Endangered Species Act.
U.S. District Judge Oliver W. Wanger issued a 168-page ruling on two challenges to how the National Marine Fisheries Service viewed California's steelhead populations.
One case challenged the government's practice of counting hatchery steelhead populations separately from wild populations.
The Pacific Legal Foundation had argued that Endangered Species Act listing decisions could be based on the numbers of hatchery steelhead produced each year. Based on that, the foundation had asked the court to remove five separate populations of steelhead from the list of endangered species.
In his decision, Wanger wrote that the "best science available" used by the NMFS "strongly indicated that naturally-spawned and hatchery-born [steelhead] are different."

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Low hanging fruit, Part II

Submitted: Sep 23, 2008
Badlands Journal Editorial Board

The articles below from the Merced Sun-Star tell a story about felony indictments brought against five people associated with Firm Build, a program started in 1998 to train "troubled teens" in construction trades. Merced County Planning Commissioner Rudy Buendia was or is still executive director of Firm Build, which went bankrupt months ago.

Buendia, charged originally with 15 felonies (later 17), according to the newspaper fled arrest and was a "fugitive" for two days before turning himself in with Kirk McAllister, Modesto criminal defense attorney, at his side.

Two of the five charged were arrested. It is unclear from reports if two others were arrested or turned themselves in. Two have posted bail and been released.

Buendia, the only reported fugitive, was released without paying bail on September 18 by Superior Court Judge McCabe. The judge's reasons included Buendia's clean record and that he personally knew seven of the 20 prominent people who wrote letters on Buendia's behalf. The board of supervisors is reported to have no plans of removing either Planning Commissioner Buendia or Patrick Bowman, on the board of the "troubled" Merced County Housing Authority and an official of the Merced County Office of Education, from the positions the board appointed them to.

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Raptor and POW file two suits to protect Merced River

Submitted: Aug 11, 2008

Press release: For Immediate Use !! ******* Press release: For Immediate Use !!

Raptor and POW file two suits to protect Merced River

MERCED (Aug. 11, 2008) — San Joaquin Raptor Rescue Center and Protect Our Water (POW) filed two California Environmental Quality Act (CEQA) lawsuits in Merced County Superior Court this week.

Petitioners sued Merced County, the Merced County Board of Supervisors and Christopher Robinson, alleging four arbitrary and capricious actions of abuse of discretion in approving a series of parcel splits.

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Sunshine on Housing Authority of Merced County

Submitted: Jul 21, 2008

Continued from: node/474

Sent: 3/31/2008 10:55:31 A.M. Pacific Daylight Time
Subj: Request to view active files pertaining to Felix Torres

Mr. Khiek and Mr. Gabriele,

On March 28, 2008, we received an email from Mr. Gabriele. In the body of the email was a reference to our potential request to view all files associated with the Felix Torres Child Development Center. We are confirming in this email our right to view these files.

In a previously scheduled meeting, we had incorrectly anticipated the timing of a Hearing Officer hearing. Typically, they have lasted between 30 minutes to one hour — this particular hearing ran nearly 2 hours - in which we were actively participating (February 25, 2008). As a result, Mr. Khiek, seems to have interpreted our actions as disrespectful to staff as we were late for our appointment (we met him after the meeting was over). Unfortunately, despite our good faith attempts, we have been unable to accurately predict the duration of County hearings — no disrespect to staff time, it is/was beyond our control.

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Sunshine on Housing Authority of Merced County

Submitted: Jul 16, 2008

Badlands is declaring the coming days a Sunshine Week to post a number of documents submitted to Merced County government in the last few months. Some of these documents have been included in the official packets of information for Board of Supervisors and Planning Commission meetings. Others have been suppressed.
This material is best understood by reference to the audio or video archives of supervisors’ and planning commission meetings and we encourage readers seriously interested in understanding their local government to go to the Merced County webpage,, to seek out these hearings, particularly the two board of supervisors meetings on July 1 and July 8.
The following correspondence and public comment letters concern the approval of a Merced County Housing Authority project.

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Public comment on the Felix Torres Project

Submitted: Jun 27, 2008

On behalf of San Joaquin Raptor Rescue Center and Protect Our Water, two local environmental groups, attorney Marsha A. Burch filed the following letter to the Merced Local Agency Formation Commission on June 26, regarding Planada Community Services District proposals to extend its sphere of influence to annex the new Felix Torres farm worker housing project.

In addition to Ms. Burch's letter, Maureen McCorry, on behalf of San Joaquin Et Al, submitted the following documents in addition to oral testimony:

1) Planning Commission Minutes 2.27.08
2) Planning Commission Minutes 3.26.08
3) 4.12.08 Articles
4) Planning Commission Minutes 4.09.08
5) Amendment to Real Party Exchange Felix Torres
6) Badlands Felix Torres, Raptor/POW
7) Felix Torres Background:
Felix Torres 3.26.08 Farm Bureau letter
Felix Torres 4.09.08
Felix Torres 11.29.07
Felix Torres 12.29.07
Felix Torres 12.13.07
Felix Torres USDA 12.13.07
Merced County 4.04.08
Planning Commission Transcript
Owens/Corser Comments
2.06.06 Agency Letter
8) Felix Torres CUP 2.27.08
9) Access to Working Files
10) Comment on proposed subdivision
11) MSR Planada
12) Graves letter
13) Felix Torres 3.26.08
14) Mary Stillhan 3.18.08
15) Planada CSD Final Petition
16) Lawsuit filed over the Planada Community Plan
17) Planada Settlement Agreement, SJRRC, POW, and the PCSD
18) PCSD ledger of Can and Will Serve Letters 1992-2008;

and Bryant Owens submitted these documents in addition to oral testimony:

“A” 2002 Preliminary Engineering Report for Planada WWTF Expansion
“B” Can and Will Serve Ledgers and related e-mail (13 pages)
“C” E-mail from PCSD to David Capron (1pg)
“D” Letter from Ken Mackie LAFCo (2pg)
“E” 11/7/03 Modification of Escrow, 21 acre Felix Torres Parcel (1pg)
“F” Community Plan Update Map Showing Felix Torres on Gerard Ave (1pg)
“F-1” Planada Community Plan Update 2003, Included by Reference
“G” PHRC Letter to Robert Lewis dated 8/3/06 (2pgs)
“H” Tom Nevis to Terry Allen re: Planada/Tatum Inquiry, Grand Jury Notes (2pgs)
“I” Villages of Geneva EIR Guidance Package (13pgs)
“J” Merced County Municipal Service Review, 2007, Planada (6pgs)
“J-1” Local Agency Formation Municipal Service Review Guidelines August 2003
(Govt. Publication included in its entirety)
“K” Settlement Agreement between Bryant Owens and PCSD dated 5/27/08 (5pgs)
“L” CA Regional Water Quality Control Board Administrative Liability Order (6pgs)
“M” 1993 Bear Creek Village CUP and amendments
“N” LAFCo Sphere of Influence Amendment 1055B.

The LAFCo board voted unanimously for continuance until Aug. 28 to consider new information.

All in all, it was not a good day for Merced County officials, who believe that the proper public-comment letter is a hand-written note by a pencil stub on toilet paper tacked to a fence post as far away as possible from 2222 M. St., Merced.

-- Badlands editorial staff

131 South Auburn Street
June 25, 2008
Via Email
Mr. Bill Nicholson, Executive Officer
Merced County Local Agency Formation Commission
2222 M Street
Merced, CA 95340

Re: Proposed Sphere of Influence Amendment No. 1055C to the Planada Community Services District and Planada Community Services District Annexation No. 2008-1, Planada, Merced County, California LAFCo File No. 0645

Dear Mr. Nicholson:

This office, in conjunction with the Law Office of Donald B. Mooney, represents the San Joaquin Raptor Rescue Center and Protect Our Water, groups with an interest in the above-referenced proposed sphere of influence amendment and annexation (“Proposal”). We apologize for the late hour of these comments, but we were unable to obtain a copy of the Planada Municipal Services Review (“MSR”) until this afternoon. We submit the following comments on the Proposal.

By previous letters and comments to the Merced County Planning Commission our clients have raised concerns that the Merced County Housing Authority’s (“MCHA”) CEQA documentation related to the above-referenced Proposal is inadequate. The following comment provides additional detail regarding the flaws in reliance upon the Environmental Assessment/Initial Study prepared by the MCHA. This comment further describes the legal obligation of the LAFCo as a CEQA responsible agency to assume the role of lead agency and prepare subsequent environmental review before approving the Proposal.

I. Required Subsequent Environmental Review

A responsible agency may not grant a discretionary approval for a project for which a negative declaration has been prepared without first considering the environmental impacts outlined in the negative declaration. (CEQA Guidelines § 15096(f); cf. Endangered Habitats League, Inc. v. State Water Resources Control Board (1997) 63 Cal.App.4th 227.) A responsible agency must decide for itself how to respond to a project’s significant effects that will directly or indirectly result from the responsible agency’s own decision to approve an aspect of the project. (CEQA Guidelines § 15096(g)(1); and Pub. Res. Code § 21002.1(d).) The responsible agency must adopt any feasible mitigation measures that will substantially lessen such effects. (CEQA Guidelines § 15096(g)(2).)

When a responsible agency believes that a lead agency has improperly relied on a negative declaration it may elect from options set forth in CEQA Guidelines section 15096 as follows: (1) take the matter to court within the applicable limitations period; (2) prepare its own “subsequent EIR” if permissible under CEQA Guidelines section 15162; or (3) assume the role of lead agency if permissible under section 15052. (Guidelines § 15096; and see City of Redding v. Shasta County Local Agency Formation Comm. (1989) 209 Cal.App.3d 1169, 1179-1181.)

As discussed in detail below, the initial study and negative declaration for the project failed to analyze certain impacts, and new information regarding potentially significant impacts has come to light since the MCHA approved the project. Thus, if the MCHA refuses to supplement the inadequate environmental
review, the LAFCo should assume the role of lead agency and evaluate the impacts of the project prior to approval.

It bears noting that the MCHA adopted the negative declaration for the project two and a half years ago on November 15, 2005. There is substantial evidence showing that the Felix Torres Housing Center is significantly different today in its construction phase than the project that was reviewed and approved
by the MCHA. Further, there is substantial evidence showing that the Planada Community Services District’s (“CSD”) plans to expand the wastewater treatment capacity have changed considerably, and the planned expansion formed a large portion of the MSR prepared by the LAFCo in April of 2007.

There is new information showing that the project will likely have significant impacts that were not addressed by the MCHA. (See Supporting Document Packet submitted by San Joaquin Raptor Rescue Center and Protect Our Water.)

Under CEQA Guidelines section 15052, the LAFCo as a responsible agency, shall assume the role of the lead agency when any of the following conditions occur:

(1) The Lead Agency did not prepare any environmental documents for the project, and the statute of limitations has expired for a challenge to the action of the appropriate Lead Agency.

(2) The Lead Agency prepared environmental documents for the project, but the following conditions occur:

(A) A subsequent EIR is required pursuant to Section 15162;

(B) The Lead Agency has granted a final approval for the project;

(C) The statute of limitations for challenging the Lead Agency's action under CEQA has expired.

(3) The Lead Agency prepared inadequate environmental documents without consulting with the Responsible Agency as required by Sections 15072 or 15082, and the statute of limitations has expired for a challenge to the action of the appropriate Lead Agency.

Under Section 15052(1)(A), a subsequent environmental review is required because new information has come to light (see Supporting Document Packet) which was not known at the time the negative declaration was adopted by the MCHA, and the new information shows that significant effects to utilities and service systems will be more severe. (CEQA Guidelines § 15162(a)(3).) This requirement applies to a negative declaration, and as a responsible agency, LAFCo may not grant a discretionary approval for the project until the subsequent negative declaration or EIR is adopted. (CEQA Guidelines § 15162(b) and (c).)

Accordingly, if the MCHA is unwilling to prepare the supplemental environmental review necessary to bring the review into compliance with CEQA, the LAFCo must step into the role of the lead agency and prepare the necessary review before considering and approving the project. (CEQA Guidelines §
15052(a), subsections (1), (2) and (3).)

A. New Information and Changed Circumstances

The initial study/negative declaration is outdated with respect to its analysis of the CSD’s capacity for wastewater treatment and cumulative impacts. Since the MCHA approved the project, in March of 2008, the CSD settled a CEQA action in the Merced County Superior Court and agreed to limit treatment plant expansion to a maximum of 900,000 gallons per day (“GPD”).

The MSR adopted in April of 2007 assumed that the CSD would move forward with the expansion. The MSR also concludes that the community of Planada will likely grow to a population of 8,500 within the next seven years. (MSR, p. 74.)

None of these assumptions is correct at this point, and the erroneous information in the MSR should be identified and revised, or at least discussed.

Changes to the Felix Torres Project itself have also arisen. Project construction apparently began and deviated significantly from the configuration approved by the MHCA and so the Merced County Building Division halted construction. The MCHA applied for approval to deviate from the project as approved in the Conditional Use Permit and on April 9, 2008, the Planning Commission did not approve that application. It is our understanding that the Planning Commission’s decision has been appealed.

In summary, the LAFCo may not rely upon the negative declaration prepared for the Felix Torres Project because that project has evolved and transformed so significantly that additional environmental review is necessary.

The new information triggers the need for subsequent environmental review under Guidelines section 15162(a), and therefore triggers the responsible agency obligation to assume the role of lead agency and prepare the necessary review. (Guidelines § 15052.)

B. Impacts not Previously Addressed

The staff report concludes that the Proposal will not have a significant impact on agricultural lands. This conclusion violates CEQA, and also the Cortese-Knox-Hertzberg Act (discussed below). With respect to CEQA, the conclusion that conversion of agricultural land is not significant is simply false, as the extension of the sphere of influence and infrastructure into the proposed annexation areas will remove a boundary to development on surrounding agricultural areas.

The staff report indicates that the County has denied applications for residential developments outside of the SUDP boundaries, but the fact that the County has denied applications in the past provides no assurance that such applications will be denied in the future. Thus, approval of the Proposal may
result in conversion of agricultural lands.

The Legislature has determined that the preservation of the limited supply of agricultural land is necessary for the maintenance of California’s agricultural economy and the state’s economy. (Gov’t Code § 51220.) The Legislature found and declared that "the preservation of land in its natural, scenic, agricultural, historical, forested, or open-space condition is among the most important environmental assets of California." (Civ. Code § 815.)

The Proposal’s impacts to agriculture must be evaluated in a subsequent environmental review. Gaps in the initial study and negative declaration for the project may not be overlooked, and must be addressed before the Proposal may be considered for approval.

II. The Proposal Is Inconsistent with Cortese-Knox-Hertzberg Statutory

As discussed above, the sphere amendment and annexation will result in the potential for conversion of additional agricultural land. The initial study for the Felix Torres Project does not adequately assess this potential and is insufficient under CEQA. It is also insufficient to approve the annexation under

Section 56377 of Cortese-Knox-Hertzberg sets forth the following requirements for LAFCo approval of annexations that convert open space and agricultural lands:

56377. In reviewing and approving or disapproving proposals which could reasonably be expected to induce, facilitate, or lead to the conversion of existing open-space lands to uses other than open-space uses, the commission shall consider all of the following policies and priorities:

(a) Development or use of land for other than open-space uses shall be guided away from existing prime agricultural lands in open-space use toward areas containing nonprime agricultural lands, unless that action would not promote the planned, orderly, efficient development of an area.

(b) Development of existing vacant or nonprime agricultural lands for urban uses within the existing jurisdiction of a local agency or within the sphere of influence of a local agency should be encouraged before any proposal is approved which would allow for or lead to the development of existing open-space lands for non-open-space uses which are outside of the existing jurisdiction of the local agency or outside of the existing sphere of influence of the local agency.

This section requires the Commission to guide development away from prime agricultural lands. Subsection (b) requires that development of existing vacant land within a sphere be encouraged before annexation of open-space land outside of the existing sphere.

To comply with these mandatory requirements, most LAFCo’s require a vacant land inventory and absorption analysis. This information is essential to determine if there is adequate vacant land already within the urban boundaries for the proposed development or whether there is a need to convert additional open space or agricultural land.

There is no such analysis done for this project. There is absolutely no evidence in the record to indicate that there is insufficient vacant and developable land within the urban boundaries and sphere of influence of the CSD that would justify further conversion of agricultural land outside the boundaries. In the absence of such information, Merced LAFCo cannot make the findings necessary to justify such a conversion.

III. The Proposal Is Inconsistent with Cortese-Knox-Hertzberg Statutory Requirements

The staff report indicates that Cortese-Knox-Hertzberg requires review of various factors for all reorganization proposals, citing Government Code section 56668. (Staff Report, p. 4.) The report goes on to say that certain Merced LAFCo policies provide a more focused review for rural service districts, and so
provides an analysis under the policy rather than the Government Code.

The mandatory requirements of CKH may not be so lightly disregarded.

Section 56668(d), for example, requires that the anticipated effects of the Proposal must be reviewed for consistency with adopted LAFCo policies on providing orderly, efficient patterns of urban development, and the policies and priorities set forth in Section 65377. These are the very priorities that were ignored by the MCHA in approving the Felix Torres Housing project at its present location, and they may not be ignored by the LAFCo.

IV. Conclusion

We appreciate the opportunity to provide the above comments. We respectfully request that the Commissioners carefully evaluate the shortcomings of the underlying CEQA document, and its inadequacy to support a discretionary determination by the LAFCo at this time. We respectfully request
that the LAFCo deny the Proposal.

Very truly yours,

Marsha A. Burch
cc: San Joaquin Raptor Rescue Center
Protect Our Water
Donald B. Mooney, Esq.

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