State Government

Sunshine on Shadow

Submitted: Jul 24, 2008

And he is too humble to take the responsibility for thinking. The whole structure of his world would be endangered if he permitted himself to think. The pieces must stick within their pattern or the whole thing collapses and the design is gone. We wonder whether in the present pattern the pieces are not straining to fall out of line; whether the paradoxes of our times are not finally mounting to a conclusion of ridiculousness that will make the whole structure collapse. For the paradoxes are becoming so great that leaders of people must be less and less intelligent to stand their own leadership. John Steinbeck, The Log from the Sea of Cortez (1941), p. 46.

The following essay developed in three parts: first, some general considerations about leadership; second, a short portrait of a phony leader; and finally a letter from a true Valley leader. The third part arrived only after the first two parts had been posted, as if to make our work more complicated but more complete. It is a letter from Lloyd Carter, Fresno-based director of the California Water Impact Network, to Rep. Grace Napolitano, chair of the House Subcommittee on Water and Power, regarding last Monday's subcommittee hearing in Fresno. It came to remind us not to forget contemporary people of principle in the Valley, although sometimes it seems that all we hear is unprincipled flak. With this third update of "Sunshine on Shadow," we think our work might be done. -ed.

 

1. Leadership

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Sunshine on Housing Authority of Merced County

Submitted: Jul 21, 2008

Continued from: node/474

From: MCCORRYM
To: pkhiek@co.merced.ca.us, rgabriele@co.merced.ca.us
CC: rlewis@co.merced.ca.us, jfincher@co.merced.ca.us, CALFMAN1, MCCORRYM
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, http://www.co.merced.ca.us/CountyWeb/, 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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Governmental activity

Submitted: Jul 06, 2008

At the end of Joseph Kanon's The Good German (Picador, 2001), there is an interview with the author. The interviewer asks Kanon, whose novel superbly depicts the labyrith of bureaucracies among Allied Armed Forces in the first weeks of the occupation of Berlin at the end of WWII:

As a writer whose work often centers on shrouded governmental activity, do you consider yourself prone to conspiracy theories?

Kanon. No. Conspiracies exist largely in the world of melodrama. In the real world of government, we're more likely to find the less exciting mix of incompetence, special interests, political expediency, and plain, dumb carelessness.

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Conversation with a firefighter

Submitted: Jul 05, 2008

The California Department of Water Resources announced on June 27, after the largest fire in Northern California history had been raging for a week:

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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
-----------------------------------------------------

MARSHA A. BURCH
ATTORNEY AT LAW
131 South Auburn Street
GRASS VALLEY, CA 95945
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;
and

(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
Requirements

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
Cortese-Knox-Hertzberg.

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

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Lloyd Carter on drought and aridity in California

Submitted: Jun 15, 2008

6-15-08
Sacramento Bee
Lloyd G. Carter: Much of California is a desert, we should live in it as such
By Lloyd G. Carter - Special to The Bee

http://www.sacbee.com/110/story/1012762.html

That dreaded word drought has again intruded into the California public consciousness following Gov. Arnold Schwarzenegger's June 4 declaration that a drought is officially under way.

Because the governor's executive order failed to declare a state of emergency or impose rationing, it appears his real motive in declaring a drought was simply to drum up more support for the nearly $12 billion water bond infrastructure measure he wants to put on the November ballot.

That plan includes a peripheral canal to funnel Northern California water around the Delta and $3.5 billion for two controversial dams. He has chosen to try to engineer our way out of the current dry spell instead of adapting to the fact most Californians live in a desert.

The gubernatorial declaration states that 2007 was a below-normal rainfall year and that this spring was the driest spring on record in California, with total river water supplies this year 59 percent of normal. During the 1986-1992 drought, six dry years passed before Gov. Pete Wilson issued a similar declaration in 1991.

The technical definition of drought is a deficiency of "normal" precipitation over an extended period of time, usually more than one season, resulting in a shortage of water for some activity, group or environmental sector.

Drought is a temporary aberration. It differs from aridity, which is a permanent feature of low rainfall climates.

Aridity typifies the Southern California climate and has resulted in the annual transfer of enormous volumes of water from the usually wet north state to the almost-always-dry south. With 1,400 dams and thousands of miles of canals, California has always engineered solutions.

Although the governor urges conservation, tying it to his pharaonic construction plan will further polarize Northern California and Southern California over what critics call his hydro-illogical boondoggles.

At any rate, those massive public works projects, even if approved by overburdened taxpayers, are probably 15 to 20 years away from completion and of no immediate benefit.It might be wiser for the deficit-plagued governor to focus on policy before plumbing and sort out a raft of statewide water problems, which have festered for decades and don't require billions in cash to fix.

I suggest he take the following actions:

• Demand an explanation from the State Water Resources Control Board about why current water- rights permits and contract allocations exceed available supplies by several times. This phantom supply, known as "paper water," is being used to justify more urban sprawl throughout the state. The State Water Project promises contractors 4.2 million acre-feet annually (an acre-foot is 325,851 gallons) but can safely deliver only 1.2 million acre-feet.

• Ask the state water board to declare irrigation of hundreds of thousands of acres of high-selenium soils in the western San Joaquin Valley an unreasonable use of water. Retirement of all these alkali soils, which generate a pollutant-laden drainage that cannot be safely disposed, could free up more than a million acre-feet of water. Discourage planting of low-value, water-thirsty crops such as cotton.

• Demand a halt to urban waste. While some cities have excellent conservation records, others are dragging their feet. Sacramento and Fresno still sell water at a flat rate, meaning urban customers pay the same monthly bill whether they use 1 gallon or 1 million gallons.

• Be honest in educating the public that drought conditions do not exist everywhere in agriculture. Thousands of Central Valley farmers will be getting a full supply of federal water this year. Only the massive Westlands Water District, with 500 to 600 growers on 1,000 square miles, and a few other western San Joaquin Valley irrigation districts, will get reduced supplies. And they are free to purchase water on the open market. The governor's declaration will make such water transfers easier.

• Insist on reducing or halting the use of rivers and Delta drinking supplies as sewers for agricultural, municipal and industrial wastewater. Future generations will wonder why we allowed the Delta, drenched in urine-based ammonia, to literally be used as a toilet.

• Remember that agriculture still uses 80 percent of the state's river water supplies and a lot is wasted through flood irrigation and evaporation. Virtually all of Israel's agriculture is irrigated by drip systems. A new Israeli underground drip system uses 30 percent to 50 percent less water for growing rice, a major crop in the Sacramento Valley.
Give growers tax breaks to convert to drip. Before fields in the western San Joaquin Valley are planted each spring, growers use large amounts of imported water to drive the soil salts down below the root zone, a water-guzzling practice known euphemistically as "pre-irrigation." This is further proof these salty lands should be retired.

• Recognize that the federal Central Valley Project has a priority system for delivering irrigation water, and Westlands has always been at the end of the bucket line. When the senior federal water districts have all received their allotments, the junior contractors, including Westlands, get what is left. Westlands growers knew this when they signed their water-delivery contracts decades ago. It's a risk they willingly assumed.

Now, Westlands is negotiating with U.S. Sen. Dianne Feinstein for a guaranteed supply of 1 million acre-feet a year, enough for a city of 10 million. This deal would be terrible news for the Delta ecosystem.

In her 2007 book "Managing Water, Avoiding Crisis in California," Dorothy Green, a respected Los Angeles environmentalist, writes: "We can meet the future of a growing California if water is used much more efficiently, if the management of that resource is better integrated and holistic, and if land-use policies are tied to water availability."

Let us hope that when the current drought fades, Green's advice doesn't.

Lloyd G. Carter covered California water issues for more than 20 years as a reporter for United Press International and The Fresno Bee. He is now an attorney and a director of the California Water Impact Network, www.c-win.org.

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Public minutes on the Merced County Board of Supervisors public hearing on the Robinson minor subdivision application

Submitted: Jun 12, 2008

“Give me a break.” -- Merced County Supervisor Gerry O’Banion

Merced County Board of Supervisors

Board Agenda Item PM #2
June 10, 2008

Appeal of Planning Commission approval of Minor Subdivision Application/Parcel Map Waiver No. 07-058 – Chris Robinson

Project Description and Location: The applicant proposes to divide three parcels (194.52 acres, 516.80 acres, & 315.88 acres) totaling 1,027.20 acres into 3 parcels of: Parcel 1 = 198.63 acres, Parcel 2 = 343.18 acres, Parcel 3 = 165.63 acres and Remainder Parcel = 320.14 acres. The project is located on the east side of Highway 59, ½ mile north of Youd Road in the Snelling area. The project site is designated Agricultural land use in the General Plan and zoned A2 (Exclusive Agriculture).

Senior Planner Dave Gilbert explained to the supervisors that the issue was an appeal from the county Planning Commission approval of the project. The planning department presented this project as a “reorganization” of three parcels into three plus a remaining parcel. For some reason, it could not say “four parcels.” The boundaries of proposed Parcel 2 may be the area of a conservation easement on the Merced River, which occupies parts of the three existing parcels. The other new parcels surround this parcel. Because information about the easement was not made public, it is not clear whether the boundaries of the parcel are the boundaries of the easement. Robinson will later apply for a conditional use permit to mine a portion of one of the new parcels adjoining the conservation easement, nearly touching the river. But, Gilbert said, “The change in the parcel borders doesn’t affect the easement.”

The planner explained that the proposed parcels were a part of the Robinson family planning process and “was consistent with managing 6,000 acres over time.” Gilbert also dismissed the California Environmental Quality Act cumulative impact issue saying there had only been one subdivision within a mile of the project and only nine within five miles of it – neglecting hundreds of subdivisions of agricultural land in Merced County the planning department has difficulty counting.

In reply to a letter from the US Fish and Wildlife Service, planning staff asserted that Robinson, the applicant said there would be no ranchettes and that there was no relationship between the new parcels and the anticipated sand-mine project. Robinson’s mining contractors, Central Valley Cement, according to Gilbert, also claimed no relationship between the mining project and the new parcels.

Gilbert reported to the board that the planning commission approved the proposed new parcels and that there would be no changes in land-use, which would remain in agriculture (except for the mining, of course.)

The briefest history of this part of the Robinson Ranch shows that the conservation easement on the river resulted from the 1997 flood, which blew out Robinson’s mining operations on the river, damaged the downstream bridge on Highway 59. A number of resource agencies spent millions of dollars of public funds on the restoration project contained in the conservation easement along the river (proposed Parcel 2).

Maureen McCorry, representing et al and the Valley Land Alliance, spoke against the project. She began by asking the board if they had received and read the material she submitted. Board members nodded or replied that they had.

McCorry repeated the planner’s statement that it was “beautiful land.”

“Our requests are reasonable,” she said, because of “huge natural resource issues and values at stake.” Since the mining CUP is already in the pipeline for approval, the board should combine it with the parcelization and consider them together.

“This is a California habitat issue first, not local,” she said. It involves preservation of rangeland, potential agricultural –to- agricultural conversions damaging to rangeland, and interference with the easement. “Millions of public funds were spent to preserve,” she said. “There is no way this is exempt from CEQA,” she said, naming the long list of public resource agencies involved in the restoration project.

McCorry also mentioned that the planning department had not included in materials submitted to the board a map on rangeland she had submitted of the region prepared by The Nature Conservancy for the California Rangeland Coalition.

Regarding the Fish and Wildlife Service letter, she said that the planning department had contacted the wrong branch of the Service initially, that members of the public had contacted the right branch, and that after the planning department received the Service letter, it complained to the Service for writing a letter the County had not requested.

At the end of Ms. McCorry’s five minutes, her aunt, Supervisor Kathleen Crookham, chairwoman of the board, cut off her microphone.

Cutting off microphones is not typical elected-official behavior, even in Merced. However, McCorry had submitted letters and documents that would take longer than five minutes to read, if any supervisor bothered to read them.

Chris Robinson told the board that the application is to turn three parcels into four. His family’s intent has always been to protect the environment and habitat and has a long record of doing so. (A few brave souls in the county have testified for many years that the Robinsons have a long record of doing the opposite.) Robinson said he had worked hard with the agencies during the restoration. Biologists developed the borders of the conservation easement, which cuts across the three existing parcels.

He said his family had donated first, $600,000 and later, $500,000 to the project. Splitting the three parcels into four “probably enhances the wildlife habitat,” he claimed. He asked to reserve his remaining time to answer any questions the board might have.

The public noted that the taxpayers donated millions to the river restoration project and that no mention was made of how much money the Robinson family made in years of aggregate mining on the site of the restoration project, of necessity publicly funded to try to clean up the destruction caused by the family’s mining. It is important for the public and the board to recall the long history of this applicant’s family’s mining projects before he was greenwashed by million in public funds.

Jean Okuye, president of Valley Land Alliance (although she did not announce herself that way), testified that she was concerned about the CEQA issue of continual “piecemealing” of agricultural land. She also said that Robinson had told her he would plant orchards on one of the proposed parcels (it was not clear which parcel). She said that in Denair, a farming community in Stanislaus County (to the north), the aquifer is now reported to be moving backwards, toward the foothills rather than toward the valley floor. “Foothill farming may be the problem,” she said. (Many orchards are being planted in the hills on either side of the San Joaquin Valley.)

No one else testified and the public hearing was closed.

The board and top staff from the County deliberated.

County Counsel recommended that the board continue the item to give planning staff time to consider McCorry’s letter, two CDs of documents, and the letter from attorney Marsha Burch. He suggested that the planning staff could return to the board after this review with a supplemental report.

Supervisor Crookham wanted Fincher to clarify that the public hearing was closed and that the only future testimony would be on new issues. Fincher agreed.

Supervisor Deidre Kelsey moved to continue the item until an unspecified date in order to give staff time to review the submitted documents.

Crookham said that it would give the board time to read the material.

Supervisor John Pedrozo asked, “Who’s to say that five hours before … a new letter and it has to go again, putting off, putting off. It’s not fair to the applicant … not the ‘appellate’.”

The public notes that the board of supervisors meets in closed session an hour before every meeting to discuss litigation. Pedrozo, who draws $90,000 a year plus perks and benefits from the public trough, ought to know the difference between a court (appellate) and a member of the public (appellant). That he ran unopposed this year for a second term brings into question Merced County’s capacity for self-government.

County Counsel Fincher replied that that was a possibility, but that lack of a thorough review was unfair to the applicant. He added that Robinson’s attorney agreed that delay was required.

Crookham said the documents submitted were very lengthy and that County Counsel should have been in the loop, too, to receive them. “It’s always at the last minute,” she complained. “Everybody is scrambling.” She asked that the public have more respect for the supervisors and get things in a timely manner.

Supervisor Gerry O’Banion said, “That’s a ploy. It makes me sick …There is no stronger environmentalist in Merced County than that family. Last minute fiascos from the Raptors and Maureen and whoever she represents today are continuing to try to kill any project …Subdivision? This isn’t houses, it’s allowed by the General Plan of Merced County. His project is to improve his ability to take care of that land. Just look back on the Robinson family over the years.”

O’Banion said he’d agree to a continuance only until the next meeting, next week, and repeated that the public hearing was closed except for any new information.

“It’s so disappointing that every planning issue … 11th-hour information from Maureen McCorry, the Raptors or Valley Land Alliance or any organization. Give me a break. You should have known how you felt a long time ago. You should have submitted earlier. Don’t tell me at the last moment you have to scurry around. Some people in these groups got their 20-acres ... The MAC versus some other organization? Give me a break. The decision needs to be made, up or down.”

O'Banion's reference to people getting their 20-acre parcel splits was aimed at Okuye, who recently split her orchard into smaller parcels. However, her entire orchard is in an agricultural easement, the split was clearly for estate-planning purposes, she has no sand mine in the pipeline, so the slung mud didn't stick on Okuye's barn door.

Pedrozo complimented O’Banion on saying it perfectly. “It’s a board game and I just don’t like it.” He referred to “a lot of money” Robinson said his family had donated to the river restoration project. “But we have to prolong it a little longer and I apologize.”

The public doubts Pedrozo even considered how much money the Robinson family made on the mine, the damage of which required the publicly funded restoration project contained in the conservation easement.

Crookham added that Chris Robinson’s parents were so proud of the river restoration work and that she never thought of Chris as a developer. “I’m sorry also for what we sometimes have to put people through.”

Kelsey said that when the project was presented to the Snelling Municipal Advisory Council (MAC), Robinson addressed the MAC’s concerns about oak trees, riparian habitat “and who knows what.”

The public noted that the Snelling MAC is upstream from the Robinson Ranch, whose projects tend to damage downstream resources. MACs are initiated by supervisors for unincorporated areas in their districts. Supervisors also appoint MAC members. Three groups representing downstream interests might have been contacted: a Hopeton/Amsterdam MAC, a Stevinson MAC or the Merced River Stakeholders, which represents diverse interests from Merced Falls to the river’s confluence with the San Joaquin River. The problem is that despite years of pleas from Hopeton/Amsterdam and Stevinson, Kelsey has refused to entertain creating MACs in those areas. Robinson, once an active member in the Merced River Stakeholders, did not submit his project for its review.

County Planning Director Robert Lewis reminded the board that its next meeting would consider the annual budget and the one after that would be about the General Plan Update, two engrossing topics that might not leave time for another hearing on this matter. He suggested the best time for rehearing the matter would be at the second meeting in July.

Crookham said, “’as soon as possible’.”

O’Banion said, “It should come at the next meeting. This has been delayed. Don’t wait another month. It is unfair to the project applicant. I can’t support it.”

O’Banion introduced another motion to amend the motion on the floor to state the item would be heard “at the next meeting.” Pedrozo seconded it.

Supervisor Mike Nelson said he could not support O’Banion and Pedrozo’s amendment based on the planning director’s information. Nelson described the new material as “two hundred pages of gobbledegook.”

The public noted that Nelson’s reference to 200 pages is strong evidence he had read little if any of the submitted material.

Lewis replied from the podium that he thought the planning department could get it done by the next meeting.

County Counsel Fincher, more familiar with the submitted material, said that Lewis’s assertion would live the staff only one day for full review. “I appreciate Mr. Lewis’s eagerness but that’s a lot of work,” he said.

Kelsey said that the point of order was that her motion was for “the first available meeting. We don’t want to make mistakes that would lead to courts.”

County CEO Dee Tatum, said that the administration does not “get involved in dates and times … I hear Mr. O’Banion, but Mr. Fincher is trying … if you would allow us the latitude, it will not languish.”

Tatum explained that the reason there would only be two staff days (the second taken up with printing the supplemental report) is because the report must be out for public review 72 hours before the meeting, according to the Brown Act.

O’Banion said it should be done by the second meeting, on July 1.

Tatum agreed it would be done by July 1.

O’Banion said that if the second to his amendment were withdrawn (Pedrozo withdrew it), the amendment would be withdrawn with the understanding the matter would be heard again by the board on July 1.

Pedrozo asked again if the public hearing had been already closed.

Fincher said July 1 sounded good but suggested the board inquire if Robinson would be available on that day. Robinson nodded that he would be.

Crookham said it was all clarified and called for the vote. It passed unanimously.

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Burch letter on Robinson subdivision application appeal, June 10, 2008

Submitted: Jun 11, 2008

We are posting a letter from Attorney Marsha Burch, representing San Joaquin Raptor Rescue Center and Protect Our Water (POW) on a proposed subdivision on the Robinson Ranch, which straddles the Merced River above the Shaffer Bridge on Highway 159, because it raises important issues concerning this apparently innocuous application. We will post a report on this public hearing soon.

Badlands Journal editorial board

Marsha Burch
Attorney at Law
Grass Valley CA

June 10, 2008

Via Email and Facsimile

Merced County Board of Supervisors
County of Merced
2222 M Street
Merced, CA 95340

Re: Proposed Minor Subdivision Application/Parcel Map Waiver No. MS07-058 (Chris Robinson), Merced County, California

Dear members of the Board of Supervisors:

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 minor subdivision (“Proposal”). We submit the following comments on the Proposal. These comments are submitted in conjunction with additional information submitted to the Board on June 6 and June 10, 2008.

The Board of Supervisors should reverse the Planning Commission’s approval for two reasons. First, the Proposal is part of a larger development plan for the Robinson property, and so under the California Environmental Quality Act (“CEQA”), the Proposal should be considered together with the applicant’s plans for a mining operation on the property. Second, the Proposal is not subject to the CEQA exemption relied upon by the Planning Commission.

This Proposal comes to you by way of an appeal of the March 26, 2008, Planning Commission approval of the Proposal and a determination that the Proposal is exempt from review under CEQA. The Planning Commission decided that the Proposal was exempt from CEQA under CEQA Guidelines Section 15061(b)(3), known as the “common sense” exemption. This exemption applies where “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” (CEQA Guidelines § 15061(b)(3).)

The Planning Commission erred in finding that the Proposal is exempt from CEQA. The Proposal will result in physical changes to the environment, including the potential for conversion of productive agricultural lands, for construction of residences, easements, etc. on the newly created parcels. As discussed in greater detail below, evidence in the record also suggests that the Proposal could result in impacts to listed species. There is no basis for the County to rely on the common sense exemption.

A. Exemptions under Section 15061(b)(3)

An agency may find a proposed project exempt under Section 15061(b)(3) only if its precise language clearly applies. Any possibility that the project might culminate in a significant adverse change removes it from this exemption. If a reasonable argument is made that suggests a project might have a significant impact, the agency must refute that argument to a certainty to rely on the exemption. (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 118.)

A reasonable argument has been made that the Proposal may have a significant impact. The April 23, 2008, comment letter from the United States Fish and Wildlife Service (“USFWS”) appropriately points out that “the parcel split would extend about 10,000 feet along both sides of the portion of the Merced River that was restored. . . .” The USFWS went on to state that the potential for take of listed species is not clear with respect to the parcel split, but notes that such splits often lead to development. In this case, there is nothing in the approval by the Planning Commission that would prevent the sale of the individual lots and/or construction of homes on each of them. The fact that the applicant has indicated a present intent not to build homes does not mean that at any time in the future he could not change his mind and develop residences on the parcels.

Also, the Agricultural Chapter of the General Plan cautions against parcelization of farmland because smaller parcels encounter greater difficulty in supporting a full-time farming operation. The fact that the Proposal will result in parcels that are larger than the 160-acre minimum does not change the fact that the Proposal will create parcels that could be sold individually. The potential impacts of parcelization are exacerbated by the fact that the property is within the Merced County Agricultural Preserve. The conflict with the General Plan is significant, especially in light of the fact that the County has consistently refused to assess the cumulative impacts of the minor subdivisions occurring with alarming frequency throughout the County. Hundreds of these parcelization proposals have been approved, and yet the overall impact to agriculture in the County has never been considered.

Finally, the property is burdened by a conservation easement, and the details of the easement and its requirements have not been revealed to the decision makers or the public. In fact, County staff has determined that the easement simply will not be reviewed in connection with the Proposal. In a letter from Robert A. Lewis to the USFWS on May 7, 2008, Mr. Lewis stated that the County “was not provided” with the information regarding the details of the conservation easement, but would ask for such details later, at the time the Conditional Use Permit (“CUP”) application is evaluated. The public and the decision makers are in the dark about the details, and there is no certainty that the parcels created by the Proposal even comport with the easement boundaries. Also, it is possible that the parcelization of the property is contrary to the terms of the easement, and County staff’s head-in-the-sand approach could lead to County approval of a parcel split that violates the terms and/or the spirit of the conservation easement.

The parcelization will isolate the conservation easement. This means that any development or increase in intensity of use on the remaining parcels will not automatically require participation by the resource agencies holding the easement. The result will be reduced scrutiny of development adjacent to the easement, and the value of the easement itself could be lessened by the County’s action in approving the Proposal.

The comments of the USFWS and the facts pointed out by staff and the public reveal that the Proposal covers property inhabited by listed species, containing a conservation easement (the details of which the staff has determined to ignore), and within the agricultural preserve. The burden is now on the agency, the County, to refute the argument to a certainty, which is not possible under the circumstances.

When a project will result in physical changes to the environment, and there is dispute regarding the possibility of significant impact, the agency must prove that significant impacts cannot possibly occur. (Davidon Homes, supra, 54 Cal.App.4th at 118, emphasis added.) Also, when evidence is presented to a lead agency showing possibility of adverse impact, the agency cannot rely on the absence of supporting data, because the agency cannot say with certainty that there is no possibility of significant effect on the environment. (Dunn-Edwards Corp. v. Bay Area Air Quality Mgmt. Dist. (1992) 9 Cal.App.4th 644, emphasis added.)

B. Potential for Conversion of Agricultural Lands

In this case, the Proposal will create four parcels. Each of these parcels could result in the construction of new residences, barns, other outbuildings and roads/driveways. The applicant continues to insist that he has no plans to change the use of the property, but the fact remains, the County’s action in approving this would allow for development of the individual parcels. When that development occurs is not the issue.

The General Plan, Land Use Chapter, Goal 7, is “Conservation of productive agricultural and other valuable open space lands.” The staff report to the Planning Commission suggested that the Proposal was consistent with this Goal because “[t]he project site will remain in row crop production and pasture land according to the applicant.” Again, the fact that the applicant does not have any immediate plans does not change the fact that the four parcels would be subject to development. In other words, the Proposal will allow for land use changes that could be contrary to Goal 7.

Additionally, Land Use Chapter, Policy 7.3 states that “[p]remature and uncoordinated division of land which forces the early cessation of valid agricultural uses shall be avoided.” The Planning Commission staff report admitted that irrigation easements would likely be required to provide irrigation supplies to all parcels in the event they are sold, but there is no indication that such easements will be included in the subdivision, and here again, the General Plan Policy favoring large, productive agricultural parcels is not consistent with the Proposal.

There is substantial evidence in the record before you indicating that the Proposal may result in premature conversion of productive agricultural lands. In addition to being inconsistent with the General Plan, this conversion is a potentially significant impact under CEQA. The County may not, at this point, rely upon an absence of data in the record regarding the specific impacts to agricultural lands, but must move forward to an Initial Study. (See Dunn-Edwards Corp. v. Bay Area Air Quality Mgmt. Dist. (1992) 9 Cal.App.4th 644.)

C. Potential Impacts to Listed Species

The United States Fish and Wildlife (“USFWS”) has reviewed the Proposal and stated that the subdivision may have significant impacts on federally listed species. This opinion from the experts at the USFWS is “substantial evidence” under CEQA. (See Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 156 [memorandum from the state Department of Conservation was substantial evidence].)

The inquiry should end here. An Initial Study is required, as the County simply cannot say with certainty that there is no possibility of a significant effect on listed species.

D. Segmenting of the Project

The Planning Commission erred in segmenting the Proposal to split the parcels from the overall development plan for the property. The parcelization of the property to avoid the conservation easement area is the first step toward the processing of the application for CUP 06-008. By isolating the conservation easement on one parcel, the remaining parcels will likely develop, whether it be a conversion to more intensive agricultural uses or other uses. The resource agencies involved in the conservation easement will not be able to participate in development adjacent to the easement, which may have significant impacts on its environmental values. The easement language must be reviewed and the impacts to its value must be evaluated.

CEQA defines a "project" extremely broadly as "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: “(c) an activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.” (Pub. Resources Code, § 21065; see Guidelines § 15378(a)(3) [a project is "the whole of an action"].)

Furthermore, courts give “project” a broad interpretation in order to maximize protection of the environment. (Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1189.) The California Supreme Court has stated that CEQA is “to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal. Rptr. 761, 502 P.2d 1049.) From this principle, “it is clear that the requirements of CEQA ‘cannot be avoided by chopping up proposed projects into bite-sized pieces’ which, when taken individually, may have no significant adverse effect on the environment (Plan for Arcadia, Inc. v. City Council of Arcadia (1974) 42 Cal. App. 3d 712, 726, 117 Cal. Rptr. 96) ….” (Lake County Energy Council v. County of Lake (1977) 70 Cal. App. 3d 851, 854, 139 Cal. Rptr. 176.)

Consistent with this approach of not breaking an activity down into bite-sized pieces, Guidelines section 15378, subdivision (c) states, “the term ‘project’ refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term ‘project’ does not mean each separate governmental approval.” Thus, in Plan for Arcadia, Inc. v. City Council of Arcadia (1974) 42 Cal.App.3d 712, 726, the shopping center construction, parking lot construction and widening of an adjacent portion of the street were regarded as a single project for purposes of CEQA.

In this case the evidence shows that the overall development plan for the Robinson property is an “activity [that] may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Pub. Resources Code, § 21065; see also attached List of Exhibits.) Therefore, the parcelization and mining proposal is a single project within the purview of CEQA.

The most important factor to consider is the interrelationship between the proposed lots. For example, the separation of the conservation easement area from the other portions of the property is the first step toward application for the CUP, and will streamline the CUP process by legally separating the “mining parcel” from the “conservation parcel.” As set forth above, it is unclear whether this parcelization is even consistent with the conservation easement agreement, but the existence of the conservation easement on the parcel proposed for mining would certainly complicate environmental review of the CUP proposal.

Additional factors that support the conclusion that the overall development plan is a single project are (1) the parcels are under common ownership; and (2) the clear and expressed intent of the Applicant to obtain a CUP for the mining operation.

The property at issue is a sensitive one by any definition. According to the USFWS it is inhabited by myriad listed species, and the conservation easement itself speaks volumes about the ecological value of the property. There simply is no reasonable basis to excuse the County from CEQA’s requirements – and the certainty required for such a determination simply cannot be found.

We appreciate the opportunity to comment. We respectfully request that the Board of Supervisors reverse the decision of the Planning Commission that the Proposal is exempt from CEQA, and deny the Proposal.

Very truly yours,

Marsha A. Burch
Attorney

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

LIST OF EXHIBITS SUBMITTED

June 6:

Robinson Property Project
AG Central Valley Concrete
Army Corps Letter
Four Pumps Agreement
Lewis Letter to USFWS
Merced River Corridor Restoration Plan
MRSHEP Phase 3 Engineering Report
Robinson CUP
Robinson Ranch Application
Robinson Ranch Application Package
Robinson RP
Robinson Ranch RP txt
Vollmar Letter

June 10:

Coalition Statement
DFG Action Plan
Ecofull UC Vollmar
Fish and Game Land-use Change 2
Fish and Game Land-use Change 1
Paving Paradise
Rangeland Resolution
Silviera Report
SJKF Recovery Area
SJKF Documents
TNC VP Target
USFWS Recovery Plan 2
USFWS Recovery Plan 1
USFWS Upland Recovery
Vernal Pools and Related Wetlands
Wildlands Map
Williamson Map

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One more modest proposal for a time of political bloat

Submitted: May 04, 2008

No canal for Simitian yet

State Sen. Joe Simitian has been the sponsor of a new peripheral canal bill that failed in the state Assembly last week. Although Palo Alto, Simitian's hometown, gets its water from Hetch Hetchy, his district includes much of urban Santa Clara County, which gets northern California urban dwellers among the 20-25 million residents, north and south, who rely on the Delta for water.

Like his predecessor in office, Byron Sher, Simitian enjoys a reputation for impeccable environmental positions, which makes him a most attractive sponsor for a new peripheral canal, an environmental disaster.

If the logic escapes you, it is just California politics, particularly illogical when it comes to water.

The problem is that Santa Clara County, no more than Los Angeles, Riverside, Orange, San Bernardino and San Diego counties, can supply water to its overpopulated regions without taking increasing quantities of it from the San Joaquin/Sacramento Delta, physically and ecologically collapsing under the pressure of the pumps.

Therefore, we have California water politics, one of the nation's more absurd thought forms. In this presidential election year the conflict was too great, so Simitian's bill was tabled. But, it will be back.

The conflict, although the Palo Alto senator carried the bill, is between northern andsouthern California and it keeps on getting worse. The north grows. Stockton, on the Delta, achieved the national record for foreclosure rate for another quarter. The south Bay Area grows. Southern California grows. Upstream users of Colorado River water grow and sell less surplus annually to Southern California and, if the agreement holds, there will be less in the future. Global warming may exist and may change snow and snow melt
patterns in the Sierra.

The state Legislature lost control of this situation years ago. State Senator Mike Machado wants to establish a state commission to oversee the Delta, to replace the failed CalFed coalition of state and federal resource agencies. But that won't work either. The Hun Our Governor's blue ribbon Delta Vision Committee will make its report soon, recommending a peripheral canal. Even a full scale economic depression, which might stop growth and even partly reverse it, would only work for awhile.

Therefore, let Badlands Journal be the first we are aware of in this peripheral canal go-round to bring up a notion that tends to surface when that canal is debated: California is ungovernable on its most essential resource issue – water -- because it is too big. It should be split into at least two parts or, as in one of the last proposals we heard, three parts. As presently politically constituted, California is unable to think through and politically negotiate the problem of water because the south, desperate for water, controls the majority of the state Legislature regardless of party, while the water comes from the north. The north needs more political power than it has in the present legislature to protect its own water supply and quality, habitat and environment, and the south just needs more water. Typically, given the most materialist national

culture according to the SuperPower, a legend in its own mind, the simple dollar-and-sense argument is stronger than most others, however destructive it may be.

In fact, to do many of the things necessary to actually govern California once again, we need legislatures that understand and articulate regional interests. At present we have a legislature that cancels out regional interests and has produced a state of legislative idiocy instead of government. On water, northern and southern California cannot agree. Rather than continue this absurd mockery of state government that becomes weaker and less relevant each election cycle and more laughable to other states, we need to divide in order to properly represent legitimate regional interests. While we may have to relinquish our Baby Huey Complex, we will reward ourselves with government more likely to work because it will once again have a chance of representing genuine political interests.

Nearly 22 million people live in Southern California's eight counties. Seventeen million people live in Northern California's 50 counties. Northern California is not powerless to protect its own water supply and environment in the state Capitol, where Southern California dominates the Legislature, but it is always on the defense, constantly losing and forever in desperate political dramas in last-minute crisis on the issue. These
dramas in themselves, considering the real terms of the issue, are bogus, third-rate plays, suitable for performance only in skid-row Sacramento.

Meanwhile, 18 million people in five states upstream on the Colorado River from Southern California were successful several years ago in curtailing the amount of that river's water coming to Southern California because -- despite heavy lobbying by California -- their legislatures are not dominated by Southern California politicians. A natural political alliance would exist, particularly this summer when salmon fishing has been
closed on the Pacific coast of California and Oregon, between a state of Northern California and Oregon to protect an important economic resource. Insofar as SouthernCalifornia will keep demanding more Colorado River and Delta water despite whatever agreements are or have been reached, another alliance of states between Oregon, a state of Northern California, and the five upstream states on the Colorado Plateau would also exist to gently persuade by political means the state of Southern California that it has exceeded its limits of urban growth.

Would Southern Californians scream against such outrageous manipulation of their water supply by states in which it originates? This question brings up another: When did the developers of Southern California ever ask the existing citizens of that region if they wanted more growth and a future of permanent water restriction? Many of the most ardent environmentalists in Northern California today are refugees from rural areas in Southern California, which they saw destroyed by developers in a matter of years, not decades.

The question about the real sentiment of Southern Californians on development and water- supply issues raises the anterior question: To what local governments representing those people would the question have been asked? Southern Californians are probably the least represented at the level of county government of any region in the nation. To compare with the level of county representation in Northern California, Southern California should divide its eight counties into about 70 counties.

Why focus on counties rather than cities? Because counties historically represent stable geographical regions rather than unstably growing urban populations. And, for not yet incorporated areas, counties are the land-use authorities that decide how those areas will grow. Dividing the eight counties of Southern California into 70 real counties would add 62 land-use agencies, some of whom, at the request of their residents, might put some brakes on the catastrophic urban growth of the region -- not in terms of the
whole region but in terms of those areas within it of it these citizens can comprehend, their counties. Adding 62 counties to Southern California would also make graft much more difficult for developers and their lobbyists and local fixers to get local land-use permission to continue to build and create more demand for water originating in other states.

And think of all the wonderful names the people of Southern California would create for 62 more counties, names for local governments that reflect where they actually live and would be represented by people they are far, far more likely to actually know. Given threalities of resources, particularly water, these local land-use jurisdictions are likely, in the name of survival, to reject plans for reckless growth, because they would
have a voice and the opportunity for political reason in political structures that are small enough to listen to reason of suddenly powerful local constituencies.

This suggestion is no claim that 20 million Southern Californians are going to wake up in a new, smaller state with no Delta water the next morning, anymore than they woke up after the Colorado River Agreement with no water from that river the next morning. It does suggest that a smaller state of Northern California would have more power within the federation of the United States to bargain with federal agencies for how water
originating within its boundaries is allocated.

Obviously, none of this is likely to happen because our "Great Big Number One State" as former Gov. Pat Brown (1959-1967) used to call it, is not going to give up such status, even if it would be wiser to do so. There were historical reasons to encourage California population growth and even if those reasons have long ago outlived their purpose, the economy of the state has come to depend, hopelessly, on finance, insurance and real estate special interests (FIRE), which have a death grip on the state Legislature equal to or exceeding that enjoyed by the Railroad in the early 20th century. Yet California, starting with Southern California, overthrew the power monopoly of the Railroad.

Dr. Haynes believed that if political democracy could be established, social democaracy would follow, and poverty and injustice could ultimately be abolished. Largely through his charm and his prestige, and through a Direct Legislation League that was essentially his personal organization, Los Angeles was persuaded to adopt the initiative, the referendum, and the recall in its new charter of 1903.

This was the first provision for the recall in any government unit in the world, and the first adoption of the initiative and the referendum by a city ..." California: An Intepretive History, Walton Bean.

We are not naive enough to suggest Northern California counties are shining examples of land-use planning. Just to take the three northern San Joaquin Valley counties as examples of absurdly destructive growth, they are in the top five counties nationally for foreclosure rate as a result of the late speculative real estate boom and mortgage fraud era. But, that's just the rate; the greatest number of foreclosures is happening in
Southern California. During the boom, these three counties in northern San Joaquin Valley received no rational counsel from their legislators. At the congressional level, we had the Pomboza (Pombo and Cardoza) leading multiple assaults on the Endangered Species Act on behalf of the FIRE interests, and state legislators fell right in dutifully behind them, dragging alone the supervisors and city council members. But, what would have happened if the congressional delegation and state Legislature of a state of Northern California had existed during that rapacious economic moment, and had not been dominated by Southern California politicians? And, rather than uniting with Southern California politicans on certain important legislation for the whole of California, how would it have played out if Northern California members of Congress had been in open political conflict with them?

Furthermore, what if the motive of "building upstream" to command Northern California water resources for Northern California urban development had been weakened by a border and state power to protect resource supplies from Southern California? Would Northern California developers have felt the need or had the opportunity to exploit water resources in the same way?

When do the disadvantages of being the most populous state in the nation outweigh the advantages?

The judicial decisions now in place that limit to some extent the disastrous pumping from the Delta are a continuation of a necessary but imperfect use of the judiciary to make political choices on resource issues that, as our state is presently constituted, cannot be made. For example, a state of Northern California might have the power to stop northern California water agencies from retailing federally subsidized water to Southern California at will. A new state of Northern California would present an opportunity to clear up the mess of water law in the north. A state commission on the Delta, such as the northern California legislator Machado has suggested, might go farther toward fixing the ecological and economic disaster it has become if the members of the commission all had an interest in fixing it instead of being dominated by those more interested in exploiting it solely for FIRE special interests, much of which originate in Southern California. Without Southern California votes, Northern California urban counties, like Sen. Simitian's Santa Clara,
would look politically suicidal even suggesting a peripheral canal. In the event of such a split, the bond-debt California is now responsible for would have to be apportioned between the two new states. State resource agencies would be split and better able to focus on their smaller, less compromised tasks. Federal resource agencies would have to bargain with two states far more aware of their separate interests instead of hopelessly compromised by conflicting interests.

An entirely separate but, for some, delightful chore, would be the division of the University of California. Perhaps a state of Northern California would just get rid of Lawrence Livermore National Laboratory and bombing Site 300 for being the environmental and public health and safety disaster they are. The possibilities for sanity are endless in smaller states, whereas if California continues to grow at its present rate, it is more likely to become another Latin American country than remain a state within the federal system of the United States.

We realize that most people will regard such a suggestion as completely mad, impractical and politically impossible. It opens a huge "can of worms," requires an unimaginable amount of political energy, and would be profoundly disturbing to the way things are done in California. But, this sword of a peripheral canal constantly dangling over our head is, in our most humble opinion, a worse can of worms. It is a complete ecological and economic outrage. Southern California made its choices. In recent decades, these choices
have required complicity by northern California legislators and members of Congress.

The disaster of the Delta has occurred, just as predicted by the people who know the Delta. The only "mystery" in the whole disaster is how special interests have been able to dominate the California public to such a vast extent that it can no longer even bear to imagine its own completely legitimate political interests...because it might cause "controversy," and we have been convinced by armies of professional propagandists in the employ of FIRE that controversy is bad, bad, bad, when in fact it is the soul of
politics and government. The method used for domination of the public has been gigantic, reckless "development," which has filled the state with people without the roots of memory required to imagine any environment, community or lifestyle beyond the tract, the freeway, the mortgage, family and possibly church, in that order. What is frightfully missing from this view of life shared by the largest percentage of present Californians is any sense of political duty or public political power. It has produced a political situation in the state that is dangerously moribund and waits upon ecological catastrophe while contributing the largest amount of foreclosures to the global credit crisis.

California is one severe earthquate on the San Andreas from a disaster that will dwarf what happened in New Orleans. The consequences to the insurance industry are incalculable.

If those crumbling Delta levees collapse due to earthquake or flood, there would be no better evidence in the world that Pat Brown should have been presiding over the splitting of the state 40 years ago rather than crowing about "this great big Number One state of ours." But, in those days, growth still meant improvement and democracy in the state was still sufficiently vital constantly to remind the governor and the legislature who was boss. That waned with "Hollywood" Reagan and has exhausted itself since into puny utterance composed of nine-tenths denial of reality.

Why did the people of the state permit term limits, rammed down their throats by a plutocratic oligarchy? Although northern Californian firms were involved, particularly from Silicon Valley, the thoroughly corporate style of this takeover originated in LA development flak, where, from the perspective of the little people of northern California, democracy no longer exists and representative government is pure PR fraud.

Since the well-known substance flows downhill, we see the style in local elections and call it political pollution in extreme bad taste. We don't want it. Splitting the state would give the natural democratic urges of Southern Californians a chance to recover their roots in a democratic tradition said to be central to what the United States is all about. We cannot fight that fight for them. They will have to do it themselves.

We little people up here in the north see that Speaker Nunez and Gov. Hun's fabulous AB 32 about global warming is just the highest grade plutocrat oligarchy flak in the whole world, worthy of Aristotle's description of the unintended consequences of witless Spartan and Carthaginian lawmakers (Politics, Book II). The proof is in the campaign for a peripheral canal, so devastating in the power it represents and the absurdity of its argument that it scares people who actually love the Delta into being ashamed of loving a
place, one of our anchors in time, a place to return to, to remember and to ground ourselves in for the coming contests in life, fortified with a New York steak smothered in mushrooms from Al the Wop's after stroll through Locke. There are people for whom it is a tragedy that the Boondocks in Walnut Grove burned down 40 years ago. There are people who still remember how one deputy sheriff managed the Delta from Freeport to the Antioch bridge. There are people, and not all Chinese, who derive inspiration from the
history of the people of Locke and the dilapidated grace and beauty of their homes. And then there is just the beauty, the isolation and the wildness of the Delta on a rainy winter day. To call this "heritage" is to diminish it. The Delta beauty speaks to humanity at a level much deeper than mere heritage, taken commonly to mean Anglo heritage since 1850. The magic of the Delta is that, despite its channelized river, it speaks to the terrible human need for wilderness near at hand, an hour from the city -- a place where one can escape a San Francisco apartment to camp in a howling wind and smell the wild.

But this is just our humble northern experience of California nature. The south has vast deserts and that beauty. I think of people like myself that found that same wildness at Joshua Tree or elsewhere in the south, and those anchoring memories.

Aren't we sick and tired of the death-dealing lobbyists, representing the plutocrat oligarchs of this bloated state, labelling the essential human feeling for nature "romantic," with a sneer? Forget them. The environmental public interest has been driven by volunteer necessity and sacrifice from the beginning. They will not understand it and they cannot defeat it.

Keep on walkin' the walk and talkin' the talk.

Badlands Journal editorial board
----------------

4-30-08
Fresno Bee
Canal concept back in limbo
Assembly panel rejects bill, asking state senator to try again next year...E.J. Schultz / Bee Capitol Bureau

http://www.fresnobee.com/263/story/563495.html
An Assembly committee Tuesday shelved legislation to build a canal around the suffering Sacramento-San Joaquin River Delta, telling the bill's author to try again next year.
Two years in the making, Senate Bill 27 tackled a subject so politically charged that author Sen. Joe Simitian, D-Palo Alto, carefully avoided using the "P" word -- Peripheral Canal -- as he presented the bill as a way to shore up state water supplies without harming the environment.
But with environmentalists, farmers and delta-area interests all opposed for different reasons, the legislation went the way of so many other water bills -- to the shelf to wait for more studies...
Voters rejected a so-called Peripheral Canal in 1982, but the idea has drawn renewed interest recently as several groups take a closer look at the delta's woes.
There are many troubling signs. Declining fish populations have led to court-ordered pumping cutbacks. Elevated ocean levels, predicted as the climate warms, could cause floods. And the ever-present threat of a delta earthquake has water users on edge.
"The delta's going to hell in a handbasket," Simitian said. "There's a two-out-of-three chance that the whole system will collapse sometime in the next 50 years."
Committee members agreed with the urgency but said it would be wise to wait for a much-anticipated delta report. The Delta Vision Blue Ribbon Task Force, appointed by Gov. Schwarzenegger, is scheduled to release a "strategic plan" for the estuary in October.
Separately, the administration announced in February that it would start environmental reviews on several options for improving delta water flows. Possibilities include pumping water around the delta, both through and around it, or bolstering the existing system, which only moves water through the estuary.
Meanwhile, the Public Policy Institute of California will put out its own detailed delta report sometime this summer.
Urging Simitian to wait for more findings, the Assembly committee did not vote on his bill. He plans to scale it back to include only short-term fixes, like beefing up state plans to respond to a delta earthquake. He vowed to tackle the canal again in a new bill next year.
But finding consensus will prove tough, no matter how much new information is available. Farmers want assurances that they will still get access to enough delta water and not be charged too much for it. They objected to language in Simitian's bill that charged water agencies $50 an acre-foot, with proceeds going to a water quality and environmental fund.
Environmentalists worry that a new canal could hurt water quality, harming fish.
Delta-area residents, meanwhile, have long feared that a new canal is nothing more than a south-state water grab.

5-2-08
Modesto Bee
Tuolumne salmon at high risk of extinction...Editorial

http://www.modbee.com/opinion/story/286624.html
Native salmon on the Tuolumne River are "at high risk of extinction" because not enough water flows down the river. That assessment introduces a U.S. Fish and Wildlife Service report released to The Bee on Thursday.
The report is likely to be a key component in a multiagency request for a rehearing of the Federal Energy Regulatory Commission order that allows the Turlock and Modesto irrigation districts to take no additional measures to ensure the survival of salmon through 2016. That order was issued last month, but state and federal agencies can request that it be altered through a rehearing; that request is expected to made by
Monday...
Rarely does such unequivocal language appear in such a report. Using complex formulations and years of data, the study documents the possibility that there are no native-born salmon left on the river -- meaning the 115 to 211 (counts varied) salmon found this year were either raised in hatcheries or came up the Tuolumne by mistake...
Salmon stocks can be replaced with hatchery-raised fish, but they're not acclimated to the Tuolumne's conditions. As the study's author, Carl Mesick, points out, non-native fish don't reproduce as quickly. Native-born fish can repopulate a river much more rapidly, which is what happened on the Merced and Stanislaus rivers following the drought years.
Historically, salmon numbers spike two to four years after high springtime flows. But despite huge flows in 2004 and 2005, Tuolumne salmon numbers plummeted in 2006 and 2007.
That population crash mirrored a larger trend... Scientists blame, in part, changing ocean conditions that reduced the "upwelling" of foodstocks.
But recent ocean conditions can't entirely explain a crash that began on the Tuolumne in 2002. Instead, the Fish & Wildlife Service report points to inadequate releases from Don Pedro Reservoir.
In about half of all years, from 94,000 to 164,000 acre-feet flows out of Don Pedro. In the other half, releases exceed 300,000 acre-feet. Mesick's study says the minimum to sustain a viable native salmon population is 292,882 acre-feet -- or about 15 percent of the reservoir's annual storage.
Such calculations are subject to debate. But they provide an excellent starting point for FERC, the irrigation districts, and the agencies responsible for protecting wildlife.
FERC should grant the rehearing and pay particular attention to this study and the warning it sounds.

Los Angeles Times
Water rationing possible this summer
State official says shortage is worst he's seen in 30 years. Fast-shrinking snowpack and
below-normal reservoir levels are blamed...Deborah Schoch

http://www.latimes.com/news/local/la-me-snowpack2-2008may02,0,4003677,print.story
California communities face a strong possibility of water shortages and even mandatory rationing this summer because of record dry weather in March and April, a fast-shrinking snowpack and below-normal reservoir levels, state officials said Thursday.
The bleak news, contained in California's final Sierra snowpack report of the snow season, means a second consecutive year of water anxieties in a state heavily dependent on water from the melting snow in the Sierra Nevada.
"I have not seen a more serious water situation in my career, and I've been doing this 30 years," said Timothy Quinn, executive director of the Assn. of California Water Agencies.
An outmoded delivery system and court rulings that protect endangered fish are also straining the system, he said.
"This is a harbinger of relatively tough times, not just for this year but for a set of years," Quinn said.
"We need to recognize that we're in a water shortage and begin to act accordingly," state Resources Secretary Mike Chrisman told reporters at a Sacramento news conference...
After a record-dry 2006-07 snow year, water managers had hoped this year would bring ample snow and rainfall to fill reservoirs and ease worries about water shortages. Those concerns have been exacerbated by a long drought in the Colorado River Basin and a federal court ruling curbing water deliveries from Northern California.
Cities throughout Southern California supplement their own local supplies with two major sources outside the region: Sierra water pumped south through the State Water Project, and water transported west from the Colorado River.
Los Angeles traditionally has gotten 30% to 60% of its water from the Eastern Sierra via the Los Angeles Aqueduct, but it still buys water imported from the north and east.
"I think we're all facing a worrisome water picture," said H. David Nahai, general manager of the Los Angeles Department of Water and Power...
The Sierra Nevada snowpack has shrunk to 67% of normal, down sharply from 97% in late March, according to results of the snow survey, released Thursday by the state Department of Water Resources. The May 1 measurements are crucial in forecasting California water supplies as well as hydroelectric production, state officials said.
"That suggests that reservoir levels are not going to recover," state snow survey chief Frank Gehrke said. Lake Oroville, which stores much of the water delivered to Southern California, contains only 58% of the water normally there at this time of year.
Worsening the situation, dry weather last year has left soil inordinately parched, and runoff into streams and reservoirs is only 55% to 65% of normal, state experts said.
Spring sunshine and warm weather meant the snowpack melted more quickly and some snow converted directly to vapor, Gehrke said.
State meteorologist Elissa Lin fell short of officially declaring a drought. "It's been a very tough two years for water supply in California," Lin said. "All of these things are pointing in that direction. . . . Certainly, if we go into a third year, we're looking at some critical situations."
Further tightening water supplies, state deliveries to Southern California were slashed in December after a federal court decision last summer aimed at protecting endangered smelt in the Sacramento-San Joaquin River Delta.
U.S. District Judge Oliver Wanger, who ordered those restrictions, is scheduled to hold hearings in June to decide whether to impose further cutbacks to protect chinook salmon and Central Valley steelhead trout.

5-3-08
San Gabriel Valley Tribune
Delta canal idea revisited...Jennifer McLain
http://www.sgvtribune.com/news/ci_9143436
A decades old and unsuccessful conversation about building a canal that could bring more water to Southern California is being revisited. On Tuesday, a Senate committee agreed to shelve a bill calling for the construction of a canal around the Sacramento River, telling the author, Sen. Joe Simitian, D-Palo Alto, to wait for the findings of a Governor appointed task force that is examining solutions to the environmental and seismic problems in the San Joaquin-Sacramento River Delta.
"I think that it is tremendous progress that people are openly talking about it," said Jeffrey Kightlinger, general manager at the Metropolitan Water District of Southern California. "For a while, it was a third rail, and no one would mention it.."
Voters rejected a bill for the Peripheral Canal in 1982. The word became so politically charged that many have veered from using the word and have started calling it a "bypass" canal or conveyance system, said Tim Quinn, executive director at the California Association of Water Agencies.
But a canal could be one of the answers to the Delta's many problems, including declining fish populations, rising ocean levels and concerns that the Delta will not be able to sustain a major earthquake.
"We are increasing living in a world where things have to work for the environment and the economy," Quinn said. "We need to change the system that we have today because it is very bad for fish." Water supply has been reduced due to low snow pack, little rainfall and a decrease in pumping of the Delta by 30 percent because of environmental issues.
"If the public doesn't want to be going year to year wondering whether we have to ration water, they need to understand that we need a more reliable water supply," Kightlinger said. "And the canal is one of the pieces to that."
Simitian's bill would have asked voters for a $4 billion bond to pay for environmental restoration of the Delta, and would have created a seven-person board to contract for the design and construction of a new facility to move water from the Delta to pumps that send water to cities and farms.

Some local officials said that while the canal could solve many of Southern California's squeeze on water, Simitian's bill did not have all the answers.
"The bill sounds good, the title sounds good, but it had several poison pills within the bill," said state Sen. Bob Margett, R-Glendora.
Among them is that the bill increases the fees for MWD, which imports water to nearly 18 million residents, and the proposed oversight overlaps with those of existing state and federal agencies.Those were some of the reasons why the local water giant did not support the bill.
"We were very pleased that Simitian took on the issue," Kightlinger said, "but we did not like his approach."
As lawmakers continue to look for solutions to the environmental challenges that the Delta faces, many believe the answer to anticipated water shortages will be found in regional sources.
"We've got to develop local supply," Quinn said, "because water supplies of the future will come from local resources."
This water supply will come as a result of more desalination, recycled water, groundwater cleanup and conservation programs. The San Gabriel Valley receives up to 30 percent of its water supply from the Delta and the Colorado River Aqueduct.
"Water has become like foreign oil," Assemblyman Mike Eng, D-El Monte, said. "The more that we are dependent on water from other areas, the more that we are subject to the roller coaster ride that involves politics, climate change and environmental issues."

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