Minor subdivision east of Planada

Lydia Miller
San Joaquin Raptor/Wildlife Rescue Center
P.O. Box 778
Merced, CA 95341
(209) 723-9283, ph. & fax

Steve Burke
Protect Our Water (POW)
3105 Yorkshire Lane
Modesto, CA 95350
(209) 523-1391, ph. & fax

Merced County Planning Commission
2222 M St.
Merced CA 95340
Tel: (209) 385-7654
Fax:(209) 726-1710
Email: jholland@co.merced.us

Date: Oct. 11, 1006 Via- email and fax


On Oct. 11, 2006 Merced County Planning Commission is holding a public hearing on the Stillman Family Trust, and new information can be received in a public hearing.

Merced County Planning and Community Development Department Staff Report and Recommendation.

III. Background
We find erroneous the assertion that “county wetland and wildlife habitat maps show no sensitive wildlife or biological resources as being located on, or adjacent to, the subject properties.” We have attached maps that fundamentally contradict this statement.

IV. Analysis
A. We believe the project violates all four goals drawn from the existing county General Plan, and agree with the planner’s comment that this subdivision is “a potential conversion of the land.” Without irrigation, (the parcels lie outside the MID service area) these smaller parcels could not be intensely farmed. The project plan is to sell them for ranchettes.

Policy 7.3 (chapter I, Page 58)
Premature and uncoordinated division of land which forces the early cessation of valid agricultural uses shall be avoided.
The Merced County General Plan goals and objectives cited above, together with the analysis of the issue of minimum effective parcel sizes for Commercial agriculture provided in the Agricultural Chapter of the Plan (Chapter VII pages 23.26), indicate that the subdivision of agricultural land into parcels of 20 to 39 acres in size may result in the land becoming less likely to stay in long-term agricultural use. This is due to these smaller parcels lacking the size to (Individually) support a full- time farming operation, rendering them more susceptible to being acquired for ‘hobby farming’ purposes. If it is accepted that hobby farmlands are likely to be used less intensively than commercial farmland (According to the General Plan, “While the small farms are operated by the land owner in most cases, it is a secondary activity and source of income. Chapter VII, Page 25, a division of a large parcel into smaller parcels could be seen as a potential conversion of the land.

The subdivision would be incompatible with existing agricultural uses and cropping patterns in the vicinity, where it appears that while half the small parcels (11) are homesites on adjacent farms and ranches, the property is surrounded by medium sized cropped fields and larger cattle ranches. However, the greater problem with this staff report is that it appears to gain more than a thousand acres from the 2005 Planning Commission staff report and recommendations, yet the one-half radius remains the same, so there is no way to understand how the parcel sizes, the numbers of parcels, the acreage, and the averages for different parcels between the two staff reports relate to one another (see attachment).

4. Compatibility with Existing Agricultural Uses and Cropping Patterns In the Vicinity
Information provided by the applicant on the ‘Form or Assessing General Plan Consistency For Agricultural Land Divisions (copy attached), indicates that both the proposed parcels will continue to be used for either fish farming, or, remain fallow. Eased on this information, the proposed minor subdivision would appear not to conflict with established agricultural activities in the immediate area. The design of the proposed subdivision does, however, raise the possibility of much of this land, being rendered non-viable for commercial agriculture due to the low amount of farmable land being created for Parcels B, U and F and associated access issues for Parcels D and F. This issue is compounded by the observed recreational (Ski) boating use of the existing fish pond- Upon division and sale of the land, the future owners of Parcels S U, F and G would presumably become part owners of the fish pond, providing them with shares of and access to a private recreational facility. This outcome would have the effects of producing a potentially incompatible land use in a predominantly agricultural area and substantially reducing (or eliminating) the possibility of commercial agricultural use of much of these parcels.
It should also be noted that any sale or purchase of the land could result In the construction of one or more new homes per parcel, increasing the potential for conflicts with existing agricultural land uses and reducing the potential for commercial agricultural use of the land. – 10/03/05 Planning Commission staff report

However, the greater incompatibility is with natural resource conservation. The property is surrounded on three sides by natural habitat conservation easements purchased to mitigate for UC Merced on large cattle ranches. The Stillman property contains vernal pools, and is in fact adjacent (on the north and east) to the major vernal pool concentration in the county.

The property contains a synthetic wetland (commercial cat-fish pool) an estimated 20 acres in size. This is an attraction for wildlife that inhabits the adjacent conservation easement land.

The applicants’ reasons for the proposed division, ‘family planning, farm operation finances,’ may be too vague to be meaningful. All it might mean is selling off ranchette parcels for a lot of money to divide among the family, perhaps putting some of it into the catfish farm.

V. Environmental Review
We agree with staff’s assertion that “a survey of the project site by an appropriately qualified wildlife biologist is necessary in order to properly determine the presence or absence of these resources (vernal pools, wetlands, other listed plant species and wildlife habitat) and appropriately provide for their protection.” This issue has been raised by the California Department of Fish and Game.

Therefore, we do not believe the Planning Commission can approve the project because of findings 4, 5, 6, 9, and 10:

· The subdivision is incompatible with the agricultural preservation policies of the county General Plan (4,5)
· The project has not been reviewed by the U.S. Department of Fish and Wildlife (6)
· The proposed parcels and future land uses are incompatible with existing agricultural uses and cropping patterns in the vicinity (9)
· The 20-acre parcel size is incompatible with surrounding parcel sizes, according to “Adjacent Parcel Size Analysis,” which shows no average parcel size close to 20 acres (10).

Notice of Draft Mitigated Negative Declaration

The public is under no obligation to “provide mitigation measures (conditions) and/or modification to the project, which might avoid or reduce the level of environmental impact(s)” to either the local land-use authority or to state or federal agencies.

County of Merced California Environmental Quality Act Initial Study for Minor Subdivision Application No. 05021

Brief Project Description:

Do efforts to protect a commercial catfish farm conflict with the needs of wildlife? What means does the catfish farm use to drive birds and wildlife away from its pond?

Utilities and Services Description:

Without a county groundwater plan, how can it be estimated what effect well-drilling would have on the aquifer and surrounding wells? What effect on groundwater quality would new septic systems have? How many residences are projected in this project?

Other Agencies Whose Approval is Required:

Both state and federal natural resource agencies do have approval authority over this proposal because of the natural resources on the site and its location adjacent to the richest area of natural resources in the eastern half of the county, much of it already under perpetual conservation easement.

Environmental Factors Potentially Affected:

Where is the evidence the drainage that runs through the entire property does not, as similar drainages in that part of the county do, contain valuable aggregate resources?

Dismissal of cultural resources along such drainages is not advisable, as CalTrans mentions in its comment letter.


The project would cause substantial damage to the visual character and quality of the site and its surroundings, which at the moment provide an unobstructed view from the Valley into the Foothills and to the Sierra beyond.

4. Biological Resources:

On Sept. 25, the state Department of Fish and Game advised the County to consult with the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers on federal Endangered Species Act and federal Clean Water Act issues on the project. The packet contains no information that indicates either the Service or the Army Corps were ever contacted or commented. Without comment from these two federal agencies, the significant impacts discussed in sections a, b, c, d, and f fail for lack of adequate information.

Biological Resources Discussion

The project is mis-described as primarily a farming area “modified by agricultural activities with the passage of time,” when, in fact, the large area to the north and east of the site has been in seasonal pasture cattle ranching with very little “modification” beyond fences, ever. This area is entirely protected by natural habitat conservation easements to mitigate for UC Merced, the most compelling evidence of abundant state and federally protected wildlife and plant species imaginable. The natural drainage traversing the project site is a wildlife corridor.

Concluding “there are no sensitive plant or wildlife species located on the project site,” based on Merced County General Plan maps fails because the general plan has not been updated since before the UC Merced project was initiated which, as the planning commission and the county Planning Department well know, produced abundant data on sensitive, threatened and endangered species in the area. The state Fish and Game Departments letter of Sept. 25 contradicts the consultant’s opinion that Fish and Game believes there are no sensitive species on the site.

Concludes & Data:

It would be impossible to know how affected federal agencies would assert jurisdiction over the drainage channel or any other part of the site if they have not been informed of the project by the local land-use authority.

5. Cultural Resources:

Conclusions & Data:

There was no consultation with local tribal authorities or the state native American Heritage Commission, who possess detailed maps of ancestral sites. Therefore, the conclusions fail for lack of competent research of available evidence.

6. Geology and Soils

There is no mention of the Bear Mountain Fault Zone that lies immediately east of the eastern border of Merced County.

7. Hazards & Hazardous Materials

In view of the past problems Merced County has had with commercial aquaculturists, it is fair to ask what hazardous materials may be used in the Stillman commercial catfish farm. We also note that there is no discussion of what an attractive nuisance a 20-acre fishpond poses to new residents, especially children.

8. Hydrology & Water Quality

Although there are on-going studies on groundwater supply in eastern Merced County, through MAGPI and BAP, they are not completed; therefore impacts to groundwater supply and quality and from surface runoff cannot be accurately estimated. Construction of “residences and appurtenant facilities would affect groundwater recharge on this site.

9. Land Use & Planning:

Conclusions & Data:

The documents in this packet do not provide enough information for the consultant to conclude, “The majority of the site can be expected to remain in open space and agricultural production.”

The reason the project “will not conflict with any habitat conservation plan or natural community conservation plan that is in effect within the area surrounding the project site” is because there are none. On the other hand, this project has the potential for adversely affecting the quality of the perpetual habitat conservation easements adjoining the site.

11. Noise:

Conclusions & Data:

The project will produce more noise and traffic, permanently. Like the permanent addition of more light and glare, these will adversely affect state and federal listed wildlife on the site.

12. Population & Housing:


The inclusion of “secondary residences” could create as many as six houses per parcel, adding many more than 16 people to the property.

13. Public Services:

Conclusions & Data:

It cannot be concluded, “the project will not directly result in the need for new public facilities,” because we don’t know how many people will inhabit the site in “secondary residences.” However, we do know that the residential subdivision will contribute to cumulative impacts to the region’s public services. Without any adequate statement of how many people will be using the septic systems, it is impossible to analyze these systems’ affects on the groundwater.

14. Recreation:

Planning Department indicates that the existing fishpond is also used for water skiing. Private recreational uses may not directly conflict with commercial agriculture. The proposed division could, therefore, have the effect of creating a private recreational activity on agriculturally zoned land without the required Conditional Use Permit being obtained (Zoning Code, Section 18.02.02 Table 4).

15. Transportation & Traffic:

Conclusions & Data:

There is no way of telling how much this project will increase traffic because it is impossible from these documents to determine how many houses, people and vehicles will occupy the site. If, for example, a number of the “secondary residences” were rented to groups of farmworkers, many of whom owning cars, the project could have a sizeable impact on local traffic. The same would be true if the “secondary residences” were rented to UC Merced students.

16. Utilities & Service Systems

Without consultation with the Army Corps and other federal and state agencies on wetlands issues on this site and on the conservation-easement land uphill from it, there is not enough information for assessing the impacts from this project (or proposed series of projects) on the site, on its natural drainage system, or on land and habitation below it.

Section 4: Mandatory Findings of Significance


Analysis of the potential adverse physical environmental impacts of this project is so incomplete and flawed that no determination can be made. Reducing mitigation to one flawed mitigation measure (Section 5) is wholly inadequate.

B. The conclusion reached in this section is wrong because it does not take into account the potential impacts on the UC Merced easements surrounding the site on three sides, it encourages leap-frog development, it doesn’t take into account the recent 20-percent loss of natural habitat through illegal takes in eastern Merced County, and there is no analysis of the impacts to the region’s groundwater supply and quality.

C. The project will have potentially significant unless mitigated impacts on the environment because – although studies are not completed -- it is known by residents and agencies that there is very little groundwater in the region, therefore the addition of an unknown quantity of wells would have potentially significant impact on groundwater supply. Septic systems for a growing number of people inhabiting “secondary residences” would have a potentially significant impact on groundwater quality and potentially on surface water as well in the case of flooding, particularly with the characteristic sheet flooding of the region. As the number cars increases, there will be more impacts to traffic than are recognized by this initial study.

Section 5: Applicant’s Agreement to Mitigation

For reasons stated above, this measure is inadequate to mitigate for the impacts the initial study has identified, and wholly inadequate to mitigate for the impacts that the initial study has not identified.

Attachment “A” Project Communications/Comments

The environmental review failed to address the comments submitted by the public and the agencies.

California Environmental Quality Act Issues

A Mitigated Negative Declaration is not adequate for this project. An Environmental Impact Report must be prepared.

In order for a Mitigated Negative Declaration to be approved, it must pass the “fair argument standard” of CEQA. This does not.

A “negative declaration” is a “written statement by the Lead Agency briefly describing the reasons that a proposed project ….will not have a significant effect on the environment and therefore does not require the preparation of and EIR”. (CEQA Guidelines, § 15371). A negative declaration must be prepared when after completing an initial study, a lead agency determines that a project “would not have a significant effect on the environment.” Public Resource Code, § 21080, subd. (c).) Such a determination can be made only if “[t]here is no substantial evidence in light of the whole record before the lead agency” that such an impact may occur. (Public Resource Code, § 21080, subd. (c)(1) (emphasis added). See also CEQA Guidelines, § 15070, subd. (a).) [1]

CEQA requires a lead agency to prepare an EIR whenever substantial evidence in light of the entire record supports a "fair argument" that a proposed project may have a significant adverse impact on the environment. Even when other substantial evidence in the record supports the opposite conclusion, CEQA s "fair argument" standard requires the lead agency to prepare an EIR prior to approving or carrying out a proposed project. [Pub. Resources Code, § 21080, subds. (c) & (d); CEQA Guidelines, § 15064, subd. (a)(1); 15070, subd. (a); Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144,150-151.] If there is any doubt about a project s significant environmental consequences, the "benefit of the doubt" is given to full environmental review.

There is substantial evidence before you in light of the whole record that a significant impact may occur, therefore an EIR must be prepared.

The “fair argument” standard creates a “low threshold” for requiring preparation of an EIR. (Citizens Action to Serve All Students v. Thornley (1st Dist. 1990) 222 CalApp.3d 748 [272 Cal. Rptr. 83]; Sundstrom v County of Mendocino (1st Dist 1988) 202 Cal.App.3d 310 [248 Cal.Rptr.352]. The standard is founded on the principle that, because adopting a Negative Declaration has a “terminal effect” on the environmental review process”, an EIR is necessary to resolve “uncertainty created by conflicting assertions” and to “substitute some degree of factual certainty for tentative opinion and speculation” (No Oil, Inc. v City of Los Angeles, (1974) 13 Cal.3d 85).

Even if the “fair argument” standard were not applied, the mitigated negative declaration the project proposal is not complete. All mitigation measures have not been provided for. Public Resource Code § 21081.6. (a) states:
When making the findings required by paragraph (1) of subdivision (a) of Section 21081 or when adopting a mitigated negative declaration pursuant to paragraph (2) of subdivision (c) of Section 21080, the following requirements shall apply:
(1) The public agency shall adopt a reporting or monitoring program for the changes made to the project or conditions of project approval, adopted in order to mitigate or avoid significant effects on the environment. The reporting or monitoring program shall be designed to ensure compliance during project implementation. For those changes which have been required or incorporated into the project at the request of a responsible agency or a public agency having jurisdiction by law over natural resources affected by the project, that agency shall, if so requested by the lead agency or a responsible agency, prepare and submit a proposed reporting or monitoring program.

Additionally there is reliance in the mitigated negative declaration on mitigation measures which have not been approved or are otherwise inapplicable. There are also studies and analysis called for that have not been done.

The sole mitigation measure, Section 5, is not legally compliant.
Section 5 defers mitigation because of failure to do the required biological surveys and consultations with agencies.

“Mitigated negative declarations cannot be used when they rely upon the presumed success of future mitigation measures that have not been formulated at time of project approval (Sundstrom v. County of Mendocino, (1988) 202 Cal.App.3d 296, 306-314.) Any proposed mitigation measure to reduce or avoid a significant adverse impact that a project may have on the environment must be made available for public review at the time the negative declaration is circulated for public review and comment prior to project approval. A mitigation measure cannot be left to be formulated in the future. (Gentry, supra, 36 Cal. App.4th at 1397); but see Sacramento Old City Association V. city Council of Sacramento (1991) 229 Cal.App.3d 1011, 1028-1029, mitigation plan upheld where “the agency can commit itself to eventually devising measures that will satisfy specific performance criteria articulated at the time of project approval.”) For example, in Gentry, the court of Appeal determined that a city’s mitigation measure requiring the permit applicant to comply with a non-existent biological report improperly deferred mitigation. (36 Cal.App.4th at 1396.)Whenever no mitigation measures are considered in the negative declaration and a mitigation plan is left to the preparation of the applicant after project approval, mitigation of a significant adverse environmental impact has been illegally deferred (Sacramento Old City Association, supra, 229 Cal.Ap.3d at 1028).”

--Citizen’s Guide to the California Environmental Quality Act, Yeates, PCL, January 2000, p. 10.

In closing we re-iterate: a mitigated negative declaration is inadequate. Studies are not sufficient, needed information is not provided (defeating a primary purpose of CEQA), analysis and mitigations are incomplete. The "fair argument" standard cannot be met. An EIR must be completed.

Lydia M. Miller Steve Burke

EastMercedBirdList.doc (0.05 MB),
Silveira.pdf (0.10 MB)
Stillman-TerraServerMaps.doc (0.02 MB), SlopClassificationRegionalAmphibianHabitatAssessment-.pdf (0.42 MB), SlopeClassificationRegionalAmphibianHabitatAssessment-.pdf (0.44 MB), AmphibianHabitatRegionalPlanningMap-ExistingLandUse.pdf (0.36 MB), BranchiopodHabitatregionalPlanningMap-ExistingLandUs.pdf (0.34 MB), BranchiopodHabitatregionalPlanningMap-ExistingLandUs.pdf (0.34 MB), StillmanBOSappeal10-4-05.eml (0.90 MB),
10-3-05.eml (0.05 MB)
10-11-2006 02;13;37 &10-11-2006 02;13;00
10-11-2006 02;12;20 &10-11-2006 02;11;48

Marsha Burch, Esq.
Maryann Owens, U.S. Fish and Wildlife Service
Kathy Norton, U.S. Army Corps of Engineers
Other interested parties