A proposal to expand the authority of the Delta Protection Commission and alter its membership is setting up a classic local-versus-state confrontation. Some state officials say greater oversight of land use decisions is needed to protect the Sacramento-San Joaquin Delta's natural resources and farms, while locals say the state is trying to intrude on local control. Development interests have lined up on the side of local government, while environmentalists back an expanded role for the state. Farmers appear to fall in between, supporting some changes but not others. Developers and cities say the current system works well and contend that they have done nothing to violate the 1992 Delta Protection Act. But people on the other side say eagerness to build right to the edge of the Delta's "primary zone" has caused the increased scrutiny. Local governments that fear greater state regulation "ought to do the right thing by the Delta," said Patrick Johnston, a former state senator who authored the Delta Protection Act. "The threat of urbanization hemming in the primary zone means that local governments need to be reminded that their development plans should not impinge on the opportunity to farm or on the wildlife habitat or the recreation opportunities that are so beloved by the people of California," Johnston said. The proposed changes to the Delta Protection Commission (DPC) are embodied in AB 2476, by Democratic Assemblywoman Lois Wolk of Davis. The bill contains a number of recommendations and suggestions made in December by the Resources Agency. The bill's chances in the Legislature this year appear questionable because the measure could increase the cost of the Commission. But even if Wolk's bill fails this year, the concerns raised by the increased urbanization of the Delta's fringe are not going to disappear. Last time around The issues extend back to at least to the early 1990s, when the Legislature approved the original Delta Protection Act. At the time, backers of the measure said that development, especially in the Delta's eastern, southern and southwest edges, was encroaching onto important farmland, and threatening wildlife habitat and public recreation. The act established the 19-member Commission and charged it with preparing a land use and resource management plan. The Commission adopted such a plan in early 1995, and then worked with the five counties and ten (now eleven) cities within the Commission's jurisdiction to adopt or mimic the plan's policies. Originally conceived as a temporary agency, the Commission had its sunset date extended twice by lawmakers, who made the entity permanent in 2000. Besides creating the Commission, the 1992 legislation also drew boundaries. Essentially, all territory within the legal boundary of the Delta — established in 1959 and based largely on the extent of irrigation — was placed in either the primary zone or the secondary zone. The primary zone designation covers 492,000 acres, while another 247,000 acres lie in the secondary zone. What distinguished the primary zone from the secondary zone was this: The cities laid claim to land in the secondary zone via city limits, spheres of influence, general plan boundaries or service boundaries. Thus, the primary and secondary zone boundaries are political lines and are not based on ecology. The Commission is not a regulatory agency. It comments on projects in the primary zone, and, sometimes, in the secondary zone. Projects in the primary zone may be appealed to the Commission, a rare occurrence. Since 1992, development in the secondary zone has continued with almost no limitations imposed by the act or the Commission. However, large-scale development within the primary zone has not been permitted. According to a background paper from Assemblywoman Wolk's office, about 45,000 acres of Delta agricultural land have been converted to urban uses since 1992. "The political and physical landscape in and around the Delta has changed rapidly in the last 12 years," Wolk said. "The Commission is ill-equipped to keep pace with all that is swirling around them." This year's model What concerns Wolk and others is not only recent development, but the future. Some of the fastest growing parts of Northern California lie in the secondary zone. The 11,000-unit River Islands project planned in Lathrop lies entirely in the secondary zone, as does the new 16,000-unit San Joaquin County community of Mountain House, where construction has started. Also in the secondary zone are all of the Contra Costa County cities of Brentwood and Oakley, and the unincorporated community of Discovery Bay West. Portions of Tracy, Stockton and West Sacramento — all growing cities in the Central Valley – lie in the secondary zone, as well. Wolk and supporters say that before the secondary zone is built out, a study should be completed to ascertain the impact of development on the Delta as a whole. Wolk said her bill would "place the long-term needs of the Delta and its resources front and center." Wolk's bill reflects recommendations and suggestions in a December 31 report by the Resources Agency to the Joint Legislative Budget Committee. The report said the Commission has worked well. "However, increased urbanization within and surrounding the Delta and expanded statewide interest in the natural, cultural and recreational resources of the region justify a re-examination of the structure, roles and responsibilities of the DPC," the report states. "If additional funds could be identified, Agency would suggest that the legislative scope of the DPC's area of interest be expanded to provide them with a clear direction and authority to comment, and potentially take appellate action, on any land use issue or development within the secondary zone which the Commission deems to be potentially impacting to resources of the Delta," the report continues. The Resources Agency, however, has not taken a position on AB 2476. The lack of a study is a concern not only to Wolk, but to her opponents, who ask how the lawmaker can change a system when she does not know that the existing one is broken. Wolk's bill jumps to the conclusion that the Delta Protection Commission needs additional authority, said Richard Lyon, a lobbyist for the California Building Industry Association. "This whole bill bypasses coming up with good, sound scientific evidence that environmental conditions in the Delta have turned for the worse in the last 12 years," Lyon said. "Saying it is so doesn't make it so." If Wolk wants to preserve farmland and habitat, there are options besides regulation, said William Geyer, a lobbyist for some Delta landowners. Incentives, such as payments to farmers to raise "habitat as a crop" could stem development, Geyer said. "People say incentives don't work, but nobody has tried in the context of the Delta," said Geyer. Lathrop City Councilman Augie Beltran, who sits on the Commission, was more blunt, calling AB 2476 "crap." Wolk is trying to impede growth in the region, which would only drive development elsewhere, Beltran charged. He suspects the goal is creation of an agency similar to the Coastal Commission, which has a hand in regulating all development and conservation activities in the Coastal Zone. Wolk denies that she wants to create a regulatory agency and instead says her bill finds a middle ground. The bill would require the Commission to update the land use and resources plan so that the plan considers secondary zone land uses that could impact the primary zone. All local general plans would have to conform with the Commission's revised plan, which would supercede conflicting local plans. The Commission could hear appeals of some secondary zone projects. The bill would also require payment of fees or the purchase of conservation easements to offset development's impacts to agricultural land or habitat in the secondary zone. Also, the bill would authorize the Commission to facilitate multi-objective flood control programs and conservation programs in both zones. Membership on the board would change, too. State agency representation would be decreased from six members to two. Local reclamation membership would be decreased from five members to two. Replacing those seven appointees would be two representatives each from environmental, agricultural and recreation interests, and the public member of Cal-Fed. Local government representation on the 19-member board would remain unchanged — five county supervisors and three city appointees. Delta coordination Rio Vista Mayor and Commission member Marci Coglianese said she understands the desire to update the Commission's membership and role, but Coglianese favors a less aggressive approach than Wolk does. "It does not hurt at all to raise the question of the effectiveness of the Commission," Coglianese said. "I happen to think that if the Commission did not exist, they would have to invent it," she said, pointing to the agency's role in facilitating dialogue. It's that ongoing dialogue that sets the Commission apart from the California Bay-Delta Authority (Cal-Fed), said Commission Executive Director Margit Aramburu. The Commission has served as something of a liaison between Delta landowners and farmers, and the giant Cal-Fed planning effort, which seeks to retool much of the region's plumbing for the betterment of water quality and reliability, and for species. In fact, a number of government entities have some level of jurisdiction over some aspect of the Delta. One of the others is the Bureau of Reclamation, which in recent months has begun investigating urbanization issues. The Bureau is the state agency responsible for flood control, and recent court decisions have made clear that the state has liability for some flood damage (see CP&DR Legal Digest , January 2004 ). But it was the River Islands project in Lathrop that started the discussion at the Bureau, said Stephen Bradley, the agency's chief engineer. River Islands would place 11,000 housing units and an employment center for 15,000 people entirely within the San Joaquin River's 100-year floodplain. River Islands proponents propose protecting the development with new levies that are up to 100-yards across. "How many of these projects are going to come before the board?" Bradley asked rhetorically. "Nobody really knows. Each little city has its own area, and each county has its area, and the developers have their goals." Backers of AB 2476 say the DPC is the logical repository of land use plans and development proposals in the Delta. Last year, however, the Legislative Analyst's Office urged elimination of the DPC. The LAO reasoned that the DPC had fulfilled its original mission and Cal-Fed could handle ongoing issues. Lawmakers agreed to fully fund the Commission's $300,000 annual budget, but on condition that the Resources Agency examine the agency, a requirement that resulted in December's report. This year, the DPC is recommended to receive half its funding from the state, with the other half coming from local governments for the first time — a proposal that has exacerbated the state-local split over the Commission. Johnston, the architect of the DPC, declined to endorse AB 2476, but he called Wolk "a tower of strength" in her efforts to protect the Delta. As long as local governments view the secondary zone "as an opportunity for subdivisions and strip malls," the state will have concerns, he said. Contacts: Office of Assemblywoman Lois Wolk, (916) 319-2008. Patrick Johnston, (916) 447-4952. Augie Beltran, City of Lathrop, (209) 858-2860, ext. 323. Marci Coglianese, City of Rio Vista, (707) 374-6612. Richard Lyon, California Building Industry Association, (916) 443-7933. Stephen Bradley, Reclamation Board, (916) 574-0609. William Geyer, Resource Landowners Coalition, (916) 444-9346. Delta Protection Commission website: www.delta.ca.gov

A joint powers agency in Marin County that wanted to build a radio antenna in the Town of Tiburon did not have to comply with Tiburon’s land use laws, the First District Court of Appeal has ruled. The unanimous three-judge appellate panel overturned a lower court, which had ruled that not only did the joint powers agency have to comply with Tiburon’s ordinances, but that the agency had violated the California Environmental Quality Act (CEQA) by not preparing a supplemental environmental impact report. In the unpublished portion of its decision, the appellate court ruled that the agency had complied with CEQA. In February 1998, 25 local public agencies in Marin County formed the Marin Emergency Radio Authority (MERA). The county’s emergency radio system was obsolete and not dependable, so MERA was charged with planning, financing, building and operating a new system. The agency proposed a network of microwave dishes, antennas and radio equipment at 17 interlinked sites. One of those sites was a 1.1-acre parcel on Mt. Tiburon Drive in Tiburon. The site was owned by Marin Municipal Water District, which had a storage tank and pump on the property. MERA prepared an EIR addressing all 17 proposed antenna sites. In February 2000, the MERA board certified the final EIR, and a mitigation monitoring and reporting program. The Town of Tiburon, which is a MERA member, did not have a representative at the meeting in which MERA approved the EIR, nor had the town commented on the EIR. Two months later, MERA applied to Tiburon for a conditional use permit and design review. In June 2000, The Planning Commission denied the application, finding that the plan for two microwave dishes and three antennas on the Mt. Tiburon Drive site was inconsistent with the city’s general plan, zoning ordinance and standards for wireless communications facilities, all of which sought to avoid land use conflicts. Houses border three sides of the Mt. Tiburon Drive site. After the Planning Commission decision, MERA studied potential alternatives to the Mt. Tiburon site but eventually concluded no alternative was feasible. In May 2002, MERA condemned the Mt. Tiburon site with the water district’s consent. The Tiburon Town Council then hurriedly adopted a resolution approving MERA antennas at an alternative location, known as the Sugarloaf site, that MERA had ruled out. (In an unrelated lawsuit, the council’s action was invalidated by the Marin County Superior Court.) Still, MERA attempted to proceed with construction at the Mt. Tiburon site — until the Tiburon Police Department showed up to enforce a city “stop work” order. The contractor left the site, and then the attorneys got busy. Two groups of citizens filed separate but similar lawsuits against MERA and naming the city as the real party in interest. Both lawsuits sought to block the MERA facility on Mt. Tiburon Drive. The lawsuits were consolidated, and Marin County Superior Court Judge Michael Dufficy ruled for the citizens. He determined that MERA was subject to, and had failed to comply with, Tiburon’s general plan and zoning ordinance. Judge Dufficy also ruled that new information regarding the feasibility of the Sugarloaf site required MERA to prepare a supplemental EIR. On appeal, the First District overruled Dufficy. In the published part of its decision, the appellate panel addressed exactly what powers the joint powers agency has. The trial court ruled that MERA lacked the “common power” to take the action that it did because four MERA members — the water district, the Marin County Transit District, the Marinwood Community Services District, and the Marin Community College District — lacked authority to construct and operate an emergency communications system. “The trial court,” Presiding Justice Anthony Kline wrote for the First District, “appears to have taken the position that the power to construct and operate an emergency communications system is an implied power only of public agencies expressly authorized to provide emergency services, such as police and fire protection. … e believe the trial court’s approach is too restrictive. Disaster preparedness is necessarily incident to the provision of a much broader range of mandated public services.” In fact, all of the agencies involved must plan for and respond to disasters and emergencies, the court ruled, citing state laws that emphasize the importance of disaster preparedness. Under the Joint Exercise of Powers Act (Government Code § 6500 et seq.), MERA “has the ‘common power’ to operate an emergency communication system” and is not subject to Tiburon’s land use regulations, the court concluded. In the unpublished part of the decision, the court addressed Judge Dufficy’s ruling that new information mandated preparation of a supplemental EIR. The appellate court found that the only new information was the Town Council’s action regarding the Sugarloaf site — and all of the information on which the council based its action could have been known before the EIR was certified. Therefore, no additional environmental study was required. The Case: , No. A102148, 04 C.D.O.S. 4111, 2004 DJDAR 5673. Filed April 14, 2004. Certified for partial publication May 13, 2004. The Lawyers: For Zack: Steven Roland, Sedgwick, Detert, Moran & Arnolds, (415) 781-7900. For Citizens for Open Process in Antenna Siting: J. Dennis McQuaid, McQuaid, Bedford & Van Zandt, (415) 905-0200. For MERA: James Wagstaffe, Kerr & Wagstaffe, (415) 371-8500. For the city: Ann Danforth, town attorney, (415) 435-7370.

A long-proposed new town in Madera County, north of Fresno, appears to be inching closer to reality. This month, the Madera County Board of Supervisors expects to give final approval to the 1,800-acre River Ranch Estates, a proposed housing subdivision within a designated 15,000-acre growth area known as Rio Mesa. River Ranch Estates would be the first substantial development of land within the Rio Mesa area plan, which the county adopted in 1995. In March, supervisors endorsed an infrastructure plan, subdivision map, design guidelines and environment impact report for River Ranch Estates. Supervisors postponed final approval until county attorneys prepare findings, which will probably be ready this month. However, the county's formal approval would only amount to the next step in the process, as litigation over the EIR and the property owners' water rights is almost certain to follow. Madera County Supervisor Frank Bigelow called River Ranch Estates a "powder keg." Pointing to project opposition from Fresno County, environmentalists, park advocates, farmers, irrigation districts and his city, Fresno City Councilman Brian Calhoun said, "There probably isn't anybody who is happy with what is going on there." As usual with development of a new area, there are many issues. Foremost in this case are the provision of water for the development, public access to the adjacent San Joaquin River and traffic. The water issue may prove to be the trickiest, as the landowner contends he has rights to all the water he needs from the San Joaquin River. The U.S. Bureau of Reclamation, which operates Friant Dam, a few miles upstream from the River Ranch Estates site, is assessing the water rights situation and expects to issue an opinion later this year. Irrigation districts and farmers, meanwhile, contend that the landowner's contract with the Bureau of Reclamation greatly limits the uses of water. During the 1990s, the University of California sought a site in the Central Valley for a new campus. Officials at UC narrowed the finalist sites to three — pasture land near Merced, property 20 miles northeast of Fresno, and Lake Yosemite in Madera County (see CP&DR , June 1995). While UC was making its final selection, Madera County adopted the Rio Mesa area plan, a "conceptual land use plan," for development that could serve a new university, said Madera County Planning Director Dave Herb. The area plan was a public-private effort, with property owners paying most of the planning costs. The plan envisioned up to 30,000 housing units, and extensive retail and office development in three distinct villages. Ultimately, UC chose the Merced site, but Madera County kept Rio Mesa as a designated growth area. A number of Rio Mesa landowners have talked with the county about development and even started the entitlement process. The process is not easy, though, as the county requires developers to provide infrastructure plans covering some or all of one of the three proposed villages within Rio Mesa. River Ranch Estates landowner Larry Freels and his Central Green Company is the first to complete an infrastructure plan, Herb said. The infrastructure plan covers all of Central Green's approximately 1,800 acres. At this point, though, Central Green proposes only 1,646 homes on 793 acres. The other 1,000 acres would remain a pistachio orchard for now. The plan tentatively approved by the county calls for a 180-lot subdivision and 40 "out lots" for which maps would have to be submitted in the future. The Madera County Planning Commission unanimously rejected the River Ranch Estates EIR as inadequate. Central Green appealed that decision, and in March the Board of Supervisors voted unanimously for the EIR and project, at least in concept. Exactly why supervisors overturned their unanimous Planning Commission is unclear. Supervisor Bigelow, who represents the Rio Mesa area, said he did not want to talk about the project until a final decision is made because he did not want to prejudice the public process. Bigelow did note that Rio Mesa is a designated growth area in the county general plan, and "you have to start implementing the general plan." Most recent growth has been around the City of Madera, which is not designated as a growth area, Bigelow said. No doubt some of the findings that supervisors consider when the project returns for a final vote will address water. Central Green owns a "holding contract" with the Bureau of Reclamation. Central Green attorney Timothy Jones, of Sagaser, Franson & Jones in Fresno, said the holding contract gives the landowner the right to take water from the San Joaquin River. The water currently serves agricultural uses, but the contract does not limit use to farming, Jones said. "The holding contracts on this river and on other rivers have been used for development for some time," Jones said. Herb said the holding contract allows the landowner to take as much water as he needs for "domestic and beneficial purposes." Water attorneys have advised the county that the contract is straightforward and solid. It definitely is enough to satisfy the state requirement of proving a that 20-year water supply exists to serve a large development proposal, Herb said. Other people see a murky water picture. John Renning, water rights officer for the Bureau's mid-Pacific region, said holding contracts were signed during the 1940s, when the federal government was acquiring water rights for the Central Valley Project's Friant Division, which includes Friant Dam, the Friant-Kern Canal and the Madera Canal. The contracts do not specify the amount of water to which the owner is entitled, Renning said. They only require that water be used for "agricultural and domestic purposes." Renning said the contracts are ambiguous because when they were signed, the area was sparsely populated and not even heavily farmed. No one anticipated the Central Valley's modern day land use issues. "We haven't finalized what our position is," Renning said. "We need to work out exactly what can be done under those contracts and what type of review process . We're certainly not intending to be any type of impediment to urban development in that area. But we need to establish what the rights of the United States are." The Madera Irrigation District (MID), a CVP contractor, worries that letting development go forward based on a holding contract would be a bad precedent that could threaten farmers' water. "This impacts districts from Chowchilla to Bakersfield that rely on the Friant water supply," MID General Manager Stephen Ottemoeller said. Holding contracts do not precisely determine what rights the landowner has, Ottemoeller said, and no court has adjudicated the water rights. Furthermore, Central Green proposes commercial development that would not fall under the "domestic purposes" provision, he contended. And Central Green proposes pumping water from the river to serve land that has not been irrigated with river water in the past, which is not allowed, Ottemoeller contended. The irrigation district has asked for a contractual cap on the amount of water the development uses. Jones countered that Central Green is willing to implement best water management practices, but is unwilling to limit its use to an amount controlled by MID. (The bad blood between Central Green and MID extends to at least the 1990s, when Central Green sued MID claiming that surface and subsurface flooding caused by the Madera Canal damaged Central Green's pistachio orchards. The case, Central Green Co. v. United States , (2001) 121 S.Ct. 1005, made it all the way to the U.S. Supreme Court, which ordered the district court to consider Central Green's claims.) Another concern is River Ranch Estate's impact on the planned 22-mile-long parkway along the San Joaquin River from Friant Dam to Highway 99. "It doesn't provide the river buffers that are required, or the public access," said David Koehler, executive director of the San Joaquin River Parkway and Conservation Trust. The county should require development to be clustered away from the river for the sake of public access and wildlife, he said. Furthermore, the county should require more detailed infrastructure planning, especially for stormwater drainage, he added. Fresno Councilman Calhoun, who also sits on the San Joaquin River Conservancy board, agreed with Koehler. The developer and Madera County make promises about the parkway, but there are no guarantees in the plan, said Calhoun, who added traffic concerns to the mix. "The only jobs they've got are in the City of Fresno. There are no jobs in Madera" Calhoun said. That means increased traffic on Highway 41, yet "there are no plans for mitigation on Highway 41," he said. Jones and Herb defended the project and Madera County's planning. "It's going to be a first-class development once it's done," Jones said. "I think the detractors are really not being fair to the developer and his efforts to accommodate their concerns. … Part of the process is people getting over the notion that there is going to be development on that property." Herb said the county went out of its way to ensure the public has access to the bluffs above the river and to the river itself. The county agrees with the concept of a river trail and wants to see it built, he said. As for traffic, Herb said, projects in Fresno have contributed traffic to Highway 41 in Madera County, but Fresno and the developers have not paid for improvements north of the river. If River Ranch Estates does move forward, it could be the start of larger scale development in Rio Mesa, especially as land gets more scarce in the City of Fresno. "At this stage, we are being approached by at least three or four other people who want to pick up the baton from Mr. Freels and continue the infrastructure plan to adjoining areas," Herb said. Contacts: Dave Herb, Madera County Planning Department, (559) 675-7821. Timothy Jones, Sagaser, Franson & Jones, (559) 233-4800. Stephen Ottemoeller, Madera Irrigation District, (559) 268-2483. John Renning, U.S. Bureau of Reclamation, (916) 978-5295. David Koehler, San Joaquin River Parkway and Conservation Trust, (559) 248-8480.

A story in the March edition regarding the Castaic Lake Water Agency's urban water plan listed incorrect terms of office for Lynne Plambeck. She has been a member of the Newhall County Water District board since 1999. She previously was a member from 1993 to 1997, when her slow-growth alliance controlled the board majority.

Proposals to create two new state conservancies — one covering as much as a quarter of the state and one focused on a single Southern California river — are alive in the state Legislature. A proposed Sierra Nevada Conservancy appears to have gained some bipartisan momentum, while a proposed Santa Ana River Conservancy struggles to gain ground. Neither proposal is a sure thing during this budget-constrained legislative session. While each proposal has its own set of land use issues and politics, the proposals also raise questions about how the state establishes conservancies, and whether conservancies are a good idea at all. But defenders of the proposed Sierra Nevada Conservancy say that if Los Angeles’s Baldwin Hills and the San Diego River are worthy of a conservancy, surely the state’s defining mountain range is too. Three years ago, the Legislative Analyst’s Office (LAO) recommended the Legislature limit the creation of new conservancies and close out the existing conservancies. The LAO reported "the state lacks a comprehensive and cohesive statewide land conservation plan." Because there is no statewide plan, the conservancies do their own things and state officials are unable to prioritize the use of resources. The LAO’s sharp criticism followed a 2000 State Auditor’s report that reached similar conclusions. The Davis administration attempted to address some of these concerns, but that effort within the Resources Agency apparently petered out with the change in the governor’s office. The findings in the 2001 report still hold true, said Michelle Baass, an LAO analyst. Recent state bonds have provided the conservancies with hundreds of millions of dollars for capital projects. But annual funding for programs, staffing, planning and other basics remains a struggle, and some of the capital funding has been diverted to ongoing operations (see , April 2003). "One of the key considerations is ongoing funding," Baass said. "That’s true of any land acquisition activity … or stewardship of the land" that the state undertakes. The state currently has eight conservancies: Baldwin Hills, California Tahoe, Coachella Valley Mountains, San Diego River, San Gabriel and Lower Los Angeles Rivers and Mountains, San Joaquin River, Santa Monica Mountains, and State Coastal. Their jurisdictions and mandates vary widely, but ongoing funding has been a problem for all of them. One of the newer agencies, the San Joaquin River Conservancy, is a prime example. The conservancy is charged with creating a 22-mile-long parkway from Friant Dam to Highway 99 near Fresno. Since its creation eight years ago, the conservancy has acquired about half the land it needs and opened five miles of trails. A nonprofit trust has built a visitor’s facility. The conservancy, which received $50 million worth of line items in three state bonds, is working on other trails and boating improvements, but the when those facilities will be available is uncertain. "There are no resources right now for operating parks, patrolling parks and any of those things we need for opening facilities to the public. That’s definitely the most limiting thing we face right now," said Melinda Marks, executive director of the San Joaquin River Conservancy. There are funding ideas — local assessments, user fees, local and state agency budgets — but nothing is firm. Marks recommended that state officials figure out how to provide ongoing funding for any new conservancy. Proponents of the new conservancies are aware of the background and concede they do not have all the answers. But, said Clyde McDonald, an aide to Sierra Nevada Conservancy proponent Assemblyman John Laird (D-Santa Cruz), the comparison ought not be between the proposed conservancy and an ideal model, but between the proposed conservancy and the current arrangement, which offers no systemic approach to the mountain range. Bills to establish a Sierra Nevada Conservancy come from either side of the aisle. Laird is carrying AB 2600 while Tahoe City Republican Assemblyman Tim Leslie is behind AB 1788. In April, the Assembly Natural Resources Committee approved both bills. The authors requested the action so that they could continue negotiating toward legislation that both of them can support. The bills have fairly similar aims. The proposed conservancy would serve mostly as a funding conduit, delivering grants and loans to public agencies, nonprofit groups and Indian tribes. The money could be used for cultural, archaeological and historical resource protection, tourism and recreation, reducing wildfire and flood risks, water quality improvements and local economic assistance. "We see it as a potential pipeline of funds to an area that has been chronically underfunded," said Jedd Medefind, Leslie’s chief of staff. "Secondly, it would create a forum for residents, nonprofits and other entities who have a stake in the future of the Sierra to come together." The bills diverge in three areas: Boundaries, governance and the role of local governments. Laird’s AB 2600 covers a broader region that extends north to the southern Cascades (which start at about Lassen Volcanic National Park) and the Modoc Plateau, and east to the White and Inyo mountains east of the Owens Valley. Leslie’s AB 1788 would keep the conservancy south of Lassen and west of Highway 395 and, apparently, farther up the slope of the Central Valley foothills. Laird’s bill calls for a state-dominated, seven-member board: the Resources Agency secretary, the director of finance, an appointee of the governor, and two appointees each by the Assembly speaker and Senate Rules Committee. Leslie’s bill emphasizes a local approach with a 20 member board: 10 county supervisors, six governor’s appointees (including three people from the region) and two appointees each by the speaker and Senate Rules Committee. As for governance, the difference again is state versus local. Laird’s version asks the conservancy to cooperate and consult with local governments. Leslie’s bill would require the appropriate local government to approve of any land acquisition by the conservancy or acquisition funded by the conservancy. "Mr. Leslie comes at it from a local perspective," McDonald said. "My boss comes at from a statewide perspective. We normally don’t give local agencies authority over what the state does." Medefind said the region is so large and issues so diverse that communities should have the final say. Requiring only consultation with local government "could be nothing more than symbolic," he said. Nevertheless, representatives of the two lawmakers continue to negotiate and say a compromise can be reached. Probably no group has worked harder toward creation of Sierra Nevada Conservancy than the Truckee-based Sierra Business Council. According to the council’s 2002 "resource investment needs assessment," the Sierra Nevada provides 60% of the state’s water and up to half of the state’s annual timber harvest, and supports at least half of all plant, bird, mammal and reptile species in the state. At the same time, population is expected to triple between 1990 and 2040, the region gets about 50 million recreational visits per year, large-lot development is common and local economies are in transition. "This is a long-term issue, so a conservancy is the best approach," said Steve Frisch, the council’s director of natural resources. Integrated, long-term planning would bring together all levels of government. Additionally, a conservancy would be eligible for money from state bonds and programs, and could leverage local government, land trust, foundation and landowner contributions, Frisch said. Issues surrounding boundaries and governance have plagued Sierra Nevada Conservancy proposals for the last four years, Frisch conceded. Still, Frisch and other supporters continue to negotiate with lawmakers, and Frisch believes "this is the year." Not everyone is so sure, or so hopeful. Sierra Club lobbyist Jim Metropulos noted that his organization opposed a Sierra Nevada Conservancy bill two years ago because the proposed entity would have been locally controlled and would have let counties opt out. He said the Coastal Conservancy provides a good model, with its "small, independent board of representatives of groups of stakeholders." "We are certainly supportive of a conservancy for the Sierra Nevada," Metropulos said. "But what type of conservancy?" Opposition to the proposed conservancy is led by the California Farm Bureau Federation and local farm bureaus. "It would create another state agency. We feel there is enough bureaucracy already," said Jaimee Wood, executive director of the Butte County Farm Bureau. Approximately 70% of the Sierra Nevada is already in public ownership, so there is no need for the government to acquire more, Wood said. Plus, there are fears that a new entity would take land from unwilling sellers. El Dorado County Supervisor David Solaro, who backs the Leslie bill, said there is misinformation about the role of conservancies. Some people mistakenly believe conservancies are regulatory agencies like the controversial Tahoe Regional Planning Agency, he said. In fact, the California Tahoe Conservancy, which operates in Solaro’s district, spends 80% of its funding on water quality projects, the supervisor said. Precisely where the Schwarzenegger administration stands on the Sierra Nevada proposals is unclear. The administration reportedly has not been part of legislative negotiations and it has not taken a public position on the bills. In fact, legislative analyses have resorted to quoting the joinarnold.com website, in which Schwarzenegger says he favors a conservancy. Also conspicuously absent is the federal government, which owns more than half the land in the Sierra Nevada. Meanwhile, the proposed Santa Ana River Conservancy has a more modest intent but faces the same locals-versus-state issue. "It’s a fine line to walk," said Pablo Garza, an aide to Assemblyman Lou Correa (D-Santa Ana). Correa is author of AB 496, which would create a Santa Ana River Conservancy. The agency would acquire and manage lands within the river’s watershed for recreation and wildlife habitat, and to improve water quality. Central Orange County is one of the mostly densely developed parts of the state, and it is starved for parks, Garza pointed out. The river "is a potentially great resource that is underused right now. In Orange County, it looks like a sewage ditch," he said. Local chapters of the Building Industry Association oppose AB 496, as do Riverside and San Bernardino counties and several cities. Riverside County opposes the proposal because it could impact potential freeway improvements and a variety of other projects near the river, county spokesman Ray Smith said. Last year, AB 496 stalled in the Senate Appropriations Committee. The bill — as well as the Sierra Nevada Conservancy bills — still must run that gauntlet. No one expects legislation that creates new agencies or programs to have an easy time this session. Contacts: Jedd Medefind, office of Assemblyman Tim Leslie, (916) 319-2004. Clyde McDonald, office of Assemblyman John Laird, (916) 319-2027. Pablo Garza, office of Assemblyman Lou Correa, (916) 319-2069. Steve Frisch, Sierra Business Council, (530) 582-4800. Jaimee Wood, Butte County Farm Bureau, (530) 533-1473. Melinda Marks, San Joaquin River Conservancy, (559) 253-7325. Michelle Baass, Legislative Analyst’s Office, (916) 319-8321.

Architects often talk about the need to design with an awareness of context, but few architects have taken the issue as literally as Richard Matteson. The Los Angeles-based architect has designed a building that, from certain angles, not only fits in with the surrounding landscape—in this case, a lush forest in a Los Angeles canyon—but from certain angles is well-nigh invisible. The result is a design that is well-regarded by both its owner, the Los Angeles Department of Water & Power, and its neighbors. And this modest building, still under development, may indicate an important shift in the relationship between architecture and landscape in a time of rising environmental awareness. Like many public buildings in Southern California, the Stone Canyon water filtration plant is the product of a long negotiation—in this case, 12 years—between neighborhood groups and public officials. The story starts with federal clean water regulations from the 1980s that required water utilities either to enclose reservoirs or to build water filtration plants to ensure water purity. The idea of covering a reservoir did not please the neighbors of Stone Canyon Dam, the scenic centerpiece of a 600-acre watershed just south of Mulholland Drive in Los Angeles. After forming a group known as Coalition to Preserve Open Reservoirs, they formally requested that the Los Angeles City Council block construction. The council recognized the homeowners’ group, and instructed the Department of Water & Power to negotiate with it. In time, the public water company decided to take the reservoir "off line," and thus end the requirement. But the city was still in need of a smaller filtration plant, to purify the overflow from the dam after rainstorms and re-channel the surplus water into the city water system. The final outcome was a decision to build a smaller, 20,000-square-foot plant. In 1987, the utility issued a request for proposals, eventually choosing a team made up of engineering firm Black & Veatch and Richard Matteson, a self-employed architect and veteran of several high-design firms. The biggest practical problem was fitting the building into the hillside. At 20,000 square feet, the proposed building envelope would be "the size of a basketball court with room for bleachers on both sides," according to the architect. A conventionally boxy building would require the destruction of several trees, which neighborhood residents opposed. After long study, Matteson decided to rearrange the two large water pumps inside the building, allowing the architect to reshape the building from a cubic volume into an irregular wedge that would fit more easily into the hillside, while reducing the overall size of the building by 25%. The plan calls for essentially submerging nearly the entire building into the hillside, and covering much of the roof with 12 inches of sod. The footprint of the building is highly irregular, with big scoop-like shapes on its edges, resembling bites taken out of a giant cookie. These "bites" in fact, are places where the building makes room for existing trees on the site. The front elevation, visible only from a frontage road, is made up largely of planters. By law, the building must have two exits. The architect combines these with the air vent towers, which are covered with curving roofs that dampen the sound and redirect it away from hillside houses. Matteson’s design gained ready acceptance from hard-line homeowners. In negotiations, two of the homeowners’ demands were that the building neither attract attention to itself not destroy more trees than necessary, according to Brian Studwell, a director of the Bel Air Association, one of the reservoir coalition’s constituent groups. After three proposed versions, the DWP and the activists agreed on a final design in 1999. Construction is due to start next year. "Everybody who I’ve spoken says `I love it,’" said Studwell. The resulting process and design, he added, is "so unique in the annals of municipal government that DWP has written papers and sends speakers around the country" describing the project. Given the political and esthetic success of the Stone Canyon water filtration plant, historians might someday cite this building as an example of the shifting relationship of the attitude of architects toward nature. Since the Renaissance, Western architects have often combined buildings and landscape into a single, harmonious composition, but the buildings have invariably been the central focus. Later, 20th Century architects, notably Frank Lloyd Wright, took this notion a step further by designing buildings that took advantage of dramatic landscapes as the backdrop for even more dramatic buildings; the most famous example is Falling Water in Pennsylvania—a magnificent building that arguably overpowers its equally magnificent site. This humble Stone Canyon water filtration building (humble in a philosophical sense, not artistically) may not alter our collective slide into ecological crisis, but it does demonstrate an evolving set of values among designers. Matteson’s water plant in Bel Air is that hitherto rare building that gives primacy to the landscape. This gesture may be a sign of our rising awareness of the importance of landscape in the larger scheme of things, where ecology actually is more important than buildings. However, maybe invisibility can be taken too far. "We are getting a magnificent building," said Martin Adams, DWP manager of planning and project management. He cited a comment from a neighboring homeowner. "We are getting a glorious building," she said, adding, "It may be unfortunate that it’s so difficult to see."

Many years ago, overwhelmed by the sheer size of the numbers involved in modern society, humor columnist Russell Baker suggested that we should replace all numbers greater than 10,000 with the word "lotsa." As in, McDonald’s has sold lotsa hamburgers. Social Security entitlements involve lotsa money. A war requires lotsa missiles. We are approaching this point with California home prices. Every month – every week – brings another round of home-price headlines so ridiculous that they seem like something out of , the satirical newspaper. These days, a house in California costs lotsa money. Inevitably, the planning system gets blamed for the mess, and if the economy goes south, you can bet that the building industry will lobby for land-use reform in Sacramento based on the argument that planners have left us with unaffordable houses. But are high home prices really due to planners and their crazy processes? The answer is yes and no – or, perhaps more accurately, no and yes. The recent run-up in prices has occurred not only in the context of California’s typically kooky and complicated planning system, but also in the context of a very peculiar housing market. Let’s take a look. We’ll start with supply and demand. Conventional wisdom suggests that prices are going up because demand is outstripping supply. There is clearly some truth to that argument. But if you look at the supply and demand patterns of the last 15 years – since the last big price run-up – it is clear that more is going on. All through the 1990s, housing experts told us that we were under-producing – building only about half as many houses as the market needed. At the same time, home prices in most of the state were flat all through the ’90s. Now we’re in the opposite situation. Housing production is higher than it has been at any time since the late ’80s. Production is approaching 200,000 units a year, the level housing experts say is needed to meet demand. And there is more variety in new housing, including attached and multi-family units. Yet home prices in California have doubled during the last four years – from a median of around $200,000 to a median of around $400,000 – and show no sign of slowing down. So, what gives on supply and demand? Several things. First, we fell so far behind during the ’90s that supply is still scarce even though production has increased. Second, the current market escalation comes after a decade of flat prices. Sure, prices are double the $200,000 median of four years ago. But median was also $200,000 in 1990, before the recession and real estate bust. If you average the doubling of prices over 14 years instead of 4, that is a 5% annual increase – high but not exorbitant. Finally, the current run-up is due in part to boom time desperation. We must buy now at any price so that we don’t have to pay more later! Then there is home mortgage financing. The way our home finance system is set up, the actual selling price is only one factor. What matters most is the down payment and the monthly payment, the PITI (principle, interest, taxes, and insurance). The days of a 20% down payment are practically over, thanks to mortgage insurance, government programs and various financing strategies that allow people to buy with as little as 3% to 5% down. A small down payment boosts the monthly payment, but the combination of low interest rates, thanks to the Fed, and low property taxes, thanks to Proposition 13, means that the IT portions of the monthly PITI are constrained. Because most buyers qualify for a mortgage based on their ability to cover the whole PITI, it stands to reason that the lower the interest and tax payments are, the higher the principle payment can be. Taking out a 5% loan as opposed to an 8% loan saves several hundred dollars a month. Paying 1% of sale price for property taxes rather than 2% or 3% saves another several hundred. Put the two together and you might have $600 to $800 a month more to throw at the actual purchase price – which, at these interest rates, is enough to leverage another $120,000 to $150,000. If interest rates were higher and Proposition 13 did not exist, California’s $400,000 house would cost $275,000. It would have to because the combined monthly payment would be the same. On top of everything else, steel prices have been going through the roof – not a problem on single-family houses, but increasingly a problem for the multi-story, multi-family projects being constructed under the "smart growth" rubric in urban areas. Steel prices have increased 30% since December and doubled on the spot market. The psychology of demand, the cost of financing and taxes, and the cost of materials are all factors in the quick run-up in home prices. So what about those pesky planning processes that builders always blame? There is no question that planning policies play a role in framing the underlying price structure for California houses. Some communities restrict the number of houses that can be built; planning processes can be long and unpredictable, especially when the California Environmental Quality Act comes into play; and communities have increasingly sought to place the cost of infrastructure on developers through the use of impact and development fees. But have the costs associated with "the system" increased by 100% over the last four years? Of course not. The planning system is not that volatile. It’s more like a constant underlying the housing market. With this in mind, there are a couple of points worth making about the role planning plays – and the role it could play – in housing markets. The first point is that planning policies probably shave some production off the top in a hot market. In the absence of planning and permitting processes, developers would simply let ’er rip in a market like this one, building housing units as fast as possible. Planning processes inevitably slow the pace – which is part of the point of planning, designed to ensure that growth does not overwhelm communities and their infrastructure. The second point is equally important: Planning and permit processes cannot easily stimulate construction in a down market such as we had for most of the 1990s. Builders often argue that if planners would "get out of the way" in a recession, production would go up. But the truth of the matter is that construction in a down market is dampened not by planning, but by financiers unwilling to loan money and builders unwilling to take a risk on reluctant buyers. Sometimes even huge public subsidies cannot force the market to build something the market does not want to build. So, planning processes tend to shave production a little in boom markets and cannot stimulate construction in bust markets. Over time, this probably means slightly reduced housing production. If that’s true, then how can planning and planners better deal with the imbalances and price run-ups that we see today? The answer is simple: Plan well to begin with, and then stick to the plans you make. Planning well usually means resisting short-term economic forces in the service of long-term benefit to the community – focusing on workforce and low-income housing, for example, instead of permitting developers to build only high-end houses. Equally important to planning well is keeping the plans you make. That means allowing developers to build the housing you want when – as now – the market motivates them to do so. One clear cost that planning imposes on developers is the cost of processing time, a cost that can be fatal if it means that developers miss the hot real estate market and must wait years until the opportunity to build arises again. One thing planners can do to help is expedite processing of good projects. Put another way, the best thing local governments and their planners can do to help the housing crisis is not to "get out of the way." The best thing they can do is send clear signals about what they want, and then let developers do the job of implementing the plan when the opportunity arises.

In a remarkable political turnabout, two land use organizations that vigorously fought one another during the 2000 election in Sonoma County have issued a joint report calling for more intensive city-centered growth to protect agriculture and natural resources. San Francisco-based Greenbelt Alliance and the Sonoma County Farm Bureau released "Preventing Sprawl: Farmers and Environmentalists Working Together" at the end of March. As recently as 3 1/2 years ago, the two groups were mortal enemies. At that time, they were engaged in dueling campaigns over the Rural Heritage Initiative, a Greenbelt-backed initiative that would have required landowners to receive voter approval for most rezonings (see , December 2000, October 2000). Greenbelt contended the measure — modeled on Ventura County’s Save Open Space and Agricultural Resources (SOAR) initiative — was necessary to prevent urban development from swallowing farmland and open spaces. The Farm Bureau countered that the measure was unnecessarily restrictive and burdensome to landowners. After a bloody and relatively expensive campaign, 57% percent of Sonoma County voters rejected the Rural Heritage Initiative. After the 2000 election, both sides said, "This is ridiculous," explained Lex McCorvey, Farm Bureau executive director. So representatives of the two organizations began a dialogue. "We just started talking and communicating. We found we could set aside our past differences," McCorvey said. The two sides also found that they held a great deal in common. With a $200,000 grant from the James Irvine Foundation, they spent nearly two years examining local history, studying land use, economic and demographic trends, reaching some conclusions, and making four recommendations. Those are: • Maintain a strong general plan that focuses growth into already developed areas and protects agricultural and natural resources lands. • Support local policies and programs that encourage more efficient use of land within existing urban boundaries. • Encourage Cloverdale to adopt an urban growth boundary. • Extend funding for the Sonoma County Agricultural Preservation and Open Space District. All of the recommendations build on existing policies. Since 1978, the county’s general plan has guided growth into the cities. And during the 1990s, voters approved urban growth boundaries for every city except Cloverdale, a small town along Highway 101 near Mendocino County. Voters also approved the countywide open space district and a half-cent sales tax to fund its activities; the district and tax are set to expire in 2011. But the report says that without bolstering those policies, growth pressure will spill onto the farmland and community separators that provide for a $600 million-a-year agricultural industry and draw 4 million tourists annually. "We have to do better on density," said Kelly Brown, Greenbelt’s Sonoma-Marin field representative. "We have to use land more efficiently within the urban growth boundaries." Based on Department of Finance growth projections, Sonoma County’s population will increase from 456,000 in 2000 to about 750,000 in 2040, necessitating the construction of 115,000 new housing units. "Under the city-centered growth model," the report concludes, "Sonoma County’s cities could accommodate 90% of the predicted population growth (265,000 persons) if they increase the average people per acre for new developments from 7 to 17." Initial reaction from elected officials and other community leaders has been positive, said Brown and McCorvey. But both recognize that not-in-my-backyard battles lie ahead without further public outreach and education. Still, there appears to be momentum growing for a more intense use of land within the cities, and the organizations appear eager to play a role in future land use decisions. Plus both Greenbelt and the Farm Bureau, after some initial hesitation, are happy to have new a new ally. "Adversarial roles don’t work," McCorvey said. "It’s all a matter of the evolution of a community." Contacts: Lex McCorvey, Sonoma County Farm Bureau, (707) 544-5575. Kelly Brown, Greenbelt Alliance Sonoma-Marin Field Office, (707) 575-3661. Greenbelt website (which contains report): www.greenbelt.org

An environmental impact report for a water pipeline project near Jackson has been rejected because the water agency in charge did not explain the reason why it concluded that a potential impact was not significant. The potential impact was to six streams that are fed during the dry season by leaks in an earthen canal, which the Amador Water Agency proposed to replace with a pipeline. Without water from the leaks, some of the streams would dry up altogether during the summer and early fall, according to the EIR. " ontrary to CEQA requirements, the EIR fails to explain the reasons why the agency found the reduction in stream flow would not be significant," Justice Ronald Robie wrote for the Third District Court of Appeal. The Amador Canal is a mostly unlined ditch that carries water 23 miles from Lake Tabeaud to Tanner Reservoir in the Amador County foothills near Jackson. The canal was originally built in 1870. Amador Water Agency proposed replacing the ditch with an 8-mile-long pipeline to improve water quality, reduce water loss and boost reliability. In May 2001, the agency adopted an EIR and approved the pipeline project. The EIR said that surface flows in parts of six streams would decrease to varying degrees from June through October, making some of the streams intermittent during drier years. In particular, Jackson Creek would become intermittent "during August and September, and possibly October, in all but the wettest water years." Nevertheless, the EIR concluded the hydrological impacts were less than significant. The EIR reached the same conclusion regarding impacts to riparian vegetation. A group called Protect the Historic Amador Waterways sued the agency, contending that the agency failed to analyze and mitigate significant effects to stream hydrology and riparian vegetation. Amador County Superior Court Judge Susan Harlan ruled for the agency. Project opponents appealed, and a unanimous three-judge panel of the Third District overturned the lower court. The water agency had relied heavily on thresholds of significance, which the California Environmental Quality Act and the CEQA Guidelines permit lead agencies to use to determine whether an EIR is required and, if so, whether a possible impact is potentially significant. The agency further relied on a portion of the Guidelines, §15064, subdivision (h), that the Third District invalidated in , (2002) 103 Cal.App. 4th 98 (see , January 2003; , December 2002). Interestingly, Justice Robie — then a Sacramento County Superior Court judge — had originally stricken § 15604, subdivision (h) at about the same time the agency adopted the EIR. The court rejected the guideline because it allowed an agency that had adopted thresholds of significance to rely on them solely, and not have to consider a "fair argument" that an impact was potentially significant. The court said the fair argument standard remained in place. The water agency had adopted thresholds of significance based largely on the "Environmental Checklist Form" and "Environmental Information Form" in appendices G and H of the guidelines. Based on those thresholds, the agency determined the project would not have a significant impact. Project opponents contended that the sample questions in those forms were too narrow and were irrelevant to the pipeline project. The Third District said it could not determine which side was correct because the agency provided no basis for its conclusion. " fter explaining how construction of the pipeline would ‘affect existing local hydrology’ by reducing surface flow in several streams, turning some of them into seasonally intermittent streams, the EIR simply states that ‘the change in local hydrology associated with dewatering the Amador Canal and eliminating all leakage is not considered to be a significant hydrological impact per se.’ This assertion is not a statement of reasons, but a bare conclusion. As such, it does not satisfy CEQA requirements," Robie wrote. "A statement of reasons is necessary to assure meaningful judicial review in the event, as here, the EIR is challenged in court." As for impacts to riparian vegetation, the court was satisfied with the EIR’s single sentence of reasoning: "Similarly, the montane riparian vegetation would continue to thrive along local streamcourses, even if canal leakage is eliminated." Project opponents might have challenged the reasoning as lacking substantial evidence, but they did not, said the court, which then sided with the agency regarding habitat. In directing the water agency to satisfy CEQA, the court made clear that "the agency need only correct the deficiency in the EIR that we have identified" and did not have to start over. The Case: , No. C042915, 04 C.D.O.S. 2273, 2004 DJDAR 3291. Filed March 12, 2004. Modified April 9, 2004 at 2004 DJDAR 4414. The Lawyers: For Protect The Historic Amador Waterways: J. William Yeates, (916) 860-2000. For the agency: Alan Lilly, Bartkiewicz, Kronick & Shanahan, (916) 446-4254.

Red flags went up in the environmental community during May 2002 when the Bush administration announced it was forming a task force to "modernize and improve" the National Environmental Policy Act (NEPA). Two years later, release of the task force’s final report suggests that many of the fears voiced by defenders of this landmark federal statute have yet to materialize. Passed by Congress in 1969, NEPA requires the U.S. government to assess the environmental effect of any significant project undertaken by a federal agency, funded with federal money, or requiring a permit from a federal agency. It requires public disclosure of the results of that assessment and a public determination as to whether the benefits outweigh the consequences. In broadest terms, it is the bedrock federal environmental law. It has served as the blueprint for similar laws adopted by half the states, including the California Environmental Quality Act (CEQA). So when James Connaughton, chairman of the White House Council on Environmental Quality (CEQ), authorized creation of the NEPA task force, the response of many environmental groups echoed that of William Snape III, vice president and chief counsel of Defenders of Wildlife. "In sum," he wrote in a letter to the task force, "we believe that NEPA is perhaps the most critical of all federal environmental laws, and assert its procedures are effective and efficient when utilized in good faith. The adage ‘don’t fix what ain’t broken’ possesses poignant relevance here." The CEQ, which operates in the Executive Office of the President, was established by NEPA and charged with promulgating NEPA regulations applicable to other federal agencies, and with resolving disputes among federal agencies regarding NEPA compliance. The council comprises three members appointed by the president and subject to Senate confirmation. Critics of the Bush administration’s environmental policies grew alarmed when Connaughton — a former lobbyist for mining companies and the Chemical Manufacturers Association — directed the task force to look into expanding the use of "categorical exclusions" by which federal agencies can declare certain types of projects exempt from environmental analysis, and to review the "balancing of public involvement and information security" in the wake of the September 11, 2001 terrorist attacks (see , November 2002). Environmental organizations viewed the comment regarding the "balancing" of public involvement and security needs as an attempt to undermine NEPA and quash public involvement. In their view, the Bush administration had made its aims clear in this regard by seeking to exempt logging plans from analysis and public review under the guise of fire prevention, to expedite review of some transportation projects, and to exempt federal activities from NEPA if they occur in offshore waters. Critics of the administration also were alarmed by the hurried nature of the task force’s work: It initially imposed a 45-day deadline to collect public testimony and was to issue its final report by the end of 2002. The public comment period, however, was quickly extended another month. Ultimately, the task force received written comments from more than 650 individuals, organizations, agencies and tribes. And the final report was not released until September 24, 2003, after which the CEQ commenced a series of four, two-day regional public hearings at which it invited comment on the report’s recommendations. Those regional meetings were conducted on Squaxin Island in the state of Washington, and in Pennsylvania, Tennessee and Colorado between October 2003 and January of this year. Rather than a blow to the heart of NEPA, the final report is largely a compilation of procedural minutiae. The recommendations include: • Sponsoring meetings, conferences, and workshops to coordinate information sharing. • Clarifying the appropriate role of technology in communicating during the NEPA process to enhance public involvement. • Establishing a committee to advise CEQ on how it might improve training for government employees involved in NEPA activities. • Developing a "Citizen’s Guide to NEPA." • Emphasizing the importance of collaboration as agencies expand the use and scope of programmatic NEPA analyses. • Developing criteria for agencies to use when evaluating whether a programmatic document has become outdated. • Convening a work group to consider how adaptive management techniques might be incorporated into the NEPA process. • Clarifying how to determine whether a new categorical exclusion is appropriate. • Issuing new guidance to specify the requirements for environmental assessments (EAs) and findings of no significant impact (FONSIs). Although they are not mandatory or legally binding, the task force recommendations may very well improve coordination of NEPA activities among various federal agencies, and improve public communication and involvement by taking advantage of technologies such as the Internet, which were unavailable (and perhaps unimaginable) when President Nixon signed NEPA into law in 1970. Judging by the response that has greeted the report, however, it appears unlikely that the task force recommendations, even if incorporated into NEPA policy directives by CEQ, will have much effect on the day-to-day application of the law. Environmental groups have largely been silent regarding the final report, and the testimony collected during the public reviews indicates a wary endorsement of the task force’s general recommendations with respect to greater public involvement and clearer, more consistent application of NEPA requirements from one federal agency to another. In public comments filed with CEQ separately from the regional meetings, the only mainstream environmental organization to respond to the final task force report, the National Parks Conservation Association, concluded that the recommendations, in general, are sound. The parks association specifically endorsed several of those findings, such as the development of a citizen NEPA handbook; clearer coordination of NEPA with other federal environmental statutes; more explicit guidelines for EAs, categorical exclusions and FONSIs; and greater public involvement in the NEPA process. "If there is any clear, overarching message from Squaxin Island," the facilitator of the October meeting concluded in a final report on the proceedings, "it is that NEPA is an eloquent law that was perhaps ahead of its time. Although we were not trying to reach consensus on any of the issues, there was a clear consensus that the National Environmental Policy Act had served the nation well and needs no amendment. As one panelist noted, ‘NEPA is old, but so is the U.S. Constitution.’ " Contacts: NEPA task force final report: Council on Environmental Quality National Parks Conservation Association, (202) 223-6722.

Long a land of big dreams and failed schemes, California City has lured a major automobile company to town with a redevelopment deal and environmental planning assistance. In March, Hyundai Motor America started building a test track and related facilities in California City that will employ about 100 people, which would make Hyundai the second largest employer in town. The project does have detractors, though. Some landowners contend the city has abused its redevelopment and eminent domain powers, while some environmentalists argue that the project does not adequately mitigate impacts to two rare animal species. The city aggressively defends itself against such accusations. City Manager Jack Stewart pointed out that a federal district court ruled for the city in a lawsuit brought by property owners, and a habitat conservation plan for the desert tortoise has been accepted by state and federal agencies. Still, litigation on a number of fronts is continuing. In the meantime, contractors are grading, paving, building and installing utilities for the 4,340-acre test track facility, which includes a 6-mile-long oval track, a hazard course and 20,000-square-feet of engineering and test buildings. Construction is scheduled for completion this fall, according to Stewart. California City is located in southeastern Kern County, a little north of Edwards Air Force Base. With 203 square miles of the western Mojave Desert within its boundaries, California City is the state’s third largest city behind Los Angeles and San Diego. But California City has only about 11,500 residents. There have been a number of plans for large-scale development along the lines of Palm Springs since the city incorporated in 1965, but little has come to fruition despite the construction of 600 miles of roads and the city’s open-for-business attitude. By far the largest institution of any kind in California City is a 2,600-inmate, minimum security federal prison. About 530 people work at the prison. A few years ago, California City began work on annexation of 29 square miles on its southern flank. City officials could see that growth in the area would more likely be along Highway 58, east of the City of Mojave — and not north up Highway 395, as envisioned earlier, Stewart said. The annexation brought the city limits to Highway 58. At the same time, the city detached 29 square miles on its north side. Neither of the large tracts was developed, but the land the city detached was higher quality habitat, Stewart said. The city also added the new territory to its redevelopment project area, which already covered most developed parts of town. Along the way, Hyundai officials contacted the city about the proposed test track. Hyundai reportedly liked California City because it offered a large, contiguous site and is within a few hours drive of the company’s design center in Irvine. Under the deal eventually worked out, California City’s redevelopment agency and Hyundai will split tax increment 50/50 over 10 years to reimburse the Korean company for the cost of building roads and water lines, according to Stewart. The redevelopment agency assembled about 200 parcels covering 1,000 acres. Most landowners willingly sold to the agency, which then sold the land to Hyundai. However, the city has pending eminent domain suits against about a dozen holdout landowners. The city also agreed to include the Hyundai test track in the EIR for the annexation and redevelopment project area extension. The city worked with the U.S. Fish and Wildlife Service to arrange an Endangered Species Act "take" permit for the threatened desert tortoise, and a state "take" permit from the Department of Fish and Game for the Mohave ground squirrel, which is on the state’s threatened species list. In exchange for the city’s assistance, Hyundai will employ about 100 people in jobs ranging from security guard to engineer, Stewart said. Honda has a similar test facility in unincorporated Kern County that has proven to be a stable employer, he said. The Hyundai project will also generate tax increment although Stewart declined to estimate how much. Hyundai is reportedly spending $50 million to build the test facility. The federal take permit is part of a habitat conservation plan (HCP) that addresses only the desert tortoise and the Hyundai site. The Fish and Wildlife Service adopted the HCP in January. It calls for offsetting the loss of tortoise habitat acre for acre by protecting land elsewhere. Hyundai has purchased 3,387 acres adjacent to an existing tortoise preserve and has established a $1.5 million endowment. Tortoises found on the site (at least two dozen have been located) are supposed to be moved to protected land. Additionally, the state Department of Fish and Game has required Hyundai to offset every acre of lost ground squirrel habitat with 2.3 acres of protected land elsewhere. In February, the Center for Biological Diversity and Defenders of Wildlife sued the Fish and Wildlife Service over the HCP. The groups characterized the site as "pristine desert wildlands" and said the HCP does not do enough to protect the tortoise. Center for Biological Diversity ecologist Daniel Patterson said a better site selection process would have placed the test track elsewhere. "In the same region there is a bunch of old, trashed ag land with little habitat value," Patterson said. While the environmental litigation is only getting started — and settlement talks have already commenced — litigation over redevelopment and eminent domain activities is deep in the legal system. Project opponents filed a validation action regarding California City’s expansion of redevelopment project area borders. A Kern County Superior Court judge threw out the suit on procedural grounds, but in March the Fifth District Court of Appeal overturned that decision and the case is headed back to Superior Court for trial. The lawsuit questions whether land in the 15,000-acre addition to the city’s redevelopment project area is blighted and primarily urbanized, as required by state redevelopment law. The city based its findings on the fact that there are numerous odd-shaped lots with multiple owners, and the parcels are not adjacent to roads or utilities. The city also found that the lots are of inadequate size for development and were created by an old land fraud scheme. But June Ailin, of Kane, Balmer & Berkman, who represents landowners challenging redevelopment and one holdout property owner, said many parcels in the area are 10 to 20 acres apiece, "not postage stamp lots that nobody can do something with." She added, "What they are saying is that absence of infrastructure equals blight. But absence of infrastructure does not equal blight. It’s vacant nothing surrounded by vacant nothing." California Redevelopment Association (CRA) Executive Director John Shirey said he did not know a great deal about the California City project. But he said, "I get concerned whenever I hear about wide-open desert land being called blighted and designated for a redevelopment area. … It needs to be urbanized and it needs to be part of an area that has seen better days." In fact, the use of redevelopment to build shopping centers and golf courses in the Coachella Valley desert led to the 1993 reform of state redevelopment law — reforms that CRA backed and that appellate courts have interpreted tightly. Stewart, though, makes no apologies. The city’s actions met the definition of redevelopment law, he said. "My desire would be to extend it a lot further," Stewart said. Contacts: Jack Stewart, California City, (760) 373-8661. June Ailin, Kane, Balmer & Berkman, (213) 617-0480. Daniel Patterson, Center for Biological Diversity, (520) 623-5252. Project environmental assessment and habitat conservation plan: Hyundai HCP

Mitigation measures taken after the issuance of a mitigated negative declaration do not satisfy the California Environmental Quality Act, the Second District Court of Appeal has ruled. In a case involving a water district’s proposal to cover a small reservoir in the unincorporated Santa Barbara County community of Summerland, the court also ruled that the district should have considered the project’s potentially substantial impact to aesthetics. At the behest of the state Department of Health Services, the Montecito Water District in 1998 decided to cover the 4-acre Ortega Reservoir with an aluminum roof to preserve water quality. The district conducted an initial study, which identified flooding as a potentially significant impact because of runoff from the impervious roof. Rather than prepare an environmental impact report, the district adopted a mitigated negative declaration (MND) that said the project "shall incorporate design measures" to detain runoff and meter its release "so that no modification to the downstream 100-year floodplain will result." The 11-home Ocean View Estates Homeowners Association was not satisfied and filed a CEQA suit against the district. Santa Barbara County Superior Court Judge James Brown ruled for the district. The association appealed, and a unanimous three-judge panel of the Second District, Division Six, reversed the lower court. The association argued that the mitigation measures themselves may have significant impacts, including contaminating drinking water and even causing the dam to fail. Ocean View pointed to reports by two engineering consultants to the district that raised the possibility of drinking water contamination and dam failure, and that recommended design changes which the district apparently accepted. But the mitigated negative declaration did not mention either potential impact. In a very straightforward opinion, Presiding Justice Arthur Gilbert said that the water district erred. "The district argues that changes in the project design have mitigated to insignificance the potential for contamination and dam failure. That may be true, but the argument misses the point of environmental review," Gilbert wrote. "Environmental review derives its vitality from public participation. That is what is missing here. The public was never informed of the significant impacts discussed by the district’s consultants. Those impacts were omitted entirely from the review process. "The district argues that design changes should not require environmental review. That argument also misses the point," Gilbert continued. "Mitigation measures stated in a MND need not specify precise details of design. Having recognized a significant environmental impact and having determined that mitigation measures may reduce the impact to insignificance, the MND may leave the details to engineers. In such a context, the design may change many times without requiring further environmental review. Here, however, the MND fails even to recognize the problem. Nothing in the MND requires any measures to mitigate contamination or dam failure." The court then turned to the issue of aesthetic impacts and what constitutes substantial evidence of an aesthetic impact. The court described the reservoir as a "very large swimming pool trying to pass as a lake" and as a striking visual feature. The view of the lake from private property would be lost, but, because of additional landscaping, the roof would be obscured from all homes except two. People on public trails would also be able to see the roof. Ocean View property owners expressed concern about the aesthetics, and Santa Barbara County requested "appropriate mitigation measures" if the roof could be seen from surrounding homes or recreational trails. The district argued that the loss of private views is not significant under CEQA — an argument the court flatly rejected. The number of private views affected might figure into significance of the impact, according to the court, but in this case the view from public trails also is impacted. The district then argued that homeowners’ and the county’s "expressions of concern, questions and objections" do not constitute substantial evidence for CEQA purposes. But the court said those were enough. "Consideration of the overall aesthetic impact of the cover by its very nature is subjective," Gilbert wrote. "Opinions that the cover will not be aesthetically pleasing is not the special purview of experts. Personal observations on these nontechnical issues can constitute substantial evidence. … If it were merely the matter of expressions of concern by one or two people, we might agree that there is no substantial evidence of a negative impact. But here the county urged the district to adopt mitigation measures if the cover can be seen from public or private view areas." Thus, the court concluded, there was substantial evidence to support a fair argument that the project could have a negative aesthetic impact, and the mitigated negative declaration was not adequate. The Case: , No. B162920, 04 C.D.O.S. 1842, 2004 DJDAR 2738. Filed March 2, 2004. The Lawyers: For the association: Herb Fox, (805) 899-4777. For the district: David K. Hughes, Price, Postel & Parma, (805) 962-0011.