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HomeMy WebLinkAboutMcGlashan-PublicCommnt PaulaSuttonP.O. Box 1123 Truckee, CA 96160 and 6250 Central Blvd. ItI 10 Whitestown, IN 46075 May 4, 2011 Truckee Donner Public Utility District Board of Directors. PO Box 309 Truckee, CA 96160 Re: Proposed Sale of McGlashan Springs Property (APN 18-010-10) to Tahoe Donner Association Dear Directors: I appreciate the opportunity to comment on the Truckee Donner Public Utility District's (PUD's) proposed sale of surplus govermnent property called McGlashan Springs (APN 18- 010-10) to Tahoe Donner Association (TDA). The TDA is a large, homeowner's association that serves Tahoe Donner, a 6,000 acre development (includes homes, golf course, restaurants, downhill and cross country ski area, equestrian center, campground, tennis courts, hiking trails, playgrounds, pools, fitness center, etc. - some are exclusive for property owners and some are open to the public). TDA even has its own Forestry Department. The PUD has been in active negotiations with TDA and is presenting a Sales Agreement and Easement Deed to the Board for signature. I recommend that the Board not sign these documents until they undergo further review and input by the Board, subject matter experts, and the Public. I am making this recommendation in the name of my mother Patricia Sutton who served as a PUD Board for over 30 years until her death in 2010. Pat Sutton was the Board's conservation voice and was known for her thorough and thoughtful analysis of matters presented to the Board. She opposed the sale of this property in the past because she was interested in preserving its unique features. My recommendation is also based on my college degrees and nearly 35 years experience working as both an Archaeologist and Enviromnental Planner/Enviromnental Protection Specialist for public and private sectors. The McGlashan Springs property is open space comprising two parcels totaling about 160 acres. The property contains significant biological and cultural resources, wetlands, and wildlife habitat. I have spoken to a local botanist and historical society member who led a fieldtrip for the PUD Board and staff in 2006. The fieldtrip occurred because there was controversy about selling the property. The property has a spring and unique biodiversity, containing cedar trees, and possibly rare, threatened, endangered species and/or species of concern. The property also contains cultural resources that may be eligible for inclusion in the California Register of Historic Resources and the National Register of Iistoric Places. Page 2 Comment letter on proposed sale of MCGlashan Springs The PUD staff and Board are aware that the parcel contains significant cultural and biological resources. I inquired with PUD staff and learned that there is no lalowledge or documentation of environmental studies or professional resource surveys conducted on the property that identify, describe, and delineate those resources. The map which is part of the proposed Sales Agreement shows the general location of some of these environn-iental Features but they have not been verified by professionals who perform work in compliance with the California Environmental Quality Act (CEQA) or other applicable laws and regulations. Additional resources, yet to be identified, likely exist on the property. CEQA has a goal of transparency in environmental decision -malting, yet the PUD has neglected to mention CEQA in documents presented for public review. PUD staff doesn't believe that CEQA applies; however the public should be informed how this decision was determined. I have had email contact with the PUD General Manager Michael Volley and Board Directors expressing my recommendation that the PUD comply with CEQA by 1) doing an Initial Study which may lead to a Mitigated Negative Declaration, and 2) conducting biological and cultural resource surveys to provide baseline information for the Initial study and Conservation Easement. Mr. IIolley informed me that based on a legal opinion the proposed sale is not a "project" and therefore not subject to CEQA review. This opinion is based on the court case, "Friends of the Sierra Railroad v. Tuolumne Park & Recreation District, Defendant and Respondent; Tuoluumle Band of Me -Wok Indians (2007)". In this case, the subject property to be sold contained a historic railroad grade, and yet the judge ruled that CEQA review was considered premature in the absence of a proposed development plan. I believe that the PUD has erred in concluding that the proposed land sale is not a project subject to CEQA. I believe that CEQA applies because the sale of land may have a significant effect on the enviromnent. According to section 15378 of the CEQA Guidelines, a "Project" means the whole of an action, which has the potential for resulting in an environmental change. Case law is not always clear cut, one -size -fits all. The Friends of the Sierra Railroad v. Tuolumne Park & Recreation District is a controversial case that could have gone the other way. I have verified my opinion with CEQA attorneys who practice law, teach CEQA classes, and write CEQA books. Moreover, I don't believe that this case applies to the sale of McGlashan Springs because: 1) The record shows that he TDA intends to use the parcel for recreation (e.g., trails, sports fields, non-residential structures/buildings) and as a fire protection buffer. (Note that the TDA Forestry Department's goal is to maintain a healthy forest and lessen the threat of catastrophic wildland fire. Some of their fire management practices can be ground -disturbing and may impact resources.) Page 3 Comment letter on proposed sale of McGlashan Springs 2) The proposed sale is conditioned by an Easement Deed intended to: a) protect cultural, biological, and hydrological resources, referred to as "special features"; and b) retain the natural forested condition of the property. The PUD should be more specific and change the name of the "Easement Deed" to a "Conservation Easement Deed". The Conservation Easement allows for improvements, specifically "trails, sports fields, non-residential structures/buildings", apparently at the request of TDA, as long as they do not substantially disturb the "special features" or impair the forested nature of the property. Why would non-residential structures/buildings be less impacting than residential buildings/structures? Is flora other than trees important? Could non -forested areas also contain valuable environmental resources worth preserving? The Conservation Easement only protects those "special features" that have labels on the map. These "special features" have not been ground-truthed, and are not based on professional surveys conducted in compliance with environmental and historic preservation laws and regulations. What about "special features" that have not yet been identified? The deed appears contradictory by stating both that "current access will be retained", yet also states that "it does not grant the public the right to enter the property." Is it the PUD's intent to give the TPA sole authority to grant or not grant public access? The PUD does not consider their action a project having CEQA requirements, yet they require mitigation measures to protect environmental resources. I consider this to be an error in judgment. I believe that the proposed sale is a project subject to CEQA. The sale of the land is the first step in changing land use from open space to recreation and fire protection, leading to potential environmental impacts. The PUD is requiring a Conservation Easement which is intended to mitigate adverse effects. The sale of the property is a discretionary project subject to CEQA because the PUD is conditioning the sale with mitigation measures contained in the Conservation Easement. Furthermore, a Categorical Exclusion (CatEx) does not apply because a project under CEQA cannot be categorically exempt and subject to mitigation of impacts. There can't be a mitigated CatEx. See "Salmon Protection and Watershed Network v. County of Marin 2004". I advise that the PUD conduct an Initial Study, which would likely lead to a Mitigated Declaration. I further recommend that the Conservation Easement undergo additional review and strengthening. The PUD made the meeting agenda and sale documents available to the PUD Board and public on Friday April 29, 2011 and expects the PUD Board to review and approve these documents tonight Wednesday May 4, 2011. This is inadequate time for review and doesn't give the public adequate notice of the proposal prior to PUD decision. The PUD Page 4 Comment letter on proposed sale of McGlashan Springs should invite environmental subject matter experts to review the documents and have input into the Conservation Easement. I offer some preliminary comments on the Conservation Easement. The property should be inventoried because the PUD doesn't know all of the resources that need to be protected. The document addresses PUD enforcement of development restrictions, but omits language on enforcing measures to protect resources. With increased traffic of people on the parcel there is potential for increased damage and/or theft of resources. Is the PUD prepared to hold the Conservation Easement in perpetuity? Does the PUD have qualified staff to monitor use of the land, monitor and manage resources, and address potential impacts? If not, then the PUD should consider having an on -call contract(s) task order(s) with consultants having biological and cultural resource expertise. Apparently, the PUD is relying on the Town of Truckee to guide TDA and enforce CEQA requirements for proposed development. Who guides and enforces TDA forest/fire management activities? What is the PUD's role in reviewing proposed actions and specific plans for development and forest and fire management for compliance with the Conservation Easement? The PUD should establish a review process for land actions. Unless the PUD is interested in future water rights, the PUD should consider donating the Conservation Easement to a land trust that may be in better position to protect resources. A Conservation Management Plan should be prepared and adopted for the protection of resources. Biological and cultural resource survey data would provide more detailed maps and descriptions of the property's characteristics and feed into that plan. (Note: spring is the time to do biological surveys.) Also, the PUD should establish a review process for land actions. Thank you for the opportunity to comment on the PUD's proposed sale of the McGlashan Springs property. I encourage the Board to delay deciding on this matter until the Board and public have more time to consider the proposed action, proposed Sales Agreement and Easement Deed, and environmental requirements... Furthermore, given that the PUD General Manager and majority of the Board members did not participate in the workshop and fieldtrip held in 2006, I recommend that another workshop and fieldtrip be held to address this matter, that ample public notice be given, and that these be held on a Friday or Saturday in order to increase participation. Sincerely, . _ A-C& 17 Paula Sutton, MA, RPA* * Registered Professional Archaeologist