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426,000 acres, 61% of the County, is designated Ag/Working Landscape. These lands have a minimum parcel size of 160 acres. By comparison, land designated for Residential Development is just 13% of the County (86,700 acres), and it is clustered around existing towns.

Implementation Measure 10-2a1: "Areas of the General Plan classified as Agriculture/Working Landscape and proposed for reclassification to a Residential Planning Area, or Natural Resource land use classification will be reviewed against the following criteria. No land within the Agriculture/Working Landscape land use classification shall be changed to a Residential, Planning Area or Natural Resource land use classification unless the Board of Supervisors adopts all of the following findings:

o The subject property is not within an area in which the majority of the surrounding parcels are currently being used or historically have been used for agriculture, timber or mineral purposes.

o The soils, water rights, topography, terrain and location are not suitable as an economic production unit of sufficient quality for commercial agricultural production.

o There are no other lands within the proposed land use classification available for the proposed or similar project.

o The characteristics and size of the subject properties make it unsuitable for open space, conservation easements or other preservation opportunities which further implement the goals and policies of the General Plan.

o The subject property has not been identified in the County General Plan or any area plan as a location with characteristics worthy of preservation within the Agriculture/Working Landscape land use classification."

Implementation Measure 5-12a1: "Use the Timber Preserve zoning district within the Ag/Working Landscape and Natural Resource land use classifications to limit development in areas of identified potential timber resources."

Discouraging leapfrog development:

Implementation Measure 5-2a1: "Development shall grow outward from planning areas and residential areas with available services."

Implementation Measure 5-2a3: "The County shall prevent premature urbanization of the expansion area within the Mariposa Town Planning Area designated in the General Plan until the Mariposa Town Plan is updated."

Implementation Measure 5-2a2: "Establish land development regulations defining permitted uses and establishing standards for close-to-services development."

Residential Land Use Classification: "For land to be considered for inclusion into the Residential land use classification of the General Plan, the application will include a specific project and the County will substantiate the findings below.

1. One of the following:

a. the subject property is not under a Williamson Act contract or

zoned as a Timber Preserve; or

b. if the subject property is under a Williamson Act contract for which a Notice of Non-renewal has been recorded,,there must be less than two years remaining on the contract or as otherwise specified in the contract or state law; or

c. if the subject property is zoned as a Timber Preserve, there must be

less than five years remaining on the contract or as otherwise

specified in contract or state law.

2. There is a need for additional residential land to meet General Plan

goals, respond to changes in County policy or to meet the Regional Housing Needs Allocation.

3. The subject property will be contiguous on at least two sides to lands

within the Residential, Rural Economic or Planning Area land use

classifications.

4. The subject property has access from a maintained road or the

proposed project incorporates maintained road access as part of the

project description."

Implementation Measure 5-4a1: "Commercial, healthcare, financial and other service businesses intended to serve the greater County population shall be located only within Town Planning Areas."

Protection of wildlife and sensitive natural areas:

IM 11-4a1: "The County will implement a Mariposa County Environmental Conservation Program. The program shall include development standards and programs conserving, protecting and mitigating the impacts on:

o Significant and sensitive habitat including wildlife migration corridors;

o Breeding and nesting areas (as seasonally appropriate);

o Known occurrences of special status animal species;

o Riparian habitat around bodies of water and along watercourses and seasonal drainages;

o Know occurrences of special status plant species; and

o Significant and sensitive plant communities.

Empowering communities to plan for growth:

Page 5-19: "The General Plan creates the land use classification 'planning area.' Planning areas are implemented by area plans adopted by the Board of Supervisors. Area plans are mini-General Plans adopted to meet the needs of each town, community or uniquely identified special area of the County."

Page 5-22: "To ensure area plans reflect local values, planning advisory committees are formed of local residents, property owners, and business owners, to advise the Planning Commission and Board of Supervisors on local issues. The preparation, review and revision of area plans are a responsibility of the committee."

Implementation Measure 5-2a3: "The County shall prevent premature urbanization of the expansion area within the Mariposa Town Planning Area designated in the General Plan until the Mariposa Town Plan is updated."

Traffic:

Implementation Measure 5-3a(3): "No subdivision shall be approved unless it is found that there is adequate road capacity to serve the new traffic."

Implementation Measure 9-1a(2): "In order to facilitate provision of needed long-range (2015-2025) improvements to state highways serving Mariposa County, and particularly to those state routes where projected capacity would be less than LOS "D," the County shall:

o Prepare and implement a program to evaluate Development Impact Fees for state highway intersection facilities needed to adequately service new growth. Such local funding would ensure the improvements are accomplished in the needed timeframe and would substantially benefit the economic development of the County."

Implementation Measure 9-1c(1): "The density of land for development purposes within an area shall be based on the capacity of the road divided by the average daily traffic of the permitted uses."

Implementation Measure 9-1c(3): "The capacity of a county road must be assessed for its capability to meet existing and new uses when the aggregate potential development will increase the utilization of the road by more than 25%."

Water and Sewer Requirements:

Implementation Measure 9-5a1: "No project shall be approved unless it is shown to have access to an approved source for wastewater treatment and disposal and a potable water supply meeting Health Department requirements."

Dark Skies:

Implementation Measure11-1d1: "Include as part of the comprehensive development standards:

o lighting standards developed by the International Dark Sky Association;

o and require that building materials have a low reflective index."

MERG Comments

The General Plan purports to maintain the rural character of the County. However, there are many policies and measures in it which will be destructive of our rural character:

	The wholesale conversion of Ag land, both Williamson Act and otherwise, to residential, commercial or industrial will eliminate open space and destroy rural character.
	The build-out of 50,000 is far too large. We have no idea whether our resources could support such numbers and the plan tells us traffic congestion will be extreme. The sizes of the community plans are incredibly large. Why would Mariposa need to be half the size of San Francisco, and Cathey's Valley even larger?
	260 square miles of community and residential is out of proportion for a rural county of this size.
	There is nothing in the plan to address ecosystem preservation.
	There is no comprehensive conservation and environmental preservation element.
	Like other organisms on the planet we need air to breathe and water to drink. The plan should be geared to gradual increases in development so that we can determine the impacts on air, water, open space, vegetation, wildlife, and soil.
	We need inventories of the above so that we have a baseline from which to measure. What will happen when thousands of new wells are drilled? What will be the County policy when neighbors wells are dried up by adjacent uses?
	The sizes of the community plans are a prescription for leap frog development and sprawl. Why would we want to promote this in a rural county?
	The airport expansion and introduction of jets will be a major impact on all who live within many miles of the airport. Taking Saxon Creek water to the airport (and presumably pumping sewage back) must be a personal agenda of someone. It would cost tens of millions of dollars to accomplish, and what would be the purpose of such? When the Las Mariposas project was extant, wells were drilled on the property and were sufficient of routine uses. They were insufficient for supporting a golf course. If the game is to bring the water for a golf course, the public should be informed and the costs detailed.
	Why is industrialization of the airport being pushed?. The Bardini industrial site has water and sewer and is far from build-out. The fairgrounds and Bootjack industrial properties are not developed and they are on State highways.
	Spreading residential development over large areas which are subject to wildfire will certainly increase risk of property damage and loss of lives.
	The special subdivision provision sounds like another personal agenda. It allows for wild card development which can not be predicted or controlled. It is reminiscent of the failed open window project. It is a bad idea whose time should not come.
	The Dark Sky lighting should be applied to all development. It is the individual homes that have most of the beacons shining from their rooftops and dimming the sky view.
	There is lip service given to developing where there are services, but in terms of sewer, water, paved roads, power, and telephone these are most available in the town areas. Much of the residential in the plan is far from such services.
	What does the plan do to address the existing problem of unpaved roads and dust pollution?
	There are numerous recommendations for future studies of one thing or another. The studies should be done now and the plan based on the information obtained. Deferring obtaining of baseline data means we have no way to measure what we are doing to our resources.
	Concentric development will not occur when huge tracts of land are placed in community areas. Sprawl will occur.
	Not counting accessory dwellings in density calculations is misleading and is not a State law as the wording suggests in the glossary.
	If the County is near 50% build-out of subdivided private lands, what is the inventory of the remainder and what amount of anticipated growth will it accommodate? Would this amount of land satisfy the need of the growth rate listed below? If so, then we would not need the wholesale conversion of open lands to residential uses.
	The County growth rate of 20% in the past ten years makes us the 11^th fastest growing county in California. We should not plan to exceed this very rapid rate. The Plan would far exceed this rate and would give us no way to allocate resources or to direct growth.
	Increasing permitted uses on residential land without stating what those uses are means we cannot evaluate the impacts of such. This needs to be spelled out in the Plan and analyzed. There is great potential for conflict in land uses as well as conflicts with neighbors if allowed uses are changed.
	With Yosemite visitation declining, what has been done to assess the needs for Agritourism and recreational properties? What are the diverse "market needs"?
	Why are the BLM and US Forest Service lands on the map designated as working landscape and cultural when they are not under the control of the County? Natural resources should not only be managed, they should be protected.

From the environmental perspective what is needed is "a conservation plan element that provides for the preservation, conservation and utilization of natural resources, including energy, open space, water supply, forests, soil, marshes, wetlands, harbors, rivers, and other waters, fisheries, endangered species of wildlife and other resources, and that systematically analyzes the impact of each other component and element of the master plan on the present and future preservation, conservation, and utilization of those resources". This General Plan update does not make any attempt to do this.

In summary, the Plan will be highly destructive of our rural character and the environment of our County. Why should we consider a plan that will destroy the values for which residents and visitors come to the County. The Plan should be redesigned to really evaluate our environmental assets and protect them as change occurs in the County.

Facts on Mariposa population and development possibilities:

d Population census 2000 17,130

Persons per household 2.37

Growth rate 1990-2000 19.8%

California growth rate 1990-2000 13.6%

d Mariposa exceeded the state growth rate by 46%

d Parcels in Mariposa County (sources Assessor's office and UC Davis GIS)

Total 13,180 (includes historic parcels)*

Developed (more than $15,000 improvements) 5,891

Undeveloped 7,289

Uncounted: subdivision maps at Public Works

d Potential development with current parcels

7,289 X 2.37 (people per household) = 17,275 people. 100% increase over present population. If two dwelling units per parcel 34,550 which would bring our population to 51,680 (exceeding the 20 year target in the draft Gen Plan).

d Growth in 2004

175 building permits issued = 415 people

Growth rate = 2.4% per year, twice the current rate of the state.

d New General Plan map changes 17,951 acres of Agricultural land (160 acres) to more residential uses.

d New General Plan map changes 20,850 acres of Mountain Preserve (160 acre) to residential uses. Total conversion of 160 acre zones: 38,801 acres (60 sq miles).

Would it not be wise to conserve these large parcels until such time as the county feels such wide spread growth is desirable and can be supplied with services, especially in light of the 7,289 parcels available?

*The assessors office calculates the available parcels every six months, but does so six months after the numbers become available. Thus the 7,289 figure is as of 12/31/04. Parcels developed up to 6/30/05 will not be counted until year end.

the Mariposa County General Plan:

d Preservation of rural character

Concentrate residential and commercial development in existing towns where shopping, services, schools, jobs, and infrastructure are available.
Limit infrastructure such as waterlines, sewer lines, and roads to existing developed areas unless uses of contiguous areas are clearly defined and impacts evaluated.
Provide clear community boundaries with separation between them by working landscapes, greenbelts, open space, and wildlife corridors.
Land uses must be consistent with stated community visions and goals.

d Preservation of Agricultural Lands

Prevent land uses from putting conversion pressure on agricultural land or threatening the operation of existing industrial and commercial businesses.
Continue use of the Williamson Act.
Conservation easements and land trusts.

d Environmental Preservation

Provide mitigation measures that adequately address local and community wide impacts as well as cumulative impacts.
Design projects to work with the contour of the land, preserve physical features such as rock outcroppings, trees, watercourses, wetlands and wildlife habitat.
County plans to protect air, water, wildlife habitat, visual quality, open space, the night sky, and agricultural land.

d Economic Development

Develop so as not to exceed the ability of the County to provide adequate services and infrastructure and to maintain existing services to community residents.
Approve projects only if adequate water supplies are demonstrated.
Provide sewer, water, and paved roads for development outside communities.
Provide a range of housing types for people of all income levels.

Letter from Thomas Infusino

to Mariposa County Planning Director

Thomas P. Infusino, Esq.

P.O. Box 972

Pine Grove, CA 95665

(209) 295-8866

12/27/05

Kris Schenk, Planning Director

County of Mariposa

P.O. Box 2039

Mariposa, CA 95338-2039

RE: Comments on the General Plan DEIR

Dear Sir:

I recently spoke with Bart Brown of MERG. I was disappointed to hear that we will not be meeting to discuss ways to respond to our comments on the DEIR. During our last meeting, you encouraged us to provide comments in writing as soon as possible, including a list of mitigation measures. We have done so. Although we will not be meeting to discuss the comments, we hope you find them useful. If you or your staff have any questions on how best to respond to the comments, you have our contact information.

I was shocked to hear that you believe that there are no deficiencies in the Draft EIR that you need to correct. MERG went to great effort and expense to provide detailed professional comments, complete with legal citations. I can only conclude that we; and the many other individual, organization, and public agency commenters, have failed to convince you of the need to modify the EIR. I am sorry to have failed you.

In the comment period allotted, I will make one final attempt to convince you of the need to improve the EIR.

Many of the deficiencies in the Mariposa General Plan Update DEIR are very similar to flaws that the Superior Court found in the El Dorado County General Plan Update EIR in 1999. I have attached excerpts of the Superior Court's decision, and the administrative record in that case. By comparing the rulings in that case, and MERG comments on your DEIR, you can see the veracity of MERG's claims.

Also, many of MERG's comments note the lack of quantified impact analyses in the Mariposa General Plan Update DEIR. I have attached excerpts from the DEIR of the El Dorado County General Plan Update of 2004, showing the types of quantified impact analyses that should appear in a general plan EIR.

It is my sincere hope that you will rectify the deficiencies in the Draft EIR. After all, it is called a Draft EIR because we expect you to improve upon it. Only through compliance with CEQA will the County be able to implement a general plan that balances provision for population growth and economic development, with the provision of public services and environmental quality.

Sincerely,

Thomas P. Infusino

MERG Comments II

I. FAILURE TO CONSIDER A PROPER RANGE OF ALTERNATIVES

As MERG noted in its comments of 11/15/05:

"The Alternatives do not include a Phased Growth/Reduced Scale alternative which would substantially reduce impacts, particularly to traffic and to our rural character, while providing for more moderate, expected growth rates over the 20 year Plan period." (MERG Comments on DEIR, 11/15/05, p. 1-2.)

"A. Alternatives

"1. Full range of alternatives not supplied.

"A full range of alternatives, consistent with CEQA Guidelines Sections 15126, subd. (f) and 15126.6, is needed which will produce information sufficient to permit a reasonable choice of alternatives so far as environmental aspects are concerned. (San Bernardino Valley Audubon Society v. County of San Bernardino (1984) 155 Cal.App.3d 738.) "The range of feasible alternatives shall be selected and discussed in a manner to foster meaningful public participation and informed decision making." (CEQA Guidelines, sec. 15126.6, subd. (f).) This has not been accomplished in the DEIR." (MERG Comments on DEIR, 11/15/05, p. 3.)

"Pages 2-10 and 2-11 of the DEIR indicate that the State Department of Finance (DOF) projects the County's population will reach 25,456 by the year 2050. Historically, DOF population projections have been overestimates in counties in the Sierra foothills. However, the DEIR provides no explanation why a General Plan with a 20-year time horizon is trying to accommodate a population of over 50,000, with all the significant impacts associated therewith. Nor does the DEIR explain why the "alternative" accommodates a population of over 39,000, with all the significant impacts associated therewith. The final EIR can and should consider an action alternative that actually reduces impacts relative to the project, while still accommodating DOF projections for the next twenty years." (MERG Comments on DEIR, 11/15/05, p. 12.)

"Q. Alternatives

"As demonstrated in the DEIR, the amount of growth that buildout of the General Plan will result in is expected to generate significant unmitigable impacts in the areas of traffic, schools, mineral production, and air quality. The various Town Plan and Specific Plan EIRs concluded that unavoidable impacts will occur in the areas of traffic, domestic water supply, water quality of Maxwell Creek, water quality of Big Oak Creek, and small town atmosphere. In addition, throughout this letter, we have identified a number of additional significant impacts which may not be avoidable by simple mitigation including land use impacts (agriculture, division of an existing community, land use compatibility, community character), noise impacts, biotic resource impacts, and visual impacts. CEQA Guidelines Section 15126.6 requires that a full range of alternatives be presented with the intent of identifying alternatives which can mitigate otherwise significant impacts of the project as proposed. Thus, an alternative must be devised which would reduce the significant, unavoidable impacts listed in the DEIR as well as those which we believe will be identified in a revision of the DEIR.

1. Full Range of Alternatives.

"An EIR must evaluate a range of reasonable alternatives to the project capable of eliminating any significant adverse environmental effects of the project, or reducing them to a level of insignificance, even though the alternatives may somewhat impede attainment of project objectives, or may be more costly. (Pub. Resources Code, sec. 21002; CEQA Guidelines, sec. 15126.6; Citizens for Quality Growth v. City of Mount Shasta (3d Dist. 1988) 198 Cal.App.3d 433, 443‑445 [243 Cal.Rptr. 727].)

"A full range of alternatives is not outlined in the DEIR. Two of the three development alternatives (1 and 4), provide for a buildout greater than that of the proposed General Plan and thus are more impacting, which is not the intent of CEQA. The DEIR claims that Alternative 3, the General Plan Enhanced Alternative would permit lesser development than that of the General Plan as proposed by making certain policies mandatory ("shalls") rather than recommended ("shoulds") and by eliminating land use designations in the expanded Mariposa Town Planning Area. While this alternative responds in part to some of MERG's past comments, it is still not an adequately mitigating alternative. First, it has not been demonstrated that the wording change in various policies will translate to a lower buildout as claimed. Second, the expanded Mariposa Town Planning Area cannot be left with no land use designations in order to comply with State general plan law. In addition, the expansion area boundary would apparently still exist keeping open the future possibility of urbanization of this entire area. Also, most of the policies in Alternative 3 are the same as the in the proposed General Plan. A true alternative would include policies that eliminate more of these impacts. Finally, Alternative 3 does not recognize the expansion proposed in a number of other Community and Town Planning Areas. As currently written in the DEIR, Alternative 3, the Enhanced General Plan Alternative, does not include substantial enough changes to the Land Use Map to provide for a wider range of buildout numbers for an adequate alternatives discussion. Again, there is no evidence submitted that the lower buildout cited can be guaranteed under the policy revisions or the minor map changes recommended in this alternative.

"We must argue that another alternative should be discussed to permit a reasonable choice. It must be an alternative which can be demonstrated to avoid to the greatest extent possible significant and significant, unavoidable impacts expected of the large Community and Town areas.

"We have recommended in past comments a Phased Growth/ Reduced Sprawl Alternative which would have down-scaled Community and Town Plan areas and a maximum growth rate of 1.5% per year (the recent statewide growth rate). The DEIR's Enhanced General Plan Alternative revised to include full mitigation as recommended in this letter would achieve these goals.

'The intent of the phased growth aspect of this revised Enhanced General Plan Alternative with Full Mitigation is to ensure that the County will not grow at a rate greater than that which the County has experienced in the past decade (20% or 2% per year). At this rate, in 20 years, a population of approximately 24,000 could be expected, which would be an appropriate target. This phasing will enable the county to avoid the impacts of growth, which can be difficult to address under a rapid growth rate. Such impacts include provision of public facilities and services, school construction, and road improvements. It would enable the county to implement new ordinances and plans that are recommended in the General Plan as needed to handle new growth before it arrives, such as revised Area and Town Plans, design guidelines, a revised zoning ordinance, etc.

"As part of this revised Enhanced General Plan Alternative with Full Mitigation, the Land Use Map would be revised to ensure that the ultimate buildout of the County does not eventually urbanize the expansion areas proposed around a number of Community and Town Plan areas. The 160-acre minimum parcel size would be retained where it has been reduced. This would serve to reduce a variety of impacts associated with a larger buildout and sprawl including land use and traffic impacts. The maximum buildout capacity of the Land Use Map with full mitigation recommended in this letter including these critical map changes must be calculated in the revised DEIR. We assume that the buildout will be substantially less than the 39,000 assumed in the DEIR.

"The revised Enhanced General Plan Alternative with Full Mitigation would substantially reduce the following impacts identified as unavoidable in the DEIR as compared to the Enhanced General Plan Alternative as currently written: traffic, schools, air quality, and mineral production. Unavoidable impacts identified in the various area plan EIRs would be reduced or eliminated in the following areas: traffic, traffic safety, impacts to small town character, inadequate water supply for residential development and possibly impacts to Maxwell Creek and Big Creek.

"The revised Enhanced General Plan Alternative with Full Mitigation described above could be feasibly implemented and thus implementation would not be "remote and speculative". It would meet the broad project objectives stated in the DEIR. It would reduce impacts to a greater degree than that of the General Plan Enhanced Alternative as currently written." (MERG Comments on DEIR, 11/15/05, p. 31-33.)

This issue was dealt with by the Superior Court in the El Dorado General Plan Case. Based upon very similar facts, that court found the EIR analysis inadequate. Attached are an excerpt from the court's ruling, and the relevant exhibits from the administrative record.

II. INADEQUATE CUMULATIVE ANALYSIS OF FULL PROJECT BUILDOUT

As MERG noted in its comments of 11/15/05:

"Chapter 2 of the DEIR attempts to describe the buildout population of the project. The DEIR is inaccurate because the buildout calculations are inaccurate and low for the following reasons:

"1. Assumed residential densities were applied to the buildout total in the various Area Plan expansion areas. Interim Land Use Maps are included in the General Plan for these expansion areas. However, the full range of urban uses can eventually be permitted in these areas consistent with the General Plan (residential, commercial, public, and recreation with the addition of industrial in the Town Planning Areas). (See General Plan page 5-18.) It is impossible to inventory the full buildout of the county and the resulting specific and cumulative impacts of the General Plan without knowing the actual extent and general location of the uses eventually expected in the expanded Town and Community Areas. For example, there is evidence in the record that a large area of the Mariposa expansion area may be slated for an Industrial designation. At a minimum, the DEIR should note that revised EIRs would be needed if uses were selected for these areas that are more intense than those shown on the Interim Land Use Maps. It appears that the effect of not finalizing land use maps for large areas of the county at this time may have the effect of artificially dividing the project into small pieces, thus diminishing the appearance of overall cumulative impact which is not the intent of CEQA (Sections 15165 and 15168).

"(Please note that it is not clear what land uses are proposed for the Mariposa expansion area; an interim land use map is included in Volume II, while the text of the General Plan notes that existing zoning will be retained (General Plan page 5-24, para. 1)).

"2. The cumulative acreage totals for each land use designation are never specified in the General Plan or Technical Background Report which is normally given in chart form in General Plans.

"3. The full buildout must assume buildout without the decreases applied for slope and topography in General Plan Table 1-3 for a number of reasons: First, the clustering policy in the Land Use Element (Section I, General Plan page 5-5 and Section 5.4.02.D. General Plan page 5-31) could allow for full density on each parcel. Secondly, there is very little real constraint to development on the relatively large parcel sizes permitted in the county. Most parcels of the ultimate size allowed will have a buildable area. The slope constraint methodology used to decrease assumed development potential was not based on actual buildout experience in a similar area which has reached the degree of development permitted in Mariposa County. In more urbanized areas of the State, the experience has been that full zoning development rights are eventually utilized by property owners.

"4. Full extent of Rural Economic land use designations cannot be understood at this time since these designation have not been applied." (MERG Comments on DEIR, 11/15/05, pp. 11-12.)

III. THE EFFECTIVENESS OF MITIGATION MEASURES IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD.

As we noted in our comments of 11/15/05:

"The administrative record must contain substantial evidence supporting the agency's view that the measures will mitigate the impacts. "A clearly inadequate or unsupported study is entitled to no judicial deference." (Laurel Heights Improvement Association of San Francisco v. Regents of the University of California (1988) 47 Cal.3d 376, 422 & 409 fn. 12 [253 Cal.Rptr. 426.]). "Argument, speculation, unsubstantiated opinion, or narrative evidence which is clearly erroneous or inaccurate … does not constitute substantial evidence." (CEQA Guidelines, sec. 15384.) Evidence must be given to demonstrate that the recommended mitigation measures are capable of: (a) "avoiding the impact altogether by not taking a certain action or parts of an action"; (b) "minimizing impacts by limiting the degree or magnitude of the action and its implementation"; (c) "rectifying the impact by repairing, rehabilitating, or restoring the impacted environment"; (d) "reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action," or (e) compensating for the impact by replacing or providing substitute resources or environments. (CEQA Guidelines, sec. 15370.) In virtually all of the impact discussion and mitigation measure sections in the DEIR, adequate information is not given to evaluate whether or not a mitigation measure is capable of meeting any of these mandates.""(MERG Comments on DEIR, 11/15/05, p. 4.)

":n some cases, further study or the adoption of as yet unwritten ordinances is recommended as mitigation with no assurances as to the outcome. The courts have discounted this approach in numerous instances. In Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, the EIR's groundwater impact analysis was determined to be inadequate because it relied on a vague "mitigation agreement" without demonstrating that water would be available for purchase. The time for studying impacts is now, in the EIR, before approval of the project. "The EIR has been aptly described as the 'heart of CEQA.' [Citations] Its purpose is to inform the public and its responsible officials of the environmental consequences of their decision before they are made. Thus the EIR 'protects not only the environment but also informed self-government.'" (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 563-564; see also Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4^th 342, 355.)

"Similarly, the time for identifying mitigation measures and mitigation standards is now, before approval of the project. In Oro Fino Gold v. County of El Dorado (1990) 225 Cal.App.3d 872, 884-885, the post-approval formulation of plans was considered inadequate mitigation, because "in the absence of overriding circumstances, the CEQA process demands that mitigation measures timely be set forth, that environmental information be complete and relevant, and that environmental decisions be made in an accountable arena." In Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, it was noted that mitigation measures are only adequate if the EIR demonstrates that the approving agency possessed "'meaningful information' reasonably justifying an expectation of compliance." When approving a project that is general in nature (e.g. updating a general plan), the lead agency must develop and approve whatever general mitigation measures are feasible, and cannot merely defer the obligation to develop mitigation measures. (Citizens for Quality Growth v. City of Mount Shasta (3 Dist. 1988) 198 Cal.App.3d 433, 442 [243 Cal.Rptr. 727]). Under limited circumstances, deferral of mitigation may be permissible, if the agency displays a commitment to mitigating the impacts by identifying performance criteria that the measures must satisfy. (Sacramento Old City Association v. City Council of Sacramento (3d Dist. 1991) 229 Cal.App.3d 1011, 1028‑1029 [280 Cal.Rptr. 478].)

"The future creation of Town and Community Plans, or the preparation of A rural character thresholds@ in future standards (Measure 4.3-1a(2)), for example, do not meet the legal standards for mitigation deferral. We maintain that where mitigation measures in the DEIR recommend further study or adoption of standards, ordinances, and fees, the DEIR has not demonstrated a commitment to mitigation below the significance level. The evidence in the EIR will not support a finding that the County "has made a binding commitment to implement the mitigation measures or, more appropriately, that they are incorporated into the project or required as a condition of project approval in a manner that will ensure their implementation." (Federation of Hillside and Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4^th 1252, 1262.) The final EIR must provide information that will give evidence of assured mitigation." (MERG Comments on DEIR, 11/15/05, p. 5.)

"1. Impact #LU-1, Physical division of an established community.

".1 Has it been demonstrated that proposed mitigation will be effective? (CEQA Guidelines, sec. 15370.) A number of the land use policies which are listed as mitigation including 5-1a, 5-2a, 5-4a, 5-7a, and 5-9a are vaguely worded and it has not been demonstrated that they will serve to reduce potential land use impacts." (MERG Comments on DEIR, 11/15/05, p. 12.)

This issue was dealt with by the Superior Court in the El Dorado General Plan Case. The Court found that the record lacked substantial evidence to support the effectiveness of one mitigation measure. Attached are an excerpt from the court's ruling, and the relevant exhibits from the administrative record.

IV. IMPACT INSIGNIFICANCE IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD.

As MERG noted in its comments of 11/15/05:

"The Summary also lists General Plan impacts that the DEIR deems to have been reduced to a level of insignificance. We disagree with many of these conclusions. For example:

"The DEIR states that, with regard to, "Impact PS-1. Build-out of the proposed General Plan would increase demands for public services and utilities. This is considered to be a less than significant impact as proposed plan policies would minimize impact potential." However, the DEIR does not provide sufficient information to determine the financial feasibility of reducing these impacts. Thus, we do not accept the conclusion that the impact is less than significant.

"The DEIR states that, with regard to, "Impact HW-3. Build-out of the proposed General Plan could reduce groundwater quantity by taking more water, particularly from crystalline rocks, than is recharged. This is considered to be a less than significant impact as proposed plan policies would minimize impact potential." However, the current "buildable-lot" policy allows the creation of a lot based upon merely a paper study indicating the likelihood that water is present, and a paper warning that it may not be present. There is a long history in the Sierra foothills of detrimental reliance upon such paper water. Thus, we do not accept the conclusion that the impact is less than significant.

"The DEIR states that, with regard to, "Impact HW-5. Build-out of the proposed General Plan could result in placing housing within flood hazard areas. This is considered to be a less than significant impact as proposed plan policies would minimize impact potential." However, the policies still allow for non-river dependent development in the flood hazard zone. Thus, we do not accept the conclusion that the impact is less than significant. This flood hazard zone development is especially curious given the ample amount of land in this hilly County that is both outside the flood hazard zones, and available for development in the General Plan." (MERG Comments on DEIR, 11/15/05, pp. 10-11.)

"1. Water and Sewer.

"Policy 9-5a and Implementation Measure 9-5a(1) are listed (DEIR page 4-25) as providing assurance that no project will be approved without an approved source for water and wastewater services. However, this policy and measure use the terminology Ashould@. Mitigation is not assured." (MERG Comments on DEIR, 11/15/05, p. 19.)

"2. Parks and Recreation.

"The DEIR concludes that there is not enough park land in the county to serve future growth (DEIR page 4-25) and that the policies in General Plan Chapter 12 will ensure adequate provision of parks and recreation facilities as the County grows. However, these policies merely call for the establishment of target service levels (Policy 12-1a), keeping maintenance costs down (Policy 12-1b), and identifying funding for parks and recreation (Policy 12-5a). These policies do not provide assurance of mitigation at this time and do not provide a schedule for when the appropriate measures will be completed. " (MERG Comments on DEIR, 11/15/05, p. 19.)

"1. Impacts BR-1, BR-2, BR-3, BR-4, BR-5, BR-6, BR-8 Impacts to endangered, rare, or threatened plant or wildlife species, nesting sites, habitat for sensitive wildlife species, sensitive native plant communities, wildlife migration corridors, waters of the U.S.

"No biological inventory of any type was prepared for the General Plan. As a result, it is impossible to determine the actual potential for impacts.

"In addition, the General Plan policies/ measures generally cited as mitigation for all of these impacts are not specific enough to ensure mitigation. (Policy 11-2d and 11-4a and associated implementation measures are cited as mitigation for most of these impacts.) The associated implementation measures rely on future adoption of conservation standards and are not directive in nature (using "shoulds" rather than "shalls"). As an example, Implementation Measure 11-2d(1) states: "Implement requirements for minimum building and grading setback lines from all waters of the State...." There is no assurance that adequate standards will be adopted. As a matter of fact, stream setbacks are a common area of controversy in the preparation of General Plans and the decision on ultimate setbacks is often made on a political basis, rather than based on sound technical rationale.

"Without specific and directive mitigation wording, impacts must still be assumed to be significant and unavoidable." (MERG Comments on DEIR, 11/15/05, p. 20.)

"2. Impact HW-4, Groundwater quality.

"This impact discussion has not demonstrated that groundwater impacts will not occur as development proceeds with both individual and shared septic systems in Mariposa County. The clustering of development encouraged by the General Plan is cited as mitigation (DEIR page 4-46) because community disposal systems could be used. There is no evidence given that these shared systems, which are also septic systems as opposed to treatment plants, will be more effective in reducing impacts than individual systems.

"Significant, unavoidable impacts must still be assumed until specific mitigation which can be demonstrated to be effective is devised." (MERG Comments on DEIR, 11/15/05, p. 22.)

This issue was dealt with by the Superior Court in the El Dorado General Plan Case. The Court found that the record lacked substantial evidence to support the conclusion that two impacts were insignificant. Attached are an excerpt from the court's ruling, and relevant exhibits from the administrative record.

V. REJECTION OF MITIGATION MEASURES MUST BE BASED UPON SUBSTANTIAL EVIDENCE IN THE RECORD.

MERG notes that a number of more specific general plan policies that could provide mitigation have been removed from this version of the General Plan. (See General Plan Appendix D.) Appendix D indicates that the Board of Supervisors has determined that these policies are financially infeasible, or unable to be implemented in the 20-year or more time horizon for the General Plan. Please re-consider these policies as additional mitigation measures. Some former policies (like light pollution reduction) have been relegated to the level of proposed mitigation measures in the DEIR. Please recognize that the County is obligated to adopt feasible mitigation measures to reduce significant impacts. If a mitigation measure is rejected as infeasible, that determination must be supported by substantial evidence in a written finding of fact.

This issue was dealt with by the Superior Court in the El Dorado General Plan Case. The Court found that the record lacked substantial evidence to support the County's rejection of many mitigation measures. Attached is an excerpt from the court's ruling, and relevant exhibits from the administrative record.

VI. CEQA REQUIRES DETAILED QUANTITATIVE ANALYSIS OF IMPACTS.

As we noted in our comments of 11/15/05, in many cases the DEIR lacks quantified impact analyses.

"The courts have favored specificity and use of detail in EIRs." (Whitman v. Board of Supervisors (2d Dist. 1979) 88 Cal.App.3d 397, 411 [151 Cal.Rptr. 866].) In Whitman, the Court found that the discussion of cumulative impacts lacked "even a minimal degree of specificity or detail" and was "utterly devoid of any reasoned analysis." The document relied on unquantified and undefined terms such as "increased traffic" and "minor increase in air emissions". "The EIR, with all its specificity and complexity, is the mechanism prescribed by CEQA to force informed decision making and to expose the decision making process to public scrutiny." (Planning and Conservation League v. Department of Water Resources (200) 83 Cal.App.4^th 892, 910.) ." (MERG Comments on DEIR, 11/15/05, p. 4.)

'On Page 2-13, the DEIR lists among the significant unavoidable impacts, "Impact LU-6. Build-out of the proposed General Plan might impact the County's mineral production industry. This would result in a significant impact." The DEIR explains that the impact is due to residential land use classifications being applied to sand and gravel resource areas. The DEIR does not indicate how many units of residential development are being accommodated on these mineral resource lands. There is no way to determine the County could remove the residential land use designation from these mineral lands, and still have a General Plan that provided sufficient residential development to meet the demands of the foreseeable future." (MERG Comments on DEIR, 11/15/05, p. 9.)

"On page 2-17, the DEIR lists among the significant unavoidable impacts, the conversion of Williamson Act agricultural lands to residential uses. The DEIR indicates that approximately 2200 acres of Williamson Act lands (not protected by other conservation easements) are give residential land use designations under the proposed General Plan. However, the DEIR does not quantify the housing accommodated by those land use designations. There is no way to determine if the County could remove the residential land use designations from these Williamson Act lands, and still have a General Plan that provides sufficient residential development to meet the demands of the foreseeable future." (MERG Comments on DEIR, 11/15/05, p. 9-10.)

"E. Traffic and Circulation

"As an overall comment, the traffic section of the DEIR is not based on factual analysis. A traffic study was not prepared for the DEIR, making it impossible to fully understand the traffic impacts of full buildout of the General Plan. 2010 and 2025 projections from the Regional Transportation Plan (RTP) are referred to. However, impacts under full General Plan buildout are not determined." (MERG Comments on DEIR, 11/15/05, p. 17.)

"G. Biological Resources

"No biological inventory of any type was prepared for the General Plan. As a result, it is impossible to determine the actual potential for impacts." (MERG Comments on DEIR, 11/15/05, p. 20.)

"K. Noise

"Contrary to the usual practice, no noise analysis was prepared for the General Plan or the EIR. The potential noise impacts due to buildout of the General Plan simply cannot be understood without the usual noise impact analysis. Existing and future traffic noise levels along roads and highways, in particular, are readily calculable." (MERG Comments on DEIR, 11/15/05, p. 24.)

"N. Irreversible Impacts & Short-term Uses v. Long Term Productivity

"CEQA requires that, in this section of the DEIR, "Irretrievable commitments of resources should be evaluated to assure that such consumption is justified." (CEQA Guidelines, sec. 15126.2, subd. (c).) The 4-paragraph analysis is virtually devoid of any specificity with regard to the resource trade-offs. There is no quantification of the resources lands sacrificed to residential development." (MERG Comments on DEIR, 11/15/05, p. 28.)

"O. Growth Inducing Impacts

"The EIR must "Discuss the ways in which the proposed project could foster economic or population growth, or the construction of additional housing, either directly or indirectly, in the surrounding environment. It must not be assumed that growth in any area is necessarily beneficial, detrimental, or of little significance to the environment." (CEQA Guidelines, sec. 15126.2, subd. (d).) However, this section of the DEIR merely discusses the theory of growth inducing impacts, while failing to evaluate the growth inducing impacts of the General Plan. There is no quantification of impacts, and no real disclosure." (MERG Comments on DEIR, 11/15/05, p. 28.)

"3. Quantification of Impacts of Alternatives.

"CEQA requires a "quantitative, comparative analysis" of the relative environmental impacts and feasibility of project alternatives. (Kings County Farm Bureau et al. v. City of Hanford (5th Dist. 1990) 221 Cal.App.3d 692, 730‑737 [270 Cal.Rptr. 650].) Impacts have not been quantified under each Alternative discussion in the DEIR. An adequate analysis requires a map or some form of inventory which shows the differences between the proposal as well as the land uses proposed under each of the alternatives. A chart comparing acreage of various land use alternatives under each alternative is necessary to truly understand each proposal. This would allow quantification of a number of impacts which are discussed in a qualitative manner including loss of open space and agriculture. Quantification of impacts to all of the potentially impacted roadways is also needed under each of the alternatives to allow for a reasoned choice." (MERG Comments on DEIR, 11/15/05, pp. 33-34.)

The DEIR also lists air quality among the significant and unavoidable impacts. However, the DEIR lacks quantification of the air quality impacts at the various phases of general plan buildout. It also fails to quantify the key impact issue.

Merely showing a decline in vehicle emissions from 2000 to 2040 is not enough. The significance criterion is whether the general plan conflicts with provisions of the Ozone Attainment Plan or Rate of Progress Plan for the region. These plans are designed to keep the air basin on pace to attain the federal Ozone standard by a specified deadline (much earlier than 2040.). Theses plans estimate vehicle emissions based upon (among other factors) population growth rates, transportation infrastructure, and traffic congestion in the region. Then, these plans identify the rules and programs the local and regional air districts must adopt in order to reduce overall emissions enough to attain compliance with the ambient ozone standard by the appointed target date.

If Mariposa County adopts a General Plan promoting higher growth rates, more road construction, and higher traffic congestion levels than those presumed in the Ozone Attainment Plan or Rate of Progress Plan for the region, then the development under the General Plan will likely delay attainment of the ambient Ozone standard. This delay in achieving compliance with a health-based standard is considered a significant impact under CEQA.

However, the DEIR provided neither this key background information, nor the key quantities, such as the 8-hour Ozone standard, the regional deadline for compliance, and the vehicle emission budget for the region. One missing analysis is a comparison of the population growth rate, the presumed transportation infrastructure, and the presumed traffic congestion levels for Mariposa County in the regional air quality plans; to those identified in the Mariposa General Plan Update. Another key missing impact analysis is the comparison of the Ozone precursor (Nitrogen Oxides [NOX] & Reactive Organic Gases[ROG]) emissions attributable to Mariposa County under the regional air quality plans, and under the General Plan, for federal Clean Air Act rate of progress years and for the attainment deadline. (Mariposa County General Plan Update DEIR, Chapter 4.8.)

These analyses would quantify the potentially significant impact, so that all could appreciate its magnitude, and identify General Plan policies capable of fully mitigating this local contribution to the regional air quality problem.

In 2005, the Superior Court found that the new EIR on El Dorado County's 2004 General Plan Update was adequate. Not surprisingly, that EIR quantified impacts not quantified in the Mariposa County General Plan Update DEIR. The attachments provide examples of quantified impact analyses that should appear in a General Plan EIR. We strongly encourage Mariposa County to produce a FEIR with quantified impact analyses.

DEIR Comments of

Thomas P. Infusino, Esq., and

Laurie Oberholzer

November 15, 2005

Mariposa Board of Supervisors

Mariposa Planning Commission

County of Mariposa

5100 Bullion St

Mariposa, CA 95338-5024

Dear Members of the Board and Commission:

This letter provides comments on the adequacy of the Mariposa County General Plan Draft Environmental Impact Report (DEIR) for Mariposans for the Environment and Responsible Government (MERG).

The DEIR notes numerous impacts that will occur as a result of buildout and implementation of the General Plan. However, at this stage there appear to be inadequacies under CEQA that must be rectified in a recirculated draft EIR. This is because new significant impacts have been identified and because of the magnitude of the revisions required. (Public Resources Code, sec. 21092.1.)

We urge the County to commit the resources necessary to allow the consultants to conduct the additional analysis and mitigation formulation which will be necessary to fully answer our comments. In preparing a recirculated DEIR, we request that a revised DEIR in legislative revision format, so that the public and decision-makers can better understand the changes made.

To summarize, we are particularly concerned that the DEIR is inadequate for the reasons listed below. We have identified mitigation measures or alternatives for each of these issues which also make up our key General