Chair and Honorable Members

September 26, 2007

Chair and Honorable Members

Board of Supervisors

County of Orange

Hall of Administration

10 Civic Center Plaza

Santa Ana, CA

Hand-delivered

Re: Comments on SEIR #587 (Silverado Ranch) TT#16191

Hearing on October 2, 2007

Dear Chairman Norby and Board members:

The Silverado Modjeska Recreation and Park District (“SMRPD”) Board of Directors unanimously expresses its serious concerns to the Board of Supervisors about the recent developments involving the property on Silverado Canyon Road, formerly known as the Holtz Ranch, called “Silverado Canyon Ranch” (the “Project”). It is our understanding that biological surveys have identified the nearby presence of the arroyo toad (Bufo californicus), an endangered species. The SEIR for the Project has failed to properly analyze the potentially significant impacts to the arroyo toad and its habitat and instead has tried to dismiss even its presence. Rather than certify the SEIR and allow the Project to proceed, which will destroy habitat forever, SMRPD requests that the County require the Project applicant to: 1) undertake a thorough, scientifically rigorous study of the arroyo toad’s habitat and its presence on the Project site, 2) include that study and other relevant documents in the SEIR and 3) recirculate the SEIR in order to provide the public with a meaningful opportunity to participate in the CEQA decision process for this Project.

The arroyo toad was not discussed in the original 2003 EIR. Instead the arroyo toad was only discussed in the responses to comments for the 2003 EIR. In the 2003 EIR’s responses to comments, it was noted that “The USFWS requires that protocol surveys be conducted within 1.2km of known breeding sites” and because a toad had only been sighted “approximately 1.5km downstream of the site” that would not necessitate a protocol survey. (Final EIR, p. 3-17). As you know, that EIR was challenged on several grounds (not including the presence of the endangered toad) and found deficient in its discussion of water quality and coastal sage scrub. The Project proponent then prepared and circulated the SEIR which is before you in conjunction with approval of the tentative map for the Project.

As explained in a June 6, 2007 U.S. Fish and Wildlife Service (“USFWS”) letter provided to the Project proponent and the County, attached hereto as Exhibit A, two independent surveys, verified with photographs, have identified the toad’s presence in Silverado Creek adjacent to the Project. Both studies were validated by the USFWS in May 2005, and are included in official databases. The USFWS letter, citing an April 23, 2005 study by Robert Haase (“Haase Study”), places the arroyo toad within 100 meters of the edge of the Silverado Canyon Ranch property. A chronology of documented arroyo toad sightings is attached hereto as Exhibit B.

In 2005 and 2006, the biological consultant for the Project conducted surveys of the Project site (the “Consultant Studies”), apparently in response to the Haase Study. The results of these Consultant Studies are summarized in two pages of the responses to comments to the SEIR. The summary simply states that the Consultant Studies did not find any arroyo toads. However, as set forth in the USFWS letter, the Consultant Studies cannot be relied on for the conclusion that arroyo toads are not present on or near the Project site.

With respect to the 2005 Consultant Study, the USFWS found that it was not valid because it was not conducted in accord with USFWS protocol. This directly contradicts a statement made in the responses to comments to the SEIR that “[a]ll surveys were conducted as required by the protocol established by the U.S. Fish and Wildlife Service.”

With respect to the 2006 Consultant Study and its conclusion that arroyo toads were not present on or near the Project site, the USFWS noted that “it was much drier [in 2006] than in 2005, and it appears that there was no [toad] breeding along Silverado Creek that year.” The USFWS further noted that “[a]lthough arroyo toads were not observed at Silverado Creek in 2006, they can remain buried in the soil for extended periods of time, emerging to breed or forage only when conditions are appropriate, so based on the observation of breeding arroyo toads at this location in 2005, it is likely that toads are still present in suitable habitat along Silverado Creek.” A summary of an analysis of the responses to comments made on the EIR and the SEIR is attached hereto as Exhibit C. The analysis was prepared by a SMRPD representative and further shows how the EIR and SEIR fail to provide a proper analysis of the Project’s potentially significant impacts to the arroyo toad.

The importance of addressing potential biological impacts, like the potential impacts to the arroyo toad, is clear under CEQA. As recognized by the California Supreme Court, “given the sensitivity and listed status of the resident salmon species, the County’s failure to address loss of Cosumnes River stream flows in the draft EIR “deprived the public … of meaningful participation”…in the CEQA discussion.” Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, (2007) 40 Cal. 4th 412, 449. In support of its conclusion, the Supreme Court cited CEQA Guidelines §15065(a) (1) and summarized that section as follows: “potential substantial impact on endangered, rare or threatened species is per se significant.” Id.

As you may know, recirculation of a draft EIR (or, in this case, the draft SEIR) is required when significant new information is added to an EIR resulting in an EIR that “is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect.” CEQA Guidelines §15088.5(a); Laurel Heights Improvement Association v. Regents of the University of California, (1993) 6 Cal.4th 1112. As set forth in the response to comments on the SEIR, the fact that arroyo toad tadpoles were observed in Silverado Creek is new information. Similarly, the Haase Study and the USFWS letter both constitute significant new information requiring 1) revision of the draft SEIR, 2) inclusion of a proper study analyzing the potentially significant impacts to the arroyo toad, 3) inclusion of the Haase Study and the USFWS letter and 4) recirculation of the draft SEIR. Recirculation would allow the public and other interested parties with an opportunity to suggest mitigation measures for potentially significant impacts to the arroyo toad and its habitat.

As a recreation and parks district, California statutes include habitat preservation as one of our enumerated activities, it is our desire to participate in the protection of the arroyo toad habitat on the Project site.

Respectfully submitted by,

Robert C. Hunt, SMRPD Board President

On behalf of the SMRPD Board of Directors

Cc:Brad Schnepf, Marnell Properties

Tim Neely, Orange County Planning

Attachments: EXHIBIT AUSFWS Letterpp. 4-9

EXHIBIT BSightings Chronologypp. 8

EXHIBIT CResponses Summarypp. 9-14

Elevated view of Project areapp. 15

EXHIBIT DHaase Report 4/23/05pp. 16-19

EXHIBIT EA. Toad Habitat Rangepp. 20

EXHIBIT A

EXHIBIT B

Chronological Summary of recent Arroyo Toad sightings in the project area and nearby locations:

April 23, 2005 — Dept. of Defense Zoologist Robert T. Haase confirmed an arroyo toad colony about 330’ (125m) from Lot #1 of the Silverado Canyon Ranch Project. Mr. Haase has for 15 years been the field surveyor for Dr. Dan Holland, Dr. Sweet (who works with the USFWS/Dept. of Interior's Rules and Regulations for the arroyo toad), Dr. Robert Fisher (USGS and #1 expert on S. Calif. Endangered Species), and Dr. T.D. Case (head of UC San Diego's Ecology Dept). Haase taught the USFWS staff in Carlsbad how to ID the arroyo toad. Report is dated April 26, 2005.

May 11, 2005 — USFWS OC-Riverside Supervisor for Ecological Services Ken Corey confirmed the April 23, 2005 Haase observations and placed them into the USFWS database.

May 23, 2005 — Cutoff date for submission of comments on FEIR #587

May 2005 — Dept. of Defense Zoologist Robert T. Haase confirmed two more sightings of the arroyo toad -- on Black Star Canyon Road where Silverado Creek and Santiago Creek meet (new Peltzer Farm area) and in Santiago Creek across from the Modjeska Canyon Road turnoff.

June 17-21, 2005 — Biologist T'Shaka A. Toure of Glen Lukos & Assoc., in surveys commissioned by The Irvine Company in relation to their East Orange development, confirms 25-35 individual arroyo toads from late tadpole to early metamorphosis stage in Silverado Creek just below the US Forest Service Fire Station. He mentions that these sightings were in the same general area as the Haase sightings of 4/23/05, and further notes that no “exotic species” are present in Silverado Creek (i.e. arroyo toad predators, such as bullfrogs and crayfish) making it a more favorable habitat for the toads than the areas around Irvine Lake where the exotics are well established.

July 2005 Dr. P.H. Bloom conducted arroyo toad studies for Marnell Properties in the area of the Silverado Ranch project "in late July after most toads...become harder to detect" per USFWS (FWS-OR-3046.2)

2006 Dr. P.H. Bloom again finds no arroyo toads and again the USFWS stated that "the negative surveys by Mr. Bloom ...were inadequate" due to the dry weather in 2006, the beginning stages of a severe drought (FWS-OR-3046.2).

June 6, 2007 USFWS Field Supervisor Karen Goebel stated that she reviewed Haase 2005, GLA 2005, and Bloom 2005/2006 and, "We still believe there is a high likelihood that arroyo toads are present on the Silverado Canyon Ranch Property" (FWS-OR-3046.2)

EXHIBIT C

SUMMARY OF COUNTY EIR/SEIR RESPONSES & REFERENCE DOCUMENTS REGARDING ARROYO TOAD PRESENCE ON TT#16191, AND IN THE ADJACENT SILVERADO CREEK

COMMENTS ON COUNTY RESPONSES TO COMMENTS ON EIR #587

EIR #587(1) did not address the arroyo toad in its Draft form, but does include mentions in the Final Response to Comments on pages 3-13, 3-17, 3-18, 3-31, and 3-34 (as discovered up to 9/16/07). The county responses on pp. 3-17 and 3-34 are identical in language (bold emphases added):

“The site was re-evaluated for its potential to harbor the federally endangered arroyo southwestern toad, and it was concluded that no suitable habitat exists on-site for breeding or for foraging. The USFWS requires that protocol surveys be conducted within 1.2km of known breeding sites regardless of habitat. The commenter indicates that the Arroyo Toad is known to occur in Santiago Creek. The Federal Register lists a sighting of the Arroyo Toad in Santiago Creek where it drains into Irvine Lake. However, Silverado Creek joins Santiago Creek approximately 1.5 km downstream of the site, and would therefore not necessitate a protocol survey. In addition, no reported sightings within Silverado Creek have been posted in the Federal Register, as described by the commentator, and no sightings are known by regional experts Mr. Peter Bloom and Mr. Ruben Ramirez. The County of Orange would appreciate any further detail on the precise location and date of this sighting.” — (February 17, 2003)(1)

No reference is specified for the conclusion above that “no suitable habitat exists on-site….for foraging.” To the contrary, USFWS (FWS-OR-3046.2)(2) reaches the opposite conclusion, citing the 1999 Arroyo Toad Recovery Plan(3) that is available in the Federal Register when speaking of the project site in their letter of June 6, 2007 to Marnell Properties:

“3) …Arroyo toads can forage in all of the habitat types on the property: coastal sage scrub, oak woodland, grassland, and disturbed areas (Service 1999b). Therefore, the Silverado Canyon Ranch property contains suitable upland habitat for the arroyo toad.”(2)

Regarding Silverado Creek sightings, the revised versions of the USFWS Final Habitat Ruling for the Arroyo Toad reference sightings by “Fisher, USGS”, at the confluence of Silverado Creek and Santiago Creek. This differs from the description in the County response above that “The Federal Register lists a sighting of the Arroyo Toad in Santiago Creek where it drains into Irvine Lake.”

The confluence of the two streams is well above the point where Santiago Creek drains into Irvine Lake and the Final Habitat reference thus also contradicts the claim of no reported sightings within Silverado Creek:

“While the current status of arroyo toads in this unit is poorly known, they were observed in lower Baker Canyon in 1985 (Robert Fisher, USGS, peers. comm. 1999).” — (2001) (6)

“Unit 8 contains an important arroyo toad population in Santiago and Baker Creeks in central Orange County. Toads were observed in lower Baker Canyon and at the confluence of Silverado Creek and Santiago Creek during the 1970s and 1980s (Robert Fisher, USGS, in lit. 1985; CNDDB 2003).” — (2004, 2005) (7) (8)

An earlier reference to Fisher appears in the Arroyo Toad Recovery Plan of 1999:

“Subsequent examination of the [Santiago] canyon during the 1970’s and 1980’s revealed arroyo toads in Baker Canyon and at the mouth of Silverado Canyon (R.N. Fisher, peers. comm. 1997)” (3)

Finally, the U.S. Forest Service has been making gate closures at the forest entry point at the back of Silverado Canyon for several years in response to the presence of breeding arroyo toads upstream of the project site:

“Silverado Creek – Population Status

Toads occur on private lands here, along a road that is used and maintained by the Forest Service. Arroyo toads breed here during wet years. Arroyo toads are also on Forest lands, at the first and second creek crossing on Maple Springs Road. The district has been doing closure for protection of the toad during the reproductive season (approximately April 15-30 to September 30.) This protocol has been followed each year where sufficient rainfall occurs. If the stream is dry on either side of the crossing (3-4’) then we don’t close the road.” — (p. 16) (16)

COMMENTS ON COUNTY RESPONSES TO COMMENTS ON SEIR #587

“1.2 Project Update

During the public review period for the DSEIR, comments were received regarding reports provided to the U.S. Fish and Wildlife Service of Arroyo Toad tadpoles observations in an area approximately 125 meters south of the site in Silverado Creek, and that the potential water quality impacts resulting from the project would result in indirect impacts to the Arroyo Toad located downstream. Upon receipt of the information regarding the observation of Arroyo Toad tadpoles in Silverado Creek, the biological consultant for the project conducted surveys of the site. In June/July 2005, Natural Resources Consultants biologists Peter Bloom and Lee Jones completed a habitat assessment for the Arroyo Toad pursuant to the U.S. Fish and Wildlife Service protocol. Consequently, the County prepared these responses to comments after information from the 2006 protocol surveys (described below in Section 2.1) were completed. The additional information is included as part of this Response to Comments document including the Arroyo Toad Focused Survey Report (Appendix A).

[……]

This final EIR includes a discussion of the arroyo toad. The fact that arroyo toad tadpoles were observed in Silverado Creek is new information, however, based on the results of the Protocol Arroyo Toad Surveys prepared by the Natural Resource Consultants, in consultation with Peter Bloom and Glenn Lukos Associates, the Arroyo Toad is not present on the project site, and therefore, implementation of the project, including the proposed water quality mitigation measures will not affect, either directly or indirectly, the toad or toad habitat. As a result, the County has concluded that recirculation of the DSEIR is not required in accordance with CEQA guidelines Section 15088.5. ….” (4)

Regarding the presence of toads on the site and the protocol status of the Bloom surveys referenced above, USFWS Letter (FWS-OR-3046.2) of June 6, 2007 (2) states the following:

“1) Arroyo toads are known to move into upland habitat over 1 km (0.62 miles) from the nearest stream course (Holland and Sisk 2000). The edge of the Silverado Canyon Ranch property is about 100 m (328 feet) from the nearest arroyo toad observation in 2005 (Haase 2005), so the property is well within the dispersal range for the arroyo toad, “areas within 1 kilometer (1 km) ** of arroyo toad sites (documented by the presence of eggs, larvae, juveniles, or adults) that have suitable habitatshall be presumed to have arroyo toads” (Service 1999a)”

[…..]

“4) The negative surveys by Mr. Bloom at this location in 2005 and in 2006 were inadequate to determine that arroyo toads are absent from the property or the surrounding environment.The surveys by Mr. Bloom in 2005 were not protocol surveys, as they were conducted primarily in late July after most toads in this portion of their range have metamorphosed and become harder to detect because they are buried underground or are foraging in the upland environment. In 2006, it was much drier than in 2005, and it appears that there was no breeding along Silverado Creek that year.

Although arroyo toads were not observed at Silverado Creek in 2006, they can remain buried in the soil for extended periods of time, emerging to breed or forage only when conditions are appropriate, so based on the observation of breeding arroyo toads at this location in 2005, it is likely that toads are still present in suitable habitat along Silverado Creek. This population of arroyo toads appears to breed intermittently and my be particularly difficult to observe on a year to year basis, as evidenced by the fact that, prior to 2005, the last documented observation of arroyo toads in the immediate area was in 1985 (R. Fisher, in litt. 1985).” (2)

**(See note on revision of 1km working distance to 1,640 feet at the end of this text)

The USFWS Arroyo Toad Survey Protocol rules further support this conclusion when the sparse rainfall amount in the 2005-2006 season is considered together with this excerpt from the Protocol:

“13) The results of a field survey may not be valid for any of the following reasons: …c) surveys were conducted during a season of severe weather conditions”(14)

The rainfall at CIMIS Station #75 in Irvine, California(15) from July 1, 2005 to October 30, 2006 totaled 8.81”, about half the normal amount. This marked the beginning of a prolonged drought that continues to the present. In a context of arroyo toad breeding, drought constitutes “severe weather conditions”.