PG&E Land Transfers Final Mitigated Negative Declaration
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CHAPTER 5.0
Comments and Responses
5.1 Introduction
A total of 10 comment letters and 1 verbal response were received from various agencies and organizations concerning the Draft Mitigated Negative Declaration / Expanded Initial Study (MND) for Pacific Gas and Electric Company (PG&E) Applications 00-05-029 and 00-05-030. Application 00-05-030 involves the market valuation and exchange of certain PG&E-owned lands in Shasta County for equivalently valued lands owned by the California Department of Parks and Recreation (DPR). The application (A00-05-030) also addressed PG&E’s proposal to subsequently transfer the land received from the DPR to a non-profit entity known as the California Waterfowl Association (CWA).
PG&E filed Application 00-05-029 with the CPUC to market value and transfer certain property to the CWA. The property consists of land in Shasta County commonly referred to as McArthur Swamp, the Glenburn Dredge Site, and a dredge used to maintain certain levees associated with those properties. The transaction includes a Conservation Easement and management plan including terms designed to maintain existing land uses, enhance habitats, and preserve cultural and historical resources.
5.2 List of Comment Letters Received
The comment letters received on the Draft MND have been grouped by agency (federal, state, regional, and local), organizations, and members of the public. Each comment letter has been assigned a corresponding alphabet letter designation. Comment letters A through D were submitted from state agencies; Comment D was received via voice-mail and has been included to ensure the integrity of the public record. Comment letters E through K were submitted from numerous public and private organizations. The commenting agency or organization letters are listed below. Table 5-1 provides more detailed information regarding the letters author and date received.
State Agencies
A. California Department of Fish and Game
B. State Water Resources Control Board
C. California Department of Transportation
D. California Department of Parks and Recreation
Public and Private Organizations
E. Pacific Gas and Electric Company
F. California Waterfowl Association
G. California Waterfowl Association
H. McArthur Resource Management Association
I. Fall River Big Valley Cattleman Association
J. California Indian Legal Services (Pit River Tribe)
K. Fall River Valley Chamber of Commerce
5.3 Responses to Comments
This section contains responses to all of the substantive comments received on the Draft MND during the extended 30-day review period. Each comment letter was assigned a letter according to the system identified previously (i.e. A, B, etc.). Each comment addressed within each letter was assigned a number (i.e. A-1, A-2, etc). Responses are provided to each written comment number within the letter. Where a response to a similar comment has been provided in another response, the reader is referred to the previous response.
All changes to the MND are described in the response and referred by the page number on which the original text appears in the MND. Added text in underlined; deleted text is stricken.
Letter A. Donald B. Koch – California Department of Fish and Game
View Letter A.
Response A-1
The staff of the CPUC acknowledges the California Department of Fish and Game’s (CDFG) overall support for the proposed project and concurrence with the proposed environmental determination under the California Environmental Quality Act (CEQA).
Letter B. Jim Canaday – State Water Resources Control Board
View Letter B.
Response B-1
The staff of the CPUC acknowledges the State Water Resources Control Board’s overall support for the proposed project and concurrence with the proposed environmental determination under the California Environmental Quality Act (CEQA).
Letter C. Marcelino Gonzalez – California Department of Transportation
View Letter C.
Response C-1
The staff of the CPUC acknowledges the California Department of Transportation’s (Caltrans District 2) concurrence with the proposed environmental determination under the California Environmental Quality Act (CEQA).
Letter D. Michael Gross – California Department of parks and Recreation
View Letter D.
Response D-1
Thank you for providing a clarification on the above referenced public review document. The staff of the California Public Utilities Commission (CPUC) recognizes this correction and provides the following modification to the document:
Page 1-5 currently reads: "approximately 15,137 acres comprising the McArthur Burney Memorial State Park." This sentence will be modified to read as follows: "approximately 910 acres comprising the McArthur Burney Memorial State Park."
Please note, this error was typographical in nature and does not affect the analysis or conclusions of the draft MND. Page 1-5 of the MND has been modified to reflect the correct acreage.
Letter E. Paul V. Holten – Pacific Gas and Electric Company
View Letter E.
After careful consideration of comments received from PG&E, CPUC staff have provided the following corrections to the document according to the responses received.
Response E-1
Page IV-7 contains the sentence "The Transfer prevents the repair of existing failed levee system resulting in the habitat." This sentence will be modified to read as follows: "The terms of the transfer deed would restrict the repair of the existing failed levee system."
Response E-2
The word " less" will be removed from the following sentence contained on Page IV-9: "Materials placed in the water for levee repair or improvement would be less favorable for Shasta crayfish habitat (i.e., lava cobble), avoiding the creation of substrate habitat unsuitable to Shasta crayfish than imported materials, and thus minimize continued degradation of Shasta crayfish habitat hear their existing populations or heir habitat."
Please note, this error was typographical in nature and does not affect the analysis or conclusions of the draft MND. Pages IV-7 and IV-9 of the MND have been modified to reflect the above-mentioned comments.
Letter F. M. Robert McLandress – California Waterfowl Association
View Letter F.
Response F-1
The staff of the CPUC acknowledges your overall support for the proposed project and agreement to the terms and conditions of the proposed Conservation Easement and McArthur Swamp Management Plan.
Letter G. Raymond E. Lewis – California Waterfowl Association
View Letter G.
Response G-1
The staff of the CPUC acknowledges your organization’s overall support for the proposed project and agreement to the terms and conditions of the proposed Conservation Easement and McArthur Swamp Management Plan.
Letter H. D. J. Martin – McArthur Resource Management Association, Inc.
View Letter H.
Response H-1
The CPUC staff acknowledges that the McArthur Resource Management Association, Inc. (MRMA) disagrees with the finding in Impact III.1, stated on page III-3 of the draft MND. It is the opinion of the MRMA that the proposed project, including the implementation of the McArthur Swamp Management Plan (MSMP), would not involve significant construction activity requiring mitigation and that the mitigation prescribed in the draft MND is not economically feasible. Page III-2 of the draft MND states that the project site is located within the Northern Sacramento Air Quality Planning Area, currently classified as a moderate non-attainment area for state ozone and PM-10 standards. As such, the Shasta County Air Pollution Control District (SCAPCD) has certain rules that apply to all projects involving ground disturbance, including Rule 3.16 on fugitive, indirect or non-traditional sources, and Rule 3.15, which imposes restrictions on use of cutback and emulsified paving materials.
The staff of the CPUC understand that actions pursuant to the implementation of the MSMP, such as the re-contouring the Hollenbeck Field, and wetland and pond creation subsequent to the transfer of lands would involve some level of excavation and grading, which would result in emissions of NOx, ROG, CO and PM-10 from construction equipment. While it is acknowledged that these construction activities are fairly minor in nature, they would temporarily affect pollutant concentrations in the project area primarily due to fugitive dust sources generated from earthmoving activities and vehicle travel over unpaved surfaces or paved surfaces heavily laden with earthen materials. As indicated on page III-3 of the draft MND, soils within the McArthur Swamp land base tend to have a high silt content and are more inherently prone to generating large quantities of dust. In the absence of mitigation measures, there may be circumstances when project construction activities (as rare as they may be) would have a significant impact on the environment through the generation of significant quantities of dust, thereby adversely affecting local visibility and increasing local PM-10 concentrations on a temporary and intermittent basis. By law, mitigation to offset these effects is required by the SCAPCD for ground disturbing activities, as specified below.
A grading permit is required by the Shasta County Environmental Health Department if a project would involve any of the following: (1) moving more than 250 cubic yards of dirt or (2) grading an area more than 10,000 sq. ft. or (3) creating temporary roads, building pads, construction staging areas, etc. (Patty Watega, Environmental Health Technician II, Shasta County Environmental Health Department. Telephone Conversation, December 21, 2001.). Mitigation Measure III.1 was prescribed in the draft MND to ensure compliance with this rule, assuming that one or more of these activities would trigger the need for a grading permit. Should the activities conducted pursuant to the MSMP be postponed, eliminated, or not fall under specified thresholds, the specified mitigation would not be required.
Response H-2
As stated in this comment, the CPUC acknowledges that the continued grazing of livestock in the project area would have little or no effect on both discovered and undiscovered cultural resources. However, certain activities associated with the implementation of the MSMP could involve significant grading operations, such as the re-contouring the Hollenbeck Field, and significant excavation activities, such as wetland and pond creation. Considering both the historic and prehistoric context of the project area, the potential exists for unearthing of previously undiscovered historical, archaeological, and/or paleontological resources as defined in Section 15064.5 of the CEQA Guidelines, therefore requiring mitigation for this contingency. In addition, the Ajuumawi Band of the Pit River Tribe, through consultation under Section 106 of the National Historic Preservation Act, identified an increased sensitivity for the presence of human remains within the project area.
As noted in the comment, the proposed Conservation Easement and MSMP do address the issue of the cultural resources, however, it is the opinion of the CPUC staff that these documents fail to provide a clear mode of implementation. Additionally, the project area includes lands that fall within the Pit 1 Hydroelectric Project. The treatment of cultural resources on these lands is covered under an existing Programmatic Agreement and associated Cultural Resource Management Plan (CRMP). The project proposes the removal of these lands from the Pit 1 Hydroelectric Project boundary, as well as protection of cultural resources under the CRMP. Protection and treatment of cultural resources under the MSMP was considered by the CPUC staff to be inadequate to comply with CEQA and the NHPA. According to Section 15064.5 (b), a project with an effect that may cause a substantial adverse change in the significance of an historic or prehistoric resource is a project that may have a significant impact on the environment. To mitigate this potentially significant impact, Mitigation Measures V.1a through V.1f on page V-18 of the draft MND would be required as part of the Conservation Easement and MSMP, thereby providing an equal level of protection to what is currently provided under the CRMP for areas within the Pit 1 Hydroelectric boundary.
Response H-3
This comment indicates that the entire land transfer is contingent on reintroducing public access to the Glenburn Dredge site and that placing the site under a conservation easement would render the site unusable. CPUC staff believe that a misunderstanding may exist regarding the proposed mitigation. As indicated on page V.7, pursuant to the requirements of CEQA and the NHPA the CPUC’s contract archaeological consultant surveyed the 200 x 1000-foot inland portion of the Glenburn property. One prehistoric site was recorded as a result of this survey, a midden site with lithics and shell. The site is also likely to contain a subsurface deposit, however, subsurface testing will be necessary to verify this determination. Until such time as a determination can be made of the potential eligibility for inclusion on the National Register of Historic Places (NRHP) for this prehistoric site, it must be considered potentially eligible and protected from public access.
The conservation easement proposed as part of Mitigation Measure V.2 would only apply to the central section of the property, providing adequate protection of known sensitive resources while allowing continued access along the southern portion of the property. As such, public access to the Fall River from the Glenburn property would not be obstructed by the proposed conservation easement. The conservation easement is necessary to ensure that the integrity of the discovered site is not compromised by the reintroduction of public access. In an effort to avoid additional confusion and to better reflect the limitations and opportunities presented on the Glenburn Site, the CPUC staff has revised Mitigation Measure V.2 to provide a more detailed discussion of where the conservation easement would be applied and an explanation affirming that public access would not be compromised, as follows:
Mitigation Measure V.2: Prior to the transfer of title, the Conservation Easement shall be amended to include the a portion of the Glenburn Dredge Site property that is bounded by the fence required by this mitigation measure and the Fall River containing the newly discovered sensitive resource site. The Conservation Easement shall include language requiring that the new owner establish permanent protection of sensitive resources. The amended Conservation Easement and MSMP shall be submitted to the CPUC for review and approval prior to the transfer of title. The new amended conservation easement including this portion of the Glenburn Dredge Site property shall restrict any uses of this area of the site portion of the parcel where the sensitive resource is present, except for the sole purpose of preserving the integrity of the sensitive resource. In addition, the Conservation Easement and MSMP shall be amended to include a requirement to reconfigure the existing fence layout at Glenburn to restrict access on and around sensitive resources. The re-establishment of public access at the southern portion of this parcel would remain feasible as proposed under the terms of this mitigation measure. Ultimately, the land area encumbered by the Conservation Easement and reconfigured fence layout would be determined according to the resource map outlined in the Cultural Resource Report, on file with the CPUC.
The Conservation Easement and MSMP, as amended, shall provide that a four strand barbed-wire fence be constructed effective to serve as an effective barrier to human and livestock access and shall be constructed at a location 100 feet from the boundary of the sensitive site or along the property line where it is closer than 100 feet from the boundary of the sensitive site (but not along the river). Construction of the fence shall comply with the protocols specified in Mitigation Measures V.1a-V.1f. The Conservation Easement and MSMP shall further be amended to provide for regular inspection and maintenance of the fence to ensure that it continues to be a barrier to access.
Mitigation Measure V.2 of the MND has been modified to reflect the above changes.
Response H-4
The CPUC staff acknowledge the overall benefit to the environment, specifically waterfowl habitat, as noted by the MRMA. On balance, the project will result in a number of beneficial environmental outcomes, however, it is the role of the CPUC in this instance to evaluate these consequences as well as the potential impacts which may occur in achieving these benefits, such as those to air quality and cultural resources. Under CEQA, the CPUC has the responsibility of evaluating these consequences and providing mitigation to the extent feasible. The mitigation required in the draft MND is generally of a contingent nature, meaning that it will only be triggered at a certain level of construction activity or upon discovery of a sensitive resource. While the CPUC staff acknowledge the constraints of the MSMP operating budget and the intricacies of the proposed agreement, it is required as the lead agency under CEQA to evaluate projects in this manner. In the case of this project, the mitigation provided is considered feasible and necessary in accordance with applicable local, state, and federal laws and regulations.
Letter I. Craig McArthur – Fall River Big Valley Cattleman Association
View Letter I.
Response I-1
The California Public Utilities Commission (CPUC) staff has responded to a letter from the McArthur Resource Management Association dated November 28, 2001, for which your organization provided support. The CPUC’s response to each subject topic raised in the comment letter is provided under Responses H-1 through H-4.
Letter J. Michael P. Acosta – California Indian Legal Services (Pit River Tribe)
View Letter J.
Response J-1
The Pit River Tribe maintains that Pacific Gas and Electric (PG&E) Applications 00-05-029 and 00-05-030 (Shasta County Land Transfers) are adverse to the public interest and that the divestiture of these lands should not be approved by the California Public Utilities Commission (CPUC), although no rationale for this position is provided. The proposed Mitigated Negative Declaration (proposed MND) constitutes an environmental determination required by the California Environmental Quality Act (CEQA) to determine if a proposal would result in significant environmental impacts. A judgement of public interest is not a requirement for evaluation under CEQA, however the CPUC will consider public interest during the final decision stage. Also, while not relevant for CEQA compliance, it should be noted that numerous public agencies have expressed the opinion that the proposed transfer is, indeed, in the public interest.
Response J-2
Regarding the Pit River Tribe’s contention that the project is not in the "public interest," as stated in the first response, CEQA does not require an evaluation of a proposals benefit to public interest. The advisability of this project, including the public benefit, will be ultimately be considered by the CPUC throughout its decision making process. In addition, pages V-15 through V-19 of the Draft MND provide extensive mitigation related to the protection of cultural resources. While CWA may not inherently have an interest in the protection of cultural resources, it is required by law and under the terms of this proposed transfer to do so.
The second comment expressed by the Pit River Tribe further indicates that proposed transfers described in Applications 00-05-029 and 00-05-030 may violate the Brown Act. First, the Brown Act does not apply to private transactions, and only one portion of the proposed transfer is publicly controlled, that being the land PG&E would receive from the California Department of Parks and Recreation, in exchange for privately held land transferred to CDPR. Pursuant to the requirements of CEQA for a mitigated negative declaration, a detailed alternatives analysis (i.e. consideration of transfer of subject land to the Pit River Tribe) is not required.
Response J-3
The Pit River Tribe correctly noted that the proposed land transfer is contingent upon the removal of certain lands from the jurisdiction of the Federal Energy Regulatory Commission (FERC) as noted on page V-10 of the draft MND. This action is under consideration by FERC as part of the re-licensing of the Pit Hydroelectric project. Consultation with affected tribes pursuant to Section 106 of the National Historic Preservation Act (NHPA) was conducted as part of this process. Additionally, because implementation of the MSMP will ultimately require an Army Corps of Engineers permit for wetland creation, the Section 106 process was carried out for this project. Activities carried out pursuant to the Section 106 process included conducting cultural resource surveys for affected properties and the assessment of these sites, two consultation meetings with affected groups (Pit River Tribe), and provision of mitigation measures for foreseeable adverse affects (Implementing Regulations: 36 CFR. 800).
While the Pit River Tribe is correct in noting that the existing Programmatic Agreement and Cultural Resource Management Plan (CRMP) established for the Area of Potential Effects for the hydro project will no longer be in effect should the project be approved, the mitigation measures specified on page V-15 through V-19 of the draft MND were developed with the intention of duplicating or providing more stringent protocols for dealing with undiscovered resources than those included in the CRPM. It should also be noted that CPUC staff has conducted consultation and outreach on numerous occasions with the Tribe.
Response J-4
In comment number four, the Pit River Tribe indicates that Mitigation Measures V.1c would allow the California Waterfowl Association (CWA) to hire a Professional Archaeologist, potentially presenting a conflict of interest as an employee of the CWA. On page V-16 of the draft MND, Mitigation Measure V.1a requires that at least 10 days prior to the start of any project-related activity, CWA shall confirm in writing to the CPUC Mitigation Monitor that the approved designated Professional Archaeologist will be available at the start of project activities and is prepared to implement the protocol specified in the amended MSMP. It is assumed that a reputable professional consulting archaeologist will be retained for these activities and as such, the likelihood of this individual jeopardizing their credibility is unlikely. Additionally, the CPUC will have discretion over the approval of this individual and make a determination as to whether any potential for a conflict of interest truly exists.
The comment further indicates that Mitigation Measure V.1c completely leaves the cultural resource representative of the Tribe out of the decision making process. This is not correct. On page V-18 of the draft MND, Mitigation Measure V.1f requires that a Tribal Representative be present for any project related activity within 500 feet of the boundary of any known prehistoric resource and within 500 feet of any modern prehistoric stream. This measure would include the Tribe in essentially all construction activities and the decision-making processes should a resource be found.
Response J-5
Comment number five in the Tribe letter states that Mitigation Measure V.1d is inappropriate and offensive with respect to Native American resources. It is assumed that there is some misunderstanding regarding the intent of the measure, which is related to the discovery and treatment of paleontological resources only, and not archaeological resources which might include human remains. Paleontological resources are defined on pages V-5 through V-6 of the Mitigation Negative Declaration. The treatment of human remains is outlined in Mitigation Measure V.1e, which was drafted in accordance with Section 7050.5 of the California Health and Safety Code, Public Resources Code Section 5097.98 and CEQA Guidelines Section 15064.5 (e) (2).
Response J-6
Comment number six contends that Mitigation Measure V.1e will leave the Pit River Tribe out of the decision-making process with regard to the potential discovery of human remains. Mitigation Measure V.1e, as stated on page V-17 of the draft MND, complies with Section 7050.5 of the California Health and Safety Code by requiring the notification of the Shasta County coroner in the event human remains are encountered. Additionally, the measure provides that if the remains are determined to be Native American in origin, the Shasta County coroner shall notify the Native American Heritage Commission (NAHC) within 24 hours of the find. It is the responsibility of the NAHC to determine the most likely descendant. Thus, if the NAHC determines that the most likely descendant is a member of the Pit River Tribe, then the tribe shall be notified. The second paragraph of the measure clearly indicates that the most likely descendant will be given the opportunity to make recommendations to CWA and its contractors for the means of treating discovered human remains.
Response J-7
Comment number seven provides a correction needed in Mitigation Measure V.1f to properly reflect the political relationship between the Ahjumawi Band and the Pit River Tribe. In response to this comment, Mitigation Measures V.1f has been modified as follows:
Mitigation Measure V.1f: Prior to the transfer of title, the Conservation Easement and MSMP shall be amended to require CWA to provide the opportunity for a Native American monitor, if interested, to be present on-site during project-related vegetation clearance, ground disturbance and grading, site or project mobilization, site preparation or excavation activities, implementation of erosion control measures, or the movement or parking of heavy equipment or other vehicles onto or over the project surface, within 500 feet of the boundary of known prehistoric resources and within 500 feet of the locations of modern and historic streams.
The Native American monitor shall be a member of the Ahjumawi Tribe Band of the Pit River Tribe and will serve in addition to the Professional Archaeologist. Monitoring by the cultural group representative is required within 500 feet of such sites. The amended Conservation Easement and MSMP shall be submitted to the CPUC for review and approval prior to the transfer of title.
Mitigation Measure V.2 of the MND has been modified to reflect the above changes.
Responses J-8 and J-9
Comment numbers eight and nine reiterate the Tribe’s contention that the proposed land transfer would be adverse to the public interest. Please refer to response number one and two. For clarification purposes regarding item 8, it should be noted that the DPR does not currently hold any water rights to the Tule, Little Tule, or Fall River and the 300 acre-feet referred to on page V111-3 of the draft MND is related to a contractual relationship, which historically has not been exercised by DPR. The proposed agreement between PG&E and DPR reduces the contracted amount by 300 acre-feet. The agreement between PG&E and CWA extinguishes the riparian water rights associated with the land except for 300 acre-feet to be used for wildlife habitat and management.
Item nine refers to PG&E’s negligence in maintaining levees as a "measuring point." PG&E has not maintained this section of levee with the dredge due to restrictions imposed by the Army Corps of Engineers due to the presence of the federally listed endangered species, the Shasta Crayfish. Pursuant to the requirements of CEQA, the appropriate baseline for the review is the existing physical conditions.
Response J-10
Comment item number ten mentions that the Mitigated Negative Declaration fails to provide an analysis of the long-term effects of grazing on cultural resources, water quality, and endangered species. From a historical standpoint, the McArthur Swamp land base has been grazed by livestock for over fifty years. Consequently, the existing environmental condition (baseline) is the product of long term grazing practices. As part of the CEQA analysis for CPUC Applications 00-05-029 and 00-05-030, the analysis must focus on any deviations in the baseline condition resulting from the proposed land transfer, not from the natural environment that existed prior to grazing. The adoption of the MSMP and Conservation Easement would not change any land uses in the project area and, thus the existing baseline would not change. Changes that would result from the implementation of the MSMP would essentially result in a net positive effect by more efficiently grazing livestock in the area. This would occur in a smaller land area through a reconfigured fence layout. Details of the proposed management practices are described in the draft MND on pages 1-7 through 1-9 and 1-16. Additionally, the MSMP proposes a net increase in several habitat types (i.e. fresh emergent wetlands, nesting habitat, goose pasture, etc.).
Response J-11
Pursuant to the requirements of CEQA, detailed economic analyses of a proposed project are not subject to evaluation in an environmental document. (CEQA Guidelines Section 15064(d)(3)(e)) Additionally, this comment reiterates the Tribe’s contention that the proposed land transfer would be adverse to the public interest. Please refer to response items number one and two.
Response J-12
Comment number twelve states that Section III, Air Quality of the draft MND should have addressed air quality concerns for each planned disturbance. For clarification, it should be noted, all air quality impacts resulting from activities proposed as part of the MSMP would stem from grading and/or excavation activities. If these activities occur, the appropriate party (either CWA or McArthur Resource Management Association) would be required to implement Mitigation Measure III.1, as stated on page III-4 of the draft MND to comply with SCAPCD Rule 3.16. For example, the levee repair operations would be required to implement Mitigation Measure III.1 in order to obtain the grading permit. This mitigation measure would apply to any activity required to obtain a grading permit in accordance with SCAPCD Rule 3.16 (i.e. fence installation and removal, wetland creation, other grading activities, etc.).
Response J-13
The comment letter concludes by stating again that CPUC Applications 00-05-029 and 00-05-030 would be adverse to the public interest and that a full Environmental Impact Report should be prepared. As stated in response one and two, CEQA’s main objective is to provide full disclosure of environmental impacts resulting from a project and ensure that potentially significant impacts are either mitigated to a level of insignificance, or at minimum, disclosed to the public for a fair evaluation of the unavoidable impacts (Pub. Res. Code secs. 21000-21004). In the case of Applications 00-05-029 and 00-05-030, after a thorough evaluation, the staff of the CPUC has determined that environmental impacts resulting from the land transfer and implementation of the amended MSMP can be reduced to a less than significant level through the adoption of the provided mitigation measures. Therefore, it is the determination of the CPUC staff that an environmental impact report is not required for this project.
Letter K. D. J. Martin – Fall River Valley Chamber of Commerce
View Letter K.
Response K-1
The California Public Utilities Commission (CPUC) staff has responded to a letter from the McArthur Resource Management Association dated November 28, 2001, for which your organization provided support. The CPUC’s response to each subject topic raised in the comment letter is provided under Responses H-1 through H-4.