June 24, 2024
San Jose Planning Commission
City of San Jose
200 East Santa Clara Street
San Jose, CA 95113
Subject: Agenda Item 5a – 0 Seely Avenue Mixed-Use Project Environmental Impact Report
Dear Members of the San Jose Planning Commission,
We are writing on behalf of the Santa Clara Valley Audubon Society and the Sierra Club Loma Prieta Chapter to express our concerns regarding the Environmental Impact Report (EIR) for the 0 Seely Avenue Mixed-Use Project. Specifically, we are concerned about the inadequacy of the proposed mitigation measures for impacts to nesting birds as outlined in the document. We urge the Planning Commission to withhold recommending approval of this EIR due to these significant deficiencies. In this letter, we explain why the proposed mitigation measure is inadequate and make specific recommendations for adequate mitigation language.
The project site has a long property line along the Coyote Creek corridor which is a rich habitat for a variety of wildlife including, specifically, nesting birds, which need special attention to meet the requirements of the Migratory Bird Treaty Act. Burrowing owls have been observed in the vicinity of the project site, which provides foraging, overwintering and nesting habitat for this imperiled species.
Therefore, in our scoping comments, we stated “Nesting Birds: Birds on this property may nest in trees, shrubs, man-made structures, and on the ground. Please mitigate by applying avoidance measures. Mitigation must be feasible and biologically relevant to species that may nest at the site.” We also asked for burrowing owls surveys and mitigation for the loss of habitat. The proposed mitigation for impacts to nesting birds (MM BIO-1) is not biologically relevant to most species that could potentially nest at the site, and there are no mitigations for potential harm to burrowing owls.
MM BIO-1 states, “If construction activities cannot be scheduled to occur between September 16 and January 31, inclusive, pre-construction surveys for nesting birds and raptors shall be completed by a qualified ornithologist or biologist to ensure that no nests shall be disturbed during project implementation. The survey shall be completed no more than 14 days prior to the initiation of construction activities during the early part of the breeding season (February 1 through April 30 inclusive), and no more than 30 days prior to the initiation of these activities during the late part of the breeding season (May 1 through September 15 inclusive).”
Many bird species, including burrowing owls, can build a nest and initiate egg-laying within as little as 10 days. Therefore, a nesting bird survey conducted up to 14 days prior to construction during the early breeding season is insufficient to avoid significant impacts to nesting birds. Even more concerning is the provision allowing for a survey up to 30 days before construction activities during the latter part of the breeding season (May 1 through September 15). This fails to account for the biology and nesting behaviors of bird species that,
- Initiate Nesting Later in the Season: Some local species do not start nesting until after May 1, and a survey 30 days in advance would not detect these nests.
- Reinitiate Nesting Attempts: Birds whose nests fail early in the season often attempt to nest again. A 30-day-old survey would not account for nests established after the initial survey.
- Have Multiple Broods: Many species have multiple broods in a single season, necessitating more frequent monitoring to identify new nesting attempts.
The current mitigation measure does not provide adequate protection for nesting birds and fails to adhere to the best practices necessary to minimize significant impacts effectively. Because of the location of the Project adjacent to the Coyote Creek Corridor, avoidance of the nesting season is advisable. However, if construction is to occur during the months of February through August, to better address the potential impacts on nesting birds, we suggest the following revised mitigation.
- Engage a Qualified Avian Biologist to Survey for nesting birds and to establish clear, species-specific buffer zones around identified nests to prevent disturbance, and ensure that these buffers are strictly enforced throughout the breeding season. A qualified avian biologist shall be defined as an individual with the following expertise: (a) the ability to identify, by sight and sound, the avian species that have the potential to occur in the project area; (b) knowledge of the life history and behavior of the avian species that have the potential to occur in the project area; and (c) at least 10 weeks of field experience conducting nesting bird surveys (nest searches).
- Conduct Pre-Construction Surveys: Conduct pre-construction nesting bird surveys no more than 7 days prior to the initiation of construction activities during the nesting season (February through August). Conduct a new survey within 7-days of any new phase or section of construction. If work ceases for 7 days or more, conduct a new survey. If the initial survey identifies active nests: follow-up surveys should be conducted until the nests have been vacated and the young have fledged and no longer depend on the nest.
- Establish Buffer Zones: The qualified ornithologist will establish clear, species-specific buffer zones around identified nests to prevent disturbance, and ensure that these buffers are strictly enforced throughout the breeding season.
- Conduct surveys for burrowing owls, following the protocols of the Santa Clara Valley Habitat Plan.
We hope the Planning Commission will consider these recommendations and require more robust and ecologically sound mitigation measures to effectively protect San Jose's avian populations and comply with the Migratory Bird Treaty Act. Your attention to this matter is critical in ensuring that development projects proceed in a manner that respects and preserves our natural environment.
Thank you for your time and consideration.
Sincerely,
Shani Kleinhaus
Environmental Advocate,
Santa Clara Valley Audubon Society
Gita Dev
Co-Chair, Sustainable Land Use Committee
Sierra Club Loma Prieta (SCLP)