May, 2, 2023
Robert Salisbury, Principal Planner
County of Santa Clara Planning Office
70 W. Hedding Street, East Wing, 7th Floor
San Jose, CA 95110
email: Robert.Salisbury@pln.sccgov.org
RE: Permanente Creek Restoration Plan Draft Supplemental Environmental Impact Report Comments
Dear Mr. Salisbury,
Thank you for the opportunity to comment on the Draft Supplemental Environmental Impact Report (SEIR) for the Permanente Creek Restoration Plan. The Sierra Club has reviewed the SEIR in relation to the studies that informed, and the restoration requirements in our 2016 Consent Decree with defendants Lehigh and Hanson Permanente in Sierra Club v. Lehigh, 5:11-cv-06392-HRL.
At ES-18 in the SEIR, the following California Red-Legged Frog (CRLF) mitigation measure is proposed that is not found in the 2011 Reclamation Plan EIR to which the SEIR is a supplement:
To the extent practicable, restoration activities in the Permanente Creek channel and suitable pond habitats shall be conducted between August 15 and October 15, to minimize potential impacts on CRLF tadpoles.
We do not believe there are sufficient factual or practical bases in the SEIR to support this blanket, 10-month restriction on restoration activities in the creek channel and potential pond habitats. First, the SEIR provides no evidence of CRLF in the vast majority of the creek where restoration work is to be conducted. Second, the SEIR does not provide evidence counter to that in the 2011 EIR that found it "unlikely" that CRLF would migrate to the upper reaches of Permanente Creek where most of the restoration is to take place. 2011 DEIR, p. 4.4-15. Third, assuming the mitigation measures requiring preconstruction surveys and removal of threatened CRLF are adopted, ES-17-18, there is little if any risk of permanent harm to CRLF as a result of restoration activities conducted during the normal construction season.
The purpose of the restoration plan, and our consent decree, is to return Permanente Creek to its pre-mining, natural state to the greatest extent and with the least delay. Lehigh’s obligation under the Consent Decree is to complete all restoration activities within five consecutive construction seasons, ¶45, and to limit restoration activities in the creek channel to only two months each year represents an arbitrary restriction that is unsupported by science and is counter to the purposes of the project itself.
Sincerely,
James Eggers Executive Director, Sierra Club Loma Prieta Chapter
Cc: Katja Irvin
Water Committee Co-Chair, Sierra Club Loma Prieta Chapter
Mike Ferreira
Executive Committee Member, Sierra Club Loma Prieta Chapter