On September 22, 2017,  the Aqua Terra Aeris Law Group, on behalf of its client, San Francisco Forest Alliance, submitted the following comments and questions to the University of California, San Francisco (“UCSF”) regarding the Draft Environmental Impact Report (“DEIR”) for the UCSF Mount Sutro Open Space Reserve Vegetation Management Plan (“Plan”).

[We are publishing it in two parts, owing to its length. This is Part I.
For Part II, Click HERE: SF Forest Alliance: Problems in the Sutro Forest DEIR – Part II
The pictures in these articles are illustrative only, and were not submitted to UCSF. Most legal references and citations in the original have been removed for easier reading.]

Members of the public have commented with deep and justified concerns that the possible benefits of this project are unclear or unlikely, while the effects are significant. What is now a peaceful, historical refuge from City life threatens to become a multi-decadal vegetation removal project that would drastically alter the biological landscape of the forest, its quietness, degrade its air quality, increase greenhouse gas emissions, construction traffic and congested city parking . . . the list goes on. Yet the basic purpose and actual scope of the proposed project are not clearly conveyed, and are not compelling at all. The forest has survived countless drought cycles on its own, without this type of intrusive intervention. As a result, the lead agency may be unable to support a statement of overriding considerations to approve the project. The proposed project should be denied, and the No Project Alternative accepted.

Sutro Forest

A. CEQA Overview

An EIR is an “informational document” meant to “provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment” and “demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered” the environmental impacts of a project. As an informational document, CEQA “requires full environmental disclosure.”  Although “technical perfection” is not required, an EIR must be “adequa[te], complete[], and a good-faith effort at full disclosure,” with “informed and balanced” decisionmaking. (CEQA Guidelines, § 15003, subds. (i)-(j).) “[A]n agency must use its best effects to find out and disclose all that it reasonably can.”

For each of the reasons discussed, below, the DEIR falls short of CEQA’s informational and substantive requirements, and should be revised and recirculated. In the alternative, the proposed project should be denied, as the No Project Alternative would meet the project goals while reducing or avoiding significant and unavoidable effects of the proposed project.

B. The DEIR Conflates the Proposed Project with its Attempt to Describe Existing Conditions – and so Fails to Provide Either a Legally-Sufficient Project Description or Baseline.

An accurate project description and a baseline are two legally crucial elements of the CEQA process. Furthermore, an agency can accurately describe a project’s impacts only if it accurately describes the existing environmental baseline, measuring the project’s impacts against “real conditions on the ground.”

1. The DEIR’s Stated Project Objectives are Unclear and Inadequate.

A proposed project’s statement of objectives must include the underlying purpose of the project, and be clearly written to guide the selection of mitigation measures and alternatives to be evaluated in the EIR.

Alternatives that cannot achieve the project’s underlying purpose need not be considered; “a lead agency may not give a project’s purpose an artificially narrow definition, a lead agency may structure its EIR alternatives analysis around a reasonable definition of underlying purpose and need not study alternatives that cannot achieve that basic goal.”

The DEIR summarizes the four plan objectives as follows:

1. Protect the safety of Reserve users and adjacent campus and residential properties
2. Improve and enhance the health and stability of the ecosystem
3. Enhance the visual design and aesthetic experience in the Reserve
4. Maintain and ensure public access to the Reserve

(DEIR at 1-2 [pg. 20].) Regarding the first objective, the DEIR explains that aim is to reduce “the risk of tree failure and fire through vegetation management.” (DEIR at 3-13 [pg. 77].)

However, the DEIR fails to provide meaningful information by which to understand these goals. For example, are existing forest conditions unsafe? By what measure? Similarly, are public access limitations currently a problem? The DEIR is not specific, and fails to consider whether years of significant “vegetative management” in the Forest would impede public access more so than not pursuing this project at all. Only through better-articulated project goals can the DEIR and the public meaningfully assess whether alternatives to the project would also meet project goals with fewer significant environmental impacts.

The DEIR also acknowledges that UCSF is already doing work to mitigate these risks – and will continue to do so whether or not the project is approved. The DEIR states that under the proposed project, “UCSF would continue to manage the risk of trees that may fall and injure Reserve users or damage property, and vegetation management would be focused in areas where people and buildings may be affected.” (DEIR at 2-12 [pg. 36], emphasis added.) The DEIR adds that the forest is already “actively managed” for safety. (DEIR at 4.5-1.) And crucially, it explains that:

If the proposed plan is not approved by the Regents, it is reasonable to assume that UCSF would continue to conduct ongoing maintenance in the Reserve to reduce fire hazards and hazards to people and structures from falling trees. Ongoing maintenance would include, but would not necessarily be limited to, pruning trees and bushes, removing hazardous trees, removing debris, and maintaining trails.

(DEIR at 2-14 [pg. 38]; see also DEIR 5-6 [pg 406] (under the No Project alternative, UCSF would “continue to conduct ongoing maintenance in the Reserve”).) So how can the first and foremost objective of the proposed project be to reduce “the risk of tree failure and fire through vegetation management” if the DEIR asserts that such management will happen whether or not the plan is approved? In light of the fact that the proposed project would result in significant and unavoidable impacts, and since the No Project Alternative satisfies the first and foremost objective of the proposed project, the No Project Alternative should be selected.

Unfortunately, the DEIR barely describes this pre-existing / active management program.  At one point, the DEIR describes safety assessment of trees up to 25 feet on either side of trails (DEIR 3-18 [pg. 82]), but does not describe to what extent trees have been removed based on the assessments. In those few places where the pre-existing program is described, it tends to mirror the proposed project precisely. For example, under the proposed plan, vegetation would be trimmed “within 5 to 10 feet of trails” to “allow trail users to see further into the forest.” (DEIR at 4.1-23.) But the DEIR indicates that UCSF already trims “vegetation within 5 to 10 feet on either side of trails to maintain sight lines through the forest.” (DEIR at 4.6-11.) As a result, because the DEIR barely describes the existing program of active forest management, it has failed to establish an adequate baseline.  And because core elements of the proposed project (the vegetation and tree management plan) will continue under this existing program of forest management, whether or not the proposed project approved by the Regents, the DEIR has also failed to establish an accurate project description.

2. The DEIR Fails to Provide an Accurate Stable Description of the Number of Trees Existing or to be Removed.

The DEIR’s description of the baseline conditions that are integral to the proposed project activities are inaccurate and unstable, giving rise to an inaccurate and unstable project description. A description of important environmental resources that will be adversely affected by the project is critical to a legally adequate discussion of the environmental setting. And specific information about particular characteristics of the environmental setting are be required when necessary to determine the significance of an impact.

First, a huge discrepancy exists between estimated tree numbers from previous years and the current estimates. In 2013, UCSF “estimated that there are approximately 45,000 or more trees in the Reserve.” (UCSF Mount Sutro Management DEIR (Jan. 2013) at 3-5.) The DEIR estimates there are approximately 12, 135 trees in the Reserve. (DEIR at 3-9, tbl. 3.4-1.) The DEIR fails to realistically account for this vast difference in its own calculations, whether consultants’ prior calculations were wildly inaccurate, or there were an inordinate number of trees between 1 and 2 DBH at that time. The DEIR gives short shrift to these implausible explanations, and the discrepancy casts significant doubt on the accuracy of the DEIR’s estimations and the public’s ability to rely on its description.

Second, the DEIR proposes to remove “approximately 6,000 trees predominately dead and/or dying trees” during Phase I. (DEIR at 3-24.) Yet the DEIR fails to even estimate how many “dying” trees exist in the Plan area. Unsurprisingly, the DEIR lacks a clear definition of the words “dead” and “dying” when describing trees. It merely characterizes trees with a live crown ratio of 25% or less as “dying” without recognizing that crown die-back is a normal adaptation to drought for eucalypts and many of the trees have a good chance of recovery.

The Live Crown Ratio is the ratio of the crown to the total height of the tree, simply a measure of how high the crown is. For similar reasons, this measure is of questionable value with considering eucalyptus which goes through cycles of extension and dieback. This is especially true when the eucalyptus is growing in a forest environment, where a long trunk and high crown is the natural growth habit of Tasmanian blue gum. A Live Crown Ratio of 33% would be standard, and so 25% seems well within the normal range of variability, especially during a drought. (See, “Forest
Trees of Australia” by Douglas Boland, Maurice William McDonald.)

The DEIR presents two varying estimates of the number of live trees in Forest Type 4. In Table 3.4-1, it estimates there are 50 live trees per acre and 50 dead trees per acre in Forest Type 4, for a total of 100 trees per acre. (Id. at 3-9, tbl. 3.4-1.) But in Table 3.5-2, it estimates there are 128 live trees per acre and a total of 178 trees per acre in Forest Type 4. (Id. at 3-27, tbl. 3.5-2.) The Vegetation Management Plan published in February 2017 provides the 128 live trees per acre figure. (Vegetation Management Plan (Feb. 2017) at 24, tbl. 6.) This is a significant difference. Table 3.4-1 lists 8,665 live trees in total for the entire forest. If applying the 128 live trees per acre number for Forest Type 4, the total number of live trees increases to 10,069. This is an increase of 16% and is significant with respect to the ecosystem value of the forest and impacts from removal. Given that the number of live trees impacts all of the analyses and conclusions, these discrepancies render the DEIR insufficient as an informational document.

Additionally, the “Net Trees Removed or Planted per Acre” thresholds in Table 3.5-3 are significantly higher than needed to achieve the Desired Final Stand Density in Forest Types 1, 3 and 4. If UCSF implements these maximum thresholds, then only 243 original trees would remain by Year 10. Examining Appendix 4.2 shows that at least 12,101 trees (99.8% of the current total) would be removed by Year 11 alone. This near-complete-deforestation is internally contradictory with the Plan’s stated objective to improve the health and stability of the Mt. Sutro open space reserve.

The DEIR proposes to remove over half of the live trees on the Reserve in the first year of the Plan, estimating that there are 8,665 trees in the Reserve (DEIR at 3-9, tbl. 3.4-1), but proposing to cut down a maximum of 4,640 lives trees (DEIR at 3-27, tbls. 3.5-2 & 3.5-3)—a staggering 53.5% of the live trees at the Reserve. This is a significantly high percentage and poses threats to public safety and wildlife, yet the DEIR concludes the impacts will be less than significant with mitigation. The DEIR must be amended to accurately depict the impact of its forest clearing plan.

The DEIR also fails to provide an accurate baseline description of existing tree health, relying on drought year data that ignores the extent to which the wet 2016/2017 winter may have revived trees on Mt. Sutro. According to the U.S. Forest Service, “During times of defoliation, crown dieback may be overestimated. This can be due to the difficulty of distinguishing dead twigs from defoliated ones.” On December 4, 2016, the Chief Forester of the Presidio, Peter Ehrlich, described the eucalyptus forests in San Francisco as follows: “The trees are recovering from a three-year drought. Those trees that were of moderate vigor showed recovering canopies that no longer had evidence of epicormic growth that was produced in a drought-response. This crown retrenchment was a survival strategy for some of the trees in order to cut water loss during drought. The trees are recovering due to the increased rainfall last year and early this year.” Even the DEIR admits that “the drought conditions have ended in 2017” and “future conditions are unknown.” (DEIR 3-11.) Since this is a forest with over 100 years of adaptation through numerous drought cycles, it should be permitted to recover prior to making any new and drastic vegetation management decisions. Eucalyptus in the tropical and arid areas of Northern Australia tend to get killed by termites and fire before they’re 200 years old. In temperate, rainy Southern Australia they live 400-500 years. San Francisco’s Sutro Forest is much closer to Southern Australia in climate, since it lacks wildfires and cyclones and receives rain as well as summer fog drip.

Accordingly, both the existing conditions and the project need and scope are fatally undermined without relying on more accurate data.

Finally, the DEIR wrongly claims that vegetation in the forest is “even-aged.” (DEIR at 4.1-25.) But any visitor to the forest can see—and even the photos in the DEIR show—a wide range of tree sizes and ages. (See, e.g., id. at 4.1-4, 4.1.5, 4.1-12 to 4.1-21.) This occurs in part because eucalyptus globulus can regenerate readily from lignotubers, younger trees will sprout from trees that are cut down or broken off. Over the 125-year life of the forest, it is evident that many of the trees now standing are younger.

These errors, inconsistencies, and failures to disclose important facts result in an inaccurate and confusing Plan description and baseline by which to compare the Plan’s impacts. As a result, the DEIR fails as an informational document the public and decisionmakers can rely on.

C. The No Project Alternative Should be Selected, but the DEIR Skews Decision-making by Failing to Adequately Assess the No Project Alternative.

The CEQA Guidelines require that:

The specific alternative of “no project” shall also be evaluated along with its impact. . . The “no project” analysis shall discuss the existing conditions at the time the notice of preparation is published, as well as what would be reasonably expected to occur in the foreseeable future if the project were not approved, based on current plans and consistent with available infrastructure and community services.

The No Project alternative is distinct from the environmental baseline, from which the impacts of a project are evaluated.  The no-project alternative is a fact-based forecast of the environmental effects of maintaining the status quo.  When a project involves a proposed change to an existing land use plan, regulatory plan, policy, or ongoing operation, a decision to reject the project would leave the existing plan, policy, or operation in place. In such a situation, the no-project alternative should be defined as a continuation of the existing plan, policy, or operation. The EIR’s discussion of the no-project alternative then compares the impacts of the change that would result from approval of the proposed project with the impacts that would occur if the existing plan, policy, or operation remained unchanged.

The Sutro Forest DEIR addresses a No Project alternative in which the proposed plan would not be implemented, but UCSF would “continue to conduct ongoing maintenance in the Reserve.” (DEIR 5-6 [pg 406].) As a result, the DEIR expects that eucalyptus would thin and “either understory vegetation or blackwood acacia [would] colonize areas of eucalyptus dieback.” (DEIR 5-7 [pg 407].)

There are serious problems with the DEIR’s treatment of this alternative. Although it presents a No Project alternative, the DEIR describes that alternative in conclusory and pejorative terms, with little explanation.

1. With Nearly No Explanation, the DEIR Concludes That the No Project Alternative Would Lead to Significant Impacts on Visual Quality.

California courts have struck down EIRs that reject project alternatives on aesthetic grounds without providing sufficient explanation of why one alternative is visually less desirable than another. (See Save Round Valley Alliance v. County of Inyo (Ct. App. 4th 2007) 70 Cal. Rptr. 3d 59 (“If the BLM parcel is indeed an unsuitable site for the project due to whatever the County referred to as ‘aesthetic/view issues,’ much more must be said to adequately inform the public and decision makers.”))

Here, the DEIR describes the No Project alternative’s hypothetical transition from eucalyptus to understory vegetation or blackwood acacia as having significant “impacts on visual quality.” (DEIR 5-6 [pg 406].) But the DEIR does not explain anywhere why it views eucalyptus as of higher visual quality than acacia blackwood. (Neither species represents an indigenous California visual landscape; both species are transplants from Australia.1) Are eucalyptus prettier than acacia? The DEIR does not say.

In contrast, some Bay Area residents extol the visual appeal of blackwood acacia. For example, one local science writer and environmental consultant wrote that:

“I first noticed [Blackwood acacia] for its flamboyant seeds. When the pealike seed pods split open later in the year, they will reveal a shiny black seed surrounded by a wild curlicue of orange ribbon. I hate to love an invasive, but I think they are just beautiful.”

Others describe the tree as “beautiful and dependable,” possessing seeds “wrapped in an unmistakable coral-colored ribbon.” It may be the case that eucalyptus is prettier than the blackwood acacia. But it is certainly not self-evident, and the DEIR provides no justification for this conclusion.

The DEIR is also inconsistent about whether gaps in the forest canopy are appealing or not.
When it is describing the proposed project, the DEIR says that “gaps in the canopy that create patterns of sun and shade and offer views of the ocean and Golden Gate Park” are visually appealing. (DEIR at 2-2 [pg. 26].) But when it is talking about the No Project alternative, the DEIR says that “as the canopy becomes patchier” the “visual quality of the Reserve would decline.” (DEIR at 5-6 [pg 406].) It sounds the DEIR has a heads-I-win-tails-you-lose approach to aesthetics – openings in the canopy represent appealing gaps when the DEIR is describing the proposed project, but unappealing patches when it is describing an alternative.

Finally, and bizarrely, the aesthetic analysis of the DEIR’s describes the forest resulting from a No Project alternative as potentially “less alive.” (DEIR 5-6 [pg 406].) (It does not explain what it means by this.) But elsewhere the DEIR admits that “[a]lthough the dominant species in the forest may change, the Reserve would likely continue to be forest land under the No Project Alternative.” (DEIR 5-7 [pg 407].)

2. With Nearly No Explanation, the DEIR Pejoratively Characterizes a Transition from Eucalyptus to Acacia as “Forest Decline”.

Similarly, in terms of Biological Resources, the DEIR pejoratively characterizes “understory vegetation or blackwood acacia” colonizing potential areas of eucalyptus dieback under a No Project alternative as “forest decline.” (DEIR 5-7 [pg 407].)

The DEIR does not explain why a transition from mostly one species to mostly another species constitutes “decline,” but it may be based on a misreading of another section of the DEIR. In Section 3, the DEIR points out that the “condition of the blue gum eucalyptus trees has declined over the past decade” and that “[w]ithout management, it is likely that the existing eucalyptus will continue to decline and die, and other types of trees and vegetation will take over.” (DEIR 3-6 [pg 70].)

Thus, the DEIR appears to have conflated the decline of one species in the forest – eucalyptus – with the health of the overall forest. (More generally, the DEIR repeatedly employs language like this to create the image of a forest that is aged, ill, dying, and infirm. The aim may be to create the idea that the forest is not worthy of the land itself.)

In fact, California arborists praise the blackwood acacia’s role in a forest, calling it “a good choice where a large, fast-growing tree is desired.”5 Elsewhere it is described as a “durable tree for quick growth, screening and erosion control.”6 The acacia’s seed pod is “rich in protein, which makes the seed package rather appealing to ants, which consume the aril and discard the seed, in a fertile rubbish heap, or in the nest.”7

It is particularly misleading for the DEIR to describe the No Project alternative as “forest decline,” because that term is often understood to refer to the removal of trees. It is the DEIR’s proposed project – not the No Project alternative – that involves cutting down lots of Mount Sutro’s trees. (DEIR at 219, 4.1-26, etc.) As a result, if the DEIR wishes to characterize the transition from eucalyptus to acacia as “decline,” it will have to show its work. (See City of Arcadia v. State Board:  “a public agency must explain the reasons for its actions to afford the public and other agencies a meaningful opportunity to participate in the environmental review process.”) As noted, above, a Eucalyptus forest can be expected to live up to 400-500 years without human disturbances such as the proposed project.

3. Without Meaningful Explanation, the DEIR Concludes that Leaving the Forest Alone Would Have Greater Impacts Than Cutting Down Many of Its Trees.

The DEIR concludes that “the No Project Alternative would result in greater environmental impacts than the proposed plan.” (DEIR 5-10 [pg 410].) While this could be true, it is certainly counterintuitive that cutting down many or most of a forest’s trees would have less of an impact than leaving the forest alone.

The only explanation that the DEIR provides for this conclusion is to point to the seven categories in which it assesses the No Project alternative’s impacts to be higher than the proposed project – “aesthetics, biological resources, cultural resources, landslides and topsoil loss, fire hazards, emergency access, and windthrow.” (DEIR 5-10 [pg 410].)

But the DEIR acknowledges that the impacts from a No Project alternative would be comparable or less than the impacts from the proposed project in eight categories – air quality, forestry resources, greenhouse gas emissions, hazardous materials, hydrology and water quality, noise, recreation, transportation and traffic. (DEIR at 5-6 to 5-10.)

For that reason, CEQA requires more explanation regarding the DEIR’s counterintuitive conclusion that the No Project alternative would have greater environmental impacts than the proposed project. (See Guidelines: “The EIR shall include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project.”)

[For Part II of this article, click HERE: SF Forest Alliance: Problems in the Sutro Forest DEIR – Part II]