Responses to DSC requests for referencesI address in this written statement the questions that were presented to Liberty Island Access(LIA) by the council for the purposes of clarification. I have listed below the original questionsasked of me (bold), with my responses below each.

Please note the use of the following abbreviations:DEIR: Draft Environmental Impact report for the Lookout Slough ProjectFEIR: Final Environmental Impact report for the Lookout Slough Project

I include footnotes with hyperlinks for some of the references that are not the FEIR or DEIRdocuments.

1(a):Please cite to specific evidence in the record supporting your assertion that because the“project makes significant roadway modification that completely removes a publicright-of-way to an existing and heavily used public recreational area,” the “project wouldpermanently impair or eliminate these [recreational] facilities since there would no longerbe land-based access to them” (LIA Appeal Letter, pp. 8-9).

“The sole terrestrial access point to the Reserve is the Shag Slough Bridge…”, (see PageIV.A-21, DEIR).

Because Liberty Island Road is the only land-based access to Liberty Island EcologicalReserve (LIER) and Shag Slough, the current level of use at the recreational facilities (kayaklaunching sites, fishing sites, levee-top trails, etc) would be permanently impaired. Access wouldbe severely constrained to only those individuals with access to a powered watercraft capable ofmaking the 21+ mile long round trip from the next-closest boat launch (Rio Vista Marina orArrowhead Marina) to reach the same bridge area. Any of the alternate and public water-basedaccess routes would also require navigating a watercraft along or across a portion of theSacramento Deepwater Shipping Channel. This option poses a potentially hazardous risk tothose using non-powered watercraft like kayaks, even if they could manage paddling 21 miles.

There are over 26 million automobiles registered in CA1, while there are only approximately700,000 registered, powered boats in CA according to the most recent government data2. Thismeans that public access to LIER would be proportionally reduced by approximately 97%. Thisis a very significant impairment in access.

2 “State of California Dept of Motor Vehicles Total Vessel Registrations”, CA Dept. of MotorVehicles, 2018.

1 “2020 Department of Motor Vehicles Statistics”, CA Dept. of Motor Vehicles, 2020.

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2(a)Please cite to specific evidence in the record to clarify what existing scientificinformation was available to the Department regarding recreational use and publicaccess at the Project site.

There was limited evidence in the record regarding existing scientific information on recreationaluse at the Project site, and DWR claims that “no public use data are readily available for theReserve” (Page IV.J-5, DEIR). This comes as no surprise, since there was little reason for anyscientific study to be done prior to the project’s planning stage.

There was also limited scientific information about other project site characteristics, like theSwainson’s hawk population. However, when this lack of scientific information was made clear,DWR employed professionals over the course of 25 days (DEIR Page IV.D-2) to survey thesite for Swainson’s Hawks and collect the needed scientific information. DWR ultimatelydiscovered two nesting sites, and have proposed mitigating for their loss by purchasing a 1,285acre conservation easement (Response 2-15, FEIR).

To the contrary, DWR did absolutely no surveying of the recreational usage at the project site,despite the fact that such usage is significant, and readily apparent to anyone who visits.Instead of site-specific data, DWR relies only on loosely related regional statistics that are poorlyextrapolated. Only 7 pages of the DEIR are dedicated to the Environmental Impact Analysis onRecreation, which is shorter than any other Environmental Impact Analysis that they didfor the project. DWR did as little as possible to investigate this potential impact, and thus therecord they provide to the Council is incomplete.

2(b)Please cite to specific evidence in the record to clarify how “proper surveyingmethodology for evaluating current recreational use” (LIA Appeal Letter, p. 1) could havechanged the conclusions reached by the Department about recreational use.

DWR did an excellent job of minimizing their investigation into recreational use impacts. Thismeans there is a paucity of evidence in the record that would contradict their unsubstantiatedclaim of insignificant impacts. In fact, there are significant breaches of basic logic used to reachtheir invalid conclusion.

For example in (DEIR, pg IV.J-6), DWR cites a study that claims that most users travel up to anhour to reach a recreation destination. However, DWR only considers one (of the two)census tracts that the project site exists in to estimate the fishing population. These two censustracts combined have a population of <20,000 people. However, the population within a 1hrdrive is ~1.9 million people. This data is readily available and free using census tract data andGoogle maps. DWR based their analysis on a population that was only 1% of the populationsize referred to in the study that they claim as evidence. Furthermore, DWR only attempts to

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calculate the number of bank/shoreline fishing users, and completely ignores kayakers,bird-watchers, hunters, hikers, and other users. These choices by DWR highlight overt logicalinconsistency, and spoil any legitimacy to their claims regarding recreation use.

Map of area accessible by car within 1 hr drive of the Shag Slough Bridge3. Estimatedpopulation in this area is approximately 1.9 million people.

3 Traveltime.com Query, Taylor Dahlke, 2021.

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Map of the larger of the two census tracts used to evaluate the project site4.

2(c)Please cite to specific evidence in the record substantiating the assertion that peoplewho rely on the Shag Slough Bridge and shoreline access are predominantly fromdisadvantaged communities (LIA Appeal Letter – Exhibit B).

CADFW, which may be considered the most relevant State agency to speak to recreationalimpacts on disadvantaged communities specifically states,

“Those that rely on the bridge and shoreline access are predominately from disadvantagedcommunities”

in their letter submitted during the comment period of the DEIR. (See FEIR page 99 underLetter 2: California Department of Fish and Wildlife, Bay Delta Region)

4 “Census 2020 California Hard-to-Count Fact Sheet Census Tract 2535 in Solano County”,State of California Census, 2020.

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3(a)Please cite to specific evidence in the record supporting your assertion that public landscreated by the Project would be under a restrictive easement that prohibits public access(LIA Appeal Letter, p. 4).

The LIA Appeal letter page 4 states: “DWR claims in their DEIR that the created public landswould be under a restrictive easement and would prohibit public access”. To clarify, we did notintend to claim that the easement itself restricts access, but that access is additionally beingrestricted as a matter of DWR policy:

DEIR Page III-35:“A gate would be installed at the northwest corner of the Project Site in order to restrict publicpedestrian and vehicular access to the Project Site.”

However, the proposed easement does seem to be indirectly restrictive against building newinfrastructure that might be desirable to improve the quality of recreational use, such as shortaccess roads, gates, a small parking area, restroom, etc. This may limit the possibility ofmodifying the project site to better accommodate recreation use in the future.

DEIR, Page IV.I-9 states that:“The Proposed Project Site would be placed under a conservation easement and future facilitieswhich may induce population growth would not be permitted. No new utilities or roads would beconstructed which could indirectly induce population growth...”

3(b)Please cite to specific evidence in the record supporting your assertion that the Projectwould impair existing access to navigable waterways (LIA Appeal Letter, p. 4).

Currently, there is a public roadway (Liberty Island Road) that reaches kayak launching pointson Liberty Island Ecological Reserve (public) lands for access to launch vessels into thenavigable waters in the LIER interior. There is also kayak launch access along both sides ofShag Slough, which is a navigable waterway. These launch areas are existing access that isavailable to the general public, 24/7. They are also accessed 24/7, as some users fish late intothe night and early AM, while during waterfowl season users arrive well before dawn to launchkayaks and paddle out to more distant areas of the Reserve to set up decoys, etc.

By removing the only public road that connects to these launch sites (particularly for launchinginto the LIER interior navigable waterways), DWR is very explicitly impairing an existingaccess point to a navigable waterway. These actions are in direct violation of the CAConstitution:

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“No individual or partnership, or corporation, claiming or possessing the frontage or tidal landsof a harbor, bay, inlet estuary, or other navigable water in this State, shall be permitted toexclude the right of way to such water whenever it is required for any public purpose, norto destroy or obstruct the free navigation of such water; and the Legislature shall enact suchlaws as will give the most liberal construction to this provision, so that access to the navigablewaters of this State shall always be attainable for the people thereof”5

The CA State Lands Commission also has authority to enforce this provision6:

“If the commission has public land, including school land, tide or submerged lands, and landssubject to the public trust for commerce, navigation, and fisheries, to which there is no accessavailable, it may, in the name of the state, acquire by purchase, lease, gift, exchange, or, if allnegotiations fail, by condemnation, a right-of-way or easement across privately owned land orother land that it deems necessary to provide access to such public land.

3(c)Please cite to specific evidence in the record supporting your statement that, “manymembers of the public also questioned the Project’s impact on access, including somepublic comments that were before DWR prior to filing the COC” (LIA Appeal Letter, p. 5).To the extent such public comments have been included in the record, please identifythem in response to this question.

Many letters were sent to DWR before they filed the COC. During my conversation with DWRofficials on 2/1/2021 via video conferencing, they claimed that they were burdened by theamount of public emails contesting the Lookout Slough project. They implied that I hadpetitioned our members to send DWR those emails, and asked me to tell those members of thepublic to stop sending emails. I had not (and have never) asked anyone to send any type ofcorrespondence to DWR for any reason.

I did not find any of these emails in the record that DWR submitted for the Lookout SloughCOC. However, despite my short time frame, I was able to contact a few individuals and collecttwo emails that they sent to DWR. I included these letters in my appeal as Exhibit E7. Theseemails are proper for the record since they are dated as being sent to DWR before they filed theCOC in late February.

This behavior of cherry-picking material to include in the record is clearly demonstrated by DWRomitting public comment emails. DWR has simply not submitted a complete record for theCouncil’s review.

7 Liberty Island Access Appeal, Exhibit E, Taylor Dahlke, 2021.6 CA Public Resources Code 6210.95 California State Constitution, Article X, section 4.

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3(d)Please explain and cite to specific evidence in the record, how the lack of public accessprovision by the Project represents a conflict with existing uses or uses described ordepicted in city or county general plans (LIA Appeal Letter, pp. 5-6).

With regards to “conflict with existing uses”:Existing uses like fishing, hunting, kayaking, bird watching, hiking, and even bicycle riding arecurrently enjoyed by hundreds of unique weekly visitors who travel by land to LIER and ShagSlough. By eliminating land-based public access, this level of use will decrease significantly,since the only access to the area would be feasible by powered watercraft making a 21+ mileround trip from the nearest boat launch. This is particularly burdensome to those who cannotafford to purchase, maintain, and store a powered watercraft. For this reason, the loss of landbased access is most particularly burdensome on individuals and families from disadvantagedcommunities. Shutting down existing public land-based recreational use without creating anynew land-based recreational opportunities of similar value is a severe conflict with existing use.

With regards to “conflict with … uses described or depicted in city or county generalplans”:Please see response to question 3(i).

3(e)Please cite to specific evidence in the record to clarify whether public access to the ShagSlough Bridge for hand-launching kayaks or small watercraft is an authorized existinguse of land (LIA Appeal Letter, pp. 6-7).

I will address this question in two parts.

There does not have to be explicit authorization.The People v. Sweetser case outcome gives clear precedence to using public right-of-waysaround bridges for access to navigable waterways8. The Court of Appeal stated that Sweester“was walking within the perimeters of a county easement conveyed for ‘public highwaypurposes’ and . . . was acting within the scope of the easement”. Since launching a smallcraft into the navigable waterway was a permissible use of the easement and there was noevidence that the county had restricted the easement (as is the case with Liberty Island Roadand Solano County), Sweester’s trespassing conviction was reversed. Thus, the public, unlessrestricted by reasonable government action, may use expressly dedicated road and highwayeasements to access navigable waters, such as Shag Slough.

8 “A legal guide to the public’s rights to access and use California’s navigable waters”, CA StateLands Commission, 2017.

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Even so, access is implicitly authorized.The Liberty Island ER Land Management Plan9 (which completed the environmental reviewprocess / was filed on 9/27/2016) addressed boating directly, and states that:

“Kayaks and small specialized boats designed for shallow water can be carried to the waterfrom Liberty Island Road”

This clearly states (from the authority that manages the land, CADFW) that hand-launchingkayaks or small watercraft is an authorized existing use of LIER land.

Liberty Island Road is the only public right-of-way to Liberty Island Ecological Reserve (LIER).Signage instructs “No parking” on the bridge, and there is no obstruction to passenger vehiclesto cross the bridge to the eastern side. After crossing the bridge, there is a gate on the easternside prohibiting further public vehicular access into LIER. There is no signage indicating thatlaunching a kayak or small vessel, or loading such a vessel into or from a temporarily parkedvehicle is a violation of the right-of-way easement use.

3(f)Please cite to specific evidence in the record substantiating the statement in your appealletter that tidal waterways created by the Project would not provide access forhand-launching of recreational watercraft (LIA Appeal Letter, p. 5).

The FEIR states (page 2-13):“The Proposed Project would provide non-public internal access to the Duck Slough SetbackLevee, Cache/Hass Slough Training Levee, Cross Levee, and the northern section of thedegraded Shag Slough Levee. A gate would be installed at the northeast corner of the ProjectSite on the southern side of Liberty Island Road at Shag Slough in order to restrict publicpedestrian and vehicular access to the Project Site.

DEIR Page VI-2:”While the Proposed Project involves construction of minor transportation facilities such as leveeroads and a boat launch, these are relatively small project components, would not be open thepublic, and would not serve any new areas. They would therefore not expand access…”

3(g)Exhibit B, attached to the LIA Appeal Letter, highlights that those who rely on ShagSlough Bridge and shoreline access are predominately from disadvantaged communities(LIA Appeal Letter Attachment – Exhibit B, p. 23). Please explain and cite to specific

9 “Liberty Island ER Land Management Plan”, California Dept. of Fish and Wildlife, 2016.

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evidence in the record to clarify whether this implicates DP P2, which requires siting ofprojects to avoid or reduce conflicts with existing uses or uses described or depicted incity or county general plans.

Please see answer to question 3(d) and 3(i).

3(h)Please cite to specific evidence in the record supporting your assertion that the Projectwould eliminate public recreational land-based access to Liberty Island EcologicalReserve and Shag Slough (LIA Appeal Letter, p. 8).

The Final Environmental Impact Report (FEIR) states on page 3-24 that:

“...the portion of Liberty Island Road that provides access to the Shag Slough Bridge would beremoved as a result of levee breaching, thus eliminating bridge access to the Reserve.”

And the DEIR states on (Page IV.A-21):

“The sole terrestrial access point to the Reserve is the Shag Slough Bridge…”

DEIR Page IV.J-5:

“The Shag Slough Bridge currently provides pedestrian access from the terminus of LibertyIsland Road to the eastern shoreline of Shag Slough for bank fishing. However, this section ofLiberty Island Road would be closed to the public as a result of the Proposed Project (FigureIII-8). This would eliminate pedestrian access to bank fishing along the shoreline of the Reserve...”

3(i)Please cite to specific evidence in the record demonstrating that the Project does notavoid or reduce conflicts with uses depicted or described in the Solano County GeneralPlan (LIA Appeal Letter, pp. 5-6).

Solano County General Plan Chapter 1010, page 40 discusses this:

“Proposal 14: Evaluate the desirability and the feasibility of owning and/or operating the areaslisted below as part of the Solano County Regional Park System: …

10 “Chapter 10”, Solano County General Plan, 2008.

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Liberty and Prospect Islands - These islands are located on the eastern edge of Solano Countynorth of the City of Rio Vista. These islands have been proposed for a National Wildlife Refuge;however, this proposal is on hold. The Delta Protection Commission has asked that theCounty consider operating these islands for such recreation uses as hunting, fishing,non-motorized boating, and wildlife observation”

This shows a direct conflict with the general plan, since the proposed project would severelyimpair the above listed recreational activities. Furthermore, Solano County States in their publiccomments that the project conflicts with their general plan in other ways (FEIR, page 13-16):

“Severing and vacating the public right of way and access to Liberty Island Road, Shag SloughBridge, and Liberty Island will conflict with the Solano County General Plan goal forimproving agricultural, pedestrian, and general public access and circulation to easternSolano County. It is also inconsistent with the California Constitution itself. (See Cal. Const.,Art. X, § 4)”