SAVE OUR
BAY FOUNDATION |
Hard Copies to follow via U.S. Mail
November
30, 2000
Sarah
Wan, Chair, and Members
California
Coastal Commission
C/O
Peter Douglas, Executive Director
45
Fremont Street, Suite 2000
San
Francisco, CA. 94105
Dear
Ms. Wan and Members:
Subject : Notice of Violation of the
San Mateo County Local Coastal Program, California Coastal Act , U.S.
Endangered Species Act and the CEQA/NEPA .
On November 24, 2000, Save Our Bay staff conducted a native species field survey at
the location of the CalTrans Tunnels/Bridges mitigation construction site ,
Devil’s Slide Highway 1 Project site, Pacifica, San Mateo County,
California. After the three hour native
species field survey was concluded, (attached please find survey form for dates
7/27/000 & 11/24/000) it was found by SOB staff that the Tunnels/Bridges
mitigation project activities conducted by Caltrans, their agents or others has
resulted in a “take” of federally
listed Rana Avrora Draytonii, .. aka
California Red-Legged Frog. Take
is defined by the Endangered Species Act as “ to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture,
or collect any listed wildlife species.
“Harm” in this definition includes significant habitat modification
or degradation where it actually kills or injures wildlife, by significantly
impairing essential behavioral patterns, including breeding, feeding, or
sheltering. (50 CFR & 17.3)The Foundation’s Executive Director reported
the take to Sheila Larson of the
U.S. Fish & Wildlife Service on Friday the 24th of November by telephone.
On Monday November 27th, by telephone, Oscar Braun filed the notice
of violation with U.S. Fish & Wildlife Service Agent Scott Pierson and
provided him via fax the field survey forms and mitigation project site
location map. The Foundation also inform Agent Pierson that they have photos of
the ESHA starting 7/27/2000 up to and including 11/24/2000. On the 24th,
the Foundation also notified the California Department of Fish & Game and
San Mateo County Environmental Services Agency
Tunnels/Bridges
Mitigation Project Description: This Tunnels/Bridges mitigation project as
proposed involves the excavation of an upland area between two existing
ponds. The Tunnels mitigation pond will
be deep enough to hold water of
quantity and temperature. Flows
would be diverted from an adjacent creek into this pond. Erosion control structures will be placed
around the construction area to protect adjacent aquatic resources. Aquatic
emergent vegetation, previously cultivated in wooded flats would be placed in
the pond. Biologist will monitor vegetative growth in the new pond and replant
as necessary to ensure success.
Factual
Tunnels/Bridges Mitigation Project Background :
Th U.S. Fish and Wildlife Service by letter to Caltran’s
Sid Shadle on September 26, 2000 stated:
“ Based on the project description and corresponding avoidance measures
proposed in your correspondence, the Service has determined that “take” of the
California red-legged frog is not likely to concur. Therefore, the project as proposed is in compliance with the Act,
with the understanding that take is
not authorized under this agreement.”
“No further action pursuant to the Act is necessary, unless (1) the species is
discovered within the project area; (2) new information reveals effects of
the proposed action may affect listed species in a manner or to an extent not
considered; or (3) a new species or critical habitat is designated that may
be affected by the proposed project.”
“No further action pursuant
to the Endangered Species Act is necessary,
unless new information reveals effects of the project that may affect federally
listed species or critical habitat in a manner not identified to date. If you have any questions regarding this response, please
contact Cecilia Brown or Ken Sanchez at (916) 414-6625.” Signed, Karen J. Miller, Chief, Endangered
Species Division
·
The November 1996 voter approved Devil’s
Slide Tunnel LCP ballot initiative Section 2 Findings (3) “A tunnel will protect the environment. A tunnel would have virtually no harmful
effects upon the environment. It would
be consistent with the coastal laws. It would avoid the serious damage to the
watersheds, wildlife habitats and parks of Montara and San Pedro Mountains.”
·
February 18, 1997 CCC Adopted Findings San
Mateo County LCP No. 1-96 (Devil’s Slide Tunnel Initiative. Elimination or
Degradation of Endangered species habitat page 17 & 18. “Construction of the tunnel project could
adversely affect the habitat of the red-legged frog (Rana aurora draytonni) an
endangered species that lives in or near riparian corridors or freshwater ponds
and marshes. Construction of the North Portal approach road could fill
portions of the two red-legged frog ponds in that location. Even constructing a bridge that did not
directly fill the ponds would adversely affect the red-legged frog by shading
portions of the pond during most of the day, there by reducing the basking
opportunities for frogs and possibly lowering the spring pond water
temperatures. The latter could in turn
affect the development of time of frog eggs and larvae. Any one or combination of the above
possible events could result in the reduction or negation of the red-legged
frog population at the site.
Furthermore, construction and grading activities for the bridge could
either permanently block or destroy the spring site that serve as the water
source for the ponds, cause siltation in the ponds, and temporarily disrupt
adjacent upland foraging/retreat area for the frogs.”
·
On April 16, 1999, the Court of Appeal of
California, Fourth Appellate District, Division One filed their Bolsa Chica
Land Trust vs. The Superior Court of San Diego County ruling that
stated: “The Coastal Act does not permit destruction of an environmentally
sensitive habitat area (ESHA) simply because the destruction is mitigated
offsite. At the very least, there must
be some showing the destruction is needed to serve some other environmental or
economic interest recognized by the act.” The Court of Appeal further ruled:
“Section 30240 Under the Coastal Act, Commission is required to protect the
coastal zone’s delicately balanced ecosystem.
In short, while compromise and balancing in light of existing conditions
is appropriate and indeed encouraged under other applicable portions of the
Coastal Act , the power to balance and compromise (Section 30007.5) cannot
be found in section 30240.”
·
By
letter dated May 11, 1999, Paul Koenig, Director of Environmental Services for
the County of San Mateo, notified CalTrans “The FEIS/EIR on pages 74 and 75
describe the impacts of the proposed tunnel on wetland and riparian
habitats. We want to bring to your
attention the potential conflicts between this discussion and the Coastal Act
and Local Coastal Program. The tunnel
will fill approximately 5,500 square feet of wetlands and 9,700 feet of riparian habitat. Off-site mitigation of such an impact is
not currently allowed under the Coastal Act or Local Coastal Program. As a
result, we cannot at this time find that the proposed tunnel design complies
with the Local Coastal Program.”
·
By Letter on May 12, 1999,
Jack Liebster, Coastal Planner for California Coastal Commission, advised Caltrans of the
Commission staff’s principal concerns. Of particular note is his discussion of
the impact of the tunnel project on the wetlands and his conclusion that “ the
County, and the Commission, if the project is appealed, will have to assess the
appropriateness of any fill proposed in wetlands as defined under the LCP
using wetland policies.” He further
states: “It is not clear that the proposed use of wetland areas as a site
for which the LCP indicates fill can be allowed. In addition, the LCP wetlands
policies require an examination of alternatives
to projects which impacts wetland fill.”
·
On August 23, 2000 renown
lobbyist/professional land use planning consultant and co-author of the
original San Mateo County Local Coastal Program with lawyer/developer Michael
McCracken, addressed the County Planning Commission in support of Caltrans’
frog pond “Tunnel Mitigation” project. Below is the entire transcript of Ms.
Roberts comments.
“Good Morning Mr. Chairman, I’m Lenny Roberts
speaking for the Committee for Green Foothills, and we support this project.
Aaaa, it would be nice to have had something in the staff report to the fact
this is being done in conjunction with the U.S. Fish & Wildlife Service and
because this has been a long negotiated
process with the CalTrans engineers and the U.S. Wildlife Service. How they’ve
been in consultation with the frog and other issues, “this is mitigation for
the Tunnel” and so I think it would be helpful if we put that somewhere
because it is part of a very broad extensive process that has gone through
with the tunnel construction. So, so this is one of the issues that occurs
with the endanger species is that if you are going to take the endangered
species or effect their habitat and you’re going to first do “mitigation” to
first avoid the impact aaa which the Tunnel project has done to the
greatest degree possible by building a bridge over this valley. Originally this valley was going to be
filled to go across, so that would have impacted the frog pond habitat, so
they’re bridging instead and they’re
creating this new frog habitat and one of the issues always is ...will that
work? And by doing this ahead of time, ahead of the project itself , a there
will be, I think ,sufficient assurance that the project will be a successful
“mitigation”! We hope so...a perhaps one thing you might want to put in
here is the additional condition that there will be monitoring of project as it
goes through the construction and afterwards to make sure that the
re-vegetation is successful and that the habitat is successfully established. I
think that would be a good conditional condition to put in there. So we are
very supportive of this and we appreciate the County expediting this and I know
everybody is trying to expedite this project, in spite of everybody’s attempts it
has taken a lot longer than everybody thought . Aaa so those are my
comments and yeah I believe that the
way they capture the frogs is at night with flash lights , a time honored
technique (laughter) or the tadpoles in the spring time. But to successfully
get the adults you have to do that I believe.
Thank you.”
Planning Commission Chair: Anyone else? Silence.....move to close the hearing.
Note: Neither Ms. Roberts nor
Planning Administrator Terry Burns or anyone on planning staff inform the Planning
Commission that CalTrans’ Office of
Environmental Planning had been
informed in spring of 1999 that the
Tunnels do not comply with the Coastal
Act, Local Coastal Program of San Mateo County or CEQA. The Tunnels
have failed for the third time to be selected as the most protective of
coastal resources and least environmentally damaging alternative.
Save Our Bay believes that the 1990
California Supreme Court Ruling of Citizen of Goleta Valley vs. Board of
Supervisors of Santa Barbara County will demonstrate why the Tunnels/Bridges
fail to comply with the CEQA/NEPA and Coastal Act review process:
·
“The
foremost principle under CEQA is that the Legislature intended the act to be
interpreted in such manner as to afford the fullest possible protection to the
environment within the reasonable scope of the statutory language.”
·
“It’s
purpose is to inform the public and its responsible officials of the
environmental consequences of their decisions before they are made. Thus , the
EIR protects not only the environment but also informed self-government.”
·
“The
core of an EIR is the mitigation and alternative sections. The Legislature has
declared it the policy of the State to “consider alternatives to proposed
actions affecting the environment.”
·
“The
purpose of an EIR is ....to list ways in which the significant effects of such
a project might be minimized; and to indicate alternatives to such a
project.”
·
“....the
Legislature has decreed that local agencies shall be guided by the doctrine of feasibility. It is the policy of the state that public
agencies should NOT approve projects as proposed if there are feasible
alternatives ...“
·
“CEQA
Guidelines, which state that EIR must describe a range of reasonable
alternatives to a project, or to the location of a project, which could feasibly
attain the basic objectives of the project, and evaluate the comparative
merits of the alternatives.”
·
“As
the underscored language suggests, project alternatives typically fall into one
of two categories; on-site alternatives, which generally consist of different
uses of the land under consideration; and off-site alternatives, which
usually involve similar uses at different locations.”
·
“Each
case must be evaluated on its facts,
which in turn must be reviewed in light of statutory purpose. Informed by that purpose we here affirm the principle that an EIR for
any project subject to CEQA review must consider a reasonable range of
alternatives to the project or the location of the project which (1) offer substantial environmental
advantage over the project proposal, and (2) may be “feasibly accomplished in a
successful manner” considering the economic, environmental, social and
technological factors involved”
Sierra Club
Bolsa Chica Victory! In early 1999, the Sierra Club and Surfrider Foundation were victorious
in blocking State Hwy 56 from crossing the Bolsa Chica Environmentally
Sensitive Habitat Area (ESHA) in Orange County, California. Their successful
roadblock began earlier last year, when a state appeals court threw out 25
years of practice, precedent and common sense in ruling that CalTrans could not replace a diseased group
of trees with a larger, healthier group of native trees. That’s because these
near-dead trees were part of what is known as an Environmentally Sensitive
Habitat Area in the state’s coastal zone.
The court said state Coastal Act law did not permit the tradeoffs----or mitigation---that local government and
the Coastal Commission had allowed when it approved this project. The coastal
ESHA of dying trees in Bolsa Chica and others like it throughout the state
cannot be touched for roads or housing or dozen of the other public uses, no
matter how badly damaged they were and no matter what the local government is
willing to do to restore them.
In
the spring of 1996, Tim Duff, Co-Chair
of the Sierra Club Coastside 2000 Committee asked the Executive Committee of
the newly chartered Half Moon Bay Surfrider Foundation to conduct an
environmental review of their proposed Tunnel Initiative. Save Our Bay’s John Plock and Oscar Braun
were the Co-chairs and Blue Water Task Force Chapter leaders for the HMB
Surfriders. We could not endorse the
Tunnel Project as a 501(c)3 non-profit public benefit Foundations. State and Federal laws prohibit 501(c)3
non-profits from political activities or campaigning . John and I each have
brought over 25 years of experience in
professional due diligence work and environmental studies review expertise to
the Sierra Club Tunnel Project EIR Study. The Save Our Bay Foundation currently
monitors all projects that impact the Monterey National Marine Sanctuary and
has always insisted on full compliance with the Coastal Act and CEQA/NEPA
environmental protection laws.
The voter approved Measure T did not authorize
CalTrans to build two Tunnels, each with two travel lanes crossing
two north portal 1000 foot bridges.
They did not approve the 300
foot high south portals fill destroying
protected wetlands or the destructive intrusion on the endangered
species sensitive habitat in the north
portal area. The tax paying voters did
not authorize Caltrans to spend the $68 million dollar higher price for the two
lane Tunnels with their $2.2 million annual maintenance cost. The electorate voted for the alternative
most protective of coastal resources and least environmentally damaging, that
was cheaper, safer and funded. The
Tunnels/Bridges are none of those things.
The Save Our Bay Foundation respectfully requests
that the Coastal Commission “rescind”
immediately CalTran’s Coastal Development Permit, File PLN 2000-00536 and
red-tagging the Tunnels/Bridges mitigation project site to prevent further ESHA
damage and species take. Caltrans mitigation activities do not comply with the Local Coastal Program,
Coastal Act , Endangered Species Act or
the CEQA/NEPA environmental protection statutes. Lastly, a take of listed species was not
authorized under CalTrans agreement with U.S. Fish and Wildlife Service”
Sincerely,
John Plock, RCE 26066
Chair, Environmental Director
CC. Marcia Raines, San Mateo County, Environmental
Services Agency
Karen J. Miller, U.S. Fish & Wildlife Service,
Chief, Endangered Species Division
Thomas Pederson,
Regional Patrol Director, California Department of Fish & Game
Robert Gross,
Caltrans District 4, Office of Environmental Planning
G.P. Bill Wong,
FHWA, Senior Transportation Engineer
Judge D. Lowell Jensen, U.S. District Court
Release to Media
Atttachments: 1 each Mitigation Project Location Map
and 2 Native Species Survey Reports