Th-15a

Hearing Date June 13, 2002

APPELLANT RESPONSE : MOTION FOR

“NO SUBSTANTIAL ISSUE” DETERMINATION

June 4, 2002 Via Certified Mail

TO: Honorable California Coastal Commissioners:

The Devil’s Slide Tunnel Project 1st phase ESHA mitigation (Nov. 2000) construction activities disrupted and blocked the ESHA water source by “de-watering” the north frog pond facilitating an unauthorized “take” of federally listed species CRLF. The Commission had rejected our appeal in October 2000 as raising “No Substantial Issue.

CalTrans Devil’s Slide Project commences it’s 2^nd incremental phase by expanding their “habitat transformation efforts” by implementing massively destructive geotechnical activities with extensive borings, trenching and grading which will destroy/transform the ESHA ( CCC Adopted Findings 1-96) by diverting or blocking the source of the ESHAs water, aka de-watering the wetlands and ponds found in the preferred tunnel alignment path . Commission staff now motions a 2^nd time, appellant raises No Substantial Issue in CalTrans current destructive incremental phase of the Devil’s Slide Tunnel Project.

Staff’s contentions not only contradicts the CCC Adopted Findings LCP 1-96 for the Devil’s Slide Tunnel Project ESHAs , staff’s contentions are made without factual and legal bases to support their contention that our appeal raises “No Substantial Issue”. Staff has provided NO factual or legal bases to contend that this geotechnical incremental phase is exempt from the Adopted Finding for the Devil’s Slide Project LCP 1-96. A “YES” vote in support of “No Substantial Issue” will signal the entire State that the that destruction of ESHAs in the early phrases of a development project is permissible under the Coastal Act. The Foundation’s “ESHA PROTECTION” appeal speaks for itself and clearly cites the inconsistencies with respect to specific LCP policies and documented incremental and cumulative impacts to environmentally sensitive habitat areas and cites allegations of the specific impacts from the geotechnical exploratory borings, trenching and grading which are part of the 2^nd phase of this approved project. We respectfully request a NO vote on staff’s motion and request that the Commission hear the appeal application de novo.

APPEAL NO: A-2-SMC-02-013

APPLICANTS: California Department of Transportation

AGENTS: Skip Sokow, Project Engineer

LOCAL GOVERNMENT: San Mateo County

LOCAL DECISION: Approval with Conditions

PROJECT LOCATION: Highway 1, Devil’s Slide Tunnel Project, south of Pacifica,

San Mateo County.

PROJECT DESCRIPTION: “The overall project consists of three distinct parts: investigative borings for the north portal bridge, borings and trenching along the proposed tunnel alignment and borings with the proposed disposal area.” Quotation from SMC document dated April 10, 2002 County File # PLN-2001-00799 (CalTrans)

APPELLANT: Half Moon Bay Coastside Foundation aka Save Our Bay

Foundation ,Oscar Braun, Executive Director

SUBSTANTIVE FILE: San Mateo County PLN 2001-00799 (CalTrans)

APPELLANT RECOMMENDATION:“ESHA Protection” SUBSTANSIAL ISSUE

APPELLANT EXECUTIVE SUMMARY

1.0 On January 9, 1997, The California Coastal Commission held a public meeting and voted 9-0 to certify San Mateo County LCP Amendment No. 1-96 as submitted by the County. The Amendment incorporates the Provision of Measure T, the Devil’s Slide Tunnel Initiative, into the Land Use Plan Portion of the LCP. The San Mateo County LCP Amendment No. 1-96 (Devil’s Slide Tunnel ) shall be consistent with the Coastal Act and “require that the roadway improvements be consistent with policies of the Local Coastal Plan, particularly the Sensitive Habitats and Agricultural Components (Policy 2.54c).” The protection of Sensitive Habitats is the primary Substantial Issue of this appeal.

2.0 Wetland and ESHA Impact Substantial Issues: Neither CalTrans nor the County of San Mateo have provided factual or legal support for the local government’s decision that this approved project is consistent with the certified LCP by AVOIDING ADVERSE IMPACTS to wetlands or ESHAs and with the public access policies of the Coastal Act. CalTrans geotechnical borings, trenching and grading approved project will adversely and significantly impact by “draining and de-watering” ESHAs and will destroy habitats of rare and endangered species; ergo does not conform with LCP policies 7.7, 7.11, 7.14, 7.18, 7.1, 7.3, 7.32, 7.33, 7.34 and 7.35 and is inconsistent with the land use policies of the LCP. This approved project is conditioned on ESHA “mitigation schemes” that have resulted in a “take” of federally listed Rana Avrora Draytonii (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 (de-watering) where it actually kills or injures wildlife, by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. (50 CFR & 17.3). CalTrans geotechnical borings, trenching and grading does not provide any avoidance of destructive impacts. Caltrans geotechnical approved project provides only on-site and off-site mitigation schemes. The California Court of Appeal in 1999 found that “on-site or off-site mitigation” is not consistent with the LCP or Coastal Act under Section 30240. CalTrans committed a “take” of listed federal species while constructing their CRLF mitigation pond in preparation for this geotechnical project. An unauthorized “take” is a violation of the Endangered Species Act , LCP and Coastal Act and could disqualify this approved roadway project from receiving Federal permits or $275 million in FHWA funding.

3.0 Neither CalTrans nor the County of San Mateo have provided factual or legal support for the local government’s decision that this approved project is consistent with the certified LCP by AVOIDING IMPACTS that would either permanently block or destroy (de-watering) the spring sites that serve as the water source of the ponds, cause siltation in the ponds or temporarily disrupt adjacent upland foraging retreat area for the frogs while conducting their geotechnical boring, trenching and grading activities in the North Portal ESHAs. The CCC 1997 LCP 1-96 Adopted Finding stated: “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 from by shading portions of the pond during most of the day, thereby 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 sites that serve as the water source of the ponds, cause siltation in the ponds, and temporarily disrupt adjacent upland foraging/ retreat area for the frogs..” ( SMC LCP 1-96 page 18). CalTrans geotechnical borings, trenching and grading activities will destroy the springs sites and cause an additional “take” of federally listed endangered species (Red Legged Frog).

4.0 Neither CalTrans nor the County of San Mateo have provided factual or legal support for the local government’s decision that this geotechnical projects borings, trenching, grading and hauling construction activities are consistent with the LCP policy 7.34 and 7.35. Policy 7.34 states, among other things, that “any development must not impact the functional capacity of the habitat”. and recommend mitigation if development is permitted within or adjacent to identified habitats of rare and endangered species. “Policy 7.35 states that the County must require preservation of all habitat of rare and endangered species…” Thus, an applicant for the tunnel project (ie: or any portion there) would need to demonstrate how the particular design chosen for any necessary fill for the tunnel project will ensure the habitat of the red-legged frog is not compromised.”( Adopted Findings SMC LCP 1-96 page 23)

4.1 In November 2000 CalTrans demonstrated how their preferred alternative Tunnels/Bridges geotechnical borings, trenching and grading activities WILL adversely impact the functional and biological capacity of the environmentally sensitive habitat area (ESHA) and WILL ensure the habitat of the red-legged frog is adversely compromised. On November 24, 2000, Save Our Bay Watershed Posse staff conducted a native species field survey at the location of the CalTrans Tunnels/Bridges geotechnical on-site & off-site 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 24^th of November by telephone that their authorized mitigation ESHA mitigation scheme had cause the north pond to be “de-watered” thus facilitating a unauthorized “take”. On Monday November 27^th, 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 informed agent Pierson that they have photos of the ESHA starting 7/27/2000 up to and including 11/24/2000. On the 24^th, the Foundation also notified the California Department of Fish & Game and San Mateo County Environmental Services Agency. (CCC Notice of Violation attached). Unauthorized “take” may disqualify this approved project from receiving Federal permits and the needed $275 million in FHWA highway construction funding. Neither CalTrans nor the County of San Mateo have provided factual or legal support for the local government’s decision that this geotechnical projects borings, trenching, grading and hauling construction activities are consistent with the LCP policy 7.34 and 7.35.

5.0 Appellant Response to CCC Footnote #3 on page 5 of Staff Report:

“The Commission approved the plan to relocate the CRLF as part of the October 2000 federal consistency determination with respect to the tunnel project. The Commission separately determined at the October 2000 hearing that an appeal by Oscar Braun and Save Our Bay Foundation of the County’s coastal development permit for the CRLF pond on Shamrock Ranch (A-2 SMC-00-35, PLN 2000-00536) raised no substantial issue” The authorized off-site frog pond tunnel project mitigation and relocation of the CRLF facilitated the unauthorized “take” of the CRLF as anticipated and proposed to the County of San Mateo by Lennie Roberts. On August 23, 2000, Lennie Roberts, renowned lobbyist/professional land use planning consultant and leading proponent of the Devil’s Slide Tunnels/Bridges/Filling/Mitigation alternative, addressed the San Mateo County Planning Commission in support of Caltrans’ frog pond Tunnels/Bridges/Fill/Mitigation project. Below is the entire transcript of Ms. Roberts comments.

5.1 “Good Morning Mr. Chairman, I’m Lennie 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.

.The above noted Notice of Violation record clearly shows that County of San Mateo approved Tunnels/Bridges ESHA mitigation project scheme failed and DID NOT AVOID ADVERSELY IMPACTING the ESHAs as required by the LCP policies 7.34 and 7.35. The Commissions finding of “No Substantial Issue” in October of 2000 facilitated the unauthorized “take” and dewatering of the north portal pond in November 2000. The Commission staff did not provide the Commission with the degree of factual and legal findings required to support the local government decision that on-site or off-site mitigation was consistent with the certified LCP or that CalTrans approved geotechnical borings, trenching and grading won’t continue to destroy by de-watering the approved geotechnical project ESHAs.

6.0 Appellant Response to CCC Footnote #2 on page 5 Staff Report:

“Adopted findings made by the Commission in certifying the Measure-T amendment in January 1997 recognized that the proposed tunnel alignment would result in the fill of wetlands, including the wetlands near the South Portal, and a finding made pursuant to Coastal Act Section 30007.5 that given the importance of Highway 1 for public access the tunnel project nevertheless on balance was most protective of coastal resources.” Neither the Commission nor San Mateo County have provided factual or legal support for the local government’s decision that the destruction of wetland and ESHAs is consistent with the LCP or Coastal Act by making a finding pursuant to Coastal Act Section 30007.5. Commission staff footnote is incomplete and thus erroneous. The Commission staff are citing the findings adopted in 1997 in the CCC Staff Report, San Mateo County LCP No. 1-86 (1997), CCC Staff Report No. 1-96, pp 24 (1997), CCC Staff Report No.1-96, pp.28-29 (1997). Those findings were found inconsistent by the California Court of Appeals in 1999. The Court’s Bolsa Chica Land Trust ruling clearly found against the Commission use of 30007.5 as “inconsistent with the Coastal Act” in the resolving of conflicts among competing Coastal Act policies under Section 30240 . “The reasoning Commission employed is seductive but, in the end, unpersuasive. The interpretation was not contemporaneous with enactment of section 30240 or the result of any considered official interpretative effort and it did not carry any other of the indicia of reliability which normally requires deference to an administrative interpretation. Secondly, the language of section 30240 does not permit a process by which the habitat values of an ESHA can be isolated and then recreated in another location. Rather, a literal reading of the statue protects the area of an ESHA from uses which threaten the habitat values which exist in the ESHA. Importantly, while the obvious goal of section 30240 is to protect habitat values, the express terms of the statute do not provide that protection by treating those values as intangibles which can be moved from place to place to suit the needs of development. Rather , the terms of the statute protect habitat values by placing strict limits on the uses which may occur in an ESHA and by carefully controlling the manner uses in the area around the ESHA are developed. The Commission has decided that an area is an ESHA, section 30240 does not itself provide Commission power to alter its strict limitations. There is simply no reference in section 30240 which can be interpreted as diminishing the level of protection an ESHA receives based on its viability. Rather, under the statutory scheme, ESHA’s whether they are pristine and growing or fouled and threatened, receive uniform treatment and protection. 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 conflicting interest cannot be found in section 30240.” Environmentally Sensitive Habitat Areas (ESHAs) are afforded the highest level of protection under the LCP and Coastal Act. If the Commission finds that these ESHA protections do not qualify as a “Substantial Issue” and that the power to balance and compromise conflicting interest within the LCP or Coastal Act, then the Commission will set a new precedent for future interpretations of it’s LCP. This appeal raises a Substantial Issue that will have statewide significance. The Commissions 1997 Adopted Findings cited were found inconsistent by the California Court of Appeals in 1999. The Court’s Bolsa Chica Land Trust ruling clearly found against the Commission use of 30007.5 as “inconsistent with the Coastal Act” in the resolving of conflicts among competing Coastal Act policies under Section 30240

6.1 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.”

6.2 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.”

7.0 Conclusion: CalTrans mitigation scheme has demonstrated that their preferred alternative design for Tunnels/Bridges/Fill/Mitigation project will negatively impact the functional and biological capacity of the environmentally sensitive habitat (ESHA) and will cause the elimination or degradation of the habitat of the endangered species red-legged frogs in the ponds area under the Tunnels/ Bridges on Shamrock Ranch. The environmental sensitive habitat of the red-legged frog has been negatively compromised resulting in an unauthorized incidental “take” by CalTrans while attempting to implement their “ ESHA mitigation scheme” for the Devil’s Slide Tunnels/Bridges/Fill/Mitigation Project Alternative. CalTrans has demonstrated that their fill and ESHA mitigation schemes places the Shamrock Ranch frog ponds and ESHAs located listed endangered species in “jeopardy” and is inconsistent with the San Mateo County LCP.

The Coastal Act and the San Mateo County Local Coastal Program requires CalTrans to explore the “No Project” alternative as most protective and least environmentally damaging. The “No Project” alternative could mean taking no action, or possible intensifying efforts to dewater the landslide at Devil’s Slide. As the highly respected San Mateo County Consulting Geologist Victor H. Abadie III stated in his April 27, 2002 appeal letter to the San Mateo Board of Supervisors: “Dewatering the landslide and repairing the existing roadway violates no law, create no impact on the wetlands or ESHA, and are is explicitly authorized under the San Mateo County Measure-T Local Coastal Program. Lastly, a geotechnical study of the current Devil’s Slide Hwy 1 route will violate no wetland laws, because there are no wetlands or ESHAs on the current Route 1 alignment itself.” The San Mateo County Local Coastal Program requires that the preferred alternative be the most protective and least environmentally damaging alternative. The “No Project” alternative (aka repair/dewatering of the current Devil’s Slide Route 1 alignment) is the “least environmentally damaging feasible alternative” and therefore is the ONLY alternative “Consistent” with the CCC certified Measure-T Amendment 1-96 of the Local Coastal Program for the San Mateo County Devil’s Slide Route 1 Improvement Project. We ask the California Coastal Commission to declare our appeal as raising “Substantial Issues” and uphold our Appeal of San Mateo County CDP File Number PLN 2001-00799 and Deny CalTrans their CDP for their Devil’s Slide Highway 1 Tunnels/Bridges/Fill/Mitigation Alternative project design.