Saving the pond was never even considered -
The purposes of doing an Environmental Impact Report are unambiguous. On Page 19 of the January 12, 2016 Staff Report to the Corte Madera Planning Commission, it states,
The primary purpose of the EIR is to disclose to Corte Madera decision-makers and the public the potential environmental impacts associated with the applicant's proposed project and identify mitigation measures or alternatives to the proposed project that would reduce or avoid the environmental impacts.
At the Corte Madera Planning Commission hearing on March 22, 2016, Jim Martin of Environmental Collaborative, one of the two biologists who evaluated the project, and the one who prepared the biological resource section of the EIR, commented on various issues regarding the pond.
In his comments at the hearing, he incorrectly described the pond, saying, “most of it is un-vegetated ‘other waters’)… there is (only) wetlands along the east edge along the northern portion of the pond… about 500 sf of wetlands verified by the (Army) Corps.” He made this statement in spite of the fact that Peter Baye, Ph.D., and a well-respected, independent biologist hired by Community Venture Partners, had corrected his error, in a February 15, 2016 comment letter (portions of which are noted below).
In any event, Martin’s testimony helped convince the Corte Madera Planning Commission to recommend the developer’s preferred proposal and the destruction of the pond. Somewhat shockingly, however, the Commission also chose to ignore Jim Martin’s testimony about saving the pond.
During his comments, Mr. Martin said that it was perfectly feasible to rejuvenate the pond and ensure its viability. But this testimony was also very revealing in a number of other ways. He said that they “had looked at an alternative… Alternative 2 that would require that the pond (be saved).” But then he contradicted himself and admitted that he really hadn’t “looked” at it at all, saying, “doing so (saving the pond) would require further detailed analysis, to look at water quality, hydrology and habitat enhancement to make sure that the problems …of the pond could be addressed.”
Then, after educating the Commission about what it takes to have a viable wetlands pond, he freely admitted that “it is something that is possible [Emphasis his] within the parameters discussed in Alternative 2” (to save the pond).
He just wasn’t asked to study how to do that (in spite of the fact that the EIR showed that Alternative 2 met the project objectives except maximizing profits for the developer).
In the letter prepared by Environmental Planner, Amy Skewes-Cox AICP, and included in the Corte Madera Staff Report for the March 22, 2016 hearing, on page 11, Skewes-Cox explains that Alternative 2 is rejected because it “would not meet many of the project objectives”.. the third of which she lists as “eliminating the pond.”
This is a catch 22. So the town created an “alternative” that decreases the environmental impacts of filling in the pond, then it rejects that alternative because it doesn’t allow for filling in the pond?
On Page 13 she goes on to explain that on page 3-18 of the Draft EIR,
The following objective has been stated by the applicant (see page 3-18 of the Draft EIR). Eliminate the pond for aesthetic, odor and safety reasons.
This is rather preposterous. The developer got to dictate how CEQA was going to be applied and was able to insert an “objective,” so that any alternative that did not get rid of the pond would have to be automatically rejected.
Talk about circular logic. This is a verbal Escher drawing.
Jim Martin did not study how to save the pond because the developer predetermined that filling in the pond was a “requirement” of the project. And the Corte Madera Planning Department never even blinked.
They have effectively admitted that the “Alternatives” of the Corte Madera Inn EIR are a sham.
It goes without saying that this is not what CEQA intends. As the Corte Madera Planning Staff knows well, it is not the developer's EIR, it is the Town's EIR. But here it appears that the Town has abdicated its role.
The pond can be saved
In response to further questioning by the Commission’s chairman, Mr. Martin also offered, “I would agree this looks like this is a remnant of an historic slough that went through that area …that now has been largely isolated.” And that “The culvert that goes into the drainage ditch and then the boxed culvert under the freeway is no longer used by the city…. It’s been closed off... so what’s left is this largely silted 18 inch pipe that’s not functioning and no longer provides the flushing that’s needed there to maintain the water quality conditions.”
So to paraphrase, what he described confirms exactly what project critics have been claiming: That the pond is not entirely “artificial,” and that the hotel owner and the Town have been consciously and purposefully neglecting the pond and doing all they can to destroy its viability, so they could turn around and declare it a “cesspool” and a “smelly swamp” that is beyond redemption in order to get rid of it.
Martin then advised the Commission that there are many other projects, some on larger scales, that have the same circulation problems, but that have been solved. He said, “It’s about improving circulation in that, you want to improve the water quality, you want to improve the ability to support emergent vegetation, and increase the habitat value. “
When asked how long it would take to create such detailed environmental studies to save the pond, he said “probably six months.”
At this point, instead of acknowledging that this information was really significant, and that the Staff Report had failed to provide any of this information, or a study of how to save the pond, as a part of alternative 2, the Commission’s chair came to the astonishing conclusion that six more months was “too much of a burden” on the developer to make it worth considering!
Too much of a burden on the developer?! Is that the Commission’s job, to ensure the developer doesn’t have too many burdens on this path to profits?
Even more significantly, the question is why weren’t the developer’s biologists required to study what was required to save the pond, as part of their analysis of EIR alternatives? Isn’t that what CEQA requires alternatives to do?
On page 30, of the January 12, 2016 Staff Report to the Corte Madera Planning Commission, it indicates that in December of 2015, the Planning Commissioners specifically asked, “What would be required to "flush" the pond and improve water quality?”
The Staff Report’s response was
A more detailed hydrological and engineering investigation would be required, but the Town preliminarily believes that a new pump station and force main would be required to adequately circulate water between the pond and Lagoon 1. The slide gate between the pond and the highway culvert is not opened due to the potential for tidal backwater from Shorebird Marsh (which experiences a greater tidal spectrum) to increase the water surface levels in the pond and Lagoon 1, leading to potential flooding of adjacent streets and properties.
But this doesn’t answer the Planning Commission’s question. This response is not sufficient for the Planning Commission to make a “finding” that it is okay to fill in the pond.
So, why didn’t the town just order that study in January? Why did they side step it?
More good questions.
A House of Cards
On January 20th of 2015, Edward Yates, a highly qualified, local land use attorney, sent a letter to the Corte Madera Planning Department, on behalf of a group of Corte Madera residents called Friends of Corte Madera. The group expressed concern about the proposal to rebuild the Corte Madera Inn and the destruction of Edgewater Lagoon, focusing on the inadequacy of the Draft Environmental Impact Report (DEIR) and questioning the legitimacy of its findings about wetlands, and a host of other environmental issues.
That letter was subsequently followed up by other letters challenging the findings of the Revised EIR and the Final EIR, on August 19, 2015 and on January 11, 2016, respectively, again by Mr. Yates, but this time on behalf of Community Venture Partners. Those comments were joined by comments from Barbara Saltzman, president of the Marin Audubon Society, biologist Peter Baye, Ph.D., hydrologist Greg Kamman, head wildlife expert and Director of Wildlife Science at Audubon Canyon Ranch, John Kelly, Ph.D., and many others. All of these experts unanimously agreed that the analysis and classification of the pond was faulty and inadequate.
They each enumerated their arguments in great detail, but Peter Baye’s letter is particularly important. In the “Summary” of this February 2016 letter, he described the pond as follows [Emphasis added]:
The Corte Madera Inn “pond” habitat complex consists of three distinct elements that together support a persistent, important roost site of black-crowned night herons, contiguous with to foraging (feeding) habitat for black-crowned night herons and other wading birds. The Corte Madera Inn pond habitat complex comprises:
(a) riparian upland non-native trees bordering the pond and fringing wetlands;
(b) submerged perennial aquatic vegetation beds (SAV, or “vegetated shallows” – wigeongrass, Ruppia maritima) extending across the brackish pond bed , influenced byseasonably variable salinity (brackish to fresh-brackish salinity range);
(c) perennial fringing brackish marsh composed of extensive to patchy saltgrass (Distichlis spicata) and alkali-bulrush (Bolboschoenus maritimus) wetland zones above the permanently submerged aquatic vegetation zone (Ruppia maritima).
Both the SAV beds and the fringing brackish marsh are jurisdictional waters of the United States and both qualify as jurisdictional “Special Aquatic Sites” subject to regulations of the Clean Water Act Section 404(b)(1): vegetated shallows (40 CFR §230.43), occupying most of the pond area, and wetlands (40 CFR §230.41). The types, status, and ecological functions of these jurisdictional waters are incorrectly and incompletely described in the DEIR., which erroneously identifies them as mere “other waters”. The DEIR omits analysis of potentially significant impacts to the important special aquatic site resources of SAV beds, which it incorrectly identifies as (nuisance) “algal blooms”.
This is exactly what Xavier Fernandez wrote to Adam Wolff three months later. So it was not “new” information in any way, shape, or form. The Corte Madera Planning Department and the developer’s biology consultants dismissed Peter Baye’s finding out of hand. Basically, they said he didn’t know what he was talking about.
But Peter Baye was not the only voice critical of the developer’s biologists, that the Town planners chose to ignore.
In the May 2016 edition of The Rail, the monthly publication by the Marin Audubon Society, President Barbara Saltzman argued that the Corte Madera Planning Commissioners and the Planning Staff “did not seem to care about or question the biological consultant’s evasions, conflicting, incomplete and inadequate reports and biases.”
Her comments were also ignored.
However, perhaps more significantly, in his letter, Dr. Baye also pointed out that the developer’s proffered mitigation plan will not work. Again, Baye [Emphasis added]:
The habitat structure and functions of adjacent perennial aquatic vegetated shallows and terrestrial/riparian roosting (tree) could not be mitigated by an off-site fresh-brackish seasonal non-tidal wetland mitigation bank,
In other words, “mitigation” requires that the type of land offered to offset the loss of the pond has to have the same characteristics as the pond, and replace the same type of habitat that is being lost. What this means is that the Burdell Ranch Wetlands Conservation Bank mitigation credits that the developer has purchased and offered the Town, cannot be used. They are not apples to apples.
At the Planning Commission hearing, Jim Martin informed the Commission that the applicant was still shy the number of credits needed to satisfy the mitigation for the pond (paying money to purchase “mitigation rights” to other marshlands somewhere else), even as it was then mis-characterized. He said, this is something that had to be solved in order to move forward and get a grading permit.
At the moment, with the pond’s new wetlands classification, the developer has no viable mitigation plan.
But without a mitigation plan approvable by State and Regional agencies, does that mean the developer is now “dead in the water,” or perhaps the pond?
It’s important to note that it is still possible for a developer to propose a mitigation plan, using mitigation land bank credits, to Army Corps and the Regional Water Board, even with the site now designated as a “special aquatic site.” The regulatory “tests” one has to overcome to show that no other alternatives exist that are feasible, are certainly harder, and the required ratio of mitigation land to the wetlands being lost will also be higher. But it’s not impossible if someone wants to throw enough money at it.
This brings us to an examination of the developer’s endgame.
By Bob Silvestri
Editor of The Marin Post