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CVP General Comment to RWQCB on Corte Madera Inn Rebuild
General Comment on The San Francisco Bay Regional Water Quality Control Board (404(b)(1) Alternatives Analysis review for the Corte Madera Inn Rebuild Project; in response to the Alternatives Analysis for the Project, available for public review at:
http://www.waterboards.ca.gov/sanfranciscobay/water_issues/hot_topics/CorteMadera.shtml
Community Venture Partners, Inc. (“CVP”) is a 501(c)(3) nonprofit organization that facilitates and assists community based projects, programs and initiatives that demonstrate the highest principles of economic, social and environmental sustainability. We work to bring the community’s voice to local government decision-making in matters related to planning, development, social and environmental justice, and other matters of general public interest.
We are submitting our comments on behalf of Peter Hensel, Marla Orth, Peter Orth, and other residents of the Town of Corte Madera. I have been an active participant in local planning and development matters in Marin County for over 20 years, As a resident of Marin, and as president of Community Venture Partners, Inc., and based on my professional experience and CV (see “Exhibit 16” attached), I am an acknowledged expert in planning, land use, architecture, real estate finance and development and sales, and submit my comments as a licensed architect and former real estate developer and broker.
CVP has been involved in the public process and the ongoing evaluation of the proposed Corte Madera Inn Rebuild project, for the past three years. We have submitted numerous comments and retained a experts in biology, wetlands, hydrology, and wildlife, who have also submitted comments (See Exhibits 4, 5, 6, 12 and 13, attached). Our legal counsels, Edward Yates and Michael Graf, both acknowledged experts in land use law, CEQA, NEPA, and other areas germane to your decision-making process, have submitted timely extensive commentary over the past three years of public review. (See Exhibits 1, 2, 3, and 11).
There are a number of inter-related issues that weigh on a careful and fair evaluation of the applicant’s proposal, which need to be considered. It is with that in mind that we respectfully submit our comments.
Overriding considerations
The Applicant’s Proposal is fundamentally flawed in a number of important ways, which precludes it being accepted for consideration by your agency at this time. For the reasons noted herein, we ask that the entire application review be denied.
1.The Applicant’s analysis and conclusions are based on shifting, erroneous and self-serving definitions of the project’s basic and overall purpose.
2.The Applicant’s analysis and conclusions are based upon erroneous and self-serving definitions of what is “practicable” within the 404(b)(1) Guidelines, and supported only by the opinions of paid consultants, not evidence.
3.The federal Guidelines are clear that “The burden to demonstrate compliance with the Section 404(b)(1) Guidelines rests with the permit applicant.”[1] By submitting limited project information to your agency and requesting “feedback,” without actually filing a proper application, the Applicant is seeking to avoid careful examination of all the criteria your agency needs to evaluate and respond properly. The information provided by the applicant is insufficient to merit any type of response from RWQCB.
4.The documents submitted by the Applicant are replete with in accuracies, partial facts, outdated data and outright falsehoods that the record shows were known to the applicant to be false at the time of making this application), and which are used to support its pre-determined conclusions. For example, both Alternatives Analysis documents by Zentner and Zentner, repeatedly state that the Corte Madera Inn pond “is not a wetland.” Yet, numerous studies and documents in the record clearly establish that it is both a wetlands and a special aquatic site (see Exhibits 5, 8, 12, and 15).
5.The Applicants submitted their proposal to the Army Corps of Engineers in the spring of 2016. That application has been put on “inactive” status since November of 2016. Per Roberta Morganstern, Permit Manager at the Army Corps of Engineers, in her email to CVP, on
Monday November 7, 2016 I notified the applicant and Town that I had withdrawn the project from "active" status. The applicant had not requested an extension and the application is not complete because the alternatives analysis, National Marin Fisheries Service (NOAA) consultation response[2], public comments responses and sacred lands research have not been satisfied.
We question the legitimacy of the Applicant now bringing an Alternative’s Analysis before RWQCB, while failing to submit that same analysis to the Army Corps, as they have requested. It appears as if the applicant is hoping that because RWQCB does not have the full file of information that the Army Corps, the Town and the general public possess, it may obtain a favorable opinion from RWQCB, which the Applicant can then use as leverage to persuade the Corps and the Town to relax enforcement of the 404(b)(1) Guidelines requirements.
6.The application information RWQCB received is grossly incomplete and lacking the requisite analysis, documentation, data, context or history, to allow RWQCB to undertake a fair or reasonable evaluation of its merits or to use as the basis for a response. On this basis alone, the application is insufficient to merit any type of response from RWQCB.
7.The Town of Corte Madera, working in concert with the applicant, recently noticed a new Recirculated Draft Environmental Impact Report (“RDEIR”), which was circulated for a public comment period ending January 3, 2017. This is the fourth EIR that has been circulated for this project (DEIR, January 2015, REIR, August 2015, FEIR, December 2015). The information included in those documents and the comments received from experts and the general public has significant bearing on any decisions or determinations that RWQCB might make in this matter. Without the benefit of this critical information in our opinion, it would be improper for RWQCB to accept or process or otherwise comment on the applicant’s proposal. However, in the public’s interest and to ensure that RWQCB has adequate information to undertake its deliberations, we are attaching that relevant documentation and historical record herewith (see all attached Exhibits).
8.The Regional Water Quality Control Board's review of this project is not exempt from the requirement of the California Environmental Quality Act (CEQA). The Applicant's Proposal is a “project” under CEQA, Pub. Res. Code § 21065, and thus requires full CEQA review. The Regional Board's 401 Certification review does not appear to fall within the certified regulatory program for the Regional Board's Water Quality Control (Basin)/208 Planning Program, as set forth at 14 Cal. Code Regs. § 15251(g). Even if the Board's 401 Certification Program were considered a part of the agency's certified program, the Board's CEQA review would still be required to comply with CEQA policies. Pub. Res. Code § 21080.5(d). At this juncture, however, we have not seen any attempt by the RWQCB to comply with CEQA's requirements as set forth in the Public Resources Code, including but not limited to a thorough evaluation of project impacts and avoidance of significant impacts based on feasible mitigation or project alternatives and responses to public comments. In addition please also note that the various Exhibits attached with this comment (EIRs, studies and independent analysis, expert opinions, legal comment letters, public comments, etc.) contain numerous citations, descriptions and references to unmitigated significant impacts and requirements under CEQA, all of which are hereby made a part of this comment letter and incorporated herein by reference.
Format of our comments
Due to the extensiveness of the issues noted above and the voluminous nature of the evidence that exists to support our comments, we are submitting our comments in the format of three separate comment letters, as follows:
This general comment letter, which will provide essential background information, data, reports, comments and expert opinions that provide RWQCB with a complete picture of the applicant’s proposal and form the basis for our request to reject the application without comment.
A comment letter on the “Alternatives Analysis Final with Figures” as posted on your web site at:
A comment letter on the “On-Site Alternatives Analysis Final with Figures and Attachments” as posted on your web site at:
Discussion of Project Purpose
The application’s analysis and conclusions are entirely based on a shifting, erroneous and self-serving definition of the project’s basic and overall purpose. In considering our comments above on the ambiguity and incorrectness of the applicant’s project purpose, please note the following:
On page 3-18 of the Draft EIR it states
The following objective has been stated by the applicant. Eliminate the pond for aesthetic, odor and safety reasons.
In its “Alternatives Analysis,” by Zentner and Zentner, as submitted, under section C. Basis Purpose, page 6, the Applicant states that
The Basic Purpose of this project is to develop a viable hotel complex capable of meeting the demand for central Marin hotel space.
In its “Corte Madera Inn On-Site Alternatives Analysis,” by Zentner and Zentner, under section B. Basic Purpose the Applicant states that
The Basic Purpose of this project is to develop a viable hotel facility capable of capitalizing on the demand for central Marin hotel space. Based on market studies of the local area, “building a viable hotel facility” means developing a hotel project that can: (1) provide both short -term and extended -stay hotel accommodations (that is, is “dual -branded”) to capitalize on market demand, and (2) is affiliated with a top-tier hotel brand (e.g. Marriott, Hilton), which can provide the requisite returns and economic stability. [Emphasis added]
In other documents to other agencies and the Town of Corte Madera, the Applicant has submitted different purposes, stating that.
The basic project purpose is to build additional commercial hotel rooms in southern Marin County, CA.
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.”
Throughout several years of this project’s evaluation and review, the Applicant has repeatedly attempted to incorrectly define the basic and overall project purposes to their own advantage. We find this to be the case again in the current application to the RWQCB.
Having an accurate and correct project purpose definition, from which all other decisions and determinations must logically flow, is a fundamental requirement under the 404(b)(1) Guidelines. Guidance from the EPA and Army Corps has also emphasized this requirement, which is why it is listed as the first requirement under “Sequencing” statutes.
The Applicant’s various definitions of project purpose not only fail to conform to the requirements of the 404(b)(1) Guidelines, but for various reasons are expressly prohibited under those Guidelines. In the documents submitted to the Town of Corte Madera, the Army Corps, and now the RWQCB, the “Basic Project Purpose” and the “Overall Project Purpose” definitions invoked by the Applicant are improper and contrary to what is acceptable under the 404(b)(1) Guidelines and agency guidance, which has been upheld by court rulings.
For example and as will be more fully explained in our comment letters on the Alternatives Analysis Final with Figures and the On-Site Alternatives Analysis Final with Figures, based on these erroneous definitions of project purpose, the Applicant attempts to make its case for “capitalizing on demand” to substantiate why a permit should granted to fill the wetlands. However, as we will show, “capitalizing on demand,” or maximizing returns or meeting “requisite returns” are not considerations under the 404(b)(1) Guidelines. In point of fact, they are expressly prohibited from being considered in defining a project’s purpose and for permit approval.
Comment:
As noted in The Federal Wetland Permitting Program: Avoidance and Minimization Requirements, by the Environmental Law Institute March 2008, authored by Sandra S. Nichols, Jared Thompson, and Jessica Wilkinson, with valuable guidance and review by Annie Brock, James McElfish, and Bruce Myers;
1. Project Purpose: The first step in completing an alternatives analysis is defining the project purpose. Defining project purpose is critical, as it has a profound effect on the set of alternatives to the permit applicant’s proposed site which must be considered. In the case of Plantation Landing application in 1989 … the Department of the Army affirmed that the Corps must conduct an independent analysis of project purpose to ensure that the purpose is not defined too narrowly.[3] [Emphasis added]
Similarly, in The Steepest Hurdle in Obtaining A Clean Water Act Section 404 Permit: Complying with. EPA's 404(b)(1) Guidelines' Least Environmentally Damaging Practicable Alternative Requirement, by Jon Schutz, notes
1. "Overall Project Purpose" and "Basic Project Purpose" - Region IX opines that "overall project purpose" means the "basic project purpose plus consideration of costs and technical and logistical feasibility."[4]Overall project purpose does not include secondary project purposes, site-specific secondary requirements, project amenities, desired size requirements, or desired return on an investment.[5] [Emphasis added]
And that
A project's "basic purpose" is its generic purpose or function.[6]
And under IV. Summary of Federal Avoidance and Minimization Policy, Schutz notes that
The Department of the Army, EPA, and the courts have consistently interpreted the regulations to require the use of sequencing in determining mitigation for dredge and fill permit applications that may impact wetlands and other aquatic resources. Adherence to the Guidelines requires that: (1) the project purpose be defined by the basic function of the proposal; [Emphasis that this requirement is number one, added]
Per the requirements of Section 404(b)(1), we ask that RWQCB consider the recommendations of the Region IX offices of the EPA, as noted in Wetlands Protection Through Impact Avoidance: A discussion of the 404(b)(1) Alternatives Analysis, Wetlands: Volume 9, No. 2l 1989, by Thomas G. Yocom, Robert A Leidy and Clyde A Morris. On page 290 of that publication, it states that
EPA Region IX consistently treats the basic project purpose as the generic function of the activity. From a regulatory perspective, for example, the basic purpose of a residential development is to house people or provide shelter….Similarly, the basic purpose of a restaurant is to feed people. [Emphasis added]
This analysis goes on to explain that basic project purposes should be generic and not refer to the specific goals of the developer or the specific kind of housing or restaurant or hotel proposed.
For example, to state that the purpose is to build “additional” commercial hotel rooms (as stated in the Applicant’s submittal to the Town) is supported only by the applicant’s desires, since there is no evidence whatsoever that adding rooms at this location is required (e.g., the existing hotel itself, without any rebuild, is presently financially viable and therefore practicable).
One has to question why the project purpose is being changed with each submission to different agencies for different aspects of approval. Furthermore, the Applicant’s actions do not appear to be by accident. The record suggests that these discrepancies in defining project purpose could benefit the applicant by misdirecting he focus of each agency review. In our opinion, the Applicant is flouting the 404(b)(1) Guidelines and the authority of state and federal agencies in order to direct the course of the permit approval project to its own financial benefit.
We respectfully request that RWQCB revise the project purpose to state
“The basic purpose of the project is to provide commercial hotel rooms in southern Marin County, CA.”
Defining “Practicable”
We will discuss this definition and how it relates to the proposed project in greater depth in our second and third comment letters, regarding alternatives, however, we would like to make the general comment that as noted in 40 CFR Chapter I (7-1-10 Edition), § 230.1 Purpose and Policy. 1(c),
Fundamental to these Guidelines is the precept that dredged or fill material should not be discharged into the aquatic ecosystem, unless it can be demonstrated that such a discharge will not have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystems of concern.
As we will show in our comment letters and Exhibits, the proposed project fails to meet this most fundamental test for environmental impacts because the applicant has not provided sufficient evidence to support their claims or conclusions, and has failed to consider the cumulative impacts of the proposal.
Further, as noted in 40 CFR 230.3 (q); Part 230—Section 404(b)(1) Guidelines; Subpart A; General: the term “practicable” means
…available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.
Though this is acknowledged in theory by the applicant, the Applicant’s conclusions are not evidenced-based, but rather derived from self-serving opinion and conjecture, all of which was provided from consultants paid for those opinions by the Applicant. In addition, to date, the applicant has submitted architectural plans that are narrowly and specifically designed only to meet the specifications, layout, and size of one corporate partner, The Marriott Corporation.
As we will show in our comment letters on On-Site Alternatives Analysis Final with Figures and Attachments, the Applicant has not in good faith tried to develop alternatives, which would save the pond. In fact, his architects seem to have gone out of their way to only produce “alternatives” floor plans, layouts, site plans and designs that meet with the approval of the Marriott Corporation, the eventual end user of the new hotel. They have disregarded any and all public comment to the contrary since they began this project.
Factual determination requirements
Under § 230.11 Factual determinations it states that the determinations of effects of each proposed discharge shall include the following:
2(e) Aquatic ecosystem and organism determinations. Determine the nature and degree of effect that the proposed discharge will have, both individually and cumulatively, on the structure and function of the aquatic ecosystem and organisms. [Emphasis added]
The Applicant has failed to submit any data, analysis or other information to address this fundamental requirement regarding cumulative impacts.
Additionally, under § 230.11 Factual determinations it states that the determinations of effects of each proposed discharge shall include the following:
The permitting authority shall collect information and solicit information from other sources about the cumulative impacts on the aquatic ecosystem. This information shall be documented and considered during the decision-making process concerning the evaluation of individual permit applications. [Emphasis added]
As we will show, this requirement to collect and consider information from “other sources,” such as the comments, expert opinions and analysis that CVP is submitting takes on added significance in light of the inadequacies of the erroneous information provided by the Applicant.
It is our opinion that the Applicant has failed to adequately address these requirements. Therefore, the application is sufficiently incomplete to be denied by RWQCB, without comment.
Critical habitat determinations and need for additional information
Under 40 CFR, Subpart B - Compliance with the Guidelines § 230.10 Restrictions on discharge; it states that “additional information” is required if a project potentially
6(4) Violates any requirement imposed by the Secretary of Commerce to protect any marine sanctuary designated under title III of the Marine Protection, Research, and Sanctuaries Act of 1972. (c) Except as provided under section 404(b)(2), no discharge of dredged or fill material shall be permitted which will cause or contribute to significant degradation of the waters of the United States.
Findings of significant degradation related to the proposed discharge shall be based upon appropriate factual determinations, evaluations, and tests required by subparts B and G, after consideration of subparts C through F, with special emphasis on the persistence and permanence of the effects outlined in those subparts. Under these Guidelines, effects contributing to significant degradation considered individually or collectively, include: [Emphasis added]
It is our opinion that the Applicant has failed to adequately address these requirements. Therefore, the application is sufficiently incomplete to be denied by RWQCB, without comment.
Under § 230.31 Fish, crustaceans, mollusks, and other aquatic organisms in the food web, and under § 230.32 Other wildlife it states
Wildlife associated with aquatic ecosystems are resident and transient mammals, birds, reptiles, and amphibians. [Emphasis added]
Possible loss of values: The discharge of dredged or fill material can result in the loss or change of breeding and nesting areas, escape cover, travel corridors, and preferred food sources for resident and transient wildlife species associated with the aquatic ecosystem. [Emphasis added]
It is our opinion that the Applicant has failed to adequately address these requirements. Therefore, the application is sufficiently incomplete to be denied by RWQCB, without comment. As noted above, the Army Corps has required a determination by the National Marine Fisheries Service (NOAA), regarding the impacts of filling the wetlands at the Corte Madera Inn. This is in part, due to the fact that the wetlands are identified under federal law to be essential habitat for the Pacific salmon, a species in serious decline. Due to this and under the guidance noted above, RWQCB is required to withhold any comment or evaluation of the materials submitted by the Applicant unless or until the Applicant has submitted a full and complete application along with all the analysis and documentation required under the 404(b)(1) Guidelines.
Finally, the Applicant’s proposal rests on the quality of the various DEIRs, REIRs and FEIRs developed for the project. However, those documents continue to fail to adequately assess the cumulative impacts of filling of a wetland, loss of the wildlife habitat, the addition of impervious surfaces in a hazardous floodplain area, which will exacerbate hazardous flood conditions, particularly in light of sea level rise considerations, and the many other environmental considerations noted throughout these comment letters.
Respectfully submitted,
Bob Silvestri - President
Community Venture Partners, Inc.
Read Comment on Off-Site Alternatives
Read Comment on On-Site Alternatives - Part A
Read Comment on On-Site Alternatives - Part B
RWQCB Project Evaluation
As noted above, in order to ensure that RWQCB has the benefit of all the data, documents, comments and other information required under the 404(b)(1) Guidelines to evaluate and comment on the Corte Madera Inn Rebuild Alternatives Analysis that is before you, we are attaching the following Exhibits, which provide more complete background information, to this comment letter.
LIST OF ATTACHED EXHIBITS
1-Exhibit I - E.Yates Comment Letter 01-20-2015
2-Exhibit II - E.Yates Comment Letter 08-19-2015
3-Exhibit III - E.Yates Comment Letter 12-19-2015
4-Exhibit IV - 2-9-16 ACR_comment_BCNH_CorteMadera_20160209 (2)
5-Exhibit V - Corte Madera Inn wetland & aquatic wildlife habitat Baye 021516
6-Exhibit VI - G.R. Kamman Hydrology comments_2-25-16
8-Exhibit VIII - Xavier Fernandez SF Bay Regional Water Quality Control Board Email
9-Exhibit IX - 061616 - CVP - Army Corps Public Notice 2000-255330N comment letter
10-Exhibit X - 061616 - CVP - Army Corps Comment Exhibits
11-Exhibit XI - 061616 M. Graf Comment Letter and Exhibits to CVP Letter
12-Exhibit XII-Corte Madera Inn Recirc EIR memo wigeongrass SAV & wetlands Baye 123116
13-Exhibit XIII - 7.16 Audubon Canyon Ranch_comment_BCNH_CorteMadera_RDEIR_20161209
14-Exhibit XIV- Market Study & Financial Feasibility Evaluation by RHSW LLC
15-Exhibit XV - SF Bay Regional Water Quality Control Board Letter
16-Exhibit XVI - Robert Silvestri CV
16a-Exhibit XVI1 – Marin Hotel Group Letter
17-Exhibit XVII - 56-60MaderaBlvd Broker Brochure
18-Exhibit XVIII -TheRail_May2016_Web
19-Exhibit IXX - Marriott Corporation Letter
20-Exhibit XX-Journal of Environmental Law and Policy - Jon Schutz
21-Exhibit XXI -Yocum - Wetlands protection through impact avoidance
22-Exhibit XXIII -Evironmental Law Institute 2008
24-Exhibit 24a CorteMaderaInn_DEIRandAPPENDICES
24-Exhibit 24b Corte Madera Inn Draft EIR Alternatives
24-Exhibit 24c Corte Madera Inn REIR Alternative
24-Exhibit 24d November 2014 DEIR Corte Madera Inn EIR and APPENDICES_201411221423255752
24-Exhibit 24e November 2015 FINAL CorteMaderaInn_FEIR
24-Exhibit 24f November 2016 Corte Madera Inn RDEIR2_WITH Appendices_FINAL
24-Exhibit 24g CorteMadera Inn Rebuild_RDEIR
USB DRIVE of all Exhibits is sent and attached via US Mail.
LIST OF ATTACHED ARTICLES
We ask that RWQCB carefully consider the information contained in the following published articles, regarding the Corte Madera Inn Rebuild Proposal (linked by the title).
- Community Venture Partners submits comments on the Corte Madera Inn Recirculated DEIR
- Biologist Peter Baye, PhD, comments on the Corte Madera Inn Rebuild DEIR
- Wildlife experts argue against the plan to destroy the Corte Madera Inn pond habitat
- CVP comments to the Army Corps regarding recent statements about the Corte Madera Inn Rebuild
- Marin 2016 - Part IV: Dispatches from the front – Corte Madera
- Region IX of the EPA comments on the application to fill in Edgewater pond at Corte Madera Inn
- Community Venture Partners comments on Reneson's request to fill Edgewater Pond
- Rook vs Knight Endgame? The Corte Madera Inn developer puts property up for sale - Part I
- Rook vs Knight Endgame? The Corte Madera Inn developer puts property up for sale - Part II
- Rook vs Knight Endgame? The Corte Madera Inn developer puts property up for sale - Part III
- Rook vs Knight Endgame? The Corte Madera Inn developer puts property up for sale - Part IV
- A Cesspool in Corte Madera?
- Marin Audubon President, Barbara Saltzman, comments on the Corte Madera Inn Pond Habitat Value
- Comments to the Corte Madera Planning Commission on the Redevelopment of the Corte Madera Inn
- CVP submits critical comments on the proposed expansion of the Corte Madera Inn
- Friends of Corte Madera File Legal Comment on Madera Inn Draft EIR
[1] The Federal Wetland Permitting Program: Avoidance and Minimization Requirements, the Environmental Law Institute, March 2008.
[2] Note that the NMFS review is critical because the Corte Madera Inn wetlands is defined by law as a vital habitat for spawning of Pacific salmon, which is a keystone species recognized to be experiencing significant decline.
[3] Old Cutler Bay Associates Guidance, Director of Civil Works Major General Patrick Kelly (Sept. 1990).
[4] Fed. Reg. 85336, 85339 (Dec. 24, 1980)
[5] Yocom, supra note 3, at 289
[6] Corps SOP supra note 43 at 6