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CVP comments on the Application to RWQCB for the Corte Madera Inn Rebuild

The following comment letter has been sent to the SF Regional Water Quality Control Board (RWQCB) in response to the notice of their public comment period on the proposal Application to fill the wetlands pond and eliminate the wildlife habitat. All public comments are due by end of day February 2, 2017.

Re: Comment on The San Francisco Bay Regional Water Quality Control Board (404(b)(1) review of the Notice of Application for a Clean Water Act Section 401 Water Quality Certification (the “Application”), for the Corte Madera Inn Rebuild Project; in response to the Application for the Project, posted on 01/11/17, and available for public review at:

Dear Mr. Fernandez:

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.

CVP submitted comments on the RDEIR referenced in the Application, to the Town of Corte Madera on January 3, 2017. Those comments are attached as Exhibit 1, which include discussion of how the Application fails to conform to the environmental protection requirements of the Corte Madera General Plan, and which are incorporated herein by reference. In addition, CVP has worked with experts in biology and wetlands (Dr. Peter Baye), hydrology (Greg Kamman), and wildlife (John Kelly, PhD), who have also submitted comments (See Exhibits 5, 6, 7, 9, 10 attached). Our legal counsels, Edward Yates and Michael Graf, both acknowledged experts in land use law, CEQA and NEPA have also submitted timely commentary over the past three years of public review. (See Exhibits 2, 3, 4, 4a, 8).

We are submitting our comments on behalf of ourselves, and of Peter Hensel, Marla Orth, Peter Orth, and other residents of the Town of Corte Madera. CVP is an active participant in local planning and development matters in Marin County and has been submitting comments to the Town of Corte Madera, regarding the Corte Madera Inn rebuild, for three years. I submit our comments as a resident of Marin, as president of Community Venture Partners, Inc., and an acknowledged expert in planning, real estate development, and as a licensed architect and former real estate developer and broker (see Exhibit 11 for my CV).

CVP also recently submitted extensive comments for the RWQCB comment period ending January 13, 2017, on the project’s Alternatives Analysis documentation by the Corte Madera Inn developer. All of those comments, citations and attachments are hereby incorporated into this comment letter by reference.

There are a number of inter-related issues that weigh on a careful and fair evaluation of the Application, which need to be considered.

Overriding considerations

The Applicant’s Proposal is fundamentally flawed in a number of important ways, which precludes it being approved by your agency.

1. The Application’s analysis and conclusions are based on shifting, erroneous and self-serving definitions of the project’s basic and overall purpose (See our comment letters of January 13, 2017 for more detailed discussion).

2. The Application’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 (See our comment letters of January 13, 2017 for more detailed discussion).

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] The Application fails to meet that test (See our comment letters of January 13, 2017 for more detailed discussion).

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, 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 our comment letters of January 13, 2017 for more detailed discussion).

5. The developer submitted their Application to the Army Corps of Engineers in the spring of 2016. That Application has been put on “inactive” status as of 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 Application in light of the information requested by the Army Corps that has yet to be undertaken by the Applicant. For example, how can RWQCB review the Application without prior NMFS review? (See our comment letters of January 13, 2017 for more detailed discussion).

6. The Application is 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. (See our comment letters of January 13, 2017 for more detailed discussion).

7. The Town of Corte Madera, working in concert with the applicant, 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 historical 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 approve the Application (See our comment letters of January 13, 2017 for more detailed discussion).

8. The Application and the RDEIR 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 other environmental considerations noted in numerous public comment letters, all of which impacts are significant (See our comment letters of January 13, 2017 for more detailed discussion).

9. 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.

10. As can be seen by the incorporated comments and exhibits, the Proposal here will have significant cumulative impacts on the environment in eliminating one of the few remaining special aquatic sites in Corte Madera, offering a unique habitat of brackish freshwater wetlands that provide high quality roosting and foraging habitat for rare and declining bird species such as the black crowned night heron. In addition to the Board's own requirements, CEQA does not permit an agency to approve a project with significant impacts if there are feasible alternatives or mitigation that will avoid those impacts. See Pub. Res. Code § 21002. Here, the record shows that there are feasible onsite and offsite building alternatives that would allow the pond habitat to be retained.

Further, the significant loss of this pond habitat will not be mitigated by the purchase of offsite credits in the Burdell Ranch Mitigation Bank, which in no way offers equivalent habitat at that of the Corte Madera pond. See e.g., Comments of Peter Baye dated December 31, 2016.

11. The Applicant's proposal does not meet the Town of Corte Madera's own General Plan and code requirements that strongly disfavor offsite mitigation as a means to offset the filling of wetlands, allowing such an approach only when other options are infeasible and where the offsite mitigation provides the same habitat 'function' and 'values' as the lost wetlands. See e.g., Comments of Peter Baye dated December 31, 2016, pp. 3-6.; Corte Madera General Plan, Implementation Program RCS-8.2.a-b.

In order to ensure that RWQCB has the benefit of sufficient data, documents, comments and other information required under the 404(b)(1) Guidelines to evaluate the Corte Madera Inn Rebuild Application, we have attached several of the key comments referenced above. Again, the comments, citations and all the attachments CVP submitted for the RWQCB comment period ending January 13, 2017, including but not limited to comments by CVP to the Army Corps of Engineers (061616-CVP-Army Corps Public Notice 2000-255330N), which were previously submitted to RWQCB, in June of 2016 and during the January 13, 2017 comment period, are hereby incorporated into this comment letter by reference.

It is our opinion that the Applicant has failed to adequately address numerous environmental review requirements of the 401 permitting process, including but not limited to failure to provide evidence that the proposed project is the LEDPA, failure to consider more practicable alternatives, failure to consider or address the cumulative impacts of the development proposal, and other significant unmitigated impacts. We therefore respectfully request that the Application be denied by RWQCB.

Respectfully submitted,

Bob Silvestri


Community Venture Partners, Inc.


1 - Exhibit 1 – 010317 - Community Venture Partners Comment to Corte Madera on Corte Madera Inn Rebuild Recirculated DEIR

2 - Exhibit 2 - 012015 - E.Yates Comment Letter

3 - Exhibit 3 - 081915 - E.Yates Comment Letter

4 - Exhibit 4 - 121915 - E.Yates Comment Letter

4a - Exhibit 4a - 011116 - E. Yates Comment Letter

5 - Exhibit 5 - 020916 - ACR_comment_BCNH_CorteMadera

6 - Exhibit 6 - 021516 – Peter Baye - Corte Madera Inn wetland & aquatic wildlife habitat

7 - Exhibit 7 - 022516 - G.R. Kamman Hydrology comments

8 - Exhibit 8 - 061616 - M. Graf Comment Letter

9 – Exhibit 9 – 123116 – Peter Baye - Corte Madera Inn Recirculated DEIR memo widgeon grass SAV & wetlands

10 - Exhibit 10 – 120916 – Audubon Canyon Ranch Comment on BCNH Corte Madera RDEIR

11 - Exhibit 11 - Robert Silvestri CV


The following published articles contain relevant comments by CVP, regarding the Corte Madera Inn Rebuild Application (linked by the title and mailed in hard copy)

12 - Marin 2016 - Part IV: Dispatches from the front – Corte Madera

13 - Region IX of the EPA comments on the application to fill in Edgewater pond at Corte Madera Inn

14 - The Corte Madera Inn developer puts property up for sale - Part I

15 - The Corte Madera Inn developer puts property up for sale - Part II

16 - The Corte Madera Inn developer puts property up for sale - Part III

17 - The Corte Madera Inn developer puts property up for sale - Part IV

18 - Feb. 2016 - Comments to the Corte Madera Planning Commission on the Redevelopment of the Corte Madera Inn

[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.