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Biologist Peter Baye, PhD, comments on the Corte Madera Inn Rebuild DEIR

Biologist and environmental expert Peter Baye, PhD, has submitted the following comments on the Corte Madera Inn Rebuild Recirculated Draft Environmental Report ("DEIR") at the request of Community Venture Partners and residents of Corte Madera.

Date: December 31, 2016

SUBJECT: Review of Corte Madera Inn Recirculated Environmental Impact Report: wetlands and aquatic habitat impacts

I have reviewed the Corte Madera Inn Rebuild Project Draft Recirculated Environmental Impact Report No. 2, SCH 2014042069, prepared for Town of Corte Madera November 2016 by Amy Skewes-Cox, AICP, dated November 2016.

The scope of the REIR No. 2 “addresses new information and new analyses related to conditions at the on-site pond, specifically related to the presence of submerged aquatic vegetation dominated by widgeon grass (Ruppia maritime) [sic]” [REIR p. 1-2] and “has been prepared to show changes to the Biological Resources section of the DEIR (Section 4.3) that are necessary to reflect new information that became available after circulation of the DEIR and first REIR”. The new information resulted in identification of a new environmental impact related to sensitive natural communities. (REIR p. 1-1). I originally identified this neglected aquatic resource, submerged aquatic widgeon grass (Ruppia maritima) vegetation beds, and impacts to this special aquatic site, in my memorandum of February 15, 2016.

My qualifications to comment are summarized in Attachment A. I qualify as an expert specifically on the ecology Bay Area submerged aquatic vegetation species, particularly linear-leaved pondweeds and widgeon grass. I provide taxonomic and other field investigation consultant technical support for estuary-wide surveys of submerged aquatic vegetation (including widgeon grass) for the Boyer lab at the Romberg Tiburon Center, San Francisco State University. I have served as thesis advisor on two (2016) San Francisco State University Master’s thesis investigations of estuarine linear-leaved pondweeds that are ecologically associated with widgeon grass.

Jurisdictional versus regulatory policy issues regarding aquatic impacts and mitigation.

As a preliminary and general point of clarification, it is important to understand that determination and boundaries of Clean Water Act Section 404 jurisdiction for waters of the United States is an independent, fundamental and separate regulatory status, and is not the same as the “special aquatic site” designation that applies to specific aquatic habitat categories including “wetlands (40 CFR §230.41)”, “vegetated shallows” (40 CFR §230.43; aquatic vegetation beds). The special aquatic site status of “wetlands” and “vegetated shallows” does not affect jurisdiction, but does affect regulatory policies and review of alternatives, compared with undistinguished “other waters” status of jurisdictional waters of the United States. The LSA memorandum in Attachment A is incorrect in describing these categories as different types “components” of jurisdiction”. There is only one type of Clean Water Act jurisdiction, but many categories of special aquatic sites with special regulatory procedures for evaluation.

The REIR continues to provide a misleading and incomplete statement of biological impacts in Impact BIO-3: “Regulated Waters. Proposed development would result in filling of the existing pond, eliminating an estimated 0.64-acre of jurisdictional waters on the site.”. The term “jurisdictional” does not denote biological status; it denotes legal status (jurisdiction), which is relevant primarily to Land Use Policy, and does not substantively describe biological resources. The special aquatic status of the waters on site are “vegetated shallows” or “submerged aquatic vegetation bed” and “wetland”, each with a distinct and unique quantifiable loss of area.

Both “wetlands” and “vegetated shallows” special aquatic site classifications trigger a more stringent review of alternatives in U.S. Army Corps of Engineers and Environmental Protection Agency regulations for fill permits in 404 jurisdiction. Note that “vegetated shallows” and “wetlands” are categorically distinct aquatic habitats, not equivalents or sub-types of one another. Wetlands are vegetated with emergent wetland plants, and are identifiable by explicit indicators and criteria in the Corps’ wetland delineation manual. Vegetated shallows support only submerged aquatic (not “wetland”) plants, and have no manual for delineation. Both are jurisdictional, but they differ in habitat type, function, and structure. For mitigation policies regarding compensation for unavoidable losses of aquatic resources, wetlands and vegetated shallows (submerged aquatic vegetation beds; SAV beds) are “out of kind”, not in-kind. Compensation of SAV resource loss by wetlands, without supporting analysis of evidence-based ecological functions, does not satisfy compensatory aquatic habitat mitigation policies requiring or prioritizing “in-kind” mitigation.

This is an important point for CEQA assessment of Land Use Policies. The REIR identified this regulatory status correctly on page 4.3-13 of the Biological Resources chapter (and in the September 2016 LSA memo), but this is in fact a Land Use policy issue and not a biological characteristic. The REIR failed to analyze this as a land use policy impact for Corps/EPA regulations, or for corresponding General Plan policies including:

The REIR must carry over new analysis of biological impacts into corresponding full and complete analysis of Land Use policy impacts regarding County and City General Plan policies regarding wetlands and other aquatic habitats, noting the SAV beds, though jurisdictional, are categorically and functionally not “wetlands”. The proposed compensatory mitigation in treeless seasonal brackish wetlands (as explained in analysis of compensatory mitigation, below) does not provide the same or even comparable aquatic/wetland habitat functions or values as perennial submerged aquatic vegetation habitat adjacent to water-side (riparian) trees supporting a heron roost. The substitution of a shallow, seasonal, summer-dry, fishless widgeon grass ditch or channel is not compensation for a perennial pond with extensive widgeon grass beds containing small fish prey for herons. This is evidently a policy conflict for General Plan wetland mitigation policies, if, as the REIR and LSA memo argue, widgeon grass beds are treated as a type of broad-sense wetland.

Compensatory mitigation for vegetated shallows (special aquatic site)

The REIR must provide an objective, evidence-based account of the functional ecological equivalence justifying compensatory mitigation of Burdell Ranch ditch habitats of widgeon grass for the pond at Corte Madera Inn. It has not done so. Since the REIR continues to propose compensatory mitigation of seasonal wetlands (dry or lacking surface water in summer-fall dry season) as substitutes for perennial (submerged all year) SAV beds, without distinguishing “wetlands” from the distinct “special aquatic site” category of SAV beds, the omission of Land Use policy impact analysis relating specific, distinct jurisdictional aquatic habitat types, and mitigation policies, may result in significant impacts caused by out-of-kind wetland and aquatic habitat “swaps”. The REIR has provided no substantive evidence or analysis to support the proposed out-of-kind compensatory mitigation in mitigation measure BIO-3, which substitutes generic seasonal wetlands at Burdell Ranch mitigation bank for SAV perennial pond habitat losses by substituting would reduce impacts to less-than-significant levels:

Mitigation Measure BIO-3a: If avoidance of jurisdictional wetlands and waters of the US due to filling is not feasible, a Wetland Protection and Replacement Program (WPRP) shall be prepared by a qualified wetland specialist and implemented to provide compensatory mitigation for the proposed fill of 0.64 acre of jurisdictional waters on the site, and any other areas of jurisdictional waters affected by the project, and to ensure compliance with Town policies related to wetland protection and mitigation. The WPRP shall contain the following components: If on-site avoidance of jurisdictional waters is not feasible, the WPRP shall provide compensatory mitigation at a minimum 2:1 ratio (ratio of mitigation acreage or credits to affected jurisdictional waters), subject to the review and approval by the Town and regulatory agencies. In 2002, the applicant purchased 1.20 acres of wetlands credits from the Burdell Ranch Wetlands Conservation Bank. An additional 1/10th of an acre mitigation credit is needed to achieve the full 2:1 ratio under the Wetlands Protection and Replacement Program. An alternative on-site or off-site method to achieving the full 2:1 ratio may be necessary as part of the WPRP if additional wetland credits are no longer available from Burdell Ranch Wetlands Conservation Bank. (emphasis added)

First, there is no reliable quantitative estimate of widgeon grass extent at the Inn pond to provide a basis for the mitigation debt of project impacts. The REIR presents two conflicting estimates of SAV habitat extent, differing significantly (about an order of magnitude): an incredibly low estimate by Zentner & Zentner (0.16 acres) and a higher credible estimate by LSA (0.42 acres or approximately 75 percent of the pond.) The REIR, however, does not explain or reconcile these significantly conflicting estimates. LSA’s longer-term review of aerial imagery of the pond resulted only in an ambiguous conclusion that “the coverage of widgeon-grass in the pond varies by season and from year to year…”, (LSA 2016, p. 3) noting it was absent some years (despite abundance in other years).

The SAV habitat (Ruppia maritima beds) at Burdell Ranch mitigation bank identified in the Zentner and Zentner memo of June 30, 2016, p. 6) includes only marginal, seasonal ditch and relict channel colonies of Ruppia maritima of unknown unquantified extent and variability. Unlike the perennial widgeon grass pond at the Inn, Burdell ditches and relict channels supporting widgeon grass are subject to seasonal drying and desiccation in summer and fall in non-tidal conditions, and have no supporting evidence of fish or invertebrate prey for wading birds available all year. The REIR fails to account for the ecological non-equivalence of these two hydrologically distinct and geographically remote widgeon grass habitats in the Bay Area, in the context of compensatory mitigation. Based on the distinct hydrology and setting, the two are not equivalent.

The abundance and variability of widgeon grass at Burdell mitigation bank is unquantified and speculative. The Zentner and Zentner account of widgeon grass at Burdell provides a map of speculative “presumed” rather than “observed” or quantified widgeon grass (Figure 3, June 30 2016 memo in Attachment A of REIR), and unquantified presence/absence “contains widgeon grass” boundaries. The Zentner and Zentner memorandum provided no evidence about the quality, quantity, or stability of widgeon grass habitat at Burdell Ranch in the long term and no information about the methods or data collected from the “survey” Zentner and Zentner staff claim to have conducted supporting the Figure 3 map of widgeon grass at Burdell Ranch. The lack of documentation for this mitigation site widgeon grass “survey”, and presentation of a map (Figure 3) that represents “presumed” widgeon grass distribution, is unsound evidence to support any conclusions about mitigation adequacy for impacts to widgeon grass habitat.

The unreliability of the Zentner and Zentner estimate of “presumed” and observed (present/absent; no quantification) Burdell Ranch widgeon grass is not corrected or supplemented by the LSA memo, which provided no information on the extent or seasonal to annual variability of widgeon grass at Burdell Ranch mitigation bank. The LSA memo of September 19, 2016 notes that “This lack of a confirmed quantification of [SAV and wetland areas at the Inn] creates a technical ambiguity…”, and this ambiguity is even greater for the Burdell mitigation site.

Their Zentner and Zentner memorandum contained no meaningful or objective basis for assessing the ecological equivalence or stability of the widgeon grass habitat at Burdell Ranch as a substitute for the equivalent area at Corte Madera Inn. The water depth and permanence of SAV habitat at Corte Madera Inn pond with an edge of tree canopy is not comparable to a seasonally dry ditch or relict channel with unknown duration or quantities of widgeon grass or associated invertebrate or fish communities providing significant prey base for wading birds. The Zentner and Zentner memorandum provides no evidence or analysis of the ecological functions, composition, seasonal productivity, or status of the Burdell widgeon grass beds. It provided utterly irrelevant accounts of widgeon grass from the choked tidal basin of Lake Merritt in Oakland, but no relevant information about the actual ecology of widgeon grass beds at the proposed mitigation site.

The most significant omission of ecological data relevant to compensatory mitigation from Burdell Ranch ditch habitats was about the wading bird foraging habitat productivity. The importance of widgeon grass at Corte Madera Inn is that it was associated with a black-crowned night heron colony, for which it provided potential significant foraging habitat year-round. Do Burdell Ranch ditches provide comparable or equivalent habitat and ecological value? Both the Zentner and Zentner memo and the LSA memo, on which the REIR relies for its conclusions about compensatory mitigation, provide no evidence or analysis. There is no actual ecological evidence (including quantitative data on widgeon grass abundance) from Burdell Ranch presented in the REIR to justify the conclusion of Zentner and Zentner (June 30 2016 memo, p. 6) of “sufficient widgeon grass mitigation…for loss of the Inn pond” provided by Burdell Ranch mitigation bank credits.

The LSA memo of September 19, 2016 provides unsound ecological assessment of the black crowned night heron habitat mitigation debt incurred by impacts of destroying a colony roost site adjacent to a perennial SAV pond, which can provide efficient proximate foraging habitat with little or no flight distance. Flight distance from the roost to foraging sites influences the energetics of foraging: the farther the foraging sites, the greater the net energetic cost of foraging. Neither the LSA memo, the Zentner memo, nor the REIR provide any consideration of the significance of night heron roost location and adjacency of the SAV pond, in assessing the adequacy of the Burdell Ranch mitigation site. The nearest location of suitable egret or heron roost tree habitat to the Burdell Ranch was not assessed. The flight distance or energetic costs (and potential significant loss of energetic efficiency) of roost relocation were not assessed. In addition, the REIR provides no analysis of the seasonal availability of SAV habitat (foraging) resources for herons or egrets at Burdell Ranch, which draws down and dries seasonally, compared with the Inn pond, which is flooded year-round. This appears to be due to a lack of hydrological data demonstrating the depth and duration of flooding in ditches and relict channels at Burdell, and the seasonal duration of widgeon grass, over a multi-year sampling period. Again, the LSA memo, like the Zentner memo, provides the REIR overall with no objective evidence or analysis supporting any conclusions about the ecological equivalence or adequacy of mitigation at Burdell Ranch for widgeon grass habitats.

The REIR provides no rational basis for the conclusion (proposed by generalist wildlife biologist staff at LSA as a “belief”) that the black crowned night heron colony at the Inn is not a sensitive resource. The only statement LSA made about the relationship between black-crowned night herons and Burdell Ranch wetlands is “Observations at BRWCB included black-crowned night heron”, citing unspecified data or sampling dates from Zentner and Zentner. Stating that “observations include” a species – mere presence/absence data - is not a reasonable argument supporting adequacy of mitigation for a species at a mitigation site. No evidence or arguments in the LSA report or Zentner and Zentner memo rebut the expert conclusion of Dr. John Kelley and Scott Jennings of Audubon Canyon Ranch (regional experts on heron and egret ecology) that “Elimination of the roost site and pond would impose cumulative impacts on night-herons in the surrounding region by contributing to the incremental loss of habitat and reducing the availability of suitable roost sites.” Kelley and Jennings comments to the Town of Corte Madera dated December 7, 2016).

Finally, it is significant that the REIR has not only provided inadequate compensatory mitigation for aquatic habitats and inadequate evidence supporting it, but it did so without first rigorously analyzing avoidance of impacts. Compensatory mitigation for wetlands or other special aquatic sites is a “last resort”, after exhausting mitigation by avoidance and minimization. The REIR inverts the standard policy of mitigation sequencing with compensatory mitigation as a last resort. This is a requirement of both the Regional Water Quality Control Board (Basin Plan policy regarding the presumption of less environmentally damaging alternatives for non-water-dependent projects sited in jurisdictional special aquatic sites, including wetlands), the EPA, and U.S. Army Corps of Engineers wetland regulations. The Inn pond supports two special aquatic sites, wetlands and vegetated shallows. Accordingly, there should be no analysis of compensatory mitigation until a rigorous analysis of alternatives demonstrates that there are no less environmentally damaging practicable alternatives to filling the Inn pond, based on EPA/Corps criteria for “practicability”. This was not analyzed as a Land Use Policy impact or a biological resources impact in the REIR.

In conclusion, the REIR remains inadequate as a CEQA document because:

My conclusions are based on my professional experience as senior staff biologist at the U.S. Army Corps of Engineers (San Francisco District), and U.S. Fish and Wildlife Service, where I was responsible for wetland jurisdictional delineations and their review, wetland impact assessments, wetland restoration plans and mitigation plans, and joint NEPA/CEQA impact assessments, including EIR/EIS document management. I have over 36 years professional experience in management, restoration of coastal habitats, with specialization in wetlands and other shoreline habitats.


General Statement of Qualifications – Coastal Ecology

Dr. Peter Baye is a coastal ecologist and botanist specializing in conservation management of coastal vegetation. He began applied studies of dunes and barrier beaches as an undergraduate at Colby College in Maine in the late 1970s, and expanded to tidal marshes and lagoons in Cape Cod, Canadian Maritime Provinces, Great Britain, and California. He received his Ph.D. from the University of Western Ontario, Department of Plant Sciences, Canada, in 1990. In California, he worked for the U.S. Army Corps of Engineers, San Francisco District, as a senior ecologist specializing in wetlands regulatory projects, from 1991-1997. He prepared endangered species recovery plans for coastal species and ecosystems, including the first draft of the tidal marsh recovery plan covering the San Francisco Estuary, while he worked for the U.S. Fish and Wildlife Service, Sacramento, from 1997-2002. After leaving the Fish and Wildlife Service, Peter continued his diverse wetlands and endangered species conservation work in the Bay Area and Central California as an independent ecological consultant. Adaptation of coastal ecosystems management to accelerated sea level rise and shoreline retreat has been a major focus of his independent consulting work in the Bay and outer coast. His projects include original designs for mixed gravel-sand estuarine beaches as “soft” shoreline and marsh-edge erosion control (alternative to rock armoring), terrestrial transition zones of tidal marshes (including slope wetland “horizontal levees”), high tidal marsh mounds, submerged aquatic vegetation beds, and specialized habitats for endangered plant and wildlife species.