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Alan Dep Marin IJ

Community Venture Partners submits comments on the Corte Madera Inn Recirculated DEIR

Community Venture Partners, Inc. submitted the following comments on the Recirculated Draft EIR for the Corte Madera Inn Rebuild proposal, in the hope that the Town will give these comments their careful and immediate attention. The deadline for comment submission was 5:00 pm, January 3, 2016

Dear Corte Madera Town Council Members:

Community Venture Partners, Inc. is submitting the following comments on the Recirculated Draft EIR for the Corte Madera Inn Rebuild proposal, on behalf of Peter Hensel, Marla Orth, Peter Orth, and other residents of Corte Madera, in the hope that you will give these comments your immediate attention.

I am submitting these comments directly to you (copying Adam Wolff and the Corte Madera Planning Department as our DEIR comment), because we question the way Corte Madera has been processing the application for the rebuild of the hotel and want to bring a number of important points to your attention. I apologize in advance for the length of this commentary, but this project has been under review for years and the issues surrounding it are complex, which require detailed explanation.

Introduction: General Plan Amendments are not a right

Throughout this project’s multi-year review process, the Town of Corte Madera has failed to disclose to the public that a city is not required to consider or process a General Plan Amendment request by a developer. No developer has a right to expect that such an amendment, and particularly one that is driven primarily by profit demands, will even be heard. In fact, The Town has the right to deny consideration of a General Plan Amendment without making any findings and regardless of any arguments presented. A General Plan Amendment is a gift of public assets and its request can be denied without cause.

This considered, the public needs to ask, why the Town of Corte Madera has spent years and countless hours promoting the requests of the Corte Madera Inn developer. Why is the Corte Madera Planning Department seemingly intent on getting this project approved without any substantive changes to the developer’s proposal since the first day the project was submitted? The developer has steadfastly refused to seriously consider alternatives that would reduce the size of the project: alternatives that have been fully demonstrated to be feasible in previous EIRs.

In my professional experience, for a development project of this type to not undergo significant adjustments in size and scope during its planning stages, is completely unprecedented.[1]

I wish to remind the Town Council that there are no regulations that require the extraordinary level of “cooperation” town planners have granted the Corte Madera Inn developer. The Town is charged with representing the interests of the general public, not the developer, even if he is paying the costs of review and studies. It makes an objective observer wonder if there isn’t something else going on here. The public deserves a response to these questions.

The Town of Corte Madera is not hostage to the opinions of paid consultants. The Town can make its own determinations and simply mandate that the wetlands pond and wildlife habitat at the Corte Madera Inn be preserved and make that a condition of approval for any hotel proposal on that site. In fact, as discussed below, your General Plan demands it.

The General Plan is the constitution of the city. Its principles and values are in addition to the requirements of state and federal law, and are not required to meet any other test to be enforced. You, the Town Council, are in control. You have those powers. I urge you to please use them for the good of your community, which is what you’ve been elected to do.

The DEIR and the LSA EIR Third Party Assessment appear to be an effort by the Town of Corte Madera to defeat public opposition

The Town of Corte Madera has spent more than two years ignoring public criticism of this project. The issuance of yet another EIR, at the worst possible time of the year to invite public engagement, is a case in point. The intentional noticing of a public comment period over the biggest holiday weekends of the year appears to be an attempt to avoid public oversight. Need I remind you that the Planning Department is in full control of when a notice is made and they have no legal obligation to do it on a schedule that is beneficial to the applicant? They do, however, have an obligation to do it on a schedule that assists residents in their ability to participate and comment.

Furthermore, the Town has no obligation to allow the developer endless chances to make his case for approval. Just because the developer is paying for all these studies doesn’t mean the Town has to approve those requests. The Town can simply say enough is enough: your project fails to meet the requirements for approval. LSA, the third consultant hired by the Town and paid for by the developer, is the same group that produced the Larkspur Landing Station Area Plan EIR and its ringing endorsement for that disastrous project. In my experience, LSA has never written a study, assessment or EIR that did not fully endorse the desires of the entity that paid them. In this instance, that entity is the developer of the proposed hotel, working in close collaboration with the Corte Madera Planning Department.

The conclusions arrived at in the DEIR and the LSA Peer Review make no sense

The LSA review confirms the argument that CVP has consistently made about the submerged aquatic vegetation (“SAV”) at the Corte Madera pond and even expands on that argument, contradicting the original assessment by Zentner (which twice denied the existence of the SAV in official Town documents). LSA also confirms that the pond qualifies as wetlands and the CEQA significance based on vegetation classification and CDFW guidelines, again disputing Zentner.

However, the LSA review concludes by ignoring its own findings and makes an illogical leap in favor of destroying the wetlands based on nothing more than unsubstantiated opinion that the impacts of eliminating one of the last wetlands of this type in the Town's jurisdiction will not be 'significant. The LSA assessment also perpetuates the debunked fiction, which the developer has been promoting, that the Burdell Ranch mitigation credits provide equivalent wetlands. They do not.

As in past studies and EIRs, there is no evidence provided that the proposed Burdell Ranch mitigation bank property is in any way compensatory for the loss of the pond at the Corte Madera Inn. As biologist Peter Baye has pointed out in his letters on February 15, 2016 and December 31, 2016, the Corte Madera Inn pond wetlands and the Burdell property represent completely different habitat types that cannot be substituted for one another. Indeed, wildlife experts John Kelly and Scott Jennings submitted similar comments in their letter, dated February 9, 2016, and their letter, dated December 7, 2016, regarding habitat loss.

While the CM Inn pond is a perennial wetland, Burdell is only a seasonal wetland that is dry for a good portion of the year. These differences, as more fully discussed by Dr. Baye, demonstrate that the Burdell Ranch site does not offer the same wetland functions, values or habitat type as the pond proposed to be eliminated. The values of the pond, offering a year round source of wigeon grass habitat with adjacent nesting structures for rare birds in the area, are not present at Burdell Ranch, which does not provide these habitat functions. In sum, there is no conceivable way anyone could claim that both provide the same biological utility, function, or environmental benefits or support for the same kinds or quality of vegetation or habitat for wildlife, as required by General Plan polices.

The LSA analysis is insufficient and lacking evidence for its claims or the conclusions it reaches. It is the Town’s Planning Department’s responsibility to recognize that failing, not the developer’s or third party consultants that the developer pays. Why is the Town staff simply parroting what the developer and consultants say, without question?

Finally, the LSA assessment is flawed in that it never addresses the significant cumulative environmental impacts that would result from the loss of the Corte Madera Inn pond. In short, the LSA study appears to be a thinly veiled attempt to justify the developer’s predictable bias toward approving this project, regardless of any facts to the contrary.

The DEIR and the LSA Review disregard the significance of the Corte Madera Inn pond’s habitat for wildlife

As stated by wildlife experts John Kelly, PhD, and Scott Jennings, in their comment letter, dated December 7, 2016, the LSA assessment avoids analysis of the significant impacts and significant cumulative impacts to local wildlife, including the roosting and foraging necessities of Black-crowned Night Herons.

The pond and its surrounding area provide significant habitat functions for the Night Herons, a species that has been in significant decline. There is no evidence whatsoever that the Burdell property provides the same amount or quality of habitat functionality for Night Herons, and there is certainly no evidence that local heron populations could in any way benefit from the Burdell “mitigation” purchases.

To reiterate two key comments made by Kelly and Jennings:

The statement in the RDEIR (Impact BIO-4 on page 4.3-29) that elimination of the roost site “would not contribute to a significant cumulative impact on the black-crowned night heron populations,” is made without scientific justification. Similarly, the implication that ornamental landscape trees in the area—even if not near ponds or estuaries—would provide viable alternative sites for roosting is made without supporting evidence.

They further state:

The assertion in the RDEIR (Impact BIO-4 on page 4.3-29) that, if the roost site is destroyed, the birds would simply “disperse to other locations during construction and, when the trees are removed, would roost in alternative locations” is highly speculative and fails to consider impacts of incremental habitat loss and the importance of roost site quality and location.

This pattern of LSA simply making declaratory statements of no impact without evidence is consistent with the tone and tenor of the entire LSA analysis. Their approach seems to be that if they say it is not so enough times, it will become the truth. However, as I’m sure you are well aware; CEQA requires an evidence-based, decision-making process.

The DEIR, the LSA review, and the Town of Corte Madera has failed to acknowledge the requirements of its own General Plan to protect and restore wetlands and wildlife habitat

The Town of Corte Madera needs to carefully consider the proposed project, the DEIR, and LSA Assessment in the context of the requirements of its General Plan:

Section 2.0 Land Use, page 2-22 defines “Wetlands and Marshlands” as:

This land use designation permits uses that relate to and enhance wetland habitat. A variety of properties may be included in this designation including, but not limited to, tidal and seasonal wetlands, miscellaneous open water areas, streams, sloughs, filled areas and developed or undeveloped uplands. Restoration areas are included for their potential for conversion into more ecologically valuable habitat. Areas with this designation may also be used as wetland mitigation sites for projects undertaken within Corte Madera or throughout the region.

Comment: The Corte Madera Inn pond clearly falls within this definition.

Section 2.0 of the Corte Madera General Plan, Land Use, pages 2-7 and 2-8 states:

The Regional Water Quality Control Board (RWQCB) regulates surface water pollution (wastewater discharge and stormwater runoff), dredging, and filling. RWQCB issues permits and requires monitoring for all activities that could impair the beneficial use of receiving waters.


The US Army Corps of Engineers (USACE) enforces the Clean Water Act and the Rivers and Harbors Acts. The Corps regulates the dredging or filling of the nation’s navigable waters and wetlands. The Corps is the primary federal agency responsible for making wetland determinations and issuing permits for wetlands or water fill.

Comment: The application documentation for the Corte Madera Inn Rebuild has never adequately apprised the public or the Planning Commission of the critical permitting requirements, regarding “practicable”[2] alternatives. The project simply cannot proceed unless both of these agencies approve the proposal, separately. Unless that happens, all of the time, effort and expense of this project’s review process have been a waste of time.

In addition, the Town planners have been made fully aware that neither of these agencies has shown any inclination to approve the destruction of the wetlands pond, in fact, quite the opposite. Indeed, the Region 9 Office of the Environmental Protection Agency has weighed in against the proposal. In June of 2016, Jennifer Siu, Life Scientist, Wetlands Section, of the U.S. Environmental Protection Agency, Region 9, sent the following comment to Sahrye Cohen, Permit Manager, at the Army Corps of Engineers, regarding Reneson Hotel's application for a permit to fill in the Edgewater pond at the Corte Madera Inn.


Thank you for the opportunity to comment on the proposed Corte Madera Inn Rebuild (PN 2000-255330N) in Marin County, CA. In addition to the PN we have reviewed the applicants’ Alternatives Analysis (AA) from the CEQA Revised Environmental Impact Report (REIR). EPA has the following comments and suggestions on the project pursuant to the Federal Guidelines promulgated at 40 CFR 230 under Section 404(b)(1) of the Clean Water Act.

Reneson Hotels, Inc. (applicant) proposes to demolish an existing hotel and adjacent restaurant to construct a new hotel facility on the site. The applicant proposes to impact a 0.64-ac brackish pond by completely filling the feature. As mitigation for fill of the wetland, the applicant proposes to purchase 1.20-ac non-tidal wetland credits at the Burdell Mitigation Bank. Although the applicant has submitted a 404(b)(1) Alternatives Analysis for eight off-site alternatives, no on-site alternatives were included.

At this point in time, the proposed project does not comply with EPA’s 404(b)(1) Guidelines. First, the project purpose as stated is too narrow in scope and intent per the Guidelines. The basic and overall project purpose is to provide commercial hotel rooms in southern Marin County, CA. The intent, as stated in the PN, to ‘build additional commercial hotel rooms’ unduly limits the scope of analysis. We highly recommend the Corps ensures the applicant’s Project Description is consistent with the Guidelines. Second, there are significant flaws in the 404(b)(1) AA submitted to the Corps, such that the Corps ability to accurately determine the Least Environmentally Damaging Practicable Alternative (LEDPA) is impaired. We find it curious that the applicant would submit an onsite alternative (Alternative 4) during the CEQA process that would completely avoid direct impacts to the pond; yet, the 404 AA does not include this onsite avoidance alternative. This inconsistency indicates that the applicant has deprived the Corps of full available information and that there are indeed practicable alternatives to the proposed discharge that would accomplish the basic project purpose and have a less adverse effect on the aquatic environment. The applicant must submit appropriate avoidance or minimization alternatives before proceeding with the 404 permit process.

Lastly, while this wetland may be small in acreage, it is connected to the tidal system and provides wildlife habitat values and water quality functions within the watershed. EPA highly encourages the applicant to consider sea level rise considerations and potential watershed benefits of this wetland. We do not support the proposed mitigation plan of purchasing credits at the Burdell Mitigation Bank, as it is a seasonal freshwater wetland complex and would not be appropriate compensation for this tidally-influenced wetland.

Thank you for considering our concerns and recommendations. Please contact me if you have any questions or would like to discuss our comments.


Jennifer Siu

Section 3, Resource Conservation and Sustainability, 3.1 Introduction states:

…this Chapter is based on the understanding that conserving significant natural resources and biological diversity improves recreational opportunities, sustains natural systems, reduces negative environmental impacts, and improves overall quality of life.


Section 3.3 goes on to describe the importance of Corte Madera’s wetlands:

Wetlands provide plant and wildlife habitat that aid in water purification by assimilating waste, and trapping and neutralizing pollutants from urban runoff. Wetlands contribute to groundwater recharge, … enhance recreational values as open space and wildlife sanctuaries. Vegetation … contributes plant materials that form the critical base of watery food chains. …Local marshlands assist flood control by providing a buffer between the Bay and developed portions of Corte Madera, and act as retention ponds for storm water overflow.

Comment: Based on these facts and principles, the General Plan goes on to create specific policies (some of which are noted below) that have so far never been discussed or adequately addressed during the review process for this project. In addition, even the LSA assessment acknowledges that the pond acts as part of Corte Madera’s flood management system, as was also pointed out, previously, by the comments of hydrology expert, Greg Kamman, in his letter of February 4, 2016 (attached). To date, the applicant has not provided substantial evidence that the proposed development will not significantly reduce the flood management functionality that will be lost.

Implementation Program RCS-6.2a: Resource Protection states:

Protect sensitive biological resources, including wetlands and other waters of the United States and other wetland habitat areas, and habitat corridors, and sensitive natural communities through environmental review of development applications in compliance with CEQA provisions, ….Protect wetlands and other waters of the United States in accordance with the regulations of the U.S. Army Corps of Engineers and other appropriate agencies as well as consistent with Implementation Program RCS-8.2.a. Protect other habitat areas, habitat corridors, and sensitive natural communities consistent with program RCS-6.3.a

Implementation Program RCS-6.2.b: Restoration Objectives states:

Where feasible (as defined under State CEQA Guidelines Section 15364), restore lost or damaged habitat. Support restoration objectives for local habitat types identified by the California Department of Fish and Game and in other regional environmental planning documents.

Comment: This General Plan requirements thoroughly defeat the argument made by the developer, contending that the wetlands are in poor condition and therefore not worth saving. The owner / developer and the Town have been neglecting their obligations to maintain the quality and functionality of the Corte Madera Inn wetlands, for years. The Town’s own consultant, Jim Martin, has testified in public hearings at the Planning Commission that the natural flushing of the pond has been intentionally denied and cut off due to actions taken by the owner and the Town (e.g., shutting down the flood gates). This requirement to preserve and restore wetlands remains unacknowledged by the developer, the Town, or their consultants.

Implementation Program RCS-6.3.a: Environmental Review states:

… require environmental review of development applications pursuant to CEQA to assess the impact of proposed development on species and habitat diversity, particularly special-status species, sensitive habitat areas, wetlands and other wetland habitats, and habitat connectivity.[Emphasis added] Require adequate mitigation measures for ensuring the protection of sensitive resources and achieving “no net loss” of sensitive habitat acreage, values and function. [Emphasis added and in particular as it relates to habitat “function”] Require specific mitigation measures for wetlands and waters of the United States (see Implementation Program RCS-8.2.a for mitigation standards for wetlands and waters of the U.S.).

Comment: These requirements remain unacknowledged by the developer, the Town, or their consultants, in spite of the fact that a variety of comments have been submitted by experts on this subject. The “evidence” produced by the proponents of the project consists of simply stating an incorrect opinion that these requirements are not applicable.

POLICY RCS–7.1 Conserve, restore and enhance areas containing important habitat, wetlands (as defined herein) and special-status species. Implementation Program RCS-7.1.a, Protect Biodiversity states:

Protect areas …that may contain species known to be rare or protected under the State or Federal Endangered Species Acts. These include the Town’s tidal wetlands, freshwater wetlands….

Comment: These requirements are particularly relevant regarding Black-crowned Night Heron habitat, yet are dismissed by LSA, the developer, the Town, and their other consultants in spite of the fact that a variety of comments have been submitted by experts on this subject.

Implementation Program RCS-7.2.c Limit Impacts, states:

As part of the development review process, restrict or modify proposed development in areas that contain essential habitat for special-status species, sensitive habitat areas or wetlands as necessary to ensure the continued health and survival of these species and sensitive areas. Development projects preferably shall be modified to avoid impacts on sensitive resources, or impacts shall be mitigated by providing on-site or (as a lowest priority) off-site replacement [Emphasis added].

Comment: These requirements are relevant in light of the fact that the developer applicant has failed to provide sufficient or comparable on-site or off-site mitigation or replacement, and because the developer has only stressed offsite mitigations, which the General Plan clearly considers a last resort that may only be utilized in the event that onsite alternatives are shown to be 'infeasible.' As discussed below, that showing has never been made, nor could it, given the many development options available for renovation of the hotel without loss of the adjacent wetland area (See Exhibit 5, attached, and the CVP Comment on Public Notice: Project: Corte Madera Rebuild; Public Notice Number: 2000-255330N, during the Army Corps’ June 2016,[3]

POLICY RCS-8.1; Protect wetlands through careful environmental review of proposed development applications. Implementation Program RCS 8.1.a: Wetland Data states:

Pursuant to CEQA, when sites with potential wetlands (as defined herein), other waters of the U.S., or other wetland habitat areas are proposed for development, require detailed assessments to demonstrate compliance with State and Federal regulations [Emphasis added]. Assessments will delineate and map jurisdictional wetlands, waters of the United States, other wetland habitat areas open-water habitats, and upland habitats and will make recommendations for avoidance. Delineation studies shall be submitted to the U.S. Army Corps of Engineers and other resource agencies to determine the boundaries of wetlands and waters of the United States.

Comment: The record of correspondence with the Army Corps indicates that differences of interpretation in these matters are not contested and that at this time the proposal does not comply with the requirements of those State and Federal agencies. So, why is the Town continuing to spend time and money to process the proposal as if it does?

Implementation Program RCS 8.1.b: Wetland Avoidance, states:

Restrict or modify proposed development in areas that contain wetlands as defined herein or waters of the United States, as necessary to ensure the continued health and survival of special status species and sensitive habitat areas. Development projects shall preferably be modified to avoid impacts on sensitive resources, [Emphasis added] or to adequately mitigate impacts by providing on-site replacement or (as a lowest priority) [Emphasis added] off-site replacement at a higher ratio. Modification in project design shall include adequate avoidance measures to ensure that no net loss of wetland acreage, function, water quality protection, and habitat value occurs. [Emphasis added and in particular as it relates to habitat “function” and “value”]

Comment: All of the requirements emphasized are directly applicable to the proposed Corte Madera Inn Rebuild and clearly disqualify consideration of the developer’s preferred plan and fully support Alternative 2, which proposes a slightly smaller hotel and preservation of the pond. Why have Town planners continued to ignore these General Plan requirements? Since the DEIR lacks sufficient evidence to support its conclusions, on what grounds does the Town plan propose to amend these requirements for this particular developer?

Implementation Program RCS 8.1.c: Wetland Permits states:

The Town shall require the project proponent to obtain all necessary permits pertaining to affected waters of the United States, including wetland habitat and stream channel and pond habitat regulated by the California Department of Fish and Game and/or the San Francisco Bay Regional Water Quality Control Board prior to construction.

Comment: The Town Council should recognize that not only does the General Plan require a developer to obtain these additional permits but the Town's General Plan in fact, incorporates the regulations of these agencies into its own standards for protecting wetlands. See Implementation Program RCS-6.2a: Resource Protection ("Protect wetlands and other waters of the United States in accordance with the regulations of the U.S. Army Corps of Engineers.") Here, the developer’s permit application to the Army Corps has been “withdrawn from active consideration[4]” since November of 2016, for its failure to comply with the requirements for an on-site alternatives analysis and consultation with National Marine Fisheries Service[5], and since the developer has yet to even submit an application to RWQCB, why is the Town acquiescing to the demands of the developer and continued to process the proposal application’s approval?

Implementation Program RCS-8.2.b: Wetlands Mitigation Standards - Amend the zoning ordinance to implement the following mitigation standards for jurisdictional wetlands and waters of the United States, requires:

No net losses shall occur in wetland acreage, functions, and values [Emphasis added in particular as it relates to habitat “function” and “values”] consistent with the mitigation standard set forth under Implementation Program RCS-8.2.a. This shall include both direct impacts on wetlands and essential buffers, and consideration of potential indirect effects of development due to changes in available surface water and non-point water quality degradation on wetlands retained.

Comment: It is clear that the Corte Madera General Plan puts great emphasis on protecting all wetlands without any qualifications of size or location. The Town has failed to enforce these repeatedly stated requirements.

Implementation Program RCS-8.3.a: Flood Basins states:

Utilize natural or managed flood basins to provide seasonal habitat for waterfowl and shorebirds, and avoid development in these basins to protect habitat values.

Comment: The Corte Madera General Plan not only emphasizes the importance of wetlands but in fact, recognizes that its requirements extend to those which comprise a part of “natural or managed flood basins,” which the Corte Madera Inn pond clearly qualified as. It specifically calls for protection of “waterfowl and shorebirds” without any qualification as to rarity or endangered status. And, it emphasizes not only protecting the habitat but the “habitat values,” which again becomes important because the proposed Burdell mitigation does not provide equivalent habitat values (lack of trees) and is therefore unacceptable as mitigation regardless of ratios applied. Again, the Town has failed to enforce the principles and requirements of its own General Plan. Why?

The DEIR, the LSA review, and the Town of Corte Madera have failed to acknowledge the requirements of its own General Plan to carefully assess on-site alternatives to the developer’s preferred proposal

The Corte Madera General Plan and the DEIR acknowledge the authority of the rules, regulations, and requirements of regional, state and federal agencies with regard to the evaluation and approval of any development proposal for the Corte Madera Inn Rebuild. The LSA biological assessment’s acknowledgment of the different types of vegetation and conditions that confirm the pond’s environmental significance now makes the discussion of “no net loss of wetlands,” as required by the General Plan, more relevant and important for the Town to recognize and adhere to.

In addition, please note:

Implementation Program RCS-6.2a: Resource Protection states:

Protect sensitive biological resources, including wetlands and other waters of the United States and other wetland habitat areas, and habitat corridors, and sensitive natural communities through environmental review of development applications in compliance with CEQA provisions, ….Protect wetlands and other waters of the United States in accordance with the regulations of the U.S. Army Corps of Engineers and other appropriate agencies as well as consistent with Implementation Program RCS-8.2.a. [Emphasis added]. Protect other habitat areas, habitat corridors, and sensitive natural communities consistent with program RCS-6.3.a


Implementation Program RCS-7.2.a: Environmental Assessment states:

Require applicants to provide an environmental assessment in compliance with CEQA provisions for development proposed on sites that may contain sensitive biological or wetland resources including jurisdictional wetlands, waters of the United States, and other wetland habitats. Require the assessment to be conducted by a qualified professional to determine the presence of any sensitive resources, to assess the potential impacts, and to identify measures for protecting the resource and surrounding habitat (see Implementation Program RCS-8.2.a for mitigation standards for wetlands and waters of the U.S.

Those agency rules and regulations are incorporated by law into the every project review process performed by the Town. However, in spite of this, the DEIR and the LSA assessment completely ignore those rules, regulations and requirements. This is particularly true with regard to the DEIR’s and all previous EIR’s analysis of the feasibility of alternatives to the developer’s preferred proposal, based on the Army Corps requirement that the proposal chosen must be the one which is the least environmentally damaging practicable alternative (“LEDPA”).

The DEIR and the LSA assessment fail to meet these criteria.

As noted by John Schulz, 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,

An appli­cant for a 404 permit must demonstrate to the Corps that, among other things, the proposed project is the least environmentally damaging practicable alternative (“LEDPA”) to achieve the pro­ject's purpose.[6]


The 404(b)(1) Guidelines establish four prerequisites to ap­proval, one of which, the basis for the LEDPA requirement, re­quires that there are no practicable alternatives to the proposed discharge that would have a less adverse effect on the aquatic environment.[7]

It is understood that under 40 C.F.R. Section 230.10(a), "if destruction of an area of water of the United States may be avoided, it should be avoided,”[8] and that The Corps may only approve a project that is the LEDPA,[9] and that the LEDPA must be both practicable and the least environmentally damag­ing.

The LEDPA’s purpose is "avoiding significant impacts to the aquatic resources and not necessarily providing either the optimal project location or the highest and best prop­erty use."[10]

The DEIR, the LSA review, and the Town of Corte Madera have failed to acknowledge the requirements of the Army Corps 404(b)(1) criteria, applicable in this proceeding due to the General Plan requirements (See Implementation Program RCS-6.2a) for evaluating financial feasibility in arriving at the least environmentally damaging “practicable” alternative.

As noted, the discussion of practicable alternatives, with regard to alternatives sites to consider or on-site mitigation requirements (i.e., alternative project designs) is a part of the required analysis of any proposals and alternatives under state and federal regulations. The DEIR, all previous EIRs, and the LSA assessment completely ignore this requirement.

With regard to other alternatives sites, please note that as stated in 40 CFR. § 230.10(a)(3),

If the activity associated with a discharge is proposed for a “special aquatic site’ and does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not "water dependent"), “practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise. [Emphasis added.]

This means that any argument made by the developer that no other site exists for his project is extinguished by law.

With regard to the LEDPA, as noted above, alternatives anal­ysis must be fair, balanced, and objective, "and not used to provide a rationalization for the applicant's preferred result (i.e., that no practicable alternatives exist).”[11] And, that “the applicant bears the burden of demon­strating to the Corps that no less environmentally damaging prac­ticable alternative is available and that the project complies with the 404(b)(1) Guidelines.”[12]

Region IX EPA guidance on the issue of project alternatives is extensive.[13] EPA guidance suggests that under the “practicability presumption,” the Corps will presume that practicable alternatives exist where the project is non-water dependent[14] and will cause a discharge in a special aquatic site.”[15] The presumption is intended to "increase the burden on an applicant for a non-water dependent activity to demonstrate that no practicable alternative exists to his proposed discharge in a [SAS]."[16]

Further, the Corps has stated that the

Army Corps of Engineers is serious about protecting water of the United States, including wetlands, from unnecessary and avoidable loss... Further, the Corps should inform developers that special aquatic sites are not preferred sites for development and that non-water dependent activities will generally be discouraged in ac­cordance with the Guidelines.[17]

To rebut this [practicability] presumption and obtain approval for the proposed alterna­tive, the applicant must show by clear and convincing evidence that there are no practicable alternatives which will not cause a discharge into a SAS.[18]

Finally, it is our understanding that “any project that achieves the basic project purpose practicably should be considered.”[19] Under this guidance, Alternative 2 and Alternative 4 must be considered as the LEDPA. And, where the project proposed by the applicant is not the LEDPA, “the availability of a LEDPA, where it is truly available, is an adequate basis for EPA's determination that unacceptable adverse environmental effects will result.”[20]

The Town of Corte Madera has completely disregarded all of these considerations in their multi-year processing of the proposal for the rebuild of the Corte Madera Inn.

Financial Feasibility

An applicant's financial wherewithal or desired profits are not to be considered as a factor in determining whether an alternative is “practicable” or “financially feasible,” and development costs must be examined from the perspective of what are reasonable costs for the proposed project, for any developer, not whether the applicant can afford the cost of the al­ternative.[21] See also See Preservation Action Council v. City of San Jose (2006) 141 Cal. App. 4th 1336 (city's finding that reduced-size alternative was infeasible because it would produce a competitive disadvantage was not supported by substantial evidence.)

Community Venture Partners, Inc., commissioned the attached The Corte Madera Inn Redevelopment: Market Survey and Financial Feasibility Evaluation (Exhibit 5), which was submitted to the Army Corps during its public comment period of June 2016. It analyzes the issue of practicability in depth and concludes that a review of existing market conditions substantiates the practicability and financial feasibility of the development of on-site alternatives that preserve the wetlands pond. This report concludes that Alternative “2” (rebuild the hotel and increase the number of rooms to approximately 145, without the loss of the pond) qualifies as the most practicable and financially feasible, under state and federal regulations.[22]

Room rental rates and therefore anticipated operating revenues have increased, in some cases significantly, since this original survey and analysis was done. However, as noted in the study, the information the developer has submitted to both the Army Corps and recently to RWQCB significantly understates the present and anticipated room rental rates and overall operating revenues in their analysis. In fact, the developer is contending that the newly completed dual branded, Marriott Residence Inn / Springhill Suites hotels will rent for less per night, on average, than the owner is presenting charging for the existing hotel that will be replaced. Such arguments presented to defeat the spirit and letter of the 404(b)(1) analysis requirements are patently absurd. Yet, the Corte Madera Planning Department has never once questioned the developer’s financial feasibility assertions. Why?

In addition, several successful, local hotel developer/operators have expressed interest in purchasing the Corte Madera Inn property (it is currently listed for sale) with the intention of building a new hotel on the site, in accordance with the restrictions of Alternative 2, and which preserves and enhances the wetlands pond and wildlife habitat (See Exhibit 5, attached). The owner / developer has failed to respond to their inquiries.

In considering “practicable alternatives,” it is also important to note that according to the Memorandum to the Field: Guidance on Flexibility of the 404(b)(1) Guidelines and Mitigation Banking (Aug. 23, 1993 – Dec. 31, 1998, Department of the Army and Environmental Protection Agency):

“The preamble to the Army Corps Guidelines also states that "[i]f an alleged alternative is unreasonably expensive to the applicant, the alternative is not, 'practicable.'" Guidelines Preamble, "Economic Factors", 45 Federal Register, 85343 (December 24, 1980).

"Therefore, to the extent that the individual homeowners and small businesses may typically be relevant consideration in determining what constitutes a practicable alternative. It is important to emphasize, however, that it is not a particular applicant's financial standing that is the primary consideration for determining practicability, but rather characteristics of the project and what constitutes a reasonable expense for these projects that are most relevant to practicability determinations.” [Emphasis added].

“The burden of proof to demonstrate compliance with the Guidelines rests with the applicant; where insufficient information is provided to determine compliance, the Guidelines require that no permit be issued.” 40 CFR 230.12(a)(3)(iv). [Emphasis added].

CVP submitted an extensive comment letter to the Corps on these issues, Comment on Public Notice: Project: Corte Madera Rebuild; Public Notice Number: 2000-255330N, during the Army Corps’ June 2016 public comment period, which is relevant to your deliberations, and its comments are attached and incorporated herein. As discussed, the Army Corps Regulations being interpreted here are incorporated into the Town's General Plan policies and therefore must be adhered to.

The DEIR and the LSA Review appears to be an attempt to divert the public’s attention from the Army Corps and RWQCB permit approval process

The applicant has been arguing for two years that the proposal submitted is the only proposal that is acceptable and financially feasible under the terms of his agreements with Marriott Corporation. However, the developer has consistently failed to provide any credible evidence of this claim. Instead, the developer has submitted so-called financial feasibility analysis that severely understates the actual room rate revenues in Marin and is not consistent with any known accounting standards used in the real estate development profession. These analyses have been produced for a fee by various consultants and brokers under the developer’s employ, yet the Town planners have failed to question or audit the developer’s financial calculations in any way. Why?

All of the developer’s financial analysis submitted to date, has been decisively refuted by Community Venture Partners and other third party analysis, during previous EIR comment opportunities.[23]

The Army Corps has withdrawn the developer’s application for the Corte Madera Inn Rebuild it from active status. The applicant had more than six months to provide the “alternatives analysis” information required by the Corps to prove that its preferred project was the LEDPA, but did not because the evidence required simply does not exist.

Since CVP sent the Army Corps copies of all the previous EIR studies in June of 2016, which contain a number of practicable alternatives to the developer’s (and the Town’s) preferred proposal,[24] the developer has been faced with justifying his fictional financial analysis. Please note that the developer and Corte Madera planning director, Adam Wolff, failed to inform the Army Corps that other, on-site alternatives existed until Community Venture Partners exposed those facts, by submitting copies of all the previous EIRs to the Army Corps, during their June of 2016 public comment period.

In response to this project history, the developer recently approached the San Francisco Bay Area Regional Water Quality Control Board (“RWQCB”) to attempt to obtain a “soft” approval to fill the pond. Apparently, the developer is pursuing this tactic so it can use any favorable indications as leverage to get the Army Corps to look the other way and not enforce their own permitting regulations with regard to doing proper alternatives analysis. However, the developer has hedged his bets by not yet submitting a formal application for a permit with RWQCB.

This is a highly unusual tactic attempted to circumvent public noticing of his RWQCB submittals and the public’s ability to respond intelligently. Fortunately, the RWQCB issued a public notice in spite of the developer’s protest.

In addition, the developer chose to do this concurrently with the recirculation of the new DEIR. It is inconceivable that Planning Director Adam Wolff was not aware that the RWQCB notice and the Corte Madera’s DEIR public comment period coincided, or that the outcome of latter approval depends on the former (The Town Planning Department has never adequately disclosed this fact to the public or the Planning Commission).

Of greater interest, RWQCB issued its notice for public comment on December 8, 2016, but curiously, the Town did not inform the public until December 22, 2016. When the Town finally did send out an email notice, it was incorrect and noted the public comment period to be shorter by a full week (in the interim, there had been a second notice issued by RWQCB that extended the original comment period until January 13th).

One has to ask why the Town has been so negligent in informing the public of the status of the decision-making processes at the Army Corps and at RWQCB, when those decisions are so critical to this project’s approval outcome. Why has the Town continued to orchestrate this entire process biased toward benefitting the developer’s needs rather than those of the residents of Corte Madera?

Is this seemingly endless subterfuge being carried out at the behest of the developer under the watch of Adam Wolff’s planning department, designed to simply wear down public opposition? When is enough, enough? Were the tables reversed and the applicant a single family homeowner wanting to remodel, I doubt the Town planners would show such deference to their desires.

This multi-year campaign to approve Marriott Corporation’s preferred alternative, essentially unchanged from day one, has cost the public uncountable time and expense, in having to file counter arguments to maintain legal standing for future action.

And finally residents have to ask, where has the Town Council been throughout all this?

There are absolutely no rules or regulations restricting elected officials from bringing oversight and giving direction to their hired staff about how to conduct the Town’s business. Yet, the Town Council has chosen to distance itself from this project with false claims about not having officially “seen” the project before the Council, even though everyone knows that by the time that happens it will be a fait accompli.

Need we remind the Town that this approach is exactly what led to the approval of WinCup.

We respectfully ask that the Town Council intervene immediately and reject the developer’s preferred project proposal, require any proposal to include the eminently feasible option of preserving the wetlands pond and important wildlife habitat, and restore community confidence in the Corte Madera planning and project approval process.

Thank you for your consideration and this opportunity to submit our comments.


Bob Silvestri

President - Community Venture Partners, Inc.

[1] The other notable recent exception being the WinCup project approval.

[2] As defined under the Federal Code.

[3] Attachments to this letter to the Army Corps that have been previously submitted to the Town of Corte Madera in comments on previous EIRs are incorporated by references.

[4] Roberta A. Morganstern, Army Corps of Engineers Permit Manager

[5] The NMFS has identified the pond as “essential fish habitat” for Pacific Salmon, whose population is in rapid decline.

[6] 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, 2005, John Schulz, B.A. Brigham Young University; J.D. University of California, Da­vis.

[7] 40 C.F.R. § 230.10(a) (2005).

[8] 45 Fed. Reg. 85336, 85340 (Dec. 24, 1980); see also 45 Fed. Reg. 85336, 85340 (Dec. 24, 1980); U.S. Army Corps of Engineers, HQUSACE Review and Findings, Old Cutler Bay Permit 404(q) Elevation (1990) 4 [hereinafter Old Cutler], at 5; U.S. Army Corps of Engineers, U.S. Army Corps of Engineers, Plantation Land­ing Permit Elevation Decision (1989) 2 [hereinafter Plantation Landing]; Yocom et al, 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 [hereinafter Wetlands].at 286.

[9] U.S. EPA and U.S. Army Corps of Engineers, Memorandum to the Field, Ap­propriate Level of Analysis Required for Evaluating Compliance with the Section 404(b)(1) Guidelines Alternatives Requirements (Aug. 23, 1993) 2, 3 [hereinafter Ap­propriate Level of Analysis], at 1; see also 40 C.F.R. §230.12(a)(3)(i) (2005).

[10] Yocom et al., supra note 3, at 283,295, and Appropriate Level of Analysis, supra note 4. The Corps has stated that the LEDPA determination "clearly is intended to discourage unnecessary filling or degradation of wetlands...." Plantation Landing supra note 3, at 2.

[11] U.S. Army Corps of Engineers, Permit Elevation, Hartz Mountain Development Corporation (1989) 2 [hereinafter Hartz Mountain].

[12] Old Cutler, supra note 3, at 5; Plantation Landing, supra note 3, at 7; Yocom, supra note 4, at 283.

[13] Wetlands, supra note 3

[14] The current proposal evaluated in the DEIR is non-water dependent by definition.

[15] 40 C.F.R. § 230.10(a)(3) (2005); 45 Fed. Reg. 85339. This presumption is in­tended to avoid impacts to the extent practicable. EPA/Corps MOA (1990),

[16] 40 C.F.R. § 230.1(d) (2005).

[17] Hartz Mountain, supra not 8, at 11.

[18] Plantation Landing, supra note 3, at 9, 12, 13-14; 45 Fed. Reg. 85336, 85339 (Dec. 24, 1980); see Department of the Army, South Pacific Division, Corps of Engi­neers Review of Sundance Plaza Project Permit Denial (Feb. 5, 2001), 1, 8.

[19] Wetlands, supra note 3, at 294

[20] See 56 Fed. Reg. 76-02 (Jan. 2, 1991) (stating that one of the reasons EPA denied the proposed Two Forks dam was because it would cause unacceptable loss and damage; the damage the dam would cause was unacceptable because the dam­age was avoidable. The damage was avoidable because the proposed project was not the LEDPA).

[21] Wetlands, supra note 6. 294-295, Yocom, supra note 4, at 5.

[22] See attached; The Corte Madera Inn Market Study & Financial Feasibility Evaluation, prepared by Maurice H. Bennett, manager of RHSW, LLC.

[23] See letters of March 27, 2016, May 26, 2016, June 16, 2016, September 24, 2016, November 16, 2016, and November 26, 2016.

[24] See Marin 2016 - Part IV: Dispatches from the front – Corte Madera re: The Town’s failure to preserve its legal rights to contest and Army Corps decision.