Review of Record of Decision of the Final SSEIS Devil's Slide
November 21, 2002
Mr. Gary N. Hamby
Attention: G. P. Bill Wong & David Ortez Esq.
Dear Mr. Hamby
SUBJECT: REVIEW OF RECORD OF DECISION OF THE FINAL SSEIS-DEVIL'S SLIDE
The Half Moon Bay Coastside Foundation aka Save Our Bay (SOB ) has reviewed the above captioned ROD in order to determine ``both whether substantial evidence supports the FHWA ROD findings and whether the findings support the agency's decision". (Citation) SOB's review of the Devil's Slide project Final SSEIS has determined that the FHWA ROD approved preferred twin tunnels/bridges/mitigation alternative does NOT cause the least damage to the biological and physical environment and is not consistent with the local and regional planning. Therefore, in remembrance for Flight 93 hero, SOB's California Watershed Posse co-founder Alan Anthony Beaven. Esq., `` a Californian aboard Flight 93 who helped prevent the terrorists from crashing another airplane into its intended target on September 11, 2001" (Senator Feinstein), we respectfully ask the FHWA to re-open the Final SSEIS document for the purpose of providing the FHWA new documented factual information revealing effects of the Devil's Slide Highway Improvement Project that may affect federally listed species or critical habitat in a manner not identified to date. For further information please visit: www.cwposse.org or www.thepebble.info.
STANDARDS OF REVIEW : SIERRA CLUB v. CCC PETITION FOR WRIT OF MANDATE
The standards which governed SOB's review of your agency's decision are set forth in the Court of Appeals opinion in Sierra Club v. California Coastal Commission (1993). ``The agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order….By focusing….upon the relationships between evidence and findings and between findings and ultimate action, the Legislature sought to direct the reviewing courts attention to the analytic route the administrative agency traveled from evidence to action. In so doing, we believe that the Legislature must have contemplated the agency would reveal this route." (Citation)
``In determining whether substantial evidence supports an agency's reasoning process, the trial court must look at the whole record (Citation) ``The ``in light of the whole record" language means that the court reviewing the agency's decision cannot just isolate the evidence supporting the findings and call it a day, thereby disregarding other relevant evidence in the record. (Citation) Rather, the court must consider all relevant evidence, including evidence detracting from the decision, a task which involves some weighing to fairly estimate the worth of the evidence. (Citation) That limited weighing is not an independent review where the court substitutes its own findings or inferences for the agency's. (Citation) It is for the agency to weigh the preponderance of conflicting evidence (citation). Courts may reverse an agency's decision only if , based on the evidence before the agency, a reasonable person could not reach the conclusion reached by the agency."(Citation)
ADOPTED FINDINGS SAN MATEO COUNTY LCP AMENDMENT NO. 1-96 DEVIL'S SLIDE TUNNELS PAGE 11 Twin Tunnels Alternative:
DEVIL'S SLIDE TUNNELS PAGE 11
Twin Tunnels Alternative:``The conceptual tunnel design discussed above may very well be representative of the tunnel that is actually constructed. However, the design is only preliminary and the political process for securing funding, the environmental review process, the permitting process, and the final design process could all lead to significant changes in the design. Thus, in its review of the proposed LCP amendment, the Commission must consider the possibility that other designs that meet the basic criteria set forth in the Tunnel Initiative could ultimately be proposed and that in CERTIFYING the proposed LCP amendment, the Commission is NOT APPROVING ANY PARTICULAR TUNNEL DESIGN. NOTE: Page 4 of Adopted Finding for SMC LCP Amendment No. 1-96, Timing and Capacity of Later Phases 2.54c ``Require that the roadway improvements be consistent with policies of the Local Coastal Plan, particularly the Sensitive Habitats and Agriculture Components."
Bypass Alternative: ``Existing LUP Policy 2.54(b) describes the bypass alternative in the following terms: For Route 1, allow construction of a two-lane bypass with slow vehicle lanes on uphill grades around Devil's Slide. The County's preferred alignment is in the area of Martini Creek which bypasses Devil's Side and rejoins the existing Route 1 north of Montara…
Just as the proposed amendment would not dictate a particular tunnel alignment or design, the existing LCP policies do not dictate a particular bypass design. However, in February of 1986. Commission reviewed Consistency Certification No. CC-45-85-submitted by Caltrans for the development of an overland bypass. The consistency certification was necessary because Caltrans was applying for federal funding for the project. The Commission concurred with the consistency certification. As the design was approved by the Commission and other agencies, and CalTrans has invested significant resources in design, environmental review, and litigation in the project, the bypass project approved by the Commission under Consistancy Certification No. CC-45-85 represents the most likely bypass alternative design that would be built pursuant to the LCP policies..
In 1986 the Sierra Club filed suit in U.S. District Court over the issue of deficiencies in the FIES with regards to ``noise" and it's environmental consequences and mitigation measures. ``In March 1995, the Federal Highway Administration (FHWA), in cooperation with the California Departments of Transportation (Caltrans), issued a Draft Supplemental Environmental Impact Statement/Environmental Impact Report (SEIS/EIR). The Final Environmental Impact Statement (FEIS) was originally approved on April 16, 1986 , for a proposal to improve State Route 1 in San Mateo County, California. The preferred alternative, identified in the FEIS and selected in the FHWA Record of Decision signed on May 30, 1986, is known as the Martini Creek Alignment."
``As indicated in the Draft Supplement, the purpose of the document is to comply with the Order and subsequent Judgment of the U.S. District Court following litigation regarding the project. The Supplement is limited to addressing the deficiencies in the FEIS determined in the litigation, and therefore, only addresses noise issues. A tunnel alternative was considered and rejected as part of the CEQA/NEPA environmental review process in 1986. The U.S. District Court subsequently determined that the treatment of alternatives in the 1986 FEIS was proper. Although only noise-related issues were addressed in the 1995 Draft SEIS, comments were received indicating a tunnel alternative would avoid project noise impacts. This issue has been reviewed, and it is determined that the tunnel is not a reasonable alternative because of its inconsistency with current planning policies, the lack of funding, and various safety and cost issues." (Quotation from SEIS June 1995 Tunnel Investigation).
``CONSISTENCY WITH THE COASTAL ZONE ACT HAS NOT BEEN OBTAINED" FHWA to CALTRANS 8/02/00
FHWA to CALTRANS 8/02/00``Consistency with the Coastal Zone Act has not been obtained. The response to the County of San Mateo's comments that the wetlands and riparian habitat impacts and the off-site mitigation is not currently allowed under the Coastal Act or Local Coastal Program. There is no indication that an alternative analysis of fill disposal option and request for preliminary Federal Consistency Determination is in progress and therefore we do not have closure on the consistency determination. These alternatives may have additional unevaluated impacts that would not be disclosed in this document." (citation from HAD-CA File #04-SM-1 Document # P32748)
SMC to CALTRANS 01/25/01 `` Dear Mr. Yahata: You have requested that the County clarify statements made in a letter dated May 11, 1999, from Paul M. Koenig, San Mateo County Director of Environmental Services, to Robert Gross and Ed Pang of your office. The letter offered comments regarding the Second Supplemental Environmental Statement/Environmental Report. Your specific request is that the County further explain the statement made at page four of the letter that off-site mitigation of wetland impact is not allowed under the Coastal Act, and that , as a result, the County could not find that the proposed tunnel design complies with the County's Local Coastal Program. After further review of this matter, we have concluded that this statement was made in error. Our view is that a coastal development permit for a tunnel at Devil's Slide could be approved as consistent with the County's Local Coastal Program notwithstanding some impacts to wetlands. The basis for our conclusions is set out below."
`` Moreover, by certifying Measure T and employing a Section 30007.5 conflict analysis, the Coastal Commission confirmed that the choice made favoring the tunnel notwithstanding some impacts to wetlands was, on balance, more protective of coastal resources. Any County approval of a coastal development permit for the Devil's Slide project requires that the County find that the project conforms to the policies of the County's Local Coastal Program. By virtue of the Coastal Commission's certification, that Local Coastal Program now includes Measure T, which calls for a tunnel at Devil's Slide, and allows for some impacts to wetlands as a result of tunnel construction."
``In summary, Public Resources Code sections 30007.5 and 300200(b) require both the Coastal Commission and local governments to resolve conflicts between competing policies of the Coastal Act when carrying out the provisions of the Act. The electorate resolved policy conflicts in favor of the tunnel when it adopted Measure T. The Coastal Commission Has twice performed the analysis prescribed in Section 30007.5, certifying Measure T despite the conclusion that construction of tunnel would result in some wetland impacts. Measure T is now a part of the County's certified Local Coastal Program. It is our view that a coastal development permit can be approved for construction of a tunnel despite some impact to wetlands.
SOB to FHWA 11/21/02
SOB's review of the ROD for the Devil's Slide Final SSEIS finds that the above stated SMC and CCC opinions and LCP Measure T conceptual certification do not meet the standard of review adopted and set forth by the Court in Sierra Club v. California Coastal Commission. Why? Because a reasonable person could not reach the conclusion reached by the SMC, CCC or FHWA.. The CCC ``conceptual LCP certification" is NOT supported by any factual or legal findings or consistent with the Court of Appeal of California 04/16/99 Bolsa Chica ruling regarding Coastal Act Section 30240 (ESHA's) and the use of Coastal Act Section 30007.5 . The CCC and SMC have provided the FHWA no evidence in the record that destruction of the ESHA's within the Devil's Slide project area is a prerequisite to the creation of their ``new" red legged frog twin tunnels off-site mitigation pond. Although the Coastal Act itself recognizes the value and need for access to the coastal zone and coastal recreational areas, nothing in the record or the letter from San Mateo County suggests there is such an acute need for development of Route 1 in and around ESHA's that cannot be accommodated elsewhere. The certified Measure-T LCP amendment states: ``The County will (2.54a) ``require that the roadway improvements be consistent with policies of the Local Coastal Plan, particularly the Sensitive Habitats and Agriculture Components." (citation Adopted Findings SMC LCP 1/97 page 4) Rather, the only articulated interests which the proposed transfer of the ``habitat values" serves is SMC subsidiary interest in retaining ``the electorate Measure-T preference for a tunnel alternative". The Court of Appeal ruled on April 16, 1999 `` In the absence of evidence as to why preservation of the ESHA at its current location is unworkable, we cannot reasonably conclude that any genuine conflict between long-term and short-term goals exist. (Citation) In short, while compromise and balancing in light of existing conditions is appropriate and indeed encouraged under other applicable portions of the Coastal Act, the power to balance and compromise conflicting interests (30007.5) cannot be found in 30240." (citation)
The January 25, 2001 response letter authored by San Mateo County Counsel offering clarification regarding SMC Director of Environmental Services Paul Koenig official statutory SSEIS/EIR comments letter directed to CalTrans on May 11, 1999 is without proper legal foundation. The CCC and SMC interpretation of section 30240 was not contemporaneous with the enactment of section 30240 or the result of any considered official interpretative effort and it did not carry any other of the indicia of reliability which normally requires deference to an administrative interpretation. (See Yamaha Corp. of America v. State Board of Equalization, supra, 19 Cal, 4th at pp.12-13) Caltrans specific request was that the County further explain the statement made at page four of the letter ``that off-site mitigation of wetlands impact is not allowed under the Coastal Act, and that, as a result, the County could not find that the proposed tunnel design complies with the County's Local Coastal Program. After further review of this matter, we have concluded that this statement was made in error. Our view is that development permit for a tunnel at Devil's Slide could be approved as consistent with the County's Local Coastal Program, notwithstanding some impacts to wetlands." The reasoning that SMC and CCC employed is unpersuasive and clearly not supported by the April 16, 1999 Court of Appeal Bolsa Chica ruling :
First, contrary to their argument, a court would not uphold their interpretation of section 30240 as set forth by the Commission in its conceptual findings for the Measure-T LCP amendment certification. The CCC and SMC provide NO factual basis for their assertion that supports the application of the balancing power provided by section 30007.5. SOB's review of the Adopted Findings for San Mateo County LCP NO. 1-96 (Devil's Slide Tunnel Initiative) proceedings before the CCC did not disclose any policy or interest which directly conflicts with the application of section 30240.
``Secondly, the language of section 30240 does not permit a process by which the habitat values of an ESHA can be isolated and then recreated in another location. Rather, a literal reading of the statute protects the area of a ESHA from uses which threaten the habitat values which exist in the ESHA. Importantly, while the obvious goal of section 30240 is to protect habitat values, the express terms of the statute do not provide that protection by treating those values as intangibles which can be moved from place to place to suit the needs of development. Rather, the terms of the statute protect habitat values by placing strict limits on the uses which may occur in an ESHA and by carefully controlling the manner uses in the area around the ESHA are developed. (Pygmy Forest, supra, 12 Cal. App. 4th at p.611)
COURT OF APPEAL OF CALIFORNIA v. THE SUPERIOR COURT OF SAN DIEGO COUNTY
Petitioners and Real Parties in Interest Bolsa Chica Land Trust, Sierra Club and Surfrider Foundation
April 16, 1999`` The Coastal Act does not permit destruction of an environmentally sensitive habitat area (ESHA) simply because the destruction is mitigated offsite. At the very least, there must be some showing the destruction is needed to serve some other environmental or economic interest recognized by the act." (Citation)
On August 23, 2000, Lennie Roberts, renown legislative lobbyist and self proclaimed 6th member and Chair for life of the San Mateo County Board of Supervisors addressed the San Mateo County Planning Commission in support of Caltrans' frog pond ``Tunnel Mitigation" project application for coastal development permit (CDP). Here is the entire transcript of Ms. Roberts comments: ``Good Morning Mr. Chairman, I'm Lenny Roberts speaking for the Committee for Green Foothills, and we support this project. Aaaa, it would be nice to have had something in the staff report to the fact this is being done in conjunction with the U.S. Fish & Wildlife Service and because this has been a long negotiated process with the CalTrans engineers and the U.S. Wildlife Service. How they've been in consultation with the frog and other issues, ``this is mitigation for the Tunnel" and so I think it would be helpful if we put that somewhere because it is part of a very broad extensive process that has gone through with the tunnel construction. So, so this is one of the issues that occurs with the endanger species is that if you are going to take the endangered species or effect their habitat and you're going to first do ``mitigation" to first avoid the impact aaa which the Tunnel project has done to the greatest degree possible by building a bridge over this valley. Originally this valley was going to be filled to go across, so that would have impacted the frog pond habitat, so they're bridging instead and they're creating this new frog habitat and one of the issues always is ...will that work? And by doing this ahead of time, ahead of the project itself, a there will be, I think ,sufficient assurance that the project will be a successful ``mitigation". We hope so...a perhaps one thing you might want to put in here is the additional condition that there will be monitoring of project as it goes through the construction and afterwards to make sure that the re-vegetation is successful and that the habitat is successfully established. I think that would be a good conditional condition to put in there. So we are very supportive of this and we appreciate the County expediting this and I know everybody is trying to expedite this project, in spite of everybody's attempts it has taken a lot longer than everybody thought . Aaa so those are my comments and yeah I believe that the way they capture the frogs is at night with flash lights , a time honored technique (laughter) or the tadpoles in the spring time. But to successfully get the adults you have to do that I believe. Thank you. Planning Commission Chair: Anyone else? Silence.....move to close the hearing."
Notice of Violation of the SMC Local Coastal Program, California Coastal Act , Endangered Species Act Section 7 and Section 9, Clean Water Act Section 404 and the CEQA/NEPA .
On November 24, 2000, Save Our Bay staff conducted a native species field survey at the location of the CalTrans Tunnels/Bridges mitigation construction site , Devil's Slide Highway 1 Project site, Pacifica, San Mateo County, California. After the three hour native species field survey was concluded, (attached please find survey form for dates 7/27/000 & 11/24/000) it was found by SOB staff that the Tunnels/Bridges mitigation project activities conducted by Caltrans, their agents or others has resulted in a ``take" of federally listed Rana Avrora Draytonii, .. aka California Red-Legged Frog. Take is defined by the Endangered Species Act as `` to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect any listed wildlife species. ``Harm" in this definition includes significant habitat modification or degradation where it actually kills or injures wildlife, by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. (50 CFR & 17.3)The Foundation's Executive Director reported the take to Sheila Larson of the U.S. Fish & Wildlife Service on Friday the 24th of November by telephone. Sheila Larson informed Mr. Braun and Dave Cohn of SOB California Watershed Posse, that CalTrans had diverted the water from the North Pond to construct and fill the new EHSA mitigation pond. CalTrans having been issued a Coastal Development Permit by SMC for the tunnel mitigation pond project, immediately attempted to transfer the resident red legged frogs from the drained North pond with the result being an unauthorized ``take" under CalTrans Section 7 agreement with the Service. On Monday November 27th, by telephone, Oscar Braun filed the notice of violation (NOV) with U.S. Fish & Wildlife Service Agent Scott Pierson and provided him via fax the field survey forms and mitigation project site location map. The Foundation also inform Agent Pierson that they have photos of the ESHA starting 7/27/2000 up to and including 11/24/2000. On the 24th, the Foundation also notified the California Department of Fish & Game and San Mateo County Environmental Services Agency.
Tunnels/Bridges ESHA Mitigation Project Description: This Tunnels/Bridges ESHA mitigation project as proposed by Lennie Roberts on behalf of San Mateo County involves the excavation of an upland area between two existing ponds found within US Army Corps of Engineers Section 404 Jurisdictional Map and Project Study Area (Figure 5-3) The Tunnels mitigation pond will be deep enough to hold water of quantity and temperature. Flows would be diverted from an adjacent creek into this pond. Erosion control structures will be placed around the construction area to protect adjacent aquatic resources. Aquatic emergent vegetation, previously cultivated in wooded flats would be placed in the pond. Biologist will monitor vegetative growth in the new pond and replant as necessary to ensure success. The Service will conduct a field inspection of the new pond on or about April 15, 2001. ``If the Service approves the new pond habitat, red-legged frog adults will be trapped from the north pond between April 15th and June 30, 2001 and moved to the new mitigation pond, constructed in the fall of 2000"
Factual Sequence of Events, Court Rulings and CalTrans, CCC & SMC Violations
In October 2000, CalTrans, having been unlawfully issued a Coastal Development Permit by SMC for the tunnels pre-mitigation pond project, immediately conducted mitigation construction activities in the COE delineated project areas that included the draining of the North pond facilitating an ``unauthorized take" and violating their section 7 agreement with the F&W Service dated September 26, 2000 (Ref. 1-1-00-TA-2980). By unlawfully and prematurely issuing their Devil's Slide pre-mitigation CDP to CalTrans, San Mateo County has 1) defied the 1986 U.S. District Courts injunction prohibiting ``all" construction activities within the Devil's Slide Route 1 project area from the Half Moon Bay Airport to Linda Mar Boulevard Pacifica, San Mateo County, California. 2) Disregarded the CCC declaration shortly after the Court of Appeals April 1999 Bolsa Chica decision regarding Coastal Zone ESHA's and Section 30007.5 that the CCC would accept the courts findings and opinion and would NOT file an appeal petition with the California Supreme Court seeking to overturn the Court of Appeal ruling. What does that mean? It means that neither the CCC nor SMC can overrule or freely superced with de novo proceedings the April 1999 Court's ruling or legally revert back to their pre-Bolsa Chica interpretation (circa January 1997) of section 30007.5 by re-certifying their conceptual consistency of the SMC Measure-T LCP amendment. Note: June 17, 2002, The California Superior Court of San Mateo County, Case # 402781, Joyce Yamagiwa, v. California Coastal Commission ruled `` The Commission's self-righteous contention that it was merely acting pursuant to the Coastal Act is not convincing. In fact, this Court is disheartened with any such argument that completely eliminates this Court's prior order as though it was nothing more than some minor hindrance to the Commission's exertion of power. That the Commission considers orders of the Superior Court as matters to be freely superceded with de novo proceedings is saddening. The Court of Appeal has appellate jurisdiction where the Superior Courts has original jurisdiction (Cal .Constitution Article VI, section 11) The State Constitution limits the power to overturn a Superior Court's order to the appellate courts. (People v Gonzalez ( 1998) 12 Cal.4th. 804, 815) Moreover, the Legislature may not restrict appellate review in a manner that would substantially impair the constitutional powers of the courts, or practically defeat their exercise. (Leone v Medical Board (2000) 22 Cal.4th 660, 668) Any action by the Commission which has the effect of superseding this Court's order would be an infringement of the appellate court's authority, and would be improper." 3) By authorizing and issuing the Lennie Roberts proposed ``pre-project mitigation scheme activities CDP prior to seeking either District Court approval or being granted federally required authorizations and permits from the Corp of Engineers (COE) or .F&W Service clearly violates both the Endangered Species Act section 7 & 9 and the Clean Water Act section 404. These premeditated violations of federal environmental protection laws clearly disqualifies the County of San Mateo from receiving required and needed federal permits or funding for the Devil's Slide Route 1 Improvement Project. 4) The COE has verified the SOB review findings by confirming that CalTrans did NOT acquire any of the required COE 404 permits to divert waters of the United States or conduct `` tunnels pre-mitigation construction activities in the COE delineated 404 ESHA. Please note Final SSEIS/EIR volume 1 APPENDIX C : U.S. ARMY CORPS OF ENGINEERS NATIONWIDE PERMIT AUTHORIZATION letter dated April 4, 2001 to CalTrans re: `` You are advised to refrain from commencement of your proposed activity until a determination has been made that your project is covered under a existing permit."
Factual Tunnels/Bridges ESHA Mitigation Project Background :
Th U.S. Fish and Wildlife Service by letter to Caltran's Sid Shadle on September 26, 2000 stated: ``Based on the project description and corresponding avoidance measures proposed in your correspondence, the Service has determined that ``take" of the California red-legged frog is not likely to concur. Therefore, the project as proposed is in compliance with the Act, with the understanding that take is not authorized under this agreement." NOTE: CalTrans characterized their ``pre-mitigation' construction activities as ``conservation avoidance measures." A clear violation of the Courts ruling regarding ESHA off-site mitigation activities.
``No further action pursuant to the Act is necessary, unless (1) the species is discovered within the project area; (2) new information reveals effects of the proposed action may affect listed species in a manner or to an extent not considered; or (3) a new species or critical habitat is designated that may be affected by the proposed project."
``No further action pursuant to the Endangered Species Act is necessary, unless new information reveals effects of the project that may affect federally listed species or critical habitat in a manner not identified to date. If you have any questions regarding this response, please contact Cecilia Brown or Ken Sanchez at (916) 414-6625." Signed, Karen J. Miller, Chief, Endangered Species Division
Devil's Slide Draft Supplemental EIS/EIR page 67. `` While the south pond at Shamrock Ranch is not within the project limits of the proposed tunnel alternative, to ensure that the habitat will be protected from construction activities, the south pond will be designated as an Environmentally Sensitive Area (ESA) This designation restricts ``any" construction activities from occurring within its boundaries. Instead, the transport of construction vehicles, equipment and personnel will ``only" be allowed to occur on temporary roads from existing Route 1. Note: All activities within this COE 404 delineated areas require prior approval and permits from the COE.
``In terms of the general protection, the Coastal Act provides for the coastal environment, we have analogized it to the California Environmental Quality Act (CEQA). (citation) We have found that under both the Coastal Act and CEQA The courts are enjoined to construe the statute liberally in light of its beneficent purpose. (Citation) The highest priority must be given to environmental consideration in interpreting the statute (citation)."
`` In addition to the protection afforded by the requirement that Commission consider the environmental impact of all its decisions, the Coastal Act provides heightened protection to ESHA's. Section 30107.5 identifies an ESHA as ``any area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments. The consequences of ESHA statue are delineated in section 30240(a). Environmentally sensitive habitat areas shall be protected against any(71 Cal. App. 4th 507) significant disruption of habitat values, and only uses dependent on those resources shall be allowed in those areas. Development in areas adjacent to environmentally (63 CalRptr. 2d 858) sensitive habitat area and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade those areas, and shall be compatible with continuance of those habitat and recreational areas. Thus development in ESHA areas themselves is limited to uses dependent on those resources, and development in adjacent areas must carefully safeguard their preservation."
We respectfully ask the FHWA to re-open the Final SSEIS document for the purpose of providing the FHWA new documented factual information revealing effects of the Devil's Slide Highway Improvement Project that may affect federally listed species or critical habitat in a manner not identified to date.