Final Notice of Violation to CCC of the San Mateo County LCP, CA, CWA, ESA, NEPA & CEQA

March 5, 2002
Transmitted Via Email & U.S. Postal Service

Published at www.saveourbay.org in 9/11 Dispatch

Sarah Wan, Chair, and Members
California Coastal Commission
C/O Peter Douglas, Executive Director
45 Fremont Street, Suite 2000
San Francisco, CA 94105

Dear Ms. Wan and Members:

Subject : Final Notice of Violation of the San Mateo County Local Coastal Program, California Coastal Act , U.S. Endangered Species Act and the CEQA/NEPA .

• On August 1^st , 10^th  and August 25, 2000, the Foundation requested via letters (enclosed) that the Board of Supervisors place the Devil's Slide Highway 1 Improvement Project  alternatives on the ballot as required by Measure-T;  ``It's now time for the electorate to make their final decision on the NEPA/CEQA/CCC approved Martine Creek Alignment." On August 8<sup>th</sup> , by enclosed letter, Supervisors Richard Gordon responded for the County of San Mateo and as Chair of the Sierra Club Tunnel Task Force .
• On August 24, 2000 , the Half Moon Bay Coastside Foundation aka Save Our Bay appealed by letter (see enclosed)  to the San Mateo County Board of Supervisors to deny  the Coastal Development Permit granted to Caltrans for the construction of a Tunnel  mitigation pond for transfer of endangered species red-legged frogs granted by the San Mateo County Planning Commission.  The Board of Supervisors denied our appeal without cause.
• On September  26, this Foundation via letter (enclosed) requested that Mark Delaplaine, the Federal Consistency Supervisor for the California Coastal Commission include the Foundation's provided Bosa Chica Ruling citation on Project Alternatives, Section 30240 & 30007.5 and Standard of Review for the Coastal Commission. Our CCC written request was courtesy copied to the San Mateo County Board of Supervisors and San Mateo County Planning Commission.  Please note that the two primary Petitioners and Real Parties in Interest Bolsa Chica Land Trust were the Sierra Club and Surfrider Foundation.  On April 16, 1999 the Fourth Appellate District Court filed their ruling:  ``We find the trial court erred with respect to relocation of the bird habitat.  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." Find enclosed entire Bosa Chica ruling provided the Coastal Commission.
• On November 30, 2000, via enclosed letter, this Foundation notified Sara Wan, Chair, and Members of the California Commission re: Subject : Notice of Violation of the San Mateo County Local Coastal Program, California Coastal Act , U.S. Endangered Species Act and the CEQA/NEPA . The Coastal Commission refused to acknowledge or  investigate our November 30, 2000 NOV .  Enclosed please find a letter from the U.S. Fish and Wildlife Service to Caltrans Mr. Sid Shadle received by the California Coastal Commission on October 5, 2000 re: Subject: Pond Construction, Devil's Slide Highway 1 Project Site, Pacifica, San Mateo County, California. The document speaks for itself and the CCC had full disclosure as to the scope of the permit issued by the Service.  Enclosed please find a memo of acknowledgement to USFWS Ken Sanchez dated November 28, 2000 informing this Foundation that he will  not allow an investigation of the Caltrans Section 9  ``take" violation report by us on 11/24/00.
• January 8, 2001, via letters enclosed, Marcia Raines, Director of Environmental Services informed Save Our Bay Environmental Director John Plock that ``Our earlier investigation found no evidence to support your allegations and your most recent letter does not change that situation.  We consider the matter closed and see no basis for taking the extraordinary step of scheduling a hearing before  the Planning Commission on an alleged violation for which there in no corroborating evidence."   Enclosed please find the corroborating evidence Save Our Bay was provided by Caltrans Office of Environmental Planning, South ``Biological Survey Report For The Devil's Slide Tunnel Bridge Geotechnical Investigation Program" dated November 20, 2001.  On page 42 under Wildlife Species Of Concern, Caltrans states in part : `` The boring sites are within the footprint of the project site for the Devil's Slide Tunnel Bypass Project. As stated previously, a Biological Assessment was prepared in 1999 that included protective measures in regard to the California re-legged frog.  A Biological Opinion was issued by the U.S. Fish and Wildlife Service (Opinion letter received by CCC on October 5, 2000)  that concluded that the tunnel bypass, including the proposed conservation measures, is not likely to jeopardize the continued existence of the red-legged frog or destroy or adversely modify proposed critical habitat (USFWS, September 26, 2000).  Due to the potential effect of the tunnel bypass, one of the conservation measures called for all of the California re-legged frogs to be removed from the pond and paced in a new pond located in a former horse pasture outside of the footprint of the project. The removal of the frogs from the north pond to the new pond has now been achieved, and a barrier fence has been installed around the north pond. This barrier fence will prevent any California red-legged frogs from getting out of the north pond. Since the frog population has been removed from the north pond, it is expected that the Geotechnical Investigation Program will have no effect on foraging or extivating frogs in the pond area. However, California red-legged frogs are present in the area and their natural instincts to seek out the ranch ponds could result in red-legged frogs wandering into the vicinity of Boring Sites 6, 7, 8, and 9.  The barrier fence at the north pond is equipped with one-way funnel openings that allow wandering frogs to enter the pond enclosure but prevent them from leaving the enclosures."
• Enclosed please find San Mateo  County Counsel letter dated January 25, 2001 to Harry Yahata, District Director Caltrans District 4, Re: Devil's Slide Tunnel Project.  The opening paragraph states in part:  ``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  Impact 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 the 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 Country's Local Coastal Program notwithstanding some impacts to wetlands."   San Mateo County and  the  Petitioners and Real Parties in Interest Bolsa Chica Land Trust  Sierra Club and Surfrider Foundation have declared themselves  exempt from any ESHA Appellate Court rulings regarding their Devil's Slide Hwy 1 Improvement Tunnel alternative.  County Counsel asserts that  Director Paul Koenig erred with respect  to the  April 16, 1999  Fourth Appellate District Court Bosa Chica Land Trust ruling:  ``We find the trial court with respect to relocation of the bird habitat.  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."  County Counsel Michael Murphy clarifies  for Caltrans that not only did Director Paul Koenig misquote the Court's Bosa Chica ruling , so did the Coastal Commission's Jack Liebster. The Caltrans November 2000 USFWS unauthorized ``take"  was in fact  proposed, authorized and concealed by the County of San Mateo and the California Coastal Commission.  Why? Because the Sierra Club Tunnel Task Force and Committee For Green Foothills Lenny Roberts concocted the entire ``ESHA Tunnels Mitigation Scheme". The County of San Mateo, at the direction of the Sierra Club Tunnel Task Force, required   Caltrans to implement their ESHA mitigation scheme while  knowingly violating the U.S. District Courts injunction against any construction activities regarding the 1986 Devil's Slide Highway 1 Improvement Project.

CC.
Harry Yahata, District Director Caltrans
Norman Y. Mineta, U.S. Secretary of Transportation
Rubin Borrales, Deputy Assistant to the President of the United States
Maiser Khaled, FHWA Team Leader, 1986 Devil's Slide Highway 1 Improvement Project
Ken Sanchez, U.S. Fish & Wildlife Service, Devil's Slide Hwy 1 Project
Judge D. Lowell Jensen, U.S. District Court
Judge Charles Kobayashi, California Superior Court
Ronald Zumbrun, Esquire, Pacific Legal Foundation
Jerry Hill, President,  San Mateo County Board of Supervisors