Notice of Violation (NOI) San Mateo County LCP, CA, ESA, CWA, NEPA & CEQA

Hard Copies to follow via U.S. Mail
November 30, 2000

Sarah Wan, Chair, and Members
California Coastal Commission
C Fax Transmission, Total 8 Pages
/O Peter Douglas, Executive Director
45 Fremont Street, Suite 2000
San Francisco, CA. 94105

Dear Ms. Wan and Members:

Subject : Notice of Violation of the San Mateo County Local Coastal Program, California Coastal Act , U.S. Endangered Species Act 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. On Monday November 27th, by telephone, Oscar Braun filed the notice of violation 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 Mitigation Project Description:
This Tunnels/Bridges mitigation project as proposed involves the excavation of an upland area between two existing ponds.  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.

Factual Tunnels/Bridges 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."

"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

·The November 1996 voter approved Devil's Slide Tunnel LCP ballot initiative Section 2 Findings (3) "A tunnel will protect the environment.  A tunnel would have virtually no harmful effects upon the environment.  It would be consistent with the coastal laws. It would avoid the serious damage to the watersheds, wildlife habitats and parks of Montara and San Pedro Mountains."

·February 18, 1997 CCC Adopted Findings San Mateo County LCP No. 1-96 (Devil's Slide Tunnel Initiative. Elimination or Degradation of Endangered species habitat page 17 & 18.  "Construction of the tunnel project could adversely affect the habitat of the red-legged frog (Rana aurora draytonni) an endangered species that lives in or near riparian corridors or freshwater ponds and marshes. Construction of the North Portal approach road could fill portions of the two red-legged frog ponds in that location.  Even constructing a bridge that did not directly fill the ponds would adversely affect the red-legged frog by shading portions of the pond during most of the day, there by reducing the basking opportunities for frogs and possibly lowering the spring pond water temperatures.  The latter could in turn affect the development of time of frog eggs and larvae.  Any one or combination of the above possible events could result in the reduction or negation of the red-legged frog population at the site.  Furthermore, construction and grading activities for the bridge could either permanently block or destroy the spring site that serve as the water source for the ponds, cause siltation in the ponds, and temporarily disrupt adjacent upland foraging/retreat area for the frogs."

·On April 16, 1999, the Court of Appeal of California, Fourth Appellate District, Division One filed their Bolsa  Chica  Land Trust vs. The Superior Court of San Diego County ruling that stated: "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." The Court of Appeal further ruled: "Section 30240 Under the Coastal Act, Commission is required to protect the coastal zone's delicately balanced ecosystem.  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 (Section 30007.5) cannot be found in section 30240."

·By letter dated May 11, 1999, Paul Koenig, Director of Environmental Services for the County of San Mateo, notified CalTrans "The FEIS/EIR on pages 74 and 75 describe the impacts of the proposed tunnel on wetland and riparian habitats.  We want to bring to your attention the potential conflicts between this discussion and the Coastal Act and Local Coastal Program.  The tunnel will fill approximately 5,500 square feet of wetlands and 9,700 feet of riparian habitat.   Off-site mitigation of such an impact is not currently allowed under the Coastal Act or Local Coastal Program. As a result, we cannot at this time find that the proposed tunnel design complies with the Local Coastal Program."

·By Letter on May 12, 1999, Jack Liebster, Coastal Planner for California Coastal Commission, advised Caltrans of the Commission staff's principal concerns. Of particular note is his discussion of the impact of the tunnel project on the wetlands and his conclusion that " the County, and the Commission, if the project is appealed, will have to assess the appropriateness of any fill proposed in wetlands as defined under the LCP using wetland policies."  He further states: "It is not clear that the proposed use of wetland areas as a site for which the LCP indicates fill can be allowed. In addition, the LCP wetlands policies require an examination of alternatives to projects which impacts wetland fill."

·On August 23, 2000 renown lobbyist/professional land use planning consultant and co-author of the original San Mateo County Local Coastal Program with lawyer/developer Michael McCracken, addressed the County Planning Commission in support of Caltrans' frog pond "Tunnel Mitigation" project. Below 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.

Note: Neither Ms. Roberts nor Planning Administrator Terry Burns or anyone on planning staff inform the Planning Commission that  CalTrans' Office of Environmental Planning  had been informed in  spring of 1999 that the Tunnels  do not comply with the Coastal Act, Local Coastal Program of San Mateo County or CEQA.  The Tunnels  have failed for the third time to be selected as the most protective of coastal resources and least environmentally damaging alternative.

Save Our Bay believes that the 1990 California Supreme Court Ruling of Citizen of Goleta Valley vs. Board of Supervisors of Santa Barbara County will demonstrate why the Tunnels/Bridges fail to comply with the CEQA/NEPA and Coastal Act review process:

·"The foremost principle under CEQA is that the Legislature intended the act to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language."

·"It's purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus , the EIR protects not only the environment but also informed self-government."

·"The core of an EIR is the mitigation and alternative sections. The Legislature has declared it the policy of the State to "consider alternatives to proposed actions affecting the environment."

·"The purpose of an EIR is list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project."

·"....the Legislature has decreed that local agencies shall be guided by the doctrine of feasibility.  It is the policy of the state that public agencies should NOT approve projects as proposed if there are feasible alternatives ..."

·"CEQA Guidelines, which state that EIR must describe a range of reasonable alternatives to a project, or to the location of a project, which could feasibly attain the basic objectives of the project, and evaluate the comparative merits of the alternatives."

·"As the underscored language suggests, project alternatives typically fall into one of two categories; on-site alternatives, which generally consist of different uses of the land under consideration; and off-site alternatives, which usually involve similar uses at different locations."

·"Each case  must be evaluated on its facts, which in turn must be reviewed in light of statutory purpose.  Informed by that purpose  we here affirm the principle that an EIR for any project subject to CEQA review must consider a reasonable range of alternatives to the project or the location  of the project which (1) offer substantial environmental advantage over the project proposal, and (2) may be "feasibly accomplished in a successful manner" considering the economic, environmental, social and technological factors involved"

Sierra Club Bolsa Chica Victory! In early 1999, the Sierra Club and Surfrider Foundation were victorious in blocking State Hwy 56 from crossing the Bolsa Chica Environmentally Sensitive Habitat Area (ESHA) in Orange County, California. Their successful roadblock began earlier last year, when a state appeals court threw out 25 years of practice, precedent and common sense in ruling that   CalTrans could not replace a diseased group of trees with a larger, healthier group of native trees. That's because these near-dead trees were part of what is known as an Environmentally Sensitive Habitat Area in the state's coastal zone.  The court said state Coastal Act law did not permit the tradeoffs----or mitigation---that local government and the Coastal Commission had allowed when it approved this project. The coastal ESHA of dying trees in Bolsa Chica and others like it throughout the state cannot be touched for roads or housing or dozen of the other public uses, no matter how badly damaged they were and no matter what the local government is willing to do to restore them.

In the spring of 1996,  Tim Duff, Co-Chair of the Sierra Club Coastside 2000 Committee asked the Executive Committee of the newly chartered Half Moon Bay Surfrider Foundation to conduct an environmental review of their proposed Tunnel Initiative.  Save Our Bay's John Plock and Oscar Braun were the Co-chairs and Blue Water Task Force Chapter leaders for the HMB Surfriders.  We could not endorse the Tunnel Project as a 501(c)3 non-profit public benefit Foundations.  State and Federal laws prohibit 501(c)3 non-profits from political activities or campaigning . John and I each have brought  over 25 years of experience in professional due diligence work and environmental studies review expertise to the Sierra Club Tunnel Project EIR Study. The Save Our Bay Foundation currently monitors all projects that impact the Monterey National Marine Sanctuary and has always insisted on full compliance with the Coastal Act and CEQA/NEPA environmental protection laws.
 The voter approved Measure T did not authorize CalTrans to build  two  Tunnels, each with two travel lanes crossing two north portal 1000 foot bridges.  They did not approve the  300 foot high south portals fill destroying  protected wetlands or the destructive intrusion on the endangered species sensitive  habitat in the north portal area.  The tax paying voters did not authorize Caltrans to spend the $68 million dollar higher price for the two lane Tunnels with their $2.2 million annual maintenance cost.  The electorate voted for the alternative most protective of coastal resources and least environmentally damaging, that was cheaper, safer and funded.  The Tunnels/Bridges are none of those things.
The Save Our Bay Foundation respectfully requests that the Coastal Commission  "rescind" immediately CalTran's Coastal Development Permit, File PLN 2000-00536 and red-tagging the Tunnels/Bridges mitigation project site to prevent further ESHA damage and species take. Caltrans mitigation activities  do not comply with the Local Coastal Program, Coastal Act , Endangered Species Act or  the CEQA/NEPA environmental protection statutes. Lastly, a take of listed species was not authorized under CalTrans agreement with U.S. Fish and Wildlife Service"


John Plock, RCE 26066
Chair, Environmental Director

CC. Marcia Raines, San Mateo County, Environmental Services Agency
Karen J. Miller, U.S. Fish & Wildlife Service, Chief, Endangered Species Division
Thomas Pederson,  Regional Patrol Director, California Department of Fish & Game
Robert Gross,  Caltrans District 4, Office of Environmental Planning
G.P. Bill Wong,  FHWA, Senior Transportation Engineer
Judge D. Lowell Jensen, U.S. District Court
Release to Media

Atttachments: 1 each Mitigation Project Location Map and 2 Native Species Survey Reports

Return to Save Our Bay Home Page

the Half Moon Bay Coastside Foundation's

California Watershed Posse


1589 Higgins Canyon Road   Half Moon Bay, California. 94019
Phone: 650-867-5779           Fax: 866-756-3101

Save Our Bay supports the Protection Program of the National Oceanic and Atmospheric Administration of the U.S. Department of Commerce.
[an error occurred while processing this directive]
Sponsored by OscarKnows
Sponsor and  Member Half Moon Bay Coastside Chamber of Commerce