Devil's Slide Final Second Supplemental to the 1986 Environmental Impact
June 21, 2002 Via Certified Mail
Randell H. Iwasaki
Acting Director, District 4
California Department of Transportation
P.O. Box 23660
Oakland, CA 94623-0660
Michael G. Ritchie, Division Administrator
Maiser Khaled, Chief
District Operations-North
Federal Highways Administration
980 9th Street, Suite 400
Sacramento, CA 95814-2724
Subject: Devil's Slide Final Second Supplemental to the 1986 Environmental Impact Study/Environmental Impact Report. May 2002 for Route 1 from Half Moon Bay Airport to Linda Mar Boulevard, Pacifica, San Mateo County, California
On behalf of the Half Moon Bay Coastside Foundation Watershed Posse, a tenured 501c3 non-profit community based foundation member of NOAA's Water Quality Protection Program, we have the following comments regarding our due diligence review of this Second Supplemental for the 1986 Devil's Slide Highway 1 Improvement Project.
Preferred Alternative : Wetlands Only Practicable Alternative Finding
Caltrans has NOT adequately examined ``All" the significant and cumulative construction impacts (blasting, tunneling, boring, trenching, vibrations from 15,000 truck loads hauling excavated material, de-watering ponds and wetlands etc) of the Preferred Alternative and they have NOT considered ALL reasonable and feasible alternatives that would fulfill the purpose and need of this road project that do not have similar permanent ESHA or wetland impacts.
1) The 1997 CCC Adopted Findings for the San Mateo County LCP Amendment No. 1-96 Devil's Slide Tunnel states in Section C ALTERNATIVES in part: ``The first general limitation set forth by the above referenced Chapter 3 policies is that any proposed fill project must have no less environmentally damaging feasible alternative. Without having the results of comprehensive wetland surveys available for either the bypass alternative or the tunnel alternative, and without having a final design for a tunnel alternative available, it is impossible to state with certainty exactly how much more wetland fill would be associated with the bypass than with a tunnel alternative." The finding of ``Wetlands Only Practicable Alternative is without merit because Caltrans has NOT FULLY investigated ``ALL" the reasonable and feasible alternatives available within the ``Current Alignment" or a Modified By-Pass Alignment Alternative. And as stated in the CCC Adopted Findings ``without having a final design for a tunnel alternative available, it is IMPOSSIBLE to state with certainty exactly how much more wetland fill would be associated with the bypass than with a Tunnel Alternative.
2) Caltrans provides no factual or legal basis for their assertion and finding that ``there are no practicable alternative to the proposed new construction in wetlands, and this proposed action includes all practicable measures to minimize harm to wetlands and which may result from such use." Caltrans finding is contradicted by the Devil's Slide Tunnel Feasibility Study prepared by Woodward-Clyde and certified as Adopted Findings of Fact by the Coastal Commission in January 1997. Elimination or Degradation of Endangered Species Habitat states in part…``Based on a review of this information,(Woodward-Clyde feasibility study) construction of a tunnel pursuant to the proposed LCP amendment would result in the following three kinds of environmentally sensitive wetland fill impacts, including (1) the direct displacement of wetland, (2) the elimination or degradation of habitat of the endangered species habitat, and (3) the sedimentation of sensitive wetland habitat." (SMC LCP 1-96 paragraph #2 page 16) Balanced against the beneficial aspects of the project is the competing fact that the project also will fill wetlands and environmentally sensitive habitat for a use that is not allowed by either Sections 30233 and 30240 of the Coast Act. (CC-94-00 page 3 CalTrans ``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 from by shading portions of the pond during most of the day, Thereby 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." Policy 7.34 states, among other things, that ``any development must not impact the functional capacity of the habitat". and recommend mitigation if development is permitted within or adjacent to identified habitats of rare and endangered species. ``Policy 7.35 states that the County must require preservation of all habitat of rare and endangered species…" Thus, an applicant for the tunnel project would need to demonstrate how the particular design chosen for any necessary fill for the tunnel project will ensure the habitat of the red-legged frog is not compromised."( Adopted Findings SMC LCP 1-96 page 23) CalTrans has not demonstrated that their preferred alternative Tunnels/Bridges/Fill/Mitigation design will not negatively impact the functional and biological capacity of the environmentally sensitive habitat area (ESHA) or ensure the habitat of the red-legged frog is not compromised. The San Mateo County Local Coastal Program requires that the preferred alternative be the most protective and least environmentally damaging alternative. ``Furthermore, construction and grading activities for the bridge could either permanently block or destroy the spring sites that serve as the water source of the ponds, cause siltation in the ponds, and temporarily disrupt adjacent upland foraging/ retreat area for the frogs.." There are NO Adopted Findings or assertions contained within the entire 1986 Devil's Slide Route 1 Improvement project Final SSEIS/EIR study that states that similar types of Tunnels Alternative construction activities (ie blasting, tunneling, boring, trenching and vibrations caused by 15,000 truck loads hauling 150,000 cubic yards of excavated wetland fill ) would have the same type of impacts on the Current Route 1 Alternative or any By-Pass Alternative. The CCC Adopted Findings state ONLY the Tunnel Alternative will permanently block or destroy the spring sites that serve as the water source of the ponds and de-water the wetland ESHA. This is a CWA Section 404 covered project and Caltrans must consider ALL other reasonable and feasible alternatives that accomplish the purpose and need of this road project.
3) Preferred Tunnel Alternative Consistency with the Coastal Act and LCP: Caltrans asserts and factually misstates that the California Coastal Commission has certified the Tunnel Alternative as ``consistent"with the policies of the Coastal Act and San Mateo County LCP. Federal Highway Administration (FHWA) procedures require Commission concurrence in a consistency certification prior to finalization of an Environmental Impact Statement (EIS) and issuance of a record of decision (ROD) Accordingly, Caltrans has now submitted to the Commission for its review a consistency certification for the Devil's Slide tunnel project. Yet another (third) Commission review may also occur because, once the environmental documents are finalized, Caltrans will apply to San Mateo County for a coastal development permit (CDP) and that permit would be appealable to the Commission. . Given the historic controversy surrounding Devil's Slide issues, such an appeal appears likely.(CC-94-00,CalTrans page 2) All construction activities regarding the 1986 Devil's Slide Route 1 Improvement Project require a CDP issued by San Mateo County and are appealable to the Coastal Commission.
In these situations, the Commission performs its federal consistency review in a ``phased" manner. The ``phase" of the Commission's review that is before it at the present time is for a limited purpose of assuring that the fundamental concept, goals and objectives of the project are consistent with the applicable California Coastal Management Program (CCMP) Coastal Act policies. (The standard of review for the subsequent coastal development will be the policies of the San Mateo County LCP) More detail review at this time is precluded by the fact that final design, engineering, and final mitigation measures and monitoring plans have not been fully developed, although they have been substantially more fully developed than when the Commission reviewed the Measure T LCP amendment. (CC-94-00, CalTrans page 2) ``Thus, the consistency certification submitted contains ONLY A CONCEPTUAL PLAN AND CONCEPTUAL MITIGATION MEASURE." Caltrans has submitted their conceptual Tunnel Alternative design while not demonstrating or providing any factual or legal basis for their assertion and finding that `` there are no practicable alternative to the proposed new construction in wetlands." The Coastal Act and LCP under ``Timing and Capacity of Later Phases 2.54 c. Require that roadway improvement be consistent with policies of the Local Coastal Plan, particularly the Sensitive Habitat and Agriculture Components." (SMC LCP #1-96 Page 4) The San Mateo County Local Coastal Program requires that the preferred alternative be the most protective and least environmentally damaging alternative. The No Project (current alignment) or modified By-Pass Alternatives provide a reasonable and feasible alternative to the needs and purpose of this road project.
WATERS OF THE UNITED STATES: COMMENT & QUESTIONS
Table 5-8 states in part ``Wetlands: The project will impact wetlands and
associated habitat. Details of these impacts are discussed in section 5:12. Those wetlands impacted by construction will be protected using avoidance measures and ESA's. The ESA's will be monitored by a staff
biologist and restrict construction activities and the location of equipment. An off-site mitigation site is planned to compensate for temporary and permanent impacts to wetlands, sensitive habitat areas and buffer zones."
On page v Wetlands and Riparian Habitat Caltrans asserts ``The tunnel alternative will have no permanent effect (impact) on wetlands associated with the habitat for the California Red Legged Frog
and will qualify for a U.S.Army Corps of Engineers (ACOE) nationwide permit."
COMMENTS & QUESTIONS
``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."
Formal Section 7 Endangered Species Consultation Proposed Devil's Slide Tunnel
Bypass Project, State Highway 1, Pacifica, San Mateo County California.
January 16, 2000: FHWA initiated formal consultation on the tunnel bypass alternative.
June 16, 2000: Service staff met with Caltrans staff and consultants to discuss location and construction details of the ``off-site mitigation pond".
July 20, 2000: Caltrans submitted by letter additional information `` as part of the mitigation measures for the proposed Devil's Slide Tunnel Project, the relocation of the California red-legged frogs from the North Pond to a newly excavated frog pond will provide for the protection of this species during construction of the project"
On August 23, 2000, Lennie Roberts, renown lobbyist/professional land use planning consultant and leading proponent of the Devil's Slide Tunnels/Bridges/Filling/Mitigation alternative, addressed the San Mateo County Planning Commission in support of Caltrans' frog pond ``Tunnels/Bridges Mitigation" project. Below is the entire transcript of Ms. Roberts comments. ``Good Morning Mr. Chairman, I'm Lennie 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, 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 . The Devil's Slide Tunnels/Bridges/Fill/Mitigation Freeway leading lobbyist Lennie Roberts neglected to disclose to the San Mateo County Planning Commission that Off-Site Mitigation had been declared ``inconsistent" with the Local Coastal Program and the Coastal Act by the County of San Mateo Director of Environmental Services Paul Koenig during the statutory Draft SSEIR: The California Court of Appeal ruled in April 1999 and San Mateo County had notified Caltrans on May 11, 1999 ( within the statutory DSEIS comment period) that `` 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."
September 26, 2000: The USFWS determined that construction of a third mitigation pond and the diversion structure at the project site and the planting of aquatic emergent vegetation was not likely to result in a take of the red-legged frog. (Service file # 1-1-00-TA-2980) The Service did NOT authorize the transfer of California red legged frogs from the North Pond nor did they authorize an ``incidental take". Under the Section 7 stipulation, Caltrans had agreed to have the Service conduct a field inspection of the new mitigation pond on or about April 15, 2001. ``If" the Service approved the new off-site mitigation pond habitat, red-legged frog adults would be trapped from the North Pond between April 15 and June 30, 2001 and moved to the mitigation pond constructed in November 2000. The water source to construct and fill the off-site mitigation pond was not to come from either the North or South ponds located on Shamrock Ranch. Caltrans was to use the water from a small stream adjoining the pasture located near the new off-site mitigation pond.
October 10, 2000: The County of San Mateo and the Coastal Commission approved and issued Caltrans a Coastal Development Permit on October 10, 2000 to construct an off-site mitigation frog pond and immediately transferring all resident California red legged frogs from the North Pond prior to obtaining USFWS and CDFG acceptance of the project's use of sensitive habitats which is also mandated under the Coastal Act and LCP consistency determination. NOTE: A Section 9 violational ``take" under the Endangered Species Act can disqualify San Mateo County from receiving Federal permits and FHWA funding." It should be also noted that No documentation from CDFG is currently included in this document. Further, Caltrans was advised by the Department of the Army, Corps of Engineers, (Appendix C) that: ``A final determination on the level of Section 404 permit required for the project will be based on your completed Section 404 permit application. Your proposed project is within our jurisdiction and a permit will be required. You are advised to refrain from commencement of your proposed activity until a determination has been made that your project covered an existing permit. COMMENCEMENT OF WORK BEFORE YOU HAVE RECEIVED OUR NOTIFICATION MAY BE INTERPRETED AS A VIOLATION OF OUR REGULATIONS." A Clean Water Act Section 404 violation may disqualify the County of San Mateo from receiving Federal permits and funding by the FHWA.
On November 24, 2000, the Half Moon Bay Coastside Watershed Posse 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 the C.W.Posse staff that the Tunnels/Bridges mitigation project activities conducted by Caltrans, their agents or others had resulted in an unauthorized ``take" of federally listed Rana Avrora Draytonii, .. aka California Red-Legged Frog caused by the draining and diversion of the water in the North Pond to construct and fill the San Mateo County and Commission CDP approved ``mitigation pond". ``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. NOTE: This unauthorized ``take" is a Section 9 violation of the Endangered Species Act and a clear violation of the Section 7 stipulation granted Caltrans for the mitigation pond. NOTE: A violation of either a Section 7 or Section 9 of the Endangered Species Act may disqualify the County of San Mateo from receiving approval of Federal permits and funding. Also, the construction activities within wetland areas prior to being granted a CWA Section 404 permit is considered a violation of the Clean Water Act and may disqualify this project from receiving Federal permits and funding.
Question: Does Caltrans believe that receiving a Coastal Development Permit from the County of San Mateo and the CCC somehow exempt them from obtaining the required approval or complying with ``ALL" Federal permit requirements under the ESA or CWA?
December 18,2000: USFWS Section 7 Consultation & Biological Opinion
In response to the 1999 Draft SSEIS, the owners of Shamrock Ranch insightfully express their knowledgeable concerns: ``I disagree that the tunnel alternative will have only minor impacts to the wetlands. I believe that as the project is currently proposed, the construction period and the period following construction have the potential to have a significant impact, not only to the wetlands on the Ranch, but on San Pedro Creek as well" Caltrans response # 11 irritates their baseless claim and a clear misstatement of Adopted Finding of Fact that impacts to the Waters of the United States will be avoided. Response #11 `` With the bridge structure spanning the valley rather than filling the valley to support a highway, permanent impacts to wetlands associated with the tributary to San Pedro Creek at the Shamrock Ranch will be avoided. Also, with the less environmentally damaging construction access from San Pedro Terrace Road through Shamrock Ranch instead of from the west as previously proposed, the tunnel would not have significant impacts on the wetlands at Shamrock Ranch." Ergo, the Committee for Green Foothills Lennie Roberts circular reasoning as presented and adopted into policy by the County of San Mateo and California Coastal Commission, now has been officially adopted by the California Department of Transportation.
Sierra Club & Committee for Green Foothills Official Definition for ``ENVIRONMENTAL IMPACTS"
There are virtually no ``Environmental Impacts" on Sierra Club proposed or endorsed projects. All Environmental Impacts are avoided. Avoidance measures may include the following: If you promise the reduction of all impacts (aka Section 7 consultation), both minimal or significant, to the best of your ability, then you have officially, lawfully and successfully mitigated the Environmental Impacts and therefore all IMPACTS have been AVOIDED. There will never be any ``Environmental Impacts" in the County of San Mateo as long as Lennie Roberts and the Sierra Club are the public watchdog and protectors of the environment! The County of San Mateo's LCP has adopted a zero IMPACT tolerance policy for all highway projects.
Coastside Watershed Posse's Finding of Inadequacy of Section 7 Consultation:
The USFWS Section 7 Consultation and Biological Opinion of ``no
jeopardy" is flawed base on our review finding that the Service did NOT adequately examined ``All" the significant and cumulative construction activity impacts (blasting, tunneling, boring, trenching, vibrations from 15,000 truck
loads hauling excavated material, de-watering ponds and wetlands etc) of the Preferred Alternative and they have NOT considered ALL reasonable and feasible alternatives that would fulfill the purpose and need of this road
project that do not have similar permanent ESHA or wetland impacts. It is further noted that this reviewer has been confidentially informed that Caltrans did not implement or document the monitoring and conservation measures
stipulated to in the Section 7 Consultation document for the year 2001. Further, Caltrans CDP authorized unlawful mitigation activities in the fall of 2000 ( de-watering and unauthorized incidental take) may have the impact
of nullifying the Devil's Slide Tunnel Alternative Section 7 Consultation agreement.
CLOSING COMMENTS:
It is the position of the Coastside Watershed Posse that adoption of Measure-T into the San Mateo County Local Coastal Plan does not empower the voters to make decisions concerning state highways or unduly influence the NEPA/CEQA/CA environmental review process. There is no better illustration of the need to shield our State highway system from the influence of special interest groups than the predicament in which San Mateo County now finds itself. The goal of Measure-T proponents was never to build a tunnel; they simply wanted to stop the bypass and maintain limited access to the coast. The current tunnel project with its two bridges and fill has significant and unlawful environmental impacts and will cost significantly more (over $275 million and raising) than the voters were promised. The Sierra Club sponsored Tunnel Initiative has proved to be a fiasco and a massively destructive environmental nightmare. It has served more as a road block rather than the ``Sooner, Safer, Cheaper" solution it was touted to be. The tunnels are none of those things. Beside undoing years of work and planning, it's passing forfeited the millions of dollars of funding which were set aside for the previously approved two land bypass project. What's more, the County has displayed a lack of integrity in the handling of the tunnels, further evidencing that the rules are only made for some people (Sierra Club & Committee for Green Foothills) and that some projects are more equal than others.
In light of the County's May 11, 1999 response to the Second Supplemental Environmental Impact Statement/Environmental Impact Report as well as the concerns expressed by the Coastal Commission staff on May 12,1999, a decision to push ahead with this project is insupportable and intolerable. We believe the documented unlawful issuing of a ``mitigation CDP" to Caltrans for the Devil's Slide Tunnels Alternative prior to the needed CWA Section 404 and Section 7 Consultation approvals from the Corp of Engineers and USFWS will be of great interest to the U.S. District Court. We ask FHWA to refer this document to the U.S. District Court. Such manipulation so aptly demonstrates why the Legislature did not give the County and the voters the authority to make the fundamental decisions concerning our state highways. The tunnels project is not a reasonable alternative because of its inconsistency with the current LCP policies and the Coastal Act. The repair of the current Route 1 alignment aka ``No Project Alternative" and various uninvestigated modified variations of the Martini Creek Alignment Alternative provide the County of San Mateo several reasonable and feasible alternatives that are significantly more environmentally protective and less damaging while fulfilling the basic purpose and needs of constructing a two lane road. At a projected cost of $275 million, the Tunnels Alternative is now over twice the price of the other studied reasonable and feasible alternatives. Not much has changed since these same issues were raised in 1995 in the Final Supplemental EIR/EIS. It is time for the charade to end. We respectfully summit our comments.
Sincerely
Oscar Braun, Executive Director
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