Creekside rules please nobody

05/16/2013

An expanded environmental ordinance affecting over 3,600 parcels of land in Marin has pitted environmental groups against San Geronimo Valley property owners who believe their rights are being trampled.

The Marin County Planning Commission met on Monday to hear public comment on a proposed ordinance that would expand a streamside conservation area and voted unanimously to recommend its approval by the Board of Supervisors. The board will consider the ordinance in June.

The last substantive Stream Conservation Area (SCA) ordinance was adopted a decade ago and applied to undeveloped parcels. The current regulations up for debate would bring in conventionally zoned properties or those with residential houses already on them.

Members of a property-rights group and a realtors association spoke out against the proposal Monday. While opponents voiced concern for the watershed, they said the ordinance goes too far. Some argued for a smaller buffer zone, some called for a tax break to compensate for losses in property value and others said the proposal inappropriately treats the watershed as a wilderness area.

Litigation brought by the advocacy group Salmon Protection and Watershed Network (SPAWN) led last September to a temporary ban on development in areas of the valley affected by the SCA. At the heart of the lawsuit was the failure to enact expanded protections mandated by a 2007 Countywide Plan. The development moratorium will be lifted when the county adopts an expanded ordinance.

Samantha Russell, a homeowner and member of the San Geronimo Valley Stewards advocacy group, said the proposal would be “economically devastating” for her.

“I have not been offered any compensation for the fact that my only investment, which I will rely on for retirement, is now going to be significantly worth less than its fair market value, simply because it happens to be on a pristine and very healthy stream,” she said.

When she purchased her house last fall, Ms. Russell thought the stream was an asset. “If I had known that this property was going to fall into a restricted zone, I would not have bought it,” she told the Light.

The proposed ordinance would create up to a 100-foot setback from the creek, but that setback is commonly misunderstood, said Tom Lai, assistant director of the county’s Community Development Agency. Residents are allowed to build if they have a permit or qualify for an exemption.

Under a first-tier category, permits would be granted if the proposed development has no impact on hydraulic capacity, riparian habitat or water quality. A Tier 1 permit would allow up to 500 square feet of new development as long as it doesn’t creep closer to the creek.

Projects exceeding 500 square feet or those with environmental impacts would fall under Tier 2, in which permits would be granted at the discretion of the county. A site assessment and public hearing could be part of the decision-making process.

Some activity, such as basic home repairs and minor improvements, would qualify for an exemption.

On Monday Ms. Russell said the Stewards are asking for a 35-foot setback, a number used in the county’s Salmon Enhancement Plan. But Mr. Lai said the county must either keep the 100-foot buffer or embark on a new environmental review. “Otherwise [we] would be exposed to litigation,” he said.

Mr. Lai added that the Countywide Plan encourages development in city corridors rather than rural areas. “The reason West Marin is so beautiful is because the goal of the general plan is to focus development in cities,” he said.

But Ms. Russell expressed frustration with that kind of logic. “This whole valley is like a disturbed area. It’s not a wilderness area,” she said. “It doesn’t pay attention to the reality that this is a settled area.”

She added that even if people comply with the  process, there are no guarantees of approval. Under the proposal, an exemption requiring a review of plans would cost $300; Tier 1 permits would cost $1,500 and Tier 2 permits, $4,000. These fees don’t include the cost of a site assessment. Mr. Lai said the numbers reflect the cost of processing applications and added that supervisors could decide to offer subsidies.

Ms. Russell also decried the fact that the county can continue to change the SCA maps after the ordinance is adopted. Someone could purchase a house believing it is outside the SCA, only for a nearby ephemeral stream to be added to the county map later, she said. “This seems unjust considering that the populations of coho salmon” are coming back, she added.

The endangered populations of Central California coho dropped perilously in the second half of the 20th century, said Dr. Peter Moyle of University of California, Davis, a signatory to a letter supporting the ordinance.

The Lagunitas watershed is critical spawning habitat for both coho and threatened steelhead trout.

This year Marin Municipal Water District found that coho spawning numbers were just under a 17-year average—and at a six-year high—in the watershed. They are still well below historic populations.

“The decline of the population that was experienced here back in 2008 was not due to land-use activity in San Geronimo Valley,” said Gregory Andrews, fishery program manager for the district, which tracks salmon spawning in the watershed. “It was clear it had a lot to do with what ocean conditions were like… when [the coho] entered the ocean as young fish,” he said.

This past season, 13 percent of smolts returned to the watershed, a number Mr. Andrews called “phenomenal.” He said it was possible that the restoration of the Giacomini Wetlands, where Lagunitas Creek empties into Tomales Bay, contributed to the rebound.

But Mr. Lai said that protecting salmon is just one goal of the SCA. “If you look at the SCA policies, it wasn’t pulled together just because of the special status of the salmon or the steelhead. It’s about the [whole] environment,” he said.

According to the county’s Salmon Enhancement Plan over 200 species “either completely depend upon riparian habitats or use them preferentially at some stage of their life history.”

Dr. Moyle said that while some development might seem minor, “those things accumulate.”

Gordon Bennett, representing SPAWN, said during the meeting on Monday that his group was “not trying to be difficult.” He took issue with the language requiring a two-to-one replacement of removed riparian habitat, claiming that a homeowner could replace a very large tree with “two little pots of trees. Come on, that’s not reasonable,” he said.

But Mr. Bennett’s primary concern was that development beyond the 500 allowable square feet did not require enough environmental mitigation. “As it’s written now, it really doesn’t do much, in our opinion, for the creek,” he said.

Opponents of the ordinance also said ephemeral streams, or streams that may only carry water during and soon after rains, should not have any setbacks. They also said the SCA maps of such streams are incomplete and inaccurate. The Stewards argued that the county should either finish the maps before approving the ordinance or freeze the maps where they are once the ordinance is passed.

But environmental advocates said ephemeral streams are just as important as other streams because the water quality in those areas can affect the entire watershed.

In the current proposal the majority of ephemeral streams are excluded from the SCA because they are lined with less than 100 feet of riparian vegetation.

The Board of Supervisors is scheduled to vote on the ordinance on June 18. Ms. Russell said that if the ordinance is not passed without the necessary changes, “We don’t want to take legal action, but if we’re pressed against the wall, it would be our only resort.”