Valley stream regs get final okay

10/31/2013

A group of three supervisors passed a stream conservation ordinance—albeit an intermediate one—on Tuesday for unincorporated Marin outside the coastal zone, along with a yearlong program evaluating how development along temporary streams should be regulated. Homeowners in the San Geronimo Valley lauded the move, but the ordinance was protested by some local environmental groups that claim it does not offer adequate habitat and fish
protections. 

When the ordinance takes effect in 60 days, it will lift the moratorium on development in the valley, which has been in effect for one year. 

Supervisor Steve Kinsey—who represents the valley, home to about a quarter of the roughly 3,600 affected parcels—and Katie Rice could not participate in Tuesday’s vote since they own property within 500 feet of a stream conservation area. That fact triggered an investigation into conflicts of interest by the state Fair Political Practices Commission. 

Supervisor Susan Adams also owns property within that 500-foot zone, but the commission approved her participation on Monday, given the presence of multiple buildings between her condominium and the conservation area and Ms. Adams’s inability to develop her condo.

An ordinance to protect streams as mandated by the 2007 Countywide Plan has been a topic of heated debate between homeowners and environmental groups for some time. Delays in adopting it triggered lawsuits from the Salmon Protection and Watershed Network, one of which resulted in the current development moratorium. 

Now environmental groups are split over whether or not the interim ordinance meets their standards. 

Amy Trainer, the executive director of the Environmental Action Committee of West Marin, slammed the new ordinance. “It does not pass legal scrutiny. It does not pass scientific scrutiny… This ordinance does not help. This assures [coho salmon’s] extinction,” Ms. Trainer said.

She argued that the ordinance provides too many exemptions for permits and lacks a provision mandating net gain of habitat or water quality in exchange for some development permits. She also criticized the fact that lower-level permits are not subject to appeal. 

“No public review of whether mitigation measures are sufficient or not? That’s not acceptable,” she said. 

Representatives of SPAWN and its parent group, Turtle Island Restoration Network, urged supervisors to reject the interim ordinance, saying they have the support of dozens of local and national environmental groups. 

But the Marin Conservation League and the Marin Audubon Society supported the interim ordinance, although Barbara Salzman, president of the Audubon Society, said it is not ideal.

Homeowner groups like the San Geronimo Valley Stewards wholeheartedly supported the ordinance. “Is it everything we would want? No. Everything SPAWN would want? Of course not,” John Smithyman, a member of the Stewards, said. 

But, he added, the work program that will accompany implementation of the ordinance will allow for collaboration and eventual consensus.

That program will educate homeowners and pursue how best to regulate development and buffer zones along ephemeral streams, which flow during and after storms. Many homeowners believe the conservation areas around such streams should be smaller than those around year-round waterways.

The program will be shaped by input from homeowners, conservation groups and government agencies through the formation of a Stream Watershed Advisory Group, comprised of 12 to 14 people, and will consist of two phases. The first will develop a report on the existing conditions of ephemerals; the second, estimated to conclude a year after the program kicks off, will evaluate the effectiveness of the ephemeral stream buffers in the Countywide Plan and develop strategies for protection. At that point, supervisors would consider amendments to county code and the Countywide Plan.

The interim ordinance will be in place for two and a half years, or when county code is amended—whichever occurs first.

In response to questions of whether the ordinance as it stands needs to require a net gain of habitat or water quality, Tom Lai, the assistant director of the Community Development Agency, told supervisors that language could be added.

The deputy county counsel, David Zaltsman, addressed recent criticism over a so-called poison pill clause in the ordinance, which mandates that it be lifted if a lawsuit is filed challenging the ordinance or its environmental review. The provision is meant to discourage lawsuits. 

“We want to move forward, we don’t want to be fighting for long period of time,” Mr. Zaltsman said. Homeowners suing the county over its application to their specific properties would not trigger the clause, he said.

Whether or not that will forestall a lawsuit remains to be seen, but Mr. Zaltsman told the Light that the interim ordinance improved upon the current situation. If a group does file suit, it would not automatically reinstate the development moratorium in the valley, though a lawsuit could request a preliminary injunction on building there.

On Tuesday the supervisors recognized that not everyone would be happy with the adoption of the ordinance, but Supervisor Kathrin Sears said moving forward would allow the work program to get underway and begin a “deep dive” into the state of the watershed. There’s nothing like having an actual ordinance in place to evaluate the impacts of the stream conservation area, she said.