Judge sides with SPAWN

04/21/2021

Marin County violated environmental law when it waited to adopt a stream conservation ordinance in the San Geronimo Valley, a judge ruled on April 9. Marin was sued by the Salmon Protection and Watershed Network, or SPAWN, for delaying protections of coho salmon. A judge agreed that the county had no basis to defer those protections, but he declined to impose legal remedies. The Board of Supervisors is scheduled to conduct hearings on the ordinance next year.

The ruling is the latest in a decade-long legal battle between Marin and SPAWN over fish protections in the valley. Following a judge's order brought by another SPAWN lawsuit, Marin began a supplemental environmental impact report in 2015 that analyzed the cumulative impacts of future buildout in the Lagunitas Creek watershed. The S.E.I.R., adopted in 2019, found that development would result in lower salmonid survival rates and described mitigation measures to protect them. The report gave Marin five years to implement the measures.

SPAWN argued in its lawsuit that certifying the S.E.I.R. but deferring the mitigation measures violated the California Environmental Quality Act. The county had five years to work on the S.E.I.R., and an ordinance should have been adopted at the same time, lawyers said.

The county argued that that deferral was appropriate due to the amount of resources required to adopt an ordinance. The process is different than certifying an S.E.I.R.; it includes presenting the ordinance to the public, the Planning Commission and the Board of Supervisors, and incorporating their feedback. Planners are preparing the ordinance as an amendment to the Marin Countywide Plan, which is currently being updated.

“The S.E.I.R. mitigation measures will result in substantial procedural changes that need careful consideration to ensure the intended result is clear, affordable, simple and enforceable,” county planner Kristin Drumm said this week.

Judge Andrew Sweet sided with SPAWN. “The county has not submitted any evidence or reasonable explanation as to why it was impractical or infeasible to draft or enact the ordinance at the time the SEIR was adopted and certified,” he wrote. “The fact that the ordinance is to be passed at a general plan amendment stage is not an automatic pass.”

County counsel Brian Washington wrote to the Light, “My only comment at this point is that we are very disappointed in the ruling. We will carefully evaluate it and comprehensively evaluate all of our options for moving forward with protecting salmonids and finalizing our Countywide Plan for the San Geronimo Valley.”

SPAWN made further arguments that the S.E.I.R. was insufficient in myriad ways, but the judge only addressed one point, that the county did not include specific performance criteria for measuring whether the goals of the mitigation measures would be achieved. He advised the county to include performance standards in an ordinance. 

Judge Sweet declined SPAWN's request to order a halt on development in the stream conservation area or to impose a deadline to adopt a new ordinance. 

“All we have asked is for Marin County to enact a commonsense, science-based streamside protection ordinance,” Todd Steiner, the executive director of SPAWN, said. “Instead it has delayed, spending hundreds of thousands of dollars to pay consultants to write additional studies and conduct listening sessions with stakeholders, and hundreds of thousands of dollars more to try to defend its inaction in court. Once again, this strategy of delay has been ruled illegal by the courts.”

County planners updated supervisors in March on their progress on a preliminary ordinance. Hearings were scheduled for this year but were delayed until next year so the county could take a deep dive into the mitigation measures, Ms. Drumm said. An outreach consultant will meet with stakeholder groups to articulate issues, manage expectations, drill down to core areas of disagreement and identify solutions. 

Marin has a legal obligation to fulfill the mitigation measures laid out in the S.E.I.R. Those measures include enacting consistent permit requirements, expanding activities that require a discretionary permit, requiring site assessments by the urban streams coordinator and mandating standard management practices, such as replanting trees and controlling sediment. Stormwater, erosion and sediment controls will be tightened even outside of the stream conservation area.

The ordinance for the valley will be used as a model to develop a countywide ordinance that protects streams throughout Marin, adopted along with other elements of the Countywide Plan.

Peggy Sheneman, a Woodacre resident who directs the San Geronimo Valley Stewards, said the county has very little flexibility to create a homeowner-friendly ordinance, and SPAWN’s legal actions are to blame. The ordinance will make it tremendously expensive to undertake even the smallest projects, pushing families away. Putting a fence around garbage cans, installing a gravel walkway and repairing a leaky roof would all require a professional site assessment and a permit that could be appealed to the Board of Supervisors. The county should share these costs with homeowners, she said.

“To impose these burdens on homeowners for the smallest kinds of repairs basically saddles 900 homeowners with the cost of saving an entire species,” she said.

Whether these small projects are to blame for coho's decline is also questionable, she said. Ocean survival and climate change are factors outside the control of valley residents. Public agencies and nonprofits have poured millions of dollars into improving habitat in the watershed, yet the species is still on the brink of extinction.