Marin hit with lawsuit over fish protections

10/03/2019

The Salmon Protection and Watershed Network and the Center for Biological Diversity sued Marin County last week, disputing the adequacy of its recently finalized environmental analysis on the cumulative impacts of future development on salmonids in the San Geronimo Valley. The county had undertaken the five-year project as a result of previous legal action by SPAWN. 

In addition to substantive concerns over a supplemental environmental impact report that the Board of Supervisors certified last month, the lawsuit argues that the document’s primary strategy for offsetting the impacts of development—an expanded stream conservation ordinance—unlawfully delays mitigation.  

Despite the lawsuit, Tom Lai, the assistant director of Marin’s community development agency, said the county will continue to develop the new streamside conservation ordinance—an effort to expand a previously approved policy that was stymied by SPAWN litigation. Though the S.E.I.R. allots the county five years to adopt the new ordinance, Mr. Lai said he anticipates finalizing it within the year and hopes to bring a schedule and budget before supervisors this fall. 

Although the lawsuit calls on the county to halt all development within existing streamside conservation areas until it remedies the analysis, county officials say they will apply the 2007 countywide plan's stream conservation guidelines when reviewing projects in the San Geronimo Valley until otherwise directed by the court.  

The first hearing is likely six months to a year away, said county counsel Brian Washington. “We have received the petition and are reviewing it,” he said. “I’m extremely disappointed that the petitioner elected to continue this wasteful litigation rather than working together with the county in protecting the salmonids and other resources in the San Geronimo Valley.”

The suit, filed on Sept. 26 in California Superior Court, takes issue with the fact that the supplemental environmental impact report identifies impacts on fish as “potentially cumulatively significant” yet primarily relies on the future adoption of a streamside conservation ordinance to mitigate those impacts to the level of insignificance. Arguing the county could neglect to honor the commitment to create an ordinance and challenging its efficacy in the first place, the suit cites the California Environmental Quality Act and several state laws concerning public agency procedure.

“[The] adoption of a future [ordinance] is not an enforceable mitigation under CEQA guidelines, nor does this measure establish sufficient performance standards to allow for such deferred mitigation even if it were enforceable,” the suit states. “The county fails to provide an adequate explanation for why adoption of the ordinance at the time of the S.E.I.R. certification was impractical or infeasible. Unlawful deferral of mitigation is a failure to proceed according to law. Further, the county’s finding that such deferred mitigation will avoid future significant project impacts is not supported by substantial evidence.”

Besides the stream ordinance, the suit also takes issue with the other two mitigation measures within the S.E.I.R. SPAWN argues that the county’s proposal to develop criteria, design specifications and guidelines for individual bank stabilization and instream habitat enhancement projects is lacking in “enforceable performance standards” and that the county’s finding that this mitigation will avoid significant impacts is not supported by substantial evidence.

Regarding the third mitigation measure, in which the county commits to changing the existing stormwater, erosion and sediment control requirements, the suit says the S.E.I.R. “does not provide an explanation or analysis for how limiting the timing of grading projects or adhering to design criteria for new or repaired roads will avoid the significant incremental cumulative increases in sediment scouring of streambeds during the spring spawning season that have continued to occur over the last decades.”

The suit contends that the analysis was faulty in myriad other ways, including failing to identify significant cumulative impacts from development related to water diversion and groundwater pumping, contaminants from stormwater runoff, light and noise pollution, emergency removal of large woody debris from streams, and more. 

“The county continues to neglect its duty to protect [endangered coho salmon] by failing to pass a science-based, common-sense streamside protection ordinance,” Todd Steiner, the executive director of SPAWN, said in a press release. “Despite providing indisputable scientific data and testifying at public hearings, we’re left once again with the last-resort option of taking them back to court. We call on lawmakers to take speedy and decisive action to protect the critical habitat endangered coho need to survive, so we can redirect our resources to restoration instead of litigation.”

SPAWN’s legal battle with the county began a decade ago. In 2010, the nonprofit filed a lawsuit that challenged the adequacy of the environmental impact report the county prepared in conjunction with its 2007 countywide plan. In 2015, the state’s first district court of appeal ordered the county to set aside that plan and prepare a supplement to the E.I.R. that further addressed cumulative impacts on salmonids and provided expanded mitigation measures. Based on that court order, the county reverted to the guidelines in the 1994 countywide plan for development projects in the San Geronimo Valley watershed in the interim.  

After years of preparation, the Board of Supervisors certified the final S.E.I.R. in late August.

The analysis found two potentially significant cumulative impacts and one less-than-significant cumulative impact to the spawning, rearing and survival of salmonids in the watershed, but no impacts that could not be adequately mitigated.   

The first potential impact was that urbanization—or increased concrete and other impervious surfaces—will cumulatively increase stormflow magnitude and frequency, compromising the ability of rearing coho to find adequate refuge during high stream flows. The second potential impact was reduced salmonid spawning success due to increased development-related fine sediment in stream channels. 

The last potential impact, determined to be minor enough not to require mitigation, was reduced salmonid summer rearing success due to degraded habitat conditions, including reduced habitat complexity, reduced streamflows and increased water temperature. 

In addition to the other mitigations, the S.E.I.R. features the development and implementation of an expanded streamside conservation area ordinance. The S.E.I.R. does not effectively establish an ordinance, but lays out the bare bones of what the county hopes it will accomplish, including expanding the set of development activities that require a discretionary permit and site assessment and enacting consistent requirements for those assessments.

This week, Supervisor Dennis Rodoni echoed the view of county counsel, expressing frustration with the lawsuit. 

“I am disappointed that adopting the [stream conservation ordinance] for San Geronimo Valley and moving forward with the countywide plan update may be delayed by this challenge,” he wrote to the Light. “Hearing from the courts is the next step and I am hopeful the judge believes we have addressed the court's concerns with these S.E.I.R. revisions."