The Center for Biological Diversity has taken what appears to be a preliminary step toward suing Marin County over its supplemental environmental impact report to the Marin Countywide Plan, which focuses on potential cumulative impacts to salmonids from development in the San Geronimo Valley.

According to county staff, the Board of Supervisors received an emailed letter from the C.B.D. around 10 p.m. on Monday, Aug. 19, after the close of business and just hours before the board considered certifying the S.E.I.R. The letter, a copy of which was emailed to me by county staff, was written by Peter Broderick, a staff attorney with the C.B.D. It contains numerous references to the California Environmental Quality Act, the CEQA guidelines and relevant case law, and advises supervisors not to certify the S.E.I.R.

Specifically, the letter singles out the Expanded Stream Conservation Ordinance, which the S.E.I.R. designates as the primary mitigation measure for anticipated impacts on salmonids from future development in the valley. To satisfy CEQA’s requirements, the letter said, the county should prepare a draft ordinance for public consideration alongside the S.E.I.R., instead of postponing it until later. The letter also called for a more definite—and shorter—timeline for officially adopting the ordinance than the county’s stated timeline of “within five years…barring unforeseen delays,” and urges the county to make a legally binding and fully enforceable commitment to adopt the future ordinance.

There was no discussion of the letter at the Aug. 20 meeting at which supervisors voted to approve the S.E.I.R. Supervisor Damon Connolly alluded to the letter when he asked staff and consultants from the Community Development Agency how the public comments from “a number of the regional agencies, including the Regional Water Quality Control Board, and…more recently the Center For Biological Diversity” were addressed in the presentation by the development agency. When consultant Maia Singer, from Stillwater Sciences, answered this question, she discussed issues raised by the water quality board, but not the issues raised by the C.B.D. letter. None of the supervisors followed up with additional questions.

Supervisor Dennis Rodoni, speaking with me on Sept. 4, explained that although the supervisors and county counsel had seen the letter before the meeting, the lack of discussion was due to a “combination of [these objections] being really, really late in the process, coming essentially the night before the meeting,” and their similarity to others that the county had already addressed. “I think SPAWN had very similar comments in their letter,” he said.

But for Mr. Broderick, the contents of the ordinance, the timeline for its completion and the county’s legal commitment to adopting it are still too indefinite to meet CEQA’s standards.

“[The county] lists some things that the ordinance should include, but then they say, ‘Oh, well, we don’t have a draft…we don’t actually know what the ordinance is going to say…just that the Board of Supervisors will approve it in the future.’”

Although Mr. Broderick said he thinks the S.E.I.R. is legally deficient and vulnerable to challenge, he declined to comment on potential future litigation. According to CEQA, an objecting letter prior to the close of the final public hearing on the project is a prerequisite to legal action.

County officials do not appear especially alarmed by what the letter might portend. “We are cautiously optimistic that there will be no lawsuit,” county counsel Brian Washington told me. “We feel the county has studied this in great depth at the programmatic level.”


Mark Daley is a writer and former university philosophy instructor. He has followed environment and land use issues closely for the last several years. He lives in Woodacre.