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December 2001

Black Point Developer Practices Miss Par Again

By Louis Nuyens

With a long history of environmental battles behind it, Black Point Partnership (BPP), a creation of the large developer, Spieker Properties, has once again run afoul of environmental watchdogs.

In December of 2000, local residents saw muddy waters in the creeks, and leaking diesel fuel trucks parked within a few feet of a creek on the Black Point property. They called government agencies, including the Regional Water Quality Control Board, EPA, City of Novato, Hazardous Materials hotline, State Department of Fish and Game, but received no response from any of those agencies. One resident also placed a call to San Francisco BayKeeper (SF BayKeeper)-who enlisted the help of Marin Environmental Investigator, Elena Belsky, to respond to the situation.

BayKeeper also immediately called the Novato Fire Department and County Hazardous Materials division; both responded to the leaking diesel fuel truck, and initiated clean up and containment procedures of the diesel fuel and contaminated soils.

According to Belsky, while on the site, she witnessed construction practices constituting violations of the Federal Clean Water Act (CWA), Federal Wetlands protection laws, and the BPP State Construction Discharge permit, due to failure of sediment and erosion control measures, which were allowing illegal construction discharges to the creeks. Army Corps designated and Federally protected wetlands adjacent to the construction areas were among the affected areas. Belsky's claims are consistent with claims made by neighbors and environmentalists throughout BPP ownership of the site.

The CWA mandates that no pollution or illegal discharges shall cause harm to the Waters of the State, and sets monetary penalties of $10,000 dollars per day per incident. Under CWA provision for citizen enforcement, SF BayKeeper sought relief of the environmental damage allegedly occurring at Black Point. As a part of this CWA enforcement procedure, a notice must be sent to the violator, informing them of the CWA sections allegedly broken, and the conditions on site and dates of runoff events (rain of 0.1 inch or greater) that caused the violations. After receipt of the letter, noticed parties have 60 days to come into compliance with the CWA. If another violation occurs beyond the 61th day, the violators can be sued in Federal court. Settlements are the common, as both parties want to avoid costly legal fees; settlements often include continued compliance requirements, costs and fees, and monetary penalties channeled toward mitigation projects. Settlements also allow alleged violators to avoid the risk of admission or proof of actual culpability.

At Black Point, the road system for the 50 home subdivision and landscaping of the Stonetree Golf course were under construction, The CWA mandates specific erosion control measures to be made during rainy season. According to Belsky's observations, BPP had not taken sufficient precautions. At each rain event, loose, uncovered dirt would turn into mud, be tracked throughout the roads, and silted water would run off roads and hillsides, flowing downslope into the drainage systems, into the creeks on the property and out to San Pablo Bay;

A section of raw ground was opened at the front of the property between a creek and the railroad track right of way. The area was graded and disturbed right up to the creek bank, with dirt clods rolled into the water; the erosion controls in place were inadequate. On the clay soil, greasy patches of a bright red substance were observed. During a significant storm, the color of the creek was a vibrant and foamy orange-red. Belsky took photographic evidence, but was not able to take water or sediment samples at the time. A few days later, the surface of the area where the red patches were had been skimmed away, with approximately 18 inches deep of soil removed, apparently by grading equipment, and the coloration in the water was gone, preventing soil and water testing to identify the substances. The nature and origin of the brightly colored substances, and whether the soils removed were disposed of properly, remain unknown.

According to Belsky, SF BayKeeper monitoring of the Black Point site continued throughout the 2000-2001 wet-season, with repeated documentation of Clean Water Act violations throughout. The 60-day notice of intent to sue was sent to the developers in March 2001.

The Black Point Partnership, Spieker Properties, and a number of other noticed parties settled with SF BayKeeper out of court, recently, for an undisclosed sum, including a punitive mitigation payment. Continued compliance with the environmental laws is one of the conditions of the settlement, with monitoring and access by the watchdog group stipulated.

Past claims against BPP regarding the development include ongoing environmental damage to the site, including poor erosion-control measures, deliberate drainage of seasonal wetlands, misleading pro-project propaganda, and unethical manipulation of the political process. In spite of a Brown Act lawsuit and the concerns about environmental damage, Councilmember Patricia Ecklund and Supervisor (then Council-member) Cynthia Murray backed the project heavily.

In 1995, BPP and the City of Novato were successfully sued by the Marin Conservation League (MCL), the Marin chapter of the Audubon Society, and the Black Point Forest Rescue Project, to throw out a back-room deal between the developer and the Novato City Council that approved the project.

Concerned citizens, including Belsky, have also reported incidents of what they believed to be deliberate obstruction of access to public information related to the Black Point project (and others) by offices of the City of Novato.

 

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