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April 2002

Supes Gives Key EAH Approvals, Dismissing Concerns

By Louis Nuyens

Ducking a volley of increasing concerns over the wastewater disposal components of the project, the Board of Supervisors (BoS) has granted key approvals to the Ecumenical Housing Association (EAH) Point Reyes Station (PRS) development proposal.

But the battle over the EAH project is far from through. Potential interventions by the Regional Water Quality Control Board (RWQCB) or the California Coastal Commission still exist; and the project is subject to an unusually high number of conditions of approval, which will doubtless be watch-dogged by concerned individuals and organizations. However, venues for public input to encourage enforcement of those conditions are now limited, as County public hearings on the project are now complete.

Public Voices Concerns, County Glosses Over Them

The majority of public speakers urged the BoS to not rush the project through or to take the time to get more answers before issuing approvals.

Although the RWQCB limited itself, for the moment, to requesting additional conditions of approval, RWQCB Senior Wastewater Engineer Blair Allen, who was in attendance, spoke at the podium and expressed serious doubts about the project as currently designed. Quoting a RWQCB letter, Allen stated, "Based on our review of the information provided regarding the wastewater and storm water systems for the project, we find that there are unresolved uncertainties regarding these systems and associated potential adverse impacts to water resources." Allen closed by saying that, "As currently proposed, the project does not appear to comply with County code."

The Board also had before it further analysis by Fall Creek Engineering, detailing failures of the EAH proposal in demonstrating that its wastewater and stormwater systems will function adequately and protect public health and the environment.

Ultimately, FCE and RWQCB concerns were quelled by pro-project pitches from Supervisor Kinsey, County planning staff, and consultants.

Planner Tom Lai described the project proposal as providing, "maximum protection of coastal resources." A staff consultant presented a report by Psomas Engineering, which acted as a peer reviewer of Questa's earlier EIR submittals, now hired to provide an analysis of the FCE reports and Questa's responses; the report was four pages and little more than a set of quotes and paraphrases of the FCE and Questa letters, with a one sentence conclusion, given without justification, in favor of Questa.

Supervisor Kinsey praised the project in general terms, stating to the audience that it was time to move forward and let the "details" be worked out later. EAH PRS Project Manager Lamar Turner voiced his opinion that he had found, "No one who could legitimately poke a hole in the science of the project."

At no time did Turner, Questa, Kinsey, or any member of County staff meet with FCE. A meeting had been scheduled between County staff, Questa, and FCE, to occur prior to the BoS meeting, but was cancelled by the County.

The supervisors, county staff, EAH managers and consultants, put sufficient gloss on the discombobulated process that the Supervisors were able to set FCE, RWQCB, environmentalist and community concerns aside, and vote in favor of the project. The Board also seemed to respond to the EAH's insistence that the project would fail if EAH missed filing a tax credit application on 26 March 2002.

The County may also hesitate to call into question a project in which it has already invested close to two million dollars in loans and grants, in spite of early presentation of related concerns. EAH, itself, will reportedly earn a half-million dollar development fee if the project goes through.

Many Unanswered Questions

Questions as to whether the EAH project-which consists of affordable rental units, a mix of affordable and market-rate homes for sale, and a commercial development to be specified at a later time-could be adequately supported by the site for which it is proposed had been raised since early on in the process. In particular, concerns centered largely on the possibility of environmental and public health dangers should the project septic or stormwater systems fail on a site commonly known to exhibit characteristics detrimental to such systems.

In January 2002, the Tomales Bay Association (TBA), a number of PRS residents, and environmental advocates Elena Belsky, Mark Warner, and their attorney, John Sharp, hired Fall Creek Engineering (FCE), charging FCE to impartially evaluate the site analysis and septic systems designs of project consultants Questa Engineering, in order to bear out or lay to rest those concerns.

Fall Creek initially performed a cursory study of the part of the project site it deemed most likely to be troublesome, and reported that Questa had not adequately demonstrated likelihood that its wastewater and stormwater system designs would succeed. Fall Creek also noted apparent inconsistency between data gathered by Questa from the site and data as used by Questa in its analyses and promotion of its system designs. FCE reported that, "Under average and wet rainfall years, shallow groundwater could cause untreated or partially treated wastewater to surface at downslope of the site, posing a significant threat to public health and the environment."

RWQCB Sees Problems

On March 18, the RWQCB weighed in with its own letter, requesting that additional conditions be required as necessary for the project's approval, and saying, "We have concerns about protection of water quality resources at and within the vicinity of the projectÉ Water resources of concern include groundwater, wetlands on-site and off-site, Lagunitas Creek, and Tomales Bay." The RWQCB is the local division of the State Water Resources Control Board, and is empowered to regulate the waters of the state (including support of natural habitat) in the San Francisco Bay basin and coastal areas. The RWQCB has the power to take over any regulatory process related to water resources within their jurisdiction, when that action will protect, preserve or enhance the water quality and beneficial uses of waters of the state. The RWQCB letter left open the possibility of RWQCB intervention, and sent a clear message that the project might have to undergo significant changes to satisfy RWQCB concerns.

RWQCB representative Blair Allen's opinion that the current proposal does not satisfy County codes is in concord with conclusions by Fall Creek Engineering (FCE) and the contentions previously voiced by local environmental groups, and in contrast to assertions by project consultant Questa and County staff statements that followed Questa's lead.

Questa Arguments Fail to Hold Water

Questa rebuked the FCE report, saying, in main, that the FCE study was invalid in that it lacked critical information contained in an earlier Feasibility Report, written by Questa, that was not contained in the EIR and was not readily available to project reviewers. Fall Creek obtained the Feasibility Report to determine whether it would provide the assurances Questa promised, but, instead, reported finding further inconsistencies (see March 2002 Coastal Post). On March 5, Questa responded, saying that-although the Feasibility Report did not contain all the compelling evidence Questa had earlier claimed-FCE conclusions were still at fault in that FCE still lacked critical information contained in several other earlier Questa documents and other sources.

In a letter dated March 18, FCE reported, "Based on our further review of additional background documents, FCE has encounteredÉ inconsistencies [that] raise questions as to the overall feasibility of the currently proposed project." FCE admonished that the public is not well served, "when documents of wide general interest are so difficult to locate."

After obtaining and examining the documents and addenda listed in the FEIR and Questa's most recent correspondence, Fall Creek drew several powerful conclusions. Giving detailed references in support of its analysis, FCE concluded that Questa: had not considered all major factors affecting groundwater conditions on the site; had failed to gather adequate site observations; either mis-reported site data or failed to follow standard practices in its collection; erroneously confused percolation rates with hydraulic conductivity by assuming them to be equal; applied analytical models inappropriate to the site; mistakenly referred to code requirements for systems not allowed for the current project and did so without citing its source; used outdated data for nitrate loading where more recent data in its own reports would predict a violation of County requirements; used models for nitrate loading that are nonstandard and flawed; failed to make adequate study of potential affects to the North Marin Water District's nearby well; failed to adequately analyze stormwater run-off and drainage patterns and factors.

In one section, FCE analysis indicated that, even in the absence of other factors, if Questa had correctly applied its data, Questa would have been forced to conclude that at least four of the septic systems would fail in typical wet conditions.

Questa relied heavily on the argument that Fall Creek simply did not have a complete set of information. Remarkably, each time Fall Creek obtained one of the documents in question, Fall Creek arguments were strengthened rather than resolved. In addition to the challenge of presenting a compelling case for its system designs, Questa must now also overcome the potential perception that Questa arguments might have been disorganized or contained prevarications, as evidenced by statements of mistrust in public testimony at the March 19 Board of Supervisors meeting.

A Slew of Approvals

On 19 March 2002, with the recent Fall Creek and RWQCB letters in front of them, the Marin County Board of Supervisors performed several critical actions in favor of the project: adopting an Expanded Addendum to the Environmental Impact Report; amending the Marin Countywide Plan and the Point Reyes Station Community Plan; recommending that the California Coastal Commission adopt an amendment to the Local Coastal Program and the Zoning Implementation Plan; approving the Point Reyes Affordable Homes Rezoning application; approving the Point Reyes Affordable Homes Master Plan application; and approving the Point Reyes Affordable Homes Precise Development Plan, Coastal Permit and Subdivision applications. The BoS also resolved to adopt the RWQCB requests for additional conditions of approval.

Although the BoS actions came with scores of conditions of approval there is no effective way for the public to continue to participate in and monitor the development process, as all subsequent permits will be approved administratively. The County will have to show far greater diligence in ensuring those conditions are met than it has applied to any other aspect of examination of the PRS EAH proposal if environment and public health are to be protected.

 

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