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August 2002

County Attempt at SCA Ordinance Falls Short

By Elena Belsky

Whether public relations move, or a laudable attempt to protect endangered salmonid species and their habitat from harmful development on Marin streams, County Planners and Supervisors recently implemented an interim urgency ordinance (a building and grading moratorium) and drafted a new Amendment to the Development Code.

Unfortunately, both the interim urgency ordinance and proposed Amendment are problematic, incomplete, and ultimately, if fully adopted, may cause unanticipated complications for the County and property owners.

The interim urgency ordinance for a moratorium on grading or building on conventionally zoned vacant lots in the Streamside Conservation Area (SCA), for the next 10 and a half months, covers only those creeks identified as containing endangered salmonid populations. In a remarkable omission, it fails to include other endangered species and their creeks, such as red-legged frog, Tidewater Goby, and many others. The very real problem of increased build-out of already developed parcels in the same areas, was also not taken into consideration.

The proposed Amendment to Title 22 (Zoning Code) mirrors the interim urgency ordinance in its shortcomings, and was fast tracked through Planning Commission approval with inadequate notice given to the public for review. There were no public hearings conducted, and no public input sought on the concept, language, or drafting of a very complicated and critical ordinance, where there are many stakeholders.

County not using watershed-based planning

The global movement towards watershed-based environmental planning has been an important step in the protection of endangered species and restoration of imperiled habitat worldwide. The County's segregation of vacant parcels versus developed creekside parcels, regardless of the type of zoning, in the proposed ordinance is a "piecemeal" approach that fails to consider

cumulative impacts.

The map that the proposed Amendment is based on, relates only to coho salmon and steelhead streams; other endangered species, and other blue line creeks (water flows year-round) throughout the County are not included. Narrowly defining the parameters of which creeks and species are protected under this proposed Amendment is not in the spirit or intent of the protective language of the County Wide Plan's SCA policy.

It seems logical that the County would undertake a more accurate and comprehensive watershed survey, and assessment of endangered species and their habitat in Marin County, prior to attempting to draft any new planning and use laws.

Existing SCA in the Countywide Plan

A number of individuals and environmental groups protested the proposed Amendment before the Planning Commission on July, 22. Longtime environmental planning watchdog, Cela O'Connor of Bolinas, found the County's proposal to be inconsistent with Countywide Plan (CWP) policies: "The protections in the final ordinance need to be expanded to reflect the Countywide Plan's intent and the mandatory language in the Environmental Quality Program 2.3a. This ordinance falls far short of the CWP

for the SCA, countywide."

Language in the SCA policies is quite clear, and the word "shall" is used throughout, which does not appear to allow for staff discretion in its implementation. (please see sidebar for SCA definition & policies.)

The CWP Stream Conservation Area policy specifically includes woodland and riparian habitat, and not necessarily in direct proximity to a creek or wetland. For example, there are isolated, inland wetlands areas and riparian vegetation (i.e. stands of willow) that are protected under the SCA, but have not been considered in the proposed Amendment. All of the areas designated in the SCA policy are critical to effective preservation of endangered species and their habitat and must be maintained in the language of any amendment.

Property owners face potential discrimination

Community unrest and potential litigation from an unfair and discriminatory ordinance, where one neighbor can build without design review, and another may not even be allowed to build at all (vacant lot owner), is one possible outcome from the currently proposed language. The amendment must be made more equitable for property owners in order to be effective and not be under constant legal challenge, which would benefit neither the land owner, County, or the endangered species.

As currently written using only the County generated salmonid map of streams and habitat, those most affected by the ordinance amendment would be San Geronimo Valley residents. Of the 219 targeted parcels, 196 are located in the San Geronimo Valley, with the remaining 23 parcels scattered in the Tamalpais Valley, Kentfield/Greenbrae, Marinwood, and Novato communities

Problems for the County - "take" of endangered species

A "take" is broadly defined under Federal Endangered Species laws, as anything that might disturb or harm protected species or their habitat, which includes development or disturbance along the streams that would adversely impact the fish or habitat.

The County has stated in recent documents that the adoption of an interim ordinance is necessary to ensure certain parcels would not be developed that, "unnecessarily imperils the fish habitat," and, "It is also necessary to avoid potential 'take' liability under the Federal Endangered Species Act for the listed species of fish."

A major flaw in logic occurs, though, when the interim and amended ordinances exclude the majority of developed properties that, if further developed, would significantly contribute to habitat damage.

It seems the County would continue to be exposed to a "take" under federal law, using the currently proposed Interim and Amendment ordinance criteria.

Conclusion

Fast tracking a law that will affect many citizen stakeholders is not conducive to public participation or a productive partnership between environmental advocates, property owners, fisheries agencies, and local government. Carefully thought out and widely reviewed drafts are essential to the process in order to create a workable law.

The language must specifically include all conventionally zoned, developed lots AND all endangered species habitat/blue line creeks to Title 22 Amendment and Interim urgency Ordinance #2002. And perhaps it's time to include all lots of record that would be covered under the other riparian and woodlands section of the SCA policy, as well, for the most comprehensive and protective ordinance.

Ultimately, any stream protective ordinance must closely follow and implement SCA policies as mandated and set forth in the Environmental Quality Section of the Countywide Plan. Anything else would be circumventing the spirit and vision of its authors.

 

 

 

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