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January, 2003

County Destroying Key Environmental Protections
By Elena Belsky

A state of emergency exists for Marin's environment. Recent County proposals, led by Supervisor Steve Kinsey, are emerging as a brazen two-pronged attack on two of Marin's most important environmental protections.

In November, it became clear that a proposed update to County septic system policies is intended solely to standardize a culture of noncompliance with public health and safety protections (see Dec. 2002 issue, page 15). In December, a proposal was set forth that radically undercuts Countywide Plan protections of stream habitat.

In both cases, Marin residents are being told that the new proposals are being set forth to protect them from more stringent regulations currently under development at the state or federal levels. Residents are also being lied to by County representatives about the legality and true purpose of the County's proposals.

The vision Supervisor Kinsey had for west Marin when he promised to, "Put the lights out on the old way of doing business," is becoming all too clear: Together these concurrent proposals take aim at the heart of environmental preservation in Marin. The danger from these draft proposals is profound and it is imminent.

Protecting Endangered Species

The Countywide Plan (CWP) is the last word in land use and planning: any ordinances or regulations are created from the CWP, and must fully agree with and uphold its provisions. If there is a conflict, the CWP takes precedence (California Government Code 65860). Contrary to County assertions, the CWP is the prevailing law, regardless; it does not need additional regulations or ordinances to be enforceable. Yet the County is attempting to interpret the CWP as freely adaptable, rather than as the Constitutional document it is.

CWP Environmental Quality Program element (EQ 2.3a) details the Stream Conservation Area (SCA) Policy, with provisions designed to protect endangered species, their critical resources, and their delicate habitat from destructive impacts by humans. SCA Policy sets out specific requirements and procedures for most imaginable uses of the sensitive 100-foot buffer zone on either side of creeks and wetlands. The directions are often indisputable, using words such as "shall" and "must," allowing neither for discretionary interpretation nor for "waivers" to the protective provisions. (See sidebar, "SCA Definition and Policies.")

If the County had been actually enforcing the EQ 2.3a Program since it was adopted into planning law twenty years ago, the creeks and wetlands of Marin would be significantly healthier than they are today.

The County is now reinterpreting EQ 2.3a to suit a now familiar, reoccurring agenda-one of increasing discretionary control. While the proposed ordinance does include elements of the SCA Policy, the rest has been carefully tailored to build in waivers and exemptions, which are left to the discretion of ONE person -the director of the Community Development Agency, Alex Hinds.

Undercutting EQ 2.3a of the CWP by placing discretionary language, and improper conditions in an ordinance, not only weakens creek protections and the overall vision of environmental protection mandated by the CWP, but may be open to legal challenges, if adopted into practice.

One Example of Inappropriate Revisions

Of immediate concern to environmental and fisheries protection groups is an exemption that wrongly implies that no permits are necessary for a "public or private entity" to perform many kinds of unsanctioned work in endangered species creeks.

Oddly, the County seeks to make the Community Development Director responsible for determination of which fish barriers may be removed under this exemption. These types of decisions are strictly reserved for qualified fisheries biologists, and it is a determination made jointly by Federal and State Agencies. The National Marine Fisheries Service, California Department of Fish and Game, Regional Water Quality Control Board, and the Army Corps of Engineers, all have presiding jurisdiction over creeks and habitat with endangered species; the County of Marin is not the lead agency, as the exemption implies.

This particular exemption might be a serious problem for the County, other public agencies, and private citizens, as it could lead to violations of Federal and State endangered species laws, and the potential for immediate intervention and prosecution by the Federal and State agencies. It might also lead to unmitigated damage to habitat and creeks from uninformed and misled property owners, and perhaps the Public Works Department.

The County's Program of Misinformation

Misleading and false statements abound as the County presses forward with its abrogation of the CWP and Marin's environmental protections.

According to West Marin resident Mary Schmale, Supervisor Kinsey's aide, Liza Crosse told her that the Countywide Plan was, " Éa statement of intent, not a law," a pronouncement that is utterly incorrect, according to State law and the California judiciary.

Senior Principal Planner, Tom Lai acknowledged in a public meeting that, "The General Plan is the Constitution for environmental protection," yet, a few minutes later, Alex Hinds, the Community Development Director said that the County "Édid not have the ordinance [needed] to implement the Countywide Plan."

Both men assured the audience that if a property is 100% encumbered by the SCA, the County will work through Design Review to come up with a way to develop. This is in direct conflict with the CWP, which mandates, "Proposals which do not conform to SCA policies, and cannot be modified or mitigated so they do conform, shall be denied."

County representatives seem unable to present a coherent and truthful message to the public, on either the Septic policy revisions or the draft SCA ordinance.

Deceit, Damage, and Political Motivations

The Countywide Plan is, and has been, completely enforceable, at any time the Supervisors or Planning Department desire. Weakening Marin's protective Constitution to coincide with a political agenda and doing so in the false guise of making it enforceable, is a grave disservice to the people of Marin.

Adding waivers and exemptions to the SCA process will result in increased harm to Marin's natural resources. These manipulations of the Countywide Plan appear to serve another purpose-to allow the possibility of a practice for which County government is becoming well knownÉ political favoritism.

 

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