February 11, 2003

 

Mendocino County Planning Commission

Mendocino County Administrative Center

501 Low Gap Road

Ukiah, CA  95482

 

RE:  Proposed Grading Ordinance

 

 

 

Dear Commissioners:

 

Established in 1982, the Peregrine Audubon Society has demonstrated itself as a concerned member of the inland Mendocino County community.  The organization has grown to a membership in excess of 200 individuals and families and has a strong history of public education, community service and participation, and advocacy for the Public Trust.  Members are highly sensitive to their natural surroundings and especially to the fluctuation in wildlife populations such as birds and fish.  We are keenly aware of the close relationships between habitat and wildlife, hence our interest in the drafting of the Grading Ordinance.

 

BACKGROUND AND OVERVIEW

 

As a preface to our technical discussion, we would like to point out that the Grading Ordinance will only affect future projects.  This ordinance does not attempt to deal with all the problems resulting from past projects, either by public or private entities.  It is important to note that past habitat disruptions in Mendocino County are of major proportions having occurred for more than a century.  Often the damage was not immediately obvious because it usually happened in increments, one small project at a time.  But cumulatively, habitat loss has been significant and widespread throughout the county.  Generally, human development has occurred in the most favorable natural habitats because these areas are biologically the most productive and hospitable for both man and wildlife.  Therefore, much of the most productive natural habitat has already been lost.  As open space becomes more limited, the trend has been to exploit habitats in more remote, steeper, less forgiving, often more sensitive locations.  As we have seen from a number of recent vineyard and development projects in Mendocino and adjacent counties, greater disruption is occurring from roads, water projects, and conversion with less apparent justification.

 

The listing of a number of local plant, wildlife, and fish species under both the State and Federal Endangered Species acts is clear evidence of the scope of the problem in Mendocino County.  Another striking example would be that virtually all creeks and rivers within the county have been altered, impounded, diverted from, cleared of vegetation, or channalized to some degree or another.   The single federal project forming Lake Mendocino compromised over 100 miles of prime fisheries habitat and hydrologically impaired the Russian River below.  Cumulatively, the hundreds of small dams in Redwood Valley and downstream to Sonoma County have had no less impact to the river and its fisheries resources.  Terrestrial habitats have likewise been impacted with the recent conversion of thousands of acres of timberland and woodland for agriculture and development. 

 

Given the extent of impacted habitats and species within the county, Peregrine Audubon Society feels that it is imperative that the Grading Ordinance provide the greatest level of protection possible to safeguard the limited amount of remaining natural habitat.  We also feel that such protections should help facilitate restoration of habitats and wildlife populations damaged in the past, assuring recovery to reasonable and sustainable levels as proposed by the respective State and Federal resource agencies.  There is an obligation under the Public Trust Doctrine to sustain viable populations of all species, not just those deemed useful or pleasurable.  The biological basis for this protection is that a broad diversity of species yields stability to our natural ecosystems, ensuring their continued success and providing important safeguards for human populations.  This concept of diversity parallels the basic economic principal wherein farmers with multiple crops are less likely to face a catastrophic failure in a bad year, or companies with diverse product lines are more insulated from swings in the economy.  The imperative to protect our natural resources for future generations is ingrained in our American culture and in our body of law.

 

The loss of natural habitat and decline in species diversity is what has led to the current quagmire of restrictive agency regulation, often confusing, intrusive, expensive and conflicting.  None of us like it.  We suggest that adequate safeguards implemented now are the best prevention against future, more restrictive regulation.  If the protections afforded by the Grading Ordinance are inadequate, additional regulation from the State and Federal agencies are likely. 

 

It has been a strong and persistent message from the conservation community including the National Audubon Society that the cause of our increasing resource conflicts is a rapidly growing world (and local) population.  While this is clearly not the challenge facing the Planning Commission today, it certainly needs to be on the minds of all of us as we seek long-term answers rather than stop-gap remedies. 

 

Details specific to the Grading Ordinance

The Peregrine Audubon Society has a number of concerns and comments about the proposed grading ordinance that you are now considering.  The primary areas we will address are:  (1) riparian setbacks; (2) permitting process for projects; (3) exemption of rangeland conversion; (4) road construction and maintenance.

 

1. RIPARIAN SETBACKS

 

Adequate setbacks from all classes of streams, zones in which no grading is allowed, are crucial for protection of our water and biological resources.  Existing General Plan goals and policies support these values.  (See, for example water resources and land management sections.)

 

Setbacks achieve the following:

 

1. Provide adequate habitat (food, water, shelter, cover, temperature control, nesting opportunity, migration corridors, etc.) for birds, fish, and mammals as well as supporting a diversity of plants, many of which are limited to riparian settings.  These are all part of our natural heritage, as well as what makes Mendocino County an aesthetically wonderful place to live. These values are protected by the Public Trust Doctrine.  Currently, four county rivers are proposed for 303d listing as temperature impaired, an indication of the damage caused by lack of adequate riparian shading .

 

2. Ground water recharge.  In our county, the edges of all streams are an important zone for recharge of groundwater aquifers and, hence, should be maintained at an optimum level for protection of these crucial resources.

 

3. Stream bank stability.  Roots, large and small, bind the soil and help prevent bank collapse, particularly in high water events.

 

4. Water quality.  Riparian vegetation functions a filter, preventing or reducing pollution.  Because water quality generally degrades as it moves downstream, adequate setbacks high in the watershed is just as important as on the lower, larger stream reaches.

 

5. Retention of flow in ephemeral streams.  Many studies have established that riparian vegetation prolongs the period of water in streams with concomitant beneficial effect on all organisms reliant on that water.

 

6. Room for dynamic stream systems to move.  No stream system is stable; watercourses change (meander) over time.  An adequate setback allows for this natural process.  Meander is exacerbated by the increase in impervious armored surfaces, often associated with land development.  Adequate setbacks prevent the need for channelization with impervious surfaces that impair the aquifer recharge function of stream edges.

 

Because of these valuable resource functions and because of strong and clear General Plan policies approved by the residents of this county, Peregrine Audubon Society offers the following comments and concerns about riparian setback provisions currently being considered.

 

 The width of the setbacks proposed are inadequate, particularly for restoration of riparian vegetation and the fisheries.  Option B is especially deficient as, by eliminating the definition of a riparian corridor, it does not even protect existing vegetation (25 feet from dripline grading exclusion deleted) nor does it protect the capacity for future riparian vegetation, especially important for restoration of currently denuded stream banks.  Although Option A is better, the setbacks are not wide enough; we urge you to heed the advice of the resource agency recommendations in this matter.  Although an erosion control plan has its merits, it does not necessarily protect the many other values promoted and protected by adequate setbacks.  (See above.) 

 

Additionally, the ability to grade within the setback area if the CEQA process is followed (as appears in Option A) is not acceptable.  Essentially, it allows the well-heeled individual or entity greater ability to encroach into the sensitive stream corridors.

 

Peregrine Audubon Society is especially concerned at the broad discrepancy that has developed between the setbacks proposed in the three County options and those recommended by the State and Federal resource agencies.  The resource agencies are staffed with people with a high level of technical skills, and these agencies have developed their respective setbacks based on a significant body of research and evidence.  Likewise, the Coast Audubon Society, comprised of lay specialists and professionals in the field of avian natural history, has recommended setbacks similar to those of the agencies utilizing their keen field observations and long-term collective memory.  It is unacceptable that the County move ahead with proposed values so much smaller than those of the agencies without substantive evidence to support their position.  We would ask the Commission to carefully review the agency standards and return to values more closely approximating those values.

 

The wording of the current proposals includes reference to replanting of riparian vegetation at alternative sites as mitigation for new disturbance.  Agencies have resorted to off-site mitigation for more than a decade (especially dealing with wetlands), and have found results disappointing in most cases.  In general, if the habitat was satisfactory at the alternative site, it would already support the intended habitat.  Attempts to “engineer” new habitat seldom provide acceptable surrogates, just as hatchery salmon and steelhead have proven to be unsatisfactory replacements for wild populations. 

 

Upon review of the options A and B, the Peregrine Audubon Society feels that the 3-tiered approach may well be unworkable.  Interpretation of the conditions is difficult at best, and in many aspects, unclear.  We feel that these complicated wordings are fraught with opportunity to circumvent the intent and extent of habitat and species protections.   Likewise, we feel that due to complexity, departmental or agency decisions could be affected by an applicant’s biased “expert” opinion, poor judgment on the part of an inexperienced agency staff member, the political actions of a determined applicant, by deception, or by other means.  Peregrine would urge the Commission to reconsider this complicated format in favor of simple setbacks adequate to provide the necessary protections.   We acknowledge that one set of setbacks would be inappropriate given the broad range of habitats found in the county.  We therefore would suggest that it may be possible to establish fairly equitable setbacks for various sub-basins in the county, and that this system would likely involve less than 10 geographical regions to define these variations in county drainages.  Each sub-basin would have appropriate and specific setbacks that would protect existing and potential riparian.  An applicant or agency staff member would only need to refer to a designation map to know exactly what the setback requirements would be for a given project.  We believe that information already available from the California Department of Fish and Game regarding county sub-basins could provide much of the needed information for such a system, and that sophisticated aerial interpretation as being done at the Hopland Research and Extension Center could provide any additional sophistication to complete the analysis and designations.  Exemptions to this sub-basin system would only be granted through an appeals process which would include multiple agency review such as CEQA, and by a local hearing board comprised of representatives from State and/or Federal resource agencies and members of the local conservation community.  Approval of any appeal would be contingent upon concurrence of this independent hearing board. 

 

2. PERMITTING PROCESS FOR PROJECTS

 

Dams - As recent State Water Resources Control Board investigations have revealed, many dams without water permits are being built in Mendocino County.  Nor are fishery flows or passage being protected.  This theft of water and biological resources, defined as “public good”, is to the detriment of Public Trust resources and must stop.  We are very concerned that obtaining requisite state agency evaluation and action is not being made a condition of a county grading permit for a dam.  There does not appear to be an adequate mechanism for permit condition enforcement.  A sounder approach, in accord with General Plan policies and state law, would be to issue a preliminary county permit that would become final only after state permits and agreements are either issued or are demonstrated as not being needed.  This procedure would allow the applicant to know that the proposed project would receive county approval before he pursues other agency approvals.

 

We strongly urge that administrative permits be issued only for dams that meet a specific list of very clearly defined limitations, e.g., 200 feet (or the agency-recommended distance for that site) from creek bank or floodplain limit, slopes less than 5%, no clearing of unique or riparian vegetation, 200 feet setback from property lines, pit ponds that do not capture channelized flow and involve no dams, berms or retaining walls. 

 

All Projects – Peregrine Audubon Society feels that all projects permitted under the Grading Ordinance should be approved only after a minimum of two site inspections.  A preliminary inspection would confirm that the location and nature of the project are as described on the application.  The final inspection would confirm that the project was carried out as proposed.  A pattern of inaccurate or incomplete project descriptions has been demonstrated on a number of recent projects which should be adequate justification for this concern over proper inspection.  Coordination between County, State, and Federal agencies could minimize inspection effort and duplication.  It seems appropriate that inspection protocol make provision for members of the conservation community to be notified and included in the inspection process on a voluntary basis. 

 

3. EXEMPTION OF RANGELAND CONVERSION

Conversion of rangeland to intensive agriculture is a major issue.  It, especially as demonstrated by new vineyards, has been a major impetus for neighboring counties to enact regulatory controls.  This loophole must be closed.  Even with the limitations proposed for this exemption, the potential for erosion and other damage to resources is too high.  For example, the proposed exemption only requires the filing of an erosion control plan with no standards for that plan and does not confer any power on the County to do other than receive and file the plan.  The current wording fails to consider the cumulative impact of multiple projects over time on the county’s biological resources.  It is important that conversion be allowed only under a basin-level plan, maintaining specific wildlife corridors and a predetermined percentage of natural habitats within the basin.  This type of basin planning is currently under way by California Department of Fish and Game and others, and needs to be addressed in the ordinance, if only by reference to the General Plan.  Since the General Plan is in the process of revision, interim annual conversion rates should be constrained to conservative levels (with resource agency review of project sites) until the General Plan defines new land-use criteria. 

 

4. ROAD CONSTRUCTION AND MAINTENANCE

 

Roads are a major cause of sedimentation into streams, erosion of valuable soils, and disruption of the hydrological system.  Correct layout and construction is therefore extremely important.  At a minimum, all road building permitted under the Grading Ordinance must meet the standards set forth in the Mendocino County Resource Conservation District 1994 “Handbook for Forest and Ranch Roads”.  If the proposed road cannot meet these standards, it should not be built without adequate engineering to match these standards.  There must be provision for site inspections by qualified staff before and after construction, and, provision for appropriate consequences if the standards are not met, e.g., cost of repair/reconstruction to standards and fines adequate to cover all administrative costs and costs for necessary habitat mitigation.  While the latter approach might allow for some damage to occur before remedied, it should provide a big incentive to do it right in the first place.

 

The exemption for maintenance of a non-complying road should include a condition that a plan be submitted for bringing the road into compliance or properly decommissioned within 10 years.

 

Thank you for considering these comments.  We realize they are lengthy, but these issues are of grave importance for the future of this county and for the legacy we will leave our descendants.  Providing specific documentation for each discussion presented would have added considerable time to our preparation, hence we have not included references.  If you have focused needs for information, we will gladly provide specific references by request.   

 

 

 

Sincerely,

 

 

 

Roger Foote, President