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County of Marin in Violation of CEQA

San Francisco, CA– In a unanimous decision, the California Court of Appeals upheld a lower court ruling by Marin Superior Court that the County of Marin was in violation of CEQA (California Environmental Quality Act) when they approved the development of a new house in “sensitive creekside habitat” without first completing the proper environmental review.

The Salmon Protection and Watershed Network (SPAWN) along with the Tomales Bay Association (TBA) originally filed suit in Marin County Superior Court against the County of Marin over continued illegal approval of developments along one of California’s most important wild coho salmon spawning streams in west Marin’s Lagunitas Watershed. SPAWN and TBA, filed the action following the County’s continual refusal to heed their concerns, voiced often and vocally in numerous public hearings over the past few years, to follow its General Plan and California law to protect critical habitat for coho salmon, steelhead trout and the habitat on which they depend.

“The days of the County ignoring its own 100 foot stream conservation area setback and allowing continued development that is pushing endangered salmon species to the brink of extinction are over,” commented a very happy Todd Steiner, the director of SPAWN, the lead plaintiff in the complaint.

The original suit filed by Marin County-based groups, SPAWN and the Tomales Bay Association alleged the County abused its discretion by failing to proceed in the manner required by law when it approved a development permit to construct a 3,649 square feet house with an additional 768 square foot garage, parking for five vehicles and intermittent sand filter septic system, on a currently vacant parcel, 20 feet from San Geronimo Creek without first conducting the environmental review required by CEQA. The appeal of the original lower court decision was filed by land developer, Joshua Hedlund and the County of Marin, but the County dropped its appeal in an out of Court settlement prior to the hearing.

“The county of Marin illegally exempted this project from the environmental review process required by CEQA,” stated Michael Graf, attorney for the petitioners. “A project such as this one located in sensitive stream-side habitat is not immune to such laws and must be subject to a proper review process under CEQA. The result of this lawsuit is that the County must review this current development and similar future developments in the stream conservation areas in accordance withCEQA. Such environmental review is also required by the County General Plan.”

In particular, the Court of Appeals ruled that the County failed to recognize the three exceptions to the CEQA environmental review exemption for single-family homes, which include (1) “location”; (2) “cumulative impact”; or (3) “unusual circumstances.” The ruling stated:

“B. The County erred in finding the Hedlund project categorically
exempt from CEQA.

Single-family homes are categorically exempt from CEQA, except (1) when they
“may impact on an environmental resource of . . . critical concern”; (2) “when the
cumulative impact of successive projects of the same type in the same place, over time is
significant”; or “where there is a reasonable possibility that the activity will have a
significant effect on the environment due to unusual circumstances.” (Cal. Code Regs.,
tit. 14, § 15300.2, subds. (a)-©.) SPAWN maintains that all of these exceptions apply
here.

The County’s exemption finding is contrary to the evidence. The first exception to CEQA exemptions, where a project “may impact on an environmental resource of . . . critical concern” is the dispositive regulation here. (Cal. Code Regs., tit. 14, § 15300.2, subd. (a).) It is undisputed that the project site is adjacent to a protected anadromous fish stream and within a stream conservation area. The County itself conceded in the lower court that the project is within an area of “critical concern” of its own designation. (Cal. Code Regs., tit. 14, § 15300.2, subd. (a).) The relevant issue is thus reduced to whether the project “may impact” on that environmental resource of critical concern…

As the trial court properly found, the County erred in relying upon mitigation measures to grant a categorical exemption from CEQA. Only those projects having no significant effect on the environment are categorically exempt from CEQA review…

The County here likewise made a premature and unauthorized environmental evaluation at the preliminary stage of considering eligibility for a categorical exemption. The County Board of Supervisors’s findings that the Hedlund project had possible “adverse impacts on the habitat of threatened or endangered species,” and created “[p]ossible disharmonies with the creek” disqualified the project for a categorical exemption. The possibility of impacts on a County designated resource of critical concern necessitates review under CEQA, at which time mitigation measures may be considered in evaluating the actual environmental impact of the project. ”

Ken Fox, President of Tomales Bay Association said, “The County process of approving development in the stream conservation areas needs to be improved and this lawsuit has resulted in the Court instructing the County to do so. Hopefully, the past unofficial policy of operating on unwritten rules and creative interpretations is over forever.”

“Since 1994, the County policy has included a provision to protect a 100 foot “stream conservation area” that they have ignored to the detriment of endangered salmon, as well as the creek ecosystem.” said Fox. Steiner said, “We must look at the cumulative impacts of years of abuse and we cannot allow the County to continue to unlawfully determine that each small assault is negligible without understanding the collective impacts.”

“The Lagunitas Creek is already listed as `impaired’ by the State of California for pathogens, nutrients and sediment and we must take actions to reverse this condition, not exacerbate it further, so we can make the waterways healthy again,” said Todd Steiner, director of SPAWN. “Because these creeks run through our neighborhoods, ultimately what is good for the salmon is also good for the well being of our families as well.”
FOR A COPY OF THE COURT DECISION, Call 415 488 0370 ext. 103 or tsteiner@spawnusa.org

The Salmon Protection And Watershed Network (SPAWN)) www.SpawnUSA.org works to protect threatened coho salmon and steelhead and the environment on which we all depend. The protection of these keystone species leads to the protection of all the wildlife of our community, and indeed the protection ourselves.SPAWN uses a science-based, multi-faceted approach to accomplish our mission, including research and monitoring, habitat restoration, policy development, environmental education, collaboration with other organization, and media campaigns. SPAWN is a project of Turtle Island Restoration Network.

The Tomales Bay Association monitors state, regional, and local laws, regulations and policies governing management of local resources. When necessary, TBAasserts independent, well-reasoned action to enforce the laws that are meant to protect the public trust resources. TBA is an all-volunteer, nonprofit, tax-exempt organization which depends on both monetary and hands-on volunteer contributions from its members.”