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REGIONAL WATER QUALITY CONTROL BOARD LETTERS TO THE TOWN OF MORAGA

To download a PDF version of the 9/26/06 letter Click Here

To download a PDF version of the 10/28/09 letter Click Here

Text Version of 10/28/09 Letter:

Arnold Schwarzenegger

Governor





Linda S. Adams

Secretary for

Environmental Protection

October 28, 2009

Site Number: 02-07-C0742

CIWQS Place No. 746266



Sent by electronic mail to:



Town Council

Town of Moraga

2100 Donald Drive
Moraga, CA 94556



Subject: Final Environmental Impact Report for the Rancho Laguna 2 Project



Dear Town Council:



San Francisco Bay Regional Water Quality Control Board (Water Board) staff are writing with
regard to findings made in documents associated with the Final Environmental Impact Report
(Final EIR) for the proposed Rancho Laguna II Project (Project) in the Town of Moraga. This
Final EIR was certified by the Planning Commission on August 17, 2009.



We understand that the Town Council is meeting on October 28, 2009, to discuss issues that
have been raised in an appeal of the Planning Commission’s certification of the Final EIR. For
the purposes of your discussion, this letter is written to reiterate comments that the Water Board
has previously made regarding the proposed fill of the stream channel along Rheem Boulevard,
and verify that the Town Council is aware that our position regarding the proposed fill has not
changed.



Proposed Creek Fill is a Significant Impact: The Final EIR as adopted includes in the
preferred alternative the proposed fill of 1,768 linear feet (LF) of a stream channel that runs
along Rheem Boulevard (790 LF of wetland swale and 978 LF of intermittent stream channel).
The Mitigation, Monitoring and Reporting Program (MMRP)(August 17, 2009), prepared to
highlight impacts and proposed mitigation measures associated with the Project, states “with
implementation of Mitigation Measures 3.55 #3a and #3b, this impact will be less than
significant.” Mitigation Measures 3.55 #3a and #3b include the re-creation of a swale and stream
channel, and creation of a seasonal wetland and seep on top of the buttress fill.



We do not agree with the determination that the permanent loss of the natural stream channel can
be mitigated to a less-than-significant level with the proposed mitigation. Further, we do not
support the concept of creating a water course on top of engineered fill either in general, or more
particularly as mitigation for the permanent loss of a natural stream channel. The natural creek


that would be filled by the project offers a degree of complexity and diversity with respect to
micro invertebrate and benthic organisms that would not be replaced by creation of a water
course on fill, or by preservation of land and creeks either on-site or at an off-site location.



In our September 26, 2006, comments on the Draft EIR, we noted that the permanent loss of a
natural stream channel is considered to be a significant impact. We also noted that the proposed
creation of a water course on the buttress fill would not be acceptable as mitigation for such
losses, should it be determined that the proposed fill is necessary. The September 26, 2009, letter
also discussed the overall significance of the functions provided by the stream channel proposed
to be filled, and noted that such functions were not adequately characterized or described in the
Draft EIR.



The revisions to the Draft EIR, and other documents associated with the development of the
Final EIR have not provided any new substantial information to address the comments made in
our September 26, 2006, letter. Further, the Final EIR does not include new information that
could support a determination that the Project including the proposed fill is the least
environmentally damaging practicable alternative (LEDPA).



The proposed filling of the stream channel along Rheem Boulevard is a significant impact that is
subject to review under current Water Board policies noted in our September 26, 2006, letter.
These policies require that proposed fill of wetlands and streams be subjected to a rigorous
analysis of alternatives designed to meet the project purpose. The policy of the State of
California with respect to environmental impacts to water resources is to require – in ranked
order – first, avoidance, and second, where impacts are unavoidable, to minimize such impacts,
and last, to mitigate impacts that cannot be avoided or fully minimized, but only as a last resort.
This means that no discharge of fill shall be permitted if there is a practicable alternative to the
proposed discharge that would have less adverse impacts on the aquatic ecosystem. The Project
proponent has not demonstrated in the Final EIR, or in materials submitted to the Water Board as
part of their CWA Section 401 water quality certification application, that the proposed project
constitutes the LEDPA as specified in the Guidelines.



Proposed Mitigation for Creek Fill Inadequate: The proposed re-creation of a stream on fill to
compensate for the loss of a natural stream channel suggests to us a number of problems that can
not be easily addressed. Some of these problems were noted in our September 26, 2006, letter,
and also in comments provided to the Project proponent in response to the submittal of a 401
water quality certification application. These problems include potential stability issues, loss of
groundwater/surface water interaction, and lost transport of important micro biota and nutrients
through the watershed which are basic building blocks of a healthy aquatic ecosystem. A stream
placed on fill would need to be carefully constructed to remain stable over time. As such, it
would be designed to prevent natural movement of its bed and banks, which normally allow
creeks to develop physical complexity associated with features formed by erosion and
deposition. These types of features, such as shallow riffles, deep pools, and point bars, provide
variation in habitat for creek organisms, and energy dissipation. As such, an engineered creek


will not function in the same ways as the existing natural creek. Re-creation of a creek resting on
fill material might have the appearance of a natural creek, but it would lack many of its essential
functions.



Information provided in the documents to support the Final EIR have not provided any basis for
a change in our determination that proposed creation of a water course on the buttress will not
provide satisfactory mitigation.



CEQA Requirements: CEQA requires that mitigation measures be presented in sufficient detail
for readers of the CEQA document to evaluate the likelihood that the proposed remedy will
actually reduce impacts to a less than significant level. In an adequate CEQA document,
mitigation measures must be feasible and fully enforceable through permit conditions,
agreements, or other legally binding instruments (CEQA Guidelines Section 15126.4).



In the case of the proposed Project, the proposed mitigation measures for stream and wetland fill
are not adequate. Therefore, it is not appropriate to make a finding that impacts to biological and
water quality functions will be mitigated to a less than significant level. Note also that is it not
acceptable to include mitigation measures to be identified at some future time. It has been
determined by court ruling that such mitigation measures would be improperly exempted from
the process of public and governmental scrutiny which is required under the CEQA.



Several locations within the Final EIR documents suggest that off-site mitigation may be
included in the eventual mitigation package, and/or that mitigation measures will be
implemented as agreed upon during permitting with the various resource agencies. Considering
that the Final EIR documents do not include adequate mitigation, it appears that the Project
proponent may be relying upon yet-to-be identified mitigation for biological and water quality
impacts. This conflicts with the above noted CEQA requirement that mitigation measures be
identified during the CEQA process.



Creek vs. Drainage: We note that the Final EIR documents refer to the stream channel along
Rheem Boulevard as a “drainage”, or a “swale” in the case of the stream located on existing fill
at the upper end of the Project site. We do not agree with the use of this terminology, as it
suggests to the reader that the functions and values of such a features are not important.
Intermittent stream channels constitute an important part of the overall stream system in Contra
Costa County. They provide habitat functions that are unique and different from those provided
by a perennial stream. The fact that it is intermittent rather than perennial does not reduce its
importance with respect to the Water Board’s determination as to whether impacts are
significant. Further, the Water Board protects both existing and potential beneficial uses of all
waters of the State. The fact that any portion of the stream channel along Rheem Boulevard may
be “degraded” is not important when it comes to making determinations about proposed fill.

Other Issues: Other issues of concern that we have noted in reviewing the Final EIR documents
include the following: (1) the potential conflict between the landscape plan as proposed to
address visual impacts and the proposed biological and water quality functions of the created


water course; (2) the lack of a well defined stormwater treatment and flow control system; and,
(3) the proposed creation of mitigation wetlands and a seep on the buttress fill area.



There appears to be a potential for conflict between the mitigation measures proposed to address
visual impacts and the biological needs of the water course proposed for creation as mitigation
for stream fill impacts. Landscape plans appear to have been modified to limit tree plantings in
certain areas. It is not clear that the proposed biological functions of the created water course
could be met if such limitations are in place, or that there is adequate space to plant the
designated number of mitigation willows.



Current Water Board practice requires the use of landscape based treatment (such as bioretention
features, rain gardens, planter boxes, etc) to the extent feasible within a development to provide
for stormwater treatment and control of the increased flows from urban development. It is not
clear that adequate land area within the development has been set aside to address this need.
Note also that to prevent hydromodification impacts, the range of storms between 0.1 of the 2
year storm to the 10-year storm flows are typically considered to be of greatest concern. The
Final EIR only refers to control of the 2-, 10-, and 100-year storm flows. Although this may be
appropriate for flooding and peak flows, it will not necessarily address hydromodification
concerns. Also, note that the newly constructed/paved Rheem Boulevard would need stormwater
treatment features included in the design.



To mitigate for impacts to seasonal wetlands and a seep on the Project site, the Project proponent
proposes to create similar features on the buttress fill. We do not support the creation of
mitigation wetlands on fill. Mitigation wetlands shall be created in natural watershed areas
where impacts to the existing hydrology will not occur. Also, seep re-creation has not generally
been found to be successful. As such, out of kind seasonal wetland creation may be necessary,
and the mitigation to impact ratio may be higher. Also, we note that the Final EIR generally
refers to a 1:1 mitigation ratio (mitigation:impact). Due to uncertainties associated with
mitigation wetlands, temporal losses, and the difficulties associated with creation of a wetland
where it does not naturally exist, we generally require a higher ratio of mitigation are to
impacted area.



If you have any questions, please contact Katie Hart at (510) 622-2356 or via e-mail at
khart@waterboards.ca.gov.



Sincerely,







Shin-Roei Lee

Division Chief

Watershed Protection






cc:



Bill Orme, SWRCB-DWQ Stateboard401@waterboards.ca.gov

Jane Hicks, U.S. Army Corps of Engineers Jane.M.Hicks@usace.army.mil

Cameron Johnson, U.S. Army Corps of Engineers Cameron.L.Johnson@usace.army.mil

David Smith, Chief, US EPA Region 9 R9-WTR8-Mailbox@epa.gov

Suzanne Gilmore, CDFG SGILMORE@dfg.ca.gov

Lori Salamack lsalamack@moraga.ca.us

Jill Mercurio jmercurio@moraga.ca.us











Text Version of 9/26/06 Letter:

September 26, 2006
File No. 2188.03
Site Number: 02-07-C0742



Ms. Lori Salamack, Planning Director
Town of Moraga Planning Department
329 Rheem Boulevard, Suite 2
Moraga, CA 94556

Subject: Draft Environmental Impact Report for the Rancho Laguna 2 Project
SCH Number 2003022062

Dear Ms.Salamack:

San Francisco Bay Regional Water Quality Control Board (Water Board) staff have reviewed the Draft Environmental Impact Report for the Rancho Laguna 2 Project (DEIR) in the Town of Moraga, Contra Costa County. The DEIR evaluates the reasonably anticipated environmental impacts of the project proposed by Rancho Laguna, LLC (Project Sponsor) to develop 35 homes and related facilities on about 44 acres of a 180-acre parcel of land adjacent to Rheem Boulevard in the Las Trampas Creek watershed. Construction of the project as currently proposed would result in the fill of a small intermittent creek, eliminating the creek and its associated riparian zone. Several small seasonal wetlands and what the DEIR calls ‘wetland swales’ found elsewhere on the site would also be lost as a result of fill. The Water Board has serious reservations about the ability of the Project Sponsor to mitigate for the magnitude of such losses. We do not agree with the DEIR finding that the loss of this locally important habitat is “less than significant” after mitigation. Further, we do not support the concept of creating a water course on top of engineered fill in the manner proposed by the Project Sponsor due to the high risk of failure and potential for downstream water quality impacts.

General Plan Conformance and Water Board Goals. The Water Board’s objective with respect to rural and urban creeks within the San Francisco Bay area is to promote and maintain the development of a stable landscape that provides for maximum stream and wetland function. This objective would appear to be in agreement with the goals and policies of the General Plan for the Town of Moraga that are aimed at the preservation of riparian environments and watercourses. However, given that the Rancho Laguna 2 development would result in the fill of a creek and seasonal wetlands, it appears to be at odds with these goals and policies as stated in of the General Plan as well as goals and policy of the Water Board and the San Francisco Bay Basin Plan. Under these circumstances, more effort to avoid and minimize impacts to streams, wetlands, and related riparian habitat is required.

Permanent Loss of Creek Function & Habitat & and the Need to Avoid & Minimize. The Water Board’s primary concern with the Rancho Laguna 2 project is the proposed fill of a natural stream and seasonal wetlands at the project site. The DEIR rates the loss of these locally significant habitats as “less than significant” after mitigation. However, the mitigation proposed for the project is far from adequate compensation for the impacts the project will cause and does not merit rating the project’s impacts as less than significant.

The drainage which would be filled by the Project as it is currently envisioned is an excellent example of what is becoming increasingly rare in the Bay Area, even in the less developed portions of Contra Costa County: a small headwaters stream. Despite the fact that it is intermittent and subject to cattle grazing, the creek that runs along Rheem Boulevard (hereinafter referred to as Rheem Creek in this letter, and called the Rheem Boulevard drainage in the DEIR) supports a well-developed riparian habitat including mature native trees, shrubs, and annual plants. In turn, this plant community provides important habitat to resident and transient species of fauna including a variety of raptors, mammals, and amphibians. Generally, headwaters streams and the flora and fauna they support are under significant pressure from development that is spreading in rural Contra Costa County as evidenced by the Rancho Laguna 2 as well as other recently completed and proposed projects in the vicinity. It is important that the DEIR explain that Rheem Creek and streams like it provide numerous functions in a watershed and their losses, which are seemingly minor when taken individually, are cumulative and can undermine the integrity of the entire watersheds, in this case the Las Trampas watershed.

Under the provisions of the Clean Water Act (CWA) and the San Francisco Bay Basin Water Quality Control Plan (Basin Plan), a project sponsor is required to avoid impacts to waters of the U.S. and waters of the State in conformance with the U.S. Environmental Protection Agency’s (EPA) CWA 404 (b)(1) Guidelines (Guidelines). The policy of the State of California with respect to environmental impacts to water resources is to require – in ranked order – first, avoidance, and second, where impacts are unavoidable, to minimize such impacts, and last, to mitigate impacts that cannot be avoided or fully minimized, but only as a last resort. This means that no discharge of fill shall be permitted if there is a practicable alternative to the proposed discharge that would have less adverse impacts on the aquatic ecosystem. The Project Sponsor has not demonstrated in the DEIR, or in materials submitted to the Water Board as part of their CWA Section 401 water quality certification application, that the proposed project constitutes the least environmentally damaging alternative (LEDPA) as specified in the Guidelines.

Furthermore, the State of California maintains a policy of ‘No Net Loss’ with regard to streams and wetlands in the State. The proposed mitigation for the loss of Rheem Creek based, in part, on creating an engineered water course that attempts to replicate the functions of a natural creek with doubtful prospects for success, is not consistent with this State policy.

Alternatives Analysis. As stated in various correspondence regarding the CWA 401 water quality certification application to the Project Sponsor and their agent, Sycamore Associates, the Water Board does not believe that the LEDPA has been identified, or that the proposed impacts are warranted for the development of housing on the project site. The Water Board has requested further consideration of alternatives for the project that would avoid fill of the creek. Such alternative considerations included the use of a below grade retaining wall for stabilization of Rheem Boulevard, which would not require the filling of Rheem Creek. The Project Sponsor has asserted that the Town of Moraga is adamantly opposed to any long-term (more than a few days) closure of Rheem Boulevard, as it would create traffic impacts that cannot be mitigated to less than significant.

While we recognize that the Town of Moraga has justified concerns about closure of Rheem Boulevard for its repair and stabilization, this restriction appears to pose a competing and conflicting interest to the need for protection of water resources in the planning of the Rancho Laguna project. On the one hand, there are the beneficial uses provided by the creek that would be filled. On the other, there is the convenience local residents derive from the use of Rheem Boulevard for reaching destinations such as schools, Highway 24, and commercial areas in a timely manner, and the General Plan’s requirement for the protection of the view shed by prohibiting residential development along the ridge lines and hillsides. This view shed protection requirement appears to have a substantial influence on the site plan for the proposed development and creates yet another set of constraints for the site. Although the closure of Rheem Boulevard, and view shed protections are significant issues to the Town and local residents, the permanent loss of a creek and its associated water quality functions and riparian habitat is also a significant impact to the Las Trampas and Walnut Creek systems that would be very difficult to mitigate. The natural creek that would be filled by the project offers a degree of complexity and diversity with respect to micro invertebrate and benthic organisms that would not be replaced by creation of a water course on fill, or by preservation of land and creeks either on-site or at an off-site location.

As pointed out earlier in this letter, the Rancho Laguna 2 project appears to be contrary to several of the goals stated in the General Plan for the Town of Moraga. With no indication of a need for additional housing within Moraga, the Project Sponsor should include in the Alternatives Analysis section additional design options that reduce the footprint of the project thus also reducing the amount of grading and consequent fill material planned for disposal in Rheem Creek. If grading and fill were reduced, impacts to Rheem Creek could be avoided. The general discussion and summary information provided in the Alternatives section of the DEIR for alternatives that were considered but then eliminated from further analysis, is extremely brief and does not provide the degree of detail necessary for understanding other potential options. Further, the Alternatives section included assessment of only those options that include fill of the Rheem Creek valley, as opposed to alternatives that would avoid fill of the creek, such as a below grade retaining wall. If stabilization of Rheem Boulevard is necessary for its continued use by local residents and other users, then the below grade retaining wall must be further considered and should be further discussed as part of the DEIR.

Proposed Mitigation & Inherent Instability of Watercourse Created on Fill. The Project Sponsor proposes as partial mitigation for project impacts recreation of a creek on fill material placed over Rheem Creek. This is unacceptable as mitigation for a variety of reasons including the fact that urban stormwater would be discharged to the system. Streams considered for mitigation purposes cannot be used for stormwater treatment and the Water Board is not in favor of discharging treated stormwater to a mitigation stream. Urban runoff, including treated runoff, may contain pollutants such as pesticides or herbicides and oil or gas. These pollutants could substantially degrade water quality in the creek and associated wetlands, making them unsuitable as habitat for native plants and animals. In addition, under well-established Water Board policy, double counting (using a single area to fulfill more than one requirement where mitigation is one of the functions) is not allowed.

Creation of a water feature on the engineered fill is also not acceptable as mitigation because it is outside normal restoration practice and remains, at best, experimental. In fact, constructing naturally functioning channels on fill in inherently unstable landscapes is something for which restorationists have not yet developed reliable, successful designs. A stream placed on fill would need to be carefully constructed to remain stable over time. As such, it would be designed to prevent natural movement of its bed and banks, which normally allow creeks to develop physical complexity associated with features formed by erosion and deposition. These types of features, such as shallow riffles, deep pools, and point bars, provide variation in habitat for creek organisms, and energy dissipation.

It is important that the text of the DEIR be expanded to explain that headwaters streams make up a significant part of most watersheds and function as a primary connection between surface and groundwater. The suggestion that an engineered stream placed on fill could fulfill the same role as a natural creek seems optimistic at best and reflective of a limited understanding of the ecological part played by headwaters streams at worst. Specifically, among the key function of such creeks and streams is to provide a conduit from surface water sources to groundwater. Even where such a stream does not run above ground continuously, water seeps through its bed and under-bank area (known as the hyphoreic zone) into underground streams before eventually making its way into groundwater or larger streams. This can also transport important micro biota and nutrients through the watershed, which are basic building blocks of a healthy aquatic ecosystem. As noted above, in order to attempt to keep the channel of an engineered creek on fill stable, the creek would have to be separated from the underlying fill by an impermeable layer to prevent meandering, incising, or saturation that could make the fill subject to movement. Clearly, this would prevent the engineered creek from functioning in the same ways as the existing natural creek. Re-creation of a creek resting on fill material might have the appearance of a natural creek, but it would certainly lack many of its essential functions.


The project design in this case calls for a grass-lined channel – presumably on soil installed over an impermeable boundary. This grass-lined channel would include rock check dams located approximately every 100 feet along this portion of the channel. In order to connect the higher elevation of the created water feature with the natural creek remaining at the toe of the fill, a rock-lined chute would be constructed, with a pool, or pools located within the system to dissipate energy prior to discharge. We expect that it would be prohibitively difficult to connect this upper stream channel on the engineered fill with the lower natural creek channel in a manner that protects the stability of the stream system. One concern is that the slope and sinuosity of the channel created on fill would not conform to the larger valley slope that would dictate what the slope and sinuosity should be. Disruption of the relationship between the valley and channel slope so that you no longer have a system in balance is inherently likely to create an unstable situation, because the landscape will continue to drain in the original manner. Yet another concern with such a design is the impacts that could occur to the remaining natural creek downstream of the rock chute. It has not been demonstrated that energy generated in the water drop would be adequately dissipated, and/or that the potentially sediment starved water discharged from the chute would not cause downstream erosion problems. Overall, we find that the proposed design for creation of a water feature on the fill material, with re-connection to the natural creek, has an inherent risk of failure, and it should be noted that the Water Board is adverse to permitting activities that carry such a risk for future negative impacts.

Off-site mitigation of an undefined type and in an undisclosed location is also proposed. Even if the Project Sponsor had demonstrated that the proposed creek and wetland fill is warranted for development of the project, the DEIR does not clearly outline in sufficient detail what type of off-site mitigation is being offered for consideration. Therefore, evaluation of such mitigation is not possible at this time. It should be noted that all possibilities for on-site mitigation must be explored prior to considering off-site mitigation. On-site mitigation is generally required at a minimum ratio of 2:1 (replaced to lost). For offsite mitigation the ratio is generally substantially higher, particularly if it is outside of the watershed or out-of-kind. Beyond that, it is important to recognize that the type and amount of compensatory mitigation (substantial restoration of stream channel and riparian habitat) for the permanent burial of streams and wetlands such as that proposed by Rancho Laguna 2 is extremely difficult if not impossible to find, hard to implement, and very costly. Recent experience has indicated that suitable opportunities in the County are very limited.

Summary & Conclusion.

In closing, we reiterate that Water Board and State policy require avoidance of wetlands and creek habitat to the maximum extent feasible. Projects which do not adequately demonstrate avoidance and minimization of impacts to wetlands and other waters of the State may result in our inability to issue required water quality certification and/or waste discharge requirements for the project as proposed. Without more serious consideration of other alternatives that would avoid and minimize impacts to water resources on site, the DEIR does not adequately address State requirements for protection of water quality.

Thank you for the opportunity to comment on the DEIR for the Rancho Laguna 2 project. If you have any questions, please contact me at (510) 622-2356 or via e-mail at khart@waterboards.ca.gov.

Sincerely,



Kathryn Hart
Water Resource Control Engineer


cc: SWRQB-DWQ, Attn: Oscar Balaguer
US ACOE, Attn: Molly Martindale, 333 Market Street, San Francisco, CA 94115
CDFG, Attn: Kim Squires, P.O. Box 47, Yountville, CA 94599
US EPA, Attn Tim Vendlinski, WTR-8
Rancho Laguna, LLC, Attn: David Downs, 7700 College Town Drive, #215, Sacramento, CA
95826
Sycamore Associates, Attn: Whitney Fiore, 2099 Mt. Diablo Boulevard, Suite 204, Walnut
Creek, CA 94596