Mendocino County--Local Coastal Program

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Mendocino County--Local Coastal Program Basis for Appeal Mendocino County CDP#12-2012 (MacKerricher Dune Rehabilitation Project) This appeal is filed pursuant to Mendocino County Code 20.544.015. The foundational issues for the appeal reference the Project Findings and Conditions listed in the Staff Report for this permit, as well as revisions to those conditions stipulated in the approval of the permit at the CPA hearing June 11, 2013. 1. Staff Finding #1 states "the proposed development is in conformity with the certified Local Coastal Program (LCP)." That finding is not supported. The development violates Policies 3.1-8, 3.1-15, and 3.6-27, the intent of Policy 4.2-21, and the policies and directives in the MacKerricher Park General Plan prepared by the California Department of Parks and Recreation (CDPR) in 1995 in response to LCP Policy 4.2-19. These matters are taken up in more detail below. 2. Staff Finding #4 suggests the project "will not have any significant adverse impacts on the environment" if mitigation measures in the Mitigated Negative Declaration (MND) prepared by CDPR and the conditions of the permit are followed. That finding is not supported and we contend the analysis in the MND provides inadequate disclosure. Impacts to archaeological sites, Environmentally Sensitive Habitat Areas (ESHAs), wetlands, neighboring property owners, recreation, and public health have not been reduced below the level of significant adverse impacts. These matters were raised by the public during circulation of the draft MND, but not addressed. 3. We disagree with Staff Finding #5 that the project will have no adverse impacts on archaeological resources. The project will facilitate massive deflation of the foredunes and realignment of two watersheds with the direct result that several archaeological sites in that vicinity will be adversely impacted, if not destroyed outright. No mitigation is proposed to reduce those adverse impacts. Impacted sites must be presumed to qualify as historical resources for purposes of CEQA because no formal evaluation took place or was concurred in by the California State Historic Preservation Officer as required pursuant to California Public Resources Code 5024. 4. Staff Finding #7 incorrectly finds the project "is in conformity with public access and public recreation policies in Chapter 3 of the California Coastal Act and the Coastal Element of the General Plan." This finding is particularly egregious with respect to Coastal Act Sections 30210 and 30211; and Coastal Element Policies 3.1-8, 3.1-15, and 3.6-27, and the intent of Policy 4.2-21. Special Conditions 3 through 6 provide inadequate and unenforceable actions to compensate for the intentional destruction of this designated coastal trail as discussed in Issues 6-9 and 12. 5. Staff Finding #8 draws unsupported conclusions about resource protection from CDPR's MND. Finding 8(a) states resources will "not be significantly degraded," contrary to WMAC's conclusion summarized in Issue 3 and explored further in Issues 4 and 10. Finding 8(b) is flawed because CDPR studied no alternatives when it was reasonable and necessary (under CEQA) to do so. WMAC also disagrees with Finding 8(c) that "all feasible mitigation measures capable of reducing or eliminating project related impacts have been adopted." WMAC will offer suggestions for a reduced project and additional conditions of approval that will more adequately mitigate or avoid adverse impacts. 6. The approved permit inappropriately allows destruction of 2.7 miles of existing coastal trail shown on County Land Use Maps 10 and 12 along the haul road. That alignment was certified by the Coastal Commission in 1983. The haul road is the designated coastal trail through MacKerricher Park, not a wet beach route listed in the MND. The beach route is not a viable alternative because it discriminates against many users who still enjoy the haul road and is dangerous in winter due to sleeper waves. In contrast, the coastal trail on the haul road provides access for bicycling, disabled users, strollers, pedestrians, and even horse riding. No comparable alternative trail is required as compensatory mitigation for extinguishing this existing access as required by Mendocino's Coastal Element Policy 3.6-27. Destruction of this historical access is also inconsistent with Coastal Act Section 30211 that requires non-interference with historical prescriptive access rights. page 1 of 3 Basis for Appeal—CDP#12-2012) page 2 of 3 7. The permitted destruction of this existing coastal access is also inconsistent with Coastal Act Section 30210 which assigns high priority to maximizing public access. Instead, it reduces access in a discriminatory manner that will ensure bicyclists and disabled persons can no longer enjoy the northern portion of the park. Special Conditions discussed in Issue 12 do not result in the construction of continuous alternative trail. They only encourage discussion and evaluation that may never produce a comparable replacement trail. 8. Removal of the haul road is contrary to County Coastal Element Policy 3.1-15 which requires that public access to the dunes shall be on well-defined paths that direct use to minimize impacts to the natural environment. By destroying the existing designated multi-use coastal trail along the haul road, access will spread potential impacts across a broad area through the propagation of many social trails. Those social trails can be expected to increase impacts to habitats of the endangered Western Snowy Plover and endangered plant species, rather than protecting them. 9. County Coastal Element Policy 4.2-21 directs CDPR to acquire the haul road for use as coastal access and incorporate policies regarding it in a management plan for MacKerricher State Park required in Policy 4.2-19. CDPR acquired the road in 1992 and prepared a general plan for the park in 1995. This project violates the intent of Policy 4.2-21 which was designed to acquire the road for public recreational access, not so it could destroy this coastal trail to restore ecosystem processes. The project also violates the park's General Plan policies and directives which direct that it be maintained and reconnected to once again create a continuous multi-use path through the park. 10. The project will intentionally destabilize the fore dunes in the northern park, with massive wind and water erosion acknowledged as a predictable outcome. Yet neither the MND and County staff report for the project analyze the volume of sand that will be mobilized or its impacts on the environment and neighboring land owners. Engineer David Paoli estimates nearly a million cubic yards of sand will migrate east, burying wetlands, ESHAs, and neighboring lands. Inadequate impact analysis, protective measures, and compensatory mitigation are identified to address habitat destruction and impacts to endangered and threatened species in violation of County Coastal Element Policy 3.1-8 and Coastal Act Sections 30240 and 30607.1. Monitoring requirements are inadequate and no dedicated compensation fund or bond is established as a condition of permit approval. Thus, the impacts of this induced sand migration on the properties of neighbors are inadequate. 11. The haul road was built in 1949 over a railroad grade built in use since 1916. Railroad grades are well known repositories of hazardous petrochemical waste, creosoted rail road ties, arsenic from herbicides, and asbestos from brake linings that likely persist in the soil, ballast, and woody material under the paved road. The project will remove the asphalt road surface which currently acts to sequester contaminants, as well as the hazardous underlying ballast and timbers. Yet no sampling or Phase I hazardous waste study was included in the MND supporting the project to determine the presence of toxic materials or plan for the special handling and disposal that they will require. Treated wood waste is known to contain hazardous chemicals at elevated levels that are subject to California’s Hazardous Waste Control Law. Hazardous waste can be reasonably anticipated based on comparable studies of the GP mill site where the former railroad originated (e.g., Cal/EPA docket HWCA P1-00/01-005; DTSC remediation; etc.). There is no evidence Form 6a was filed with Cal EPA in connection with removal of this old railroad grade. This poses an undisclosed health threat relative Standard Condition 6(c) that must be addressed with testing and remediation requirements. 12. Special Conditions 5 and 6 will not reduce impacts to public access and recreation because they define unenforceable processes rather than concrete actions. There is no assurance either condition will ever result in the construction of a continuous multi-use trail comparable to the one CDPR proposes to destroy. Special Condition 5 urges only planning for two discontinuous trail segments located far from the sea, with no provisions to actually build it. Special Condition 6 asks for evaluation of alternate pedestrian stream crossing methods with no requirement to implement a solution. It ignores the needs of other users like bicyclists and disabled individuals. Basis for Appeal—CDP#12-2012) page 3 of 3 The WMAC recognizes the BOS may take a variety of actions when considering this appeal. When deliberating on this matter, we urge the BOS to consider our allegations that the project approved by the CPA as CDP#12-2012 on June 11, 2013 fails to reduce many adverse impacts and poses serious health threats that have not been investigated or properly considered when planning for the disposal of large volumes of asphalt, ballast, and contaminated soil. We believe by permitting this activity the County is exposing itself to damage claims from workers, offset landowners, and government agencies if the presence of these hazardous materials is not identified prior to aerial exposure. The project also extinguishes an existing prescriptive coastal access without requiring construction of a comparable and non-discriminatory replacement route consistent with many provisions of the Coastal Act and LCP.
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