June 22, 2001

RE: Barnes (Tides Foundation) Coastal Permit, Use Permit, and Precise Development Plan Amendment

Dear Mr. Haddad,

I am writing on behalf of the undersigned Marin County citizen groups regarding the Initial Study and Draft Negative Declaration for the Tides Foundation property.  We find the mitigations proposed in the Initial Study inadequate.  Even with the proposed mitigations, the project is in violation of the Marin County Code and the Marin County Local Coastal Program.  In addition, Draft Negative Declaration fails to meet the requirements of the California Environmental Quality Act.

As we have previously stated, our chief interest in this case is to ensure protection of the County-mandated Stream Conservation Area and of the special status species that depend upon the site.  The site borders on and benefits from proximity to the Giacomini wetlands, a site of national importance now being restored by the National Park Service. We applaud the applicant's desire to create a writers' refuge, and we believe that, with a few adjustments, such a refuge can be established on the site without damage to the environment.

Our concerns about the Initial Study can be divided into three categories.
I.     It contains basic factual errors about ownership and use of the properties.
II.    It is based on an inadequate and misleading Biological Resource Assessment.
III.   It incorrectly defines Stream Conservation Areas.
IV.  It proposes mitigation measures that are in conflict with the Marin County's codes and policies.

I. The Initial Study mischaracterizes ownership and use of the property.
The Project Location (p.1 of the Initial Study) is 9-11 Los Reyes Drive, Point Reyes Station, 94956.  According to the Initial Study (p.3), "the existing residence and the three existing detached structures are proposed to be used as a writer's retreat....These accessory structures are used as place of solitude and inspiration for writers."  This is incorrect.

• 11 Los Reyes Drive is owned by the Tides Foundation, a 501(c)3 non-profit organization in San Francisco.  The property is used as the writer's retreat known as The Mesa Refuge, which is administered by Common Council, an organization in Oakland, California. Two of the three sheds (identified as Sheds A&B) are attached to 11 Los Reyes Drive and are used as offices for the writers staying at the Mesa Refuge.
• 9 Los Reyes Drive, however, is the property and private home of Peter Barnes. The third shed (known as Shed C) is attached to 9 Los Reyes Drive and is used by Peter Barnes for his home office.  It is not used by writers staying at the Mesa Refuge.  The owner is entitled to have a home office, but it should be acknowledged that this shed is not part of the Mesa Refuge Writers' Retreat and is not essential to its functioning.

II. The Initial Study is based on an inadequate and misleading Biological Resource Assessment.

1. It overlooks the impacts of the illegal sheds on the Northwestern Pond Turtle (Clemmys marmorata marmorata), which is listed by the California Department of Fish and Game as 'protected' and a "California Special Concern" species, and as 'Sensitive' by the US Forest Service.
• The pond turtle occurs in the neighboring Giacomini wetlands and requires both wetland and riparian habitat to complete its life-cycle.
• The pond turtle is aquatic in the non-breeding season,  but it leaves the water to lay eggs. Eggs are laid from mid-April to mid-July and are 'deposited in an earthen cavity . . . usually located in a sunny place along a river, stream, or pond margin at some distance from water in an open field or hillside." (Stebbins, R.C. 1954. Amphibians and Reptiles of North America. McGraw Hill. p. 171).
2. It underestimates potential impacts to the California Red-legged Frog (Rana aurora draytonii), which is listed as Federally threatened (61 FR 25813-May 13, 1996), and a California Special Concern species by Fish and Game (CFG, 2000. California Natural Diversity Data Base, "Special Animals.)
• California Red-Legged Frogs also occur in the neighboring Giacomini wetlands.  It's life-cycle requires upland and riparian and aquatic habitat.
• California Red-Legged Frogs have variable life histories in response to varying conditions. They "may complete their entire life cycle in a particular area . . . or utilize multiple habitats."  Red-legged Frogs are most likely to persist where breeding areas are within an assemblage of habitats. " California Red-legged Frogs often disperse from their breeding habitat to utilize various aquatic, riparian, and upland habitats in summer. . . . and they  "have been found farther than 100 m (328 ft) from water in adjacent riparian vegetation." (65 FR 54894)
3. It makes unjustified sweeping assertions regarding the site's lack of suitable habitat for a long list of wetland-dependent species.
• The Biological Resource Assessment states that "No detailed field surveys for special-status species were conducted." (p.3).  Two reconnaissance surveys were conducted, on 2 Jan 2000 and 3 February 2000, well before the nesting season. (p.2-3.) Thus there is no data to support the statement "Suitable habitat for most species of concern was found to be absent from the site and no evidence of any nesting activity, burrows, dens, or suitable refugia for smaller wildlife species were identified." (G1. Biological Resources. pg. 19).
• The assertion that "This precludes essential habitat" for a long list of special status species identified as potentially occurring on the property is equally unsupported. In fact, several of the named species do occur and do rely on that habitat (as well as adjacent marsh and riparian corridor habitat), especially the following: northwestern pond turtle (occurs in adjacent marsh and likely lays eggs on bluff), salt marsh yellowthroat (breeds), black-crowned night heron (roosts in willows adjacent to Tomasini Creek), and yellow warbler (common migrant; possible breeder) and other neo-tropical song birds.
• Likewise, the statement that "Portions of the site provide at least marginally suitable habitat for . . . red-legged frog and yellow warbler" is unnecessarily qualified. The site may provide critical habitat for both species, especially the frog (see above). On pg. 20 the statement "No red-legged frogs were observed on the site' is irrelevant since no detailed field surveys for special status species were conducted and the protocols for detecting critical habitat for red-legged frogs were not followed. (see Federal Register 65:54897).
• The Biological Resource Assessment continually asserts that the existing habitat is of no importance to wildlife because it is not pristine.  Previous human manipulation of the landscape does not justify ignoring legal protections and allowing additional damage.  On the contrary, a fragmented habitat is a fragile habitat that needs, if anything, additional protection. Allowing encroachment on Streamside Conservation Areas will diminish the value of the habitat to wetland-dependent species in the present and into the future.
4. 4. It fails to adequately consider the relationship between the property and the adjacent Giacomini wetlands.
• Because the National Park Service is undertaking a wetland restoration effort on the neighboring Giacomini wetlands, the riparian habitat on this site is particularly important. Indeed, the Feasibility Evaluation for the restoration of the Giacomini marsh, mandates mitigation for any loss of freshwater habitat, even if temporary, before restoration can begin. (PWA 1993- pg. 72). This indicates the high value of the wetland buffers that surround the marsh, and the banks of Tomasini Creek. To quote from the Federal Register (65:54896) regarding 'the primary constituents elements' of red-legged frog habitat: "At minimum this [critical habitat] will include two suitable breeding locations, a permanent water source, associated uplands surrounding these water bodies up to 150 m from the water's edge, all within 2 km of one another and connected by barrier free dispersal habitat . . ."
• The Federal ruling on critical habitat for the California Red-legged frog emphasizes the importance to the frog of upland habitat surrounding aquatic habitat. It cites "Bulger et al. (in litt. 2000), who found that frogs were capable of inhabiting upland habitats within 60m (200 ft) of aquatic habitat for continuous durations exceeding 20 days, and Rathburn (in litt. 2000), who observed frogs inhabiting riparian vegetation for durations exceeding 30 days. In addition to the occupation of upland habitat, the surrounding watershed plays an important role in the health and integrity of the aquatic habitat. The 150 m (500 ft) upland habitat designation will help minimize changes in frequency, duration, and timing of the wetland hydroperiod, minimize input of toxic sediments, and help maintain connectivity between habitats. It will also further minimize the creation of habitat conditions found to favor exotic species and/or urban adapted predators (Mensing et al. 1998, Onorato et al. 1998, H.t. Harvey and Associates 1997, Richter and Azous 1997, Jennings and Hayes 1994, Hayes and Jennings 1986)."
5. It overlooks the fact that the habitat values of the transitional habitat surrounding the Giacomini Marsh will increase as the restoration of the site proceeds.
• If the hydrology provides for freshwater ponding at the bottom of the point Reyes Mesa bluff, it is likely that NPS will dedicate portions of the site to enhanced California Red-legged Frog habitat (as specified in the Feasibility Study), thereby further increasing the habitat value of adjacent upland and riparian borders to the species.
• Conversely, if the adjacent lowlands are dedicated to full tidal action, it will become habitat for the endangered California Clapper Rail and the threatened California Black Rail. A study conducted in the marshes bordering the Giacomini wetlands on Tomales Bay has documented the importance of 'peripheral upland cover' to tidal wetlands as critical refugia for rails during high tide periods (Evens, J and G. Page. 1986. Predation on Black rails during high tides in salt marshes. Condor 88:107-109.)
6. The Biological Resource Assessment wrongly asserts that the willow habitat on the property is "technically not riparian habitat."
• The U.S. Fish & Wildlife Service's "Classification of Wetlands and Deep Water Habitats in the United States" states that native willows (Salix spp.) are indicators of riparian conditions (Carwardine et al; FWS\OBS-79\31). The Biological Resource Assessment also wrongly asserts that the riparian vegetation along the Point Reyes Mesa Bluff is independent of the adjacent wetland [Tomasini Creek and the Giacomini marsh]. The bluff drains into Tomasini Creek: therefore the areas are hydrologically contiguous. The vegetation forms a natural transition from cattail and Scirpus marsh to willow scrub riparian thicket: therefore the areas are vegetatively connected. Wildlife species, including pond turtles, red-legged frogs (and many other wetland-dependent species) use both the marsh and the adjacent upland during various times of the year and depending on seasonal hydrological conditions. (R. Warner & K. Hendrix California Riparian Systems (1984, UC Press). Pers. com. P. Faber, author of Faber & Holland; Common Riparian Plants of California (1996, Pickleweed Press).)

1. It incorrectly defines Stream Buffer Zones (also known as Streamside Conservation Areas) as 100-foot setbacks from stream banks. (V. A. 2 (5), p.8)
• The Marin County Code, Title 22, Section 22.56-G(3) defines a Stream Buffer Zone as an "area which shall extend a minimum of fifty feet from the outer edge of riparian vegetation, but in no case less than one hundred feet from the banks of a steam. Development shall not be located within this stream buffer area."
• The Marin Local Coastal Program--Unit 2 also defines the stream buffer area as "the area covered by riparian vegetation on both sides of the stream and  the area 50 feet landward from the edge of the riparian vegetation.  In no case shall the stream buffer be less than 100 feet in width, on either side of the stream, as measured from the top of the stream banks." (p.73)

1. The mitigation measures proposed do not project the Stream Conservation Area.
• Notwithstanding the presence-or absence--of special status species that depend upon the site, Marin County has codes and policies that mandate protection of the Streamside Conservation Area.
• The Marin County Code, Title 22, Section 22.56-G(3) and the Marin Local Coastal Program-Unit 2 (p.73), both state: "Development shall not be located within this stream buffer area."  The only exceptions to this rule are "when a parcel is located entirely within a stream buffer area" or "when a finding based upon factual evidence is made that development outside a riparian protection or stream buffer area would be more environmentally damaging to the riparian habitat than development within the riparian protection or stream buffer area."  These exceptions do not apply in this case.
• The Initial Study proposes the complete removal of Shed B outside of the Stream Conservation Area (Mitigation Measure V. A1, p.11). However, all three sheds are located within the Streamside Conservation Area  (see Biological Resource Assessment, Appendix C, Figure 5) and all three should be removed from it.
2. The mitigation measures proposed are unenforceable and in conflict with existing usage at the Mesa Refuge.
• Under the California Environmental Quality Act, any project that has the potential to significantly impact or disrupt endangered species cannot be approved without mitigation of that impact. The Initial Study finds that "the use of the structures and related activities on the bluff could result in potential significant impacts or disruption" to red-legged frogs, a federally threatened species (.p.20).  Therefore it proposed, as mitigation, several restrictions on the Use Permit, which EAC believes cannot be enforced and are likely to be violated.
• Mitigation Measure V.G1-2 (p.21) restricts the writer's retreat "to the months of April through November only."  Already, the Mesa Refuge is formally open only from April through November; however "alumni" of the program are allowed to stay in the main house and use the sheds for writing during the rest of the year.
• Mitigation Measure V.G1-3 (p.21) would limit use of the sheds to 6 AM to 6 PM.  In fact, writers using the retreat routinely use the sheds past 6 PM, and into the dark hours and there is no way to stop them from doing so.
• Mitigation Measure V.G1-4 (p.21) would ban nighttime lighting within or outside of the sheds.  In fact, as stated above, working late is a common practice at the Mesa Refuge, where people have come to concentrate on writing.  Thus it is unrealistic to expect that the cabins will not be lit up after 6 PM.  Lights and computers are powered via extension cords running from the main house.

Finally, we were disappointed in the Initial Study because it failed to provide basic information and raised several questions without answering them.  For example, it

• identified "a small erosion gully located beneath a portion of Shed B," (V.C2, p.14) but does not indicate whether the erosion may have been caused by or exacerbated by Shed B.  Rather, it simply asserts that "the project would not result in substantial erosion of soils." (V.C2, p.14).
• did not include a site plan or map showing the route of the creek and the extent of the Streamside Conservation Area or the location of the "potential jurisdictional wetlands" referred to on page 10 of the Biological Resource Assessment.  Since the County also requires setbacks for wetlands, this is a serious omission.

In light of the above information, we hope that the County will amend its recommendation to the Planning Commission with regard to this project. All the sheds are within the Stream Conservation Area and all three should be removed.  It is important that the County consistently enforce its zoning code and planning policies. Recently, the County has required several other property owners to redesign projects in order to respect the stream and wetland buffer zones.  It is only fair that the Tides applicant to held to the same standard.  The fact that the Tides cabins already exist should not induce the County to be less rigorous in its enforcement of its own standards.  To do so would be to reward and encourage illegal construction.

We believe that removing the sheds is compatible with the continued functioning of the Mesa Refuge.  The Refuge can host three resident s writers at a time.  One writer has a bedroom and a separate office within the main house; each of the other two have a bedroom in the main house and use a shed as an office.  If the sheds are removed, one bedroom could be converted into an office. This would enable the Mesa Refuge to host two, rather than three, writers at a time.  Such an adjustment would enable the refuge and its environment to continue to flourish.

Thank you for the opportunity to comment,

Sincerely,
 

Catherine Caufield, for Environmental Action Committee of West Marin

Gordon Bennett, for Sierra Club - Marin Group

Tomales Bay Association

Bolinas Lagoon Watershed Team

Salmon Protection & Watershed Network

Tomales BayKeeper

Marin Audubon Society