County v. Endangered Species
Federal agency says it will sue if development permit is issued.
Thursday, September 16, 2004
<>Almost 15 years after developers first proposed the contentious Rancho San Carlos subdivision and golf course, it may be a fish that stops the final phase of the sprawling, 354-luxury-home community.><>>
On Sept. 29, the County Planning Commission will decide whether to approve the final 29 lots in the private subdivision located above Carmel Valley. If commissioners green light the last stage of the project, the County may find itself staring down yet another land-use lawsuit.
For years, local fishermen and environmentalists have charged Rancho San Carlos Partnership with stealing water from Garzas Creek, one of four creeks that runs through the 20,000-acre development. The creek is a tributary to the Carmel River and an important habitat for steelhead and red-legged frogs.
Late last month, at the Aug. 26 Planning Commission meeting, a spokesman from the Marine Fisheries Service of the National Oceanic and Atmospheric Administration (NOAA) told commissioners that Rancho San Carlos’ water use is hurting Garzas Creek and killing steelhead. And should the commission approve the final lots, NOAA Fisheries warned, both the County and Rancho San Carlos could be liable under the federal Endangered Species Act, which defines the killing of endangered species as an illegal “take.”<>“There is an ongoing investigation,” says Amanda Wheeland, a NOAA Fisheries enforcement attorney. “But we are not making any decisions about prosecution prior to the Sept. 29 meeting.”>
County Counsel Charles McKee says his office will give legal advice to the Planning Commission, but adds, “we haven’t decided what that advice will be yet.
“I know there are obvious differences of opinions between the property owners and NOAA. We’re hoping the property owners and NOAA can come to some agreement so that the County can process the application without having to worry about the arguments from both sides.”
At press time, Brian Finegan, attorney for Rancho San Carlos, was out of town and could not be reached for comment. Finegan has told County officials that there is no evidence that Rancho San Carlos’ water use has drained Garzas Creek.
“We disagree,” Wheeland says. “And the original hydrologic report before the ‘94 EIR did reach the conclusion that the [Rancho San Carlos] Partnership was having an impact on the water levels in the Creek.”
Planning Commissioner Keith Vandevere says he’s convinced the development is to blame for the creek’s depletion.
“When Rancho San Carlos began their operations, a lot of people who had been hiking Garzas Creek noticed that the Creek’s level went down to a trickle, which they attributed to operations at Rancho San Carlos,” Vandevere says. “Rancho San Carlos [Partnership] said no, you can’t absolutely prove it.”
At last month’s Planning Commission meeting, Finegan told commissioners that there is no real evidence that Rancho San Carlos’ water use has drained Garzas Creek. He said the Sierra Club and NOAA Fisheries are trying to force Rancho San Carlos to ensure that an intermittent stream flows year round.
“That is simply not true,” says Gillian Taylor of the Sierra Club, adding that local environmentalists, fishermen and the federal agency are simply asking Rancho San Carlos to stop taking water that it doesn’t have a legal right to take.
Last year, the local chapter of the Steelhead Association and the Sierra Club filed a formal complaint with the state Water Resources Control Board against the Rancho San Carlos Partnership.
Environmentalists and the state wildlife agency say that County officials’ blind eye toward the subdivisions’ harmful effect on the creek and the steelhead habitat results from a flaw in the agreement.
When County Supervisors approved the massive development, they told the developers to monitor water levels and pump water into the Creek if it falls below the “base flow level,” which was set in October 1990. That has never happened.
The year of the survey marked the end of a multi-year drought, and there was hardly any water in the creek when this base flow level was established.
“And even if it does go below the level of ‘90, the language of the conditions says only if it drops below that level because of Rancho San Carlos, which, again, can’t be proved,” Vandevere says. “There’s almost no protection whatsoever.”
NOAA Fisheries agrees.
“The suggestion that allowing the creeks to be drawn down to record or near-record drought levels before any mitigation is required is hardly ‘adequate mitigation,’” says a letter from Patrick J. Rutten, a NOAA Fisheries Northern California supervisor. “The mitigation proposed, distributing 30 gallons per minute between five streams, will not prevent significant take of steelhead from occurring.”
Four years ago, Rancho San Carlos managers agreed to work with NOAA Fisheries to develop a habitat conservation plan to protect the steelhead. There’s still no plan.
“Due to the intransigence of Rancho San Carlos, our Office of Law Enforcement has informed the Partnership that they will [be] the subject of a ‘take’ investigation which may result in a prosecution under section 9 of the Endangered Species Act,” Rutten writes.
Not only are the developers likely to face a legal battle, Rutten says; if the Commission approves the final lots, then Monterey County may also be liable for issuing permits that resulted in the taking of an endangered species.
“As applied to the facts in this case, if the County certifies the EIR and approves the plot map, the County may be liable for take under the ESA,” he says.