ALAMEDA COUNTY COMMUNITY DEVELOPMENT AGENCY€¦ · District 2 District 2 Wilma Chan Alice...

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Chris Bazar Agency Director

Albert Lopez

Planning Director

224

West Winton Ave Room 111

Hayward California

94544

phone

510.670.5400

fax 510.785.8793

www.acgov.org/cda

ALAMEDA COUNTY COMMUNITY DEVELOPMENT AGENCY

P L A N N I N G D E P A R T M E N T

MEMORANDUM

TO: Board of Supervisors’ Transportation/Planning Committee

FROM: Chris Bazar, Director, Community Development Agency Albert Lopez, Planning Director

DATE: September 13, 2012

SUBJECT: San Lorenzo Creek Watershed Task Force Recommendations Report

BACKGROUND

On March 27, 2007, the Board of Supervisors appointed fifteen members and three alternates to the San Lorenzo Creek Watershed Task Force (CTF) and directed the Task

Force to identify and address the community’s concerns regarding development projects

that have the potential to degrade the quality of creeks and their riparian corridors within the San Lorenzo Creek Watershed.

The CTF identified five key topics of concern: creek setbacks, development within creek

setbacks, rights and responsibilities of creek-side property owners, grading related to creeks, and stormwater management and discharge control. For each of these key areas,

the Task Force developed recommendations that are intended to serve as the basis for

revision by County staff of the existing County Watercourse Protection Ordinance (WPO), although it should be noted that the ordinance is not being revised at this time. In

a subsequent process, Public Works Agency staff will propose specific amendments to

ordinance language, as directed by your Committee, to reflect these recommendations and other public input received, and to bring the WPO into conformance with Federal

Emergency Management Agency (FEMA) regulations. There will be a separate public

process for these ordinance amendments.

Public Input

The Task Force recommendations were compiled in the Draft Report of Recommendations for the Revision of the Alameda County Watercourse Protection

Ordinance. The original draft report was discussed at the meetings of the Castro Valley

Municipal Advisory Council (MAC) on January 10, 2011, the District 4 Agricultural

Committee on January 12, 2011, the Unincorporated Services Committee on January 26, 2011, and the Agricultural Advisory Committee on March 22, 2011. In addition, written

comments were received from the Contra Costa/Alameda County Cattlemen’s

Association, Tim Koonze from the City of Hayward Public Works Agency, the Ward Creek Alliance, the Agricultural Advisory Committee, and the California Cattlemen’s

Association. Thirty-four letters signed by canyonland property owners were also

received. A summary of the comments received at these meetings and copies of the written comments are attached to this memo.

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In response to public comment, the Creek Task Force made the following changes to the draft

recommendations report:

To address concerns that ephemeral streams would be defined too broadly, the Task Force agreed

to add language to the proposed definition of “ephemeral stream” on page 9 of the report to

explain some of the types of flows that should not be considered substantial enough to be

identified as ephemeral streams under the ordinance. They also added language to pages 10 and 11 to recognize that locating structures over ephemeral streams should be allowed under certain

circumstances.

On page 12 of the report, the Task Force added a list of questions to provide additional guidance

to County staff in the development of more specific criteria for determining how big a creek

setback should be. Additional language was also added to page 13 to recognize the existing

limitations Measure D places on properties outside the Urban Growth Boundary.

The members of the Task Force representing the agricultural community did not support the revisions to

the recommendations report. They believe that even as amended, the recommendations would be too

onerous for rural properties; they contend that these new provisions should not apply outside of the Urban Growth Boundary (UGB).

Castro Valley MAC and Planning Commission Recommendations

The final recommendations report was presented to the Castro Valley MAC at their meeting on

September 26, 2011. The MAC members unanimously adopted a motion in support of the Task Force’s recommendations with several recommended changes. A copy of the motion and comments submitted by

the MAC are attached.

The CTF recommendations were first presented to the Planning Commission on October 3, 2011. On December 5, 2011, commissioners attended a field trip led by Public Works Agency staff and continued

their discussion of the recommendations. On May 7, 2012, the Commission held a work session which

included staff from the California Department of Fish and Game (DFG), the Bay Area Regional Water Quality Control Board (RWQCB), and the Natural Resources Conservation Service (NRCS). Further

discussion of the recommendations continued at the meeting that followed. At their June 18, 2012

meeting, the Planning Commission approved a set of recommendations to your Committee.

DISCUSSION

The Planning Commission recommends the following:

1. Accept the Final San Lorenzo Creek Watershed Task Force Recommendations Report

The Commission noted that, while it was premature for them to make a determination on any specific

recommendation without further analysis, it is appropriate for your Committee to accept the report for

consideration in the revision of the WPO.

2. Setbacks from Ephemeral Streams

One of the concerns for the Commission was the Task Force recommendation that setbacks be applied to ephemeral streams. The position of the majority of the CTF is that ephemeral streams are an important

part of the watershed system and should have the additional protection that the recommended setbacks

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would provide. The agricultural community strongly objects to this recommendation and, in fact, supports

exempting land outside the urban growth boundary from all of the proposed ordinance revisions.

As an alternative to requiring setbacks from ephemeral streams, the Commission recommends that the

County implement an outreach and education program to inform both rural and urban property owners of

the importance of ephemeral streams to the overall health of the watershed, provide information about best management practices to protect them, and offer contact information for agencies such as the

Resource Conservation District (RCD) who may provide assistance.

3. Coordination with General Plan Implementation

Commissioners were also concerned that some of the CTF recommendations address the same issues as policies and actions pertaining to watercourses in the Eden and Castro Valley General Plans; and that

implementing these recommendations in a separate process from the implementation of the General Plans

may result in conflicting outcomes. The Task Force recognized in the recommendations report that some

of the issues raised in their discussions do not apply directly to the content of the WPO itself, but because they are closely related to the function and implementation of the ordinance, they chose to address them

in their recommendations.

The Commission recommends that implementation of the recommendations that directly affect the WPO

be separated from the recommendations that would not directly affect the content of the WPO so that

these recommendations could be considered in conjunction with implementation of the general plan policies and programs.

4. Direction for Proceeding with WPO Amendments

The Commission also requested that your Committee provide direction on how to proceed with the

revision of the WPO and what their involvement should be in the process.

NEXT STEPS

Staff recommends that your Committee accept the Planning Commission recommendations and, in

addition:

Direct Public Works Agency staff to begin the process of an update to the County Watercourse

Protection Ordinance, considering the findings of the CTF recommendations with any additional

policy direction you deem appropriate based on these recommendations and other public input received during this process;

Direct Planning Department staff to take the relevant CTF recommendations into consideration as

appropriate in the implementation of policies and programs pertaining to watercourses in the

Castro Valley and Eden Area General Plans; and

Provide direction regarding the involvement of the Planning Commission in the WPO revision

process.

In addition, as the acceptance of the Final Report of Recommendations completes the work of the Task

Force, staff recommends that your Committee request that the full Board of Supervisors formally acknowledge the members of the Task Force at a future meeting for their service to the County. Every

member dedicated a great deal of time over the course of several years to the process of researching,

learning, observing, listening, and participating in discussions that were often lively and always heartfelt.

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ATTACHMENTS

Final Report of Recommendations for the Revision of the Alameda County Watercourse

Protection Ordinance prepared by the San Lorenzo Creek Watershed Task Force, June 27, 2011

Public Comments Received on the Draft San Lorenzo Creek Watershed Task Force

Recommendations Report

Castro Valley MAC comments and motion to support the CTF recommendations

Final Report of Recommendations

for the Revision of the Alameda County

Watercourse Protection Ordinance

prepared by the

San Lorenzo Creek Watershed Task Force

June 27, 2011

(Attachment B: Minority Report added October 3, 2011)

ACKNOWLEDGMENTS

Alameda County Board of Supervisors

Scott Haggerty District 1

Nadia Lockyer

Gail Steele (former Supervisor)

District 2

District 2

Wilma Chan

Alice Lai-Bitker (former Supervisor)

District 3

District 3

Nate Miley District 4

Keith Carson District 5

San Lorenzo Creek Watershed Task Force Members

Linda Bennett (Chair) District 2

Howard Beckman District 3

Barbara Fields District 4

Diana Hanna District 4

Chris Higgins District 4

Bruce King District 4

Larry Lepore District 2

Roxann Lewis District 4

Robin McCoy District 4

Mary Ann McMillan District 3

Ken Peek District 4

Kristy Peixoto District 4

Linda Ramsay District 2

Greg Rau District 4

Bill Vandenburgh District 2

Rex Warren District 2

Ron Taylor (former member) District 4

Thomas Van Voorhis (former member) District 4

Staff to the Task Force

Sharon Gosselin Public Works Agency

Liz McElligott Community Development Agency

Alex Amoroso Formerly with CDA

Diamera Bach Formerly with PWA

Carla Schultheis Formerly with PWA

Tami Turpin Formerly with PWA

A special thanks to the Hayward Area Recreation and Park District for the use of their meeting

room.

TABLE OF CONTENTS

INTRODUCTION

Background ……………………………………………………………………………………….1

Process…………………………………………………………………………………………….1

Additional Relevant Regulations………………………………………………………………….2

Description of the Watershed ……………………………………………………………………..3

INTERIM RECOMMENDATIONS ……………………………………………………….......5

RECOMMENDATIONS OF THE TASK FORCE

Recommendations Not Specific to the Watercourse Ordinance ………………………………….7

Recommendations for Ordinance Implementation ……………………………………………….7

Recommendations for Determination of Creek Setbacks ……………………………………….10

Recommendations for Development within Creek Setbacks ……………………………………13

Table 1 - Findings Required to Grant a Permit for Development within a Creek Setback ……..15

Recommendations for Property Owners’ Rights and Responsibilities ………………………….17

Recommendations for Grading Related to Creeks ………………………………………………18

Recommendations for Stormwater Management and Discharge Control ………………………18

PROCESS FOR COMPLETION OF AMENDMENTS TO THE WATERCOURSE

PROTECTION ORDINANCE ………………………………………………………………..19

ATTACHMENTS

A. Alameda County Watercourse Protection Ordinance

B. Minority Report by Rex Warren (added October 3, 2011)

Page Intentionally Left Blank

San Lorenzo Creek Watershed Task Force Recommendations - June 27, 2011 Page 1

San Lorenzo Creek Watershed Task Force

Final Recommendations

(June 27, 2011)

INTRODUCTION

San Lorenzo Creek Watershed Task Force Mission Statement

To preserve and enhance our San Lorenzo Creek watershed by proposing policy

and guidelines as well as ordinance revisions and integration in an effort to

control flooding, manage storm water runoff, rehabilitate and restore our creeks

system, protect our biological resources and ultimately improve water quality and

the quality of life for the residents of Alameda County.

Background

On March 27, 2007, the Board of Supervisors appointed fifteen members and three alternates to

the San Lorenzo Creek Watershed Task Force and directed the Task Force to identify and

address the community’s concerns regarding development projects that have the potential to

degrade the quality of creeks and their riparian corridors within the San Lorenzo Creek

Watershed. Task Force members represented a diverse cross-section of the community; including

homeowners, environmentalists, agriculturalists, and business owners. The Task Force met

regularly from June of 2007 to December of 2010 and was staffed jointly by the County Public

Works Agency and the County Community Development Agency.

Process

The Creek Task Force identified five key topics of concern: creek setbacks, development within

creek setbacks, rights and responsibilities of creek-side property owners, grading related to

creeks, and stormwater management and discharge control. For each of these key areas, the Task

Force developed recommendations that are intended to serve as the basis for revision by County

staff of the existing County Watercourse Protection Ordinance (see Attachment A). The Task

Force formed a work group for each of the five topic areas. These work groups were responsible

for preparing for each topic in advance of consideration by the full Task Force by framing the

issues; gathering data; and identifying resources, relevant agencies, and potential speakers.

The Task Force members composed the following question in order to frame their discussions:

Does there exist an Alameda County ordinance that provides sufficient requirements to

regulate development and provide enforcement so as to protect aquatic and riparian

resources in creeks and culverts in the San Lorenzo Creek watershed; and is it being

implemented effectively?


The Task Force identified the following objective for their effort:

Develop recommendations for a comprehensive watercourse ordinance that protects the

aquatic and riparian resources of the San Lorenzo Creek Watershed.

To the extent feasible, the Task Force reached decisions by consensus. When a consensus could

not be reached, decisions were made by majority vote with the understanding that dissenting

members could choose to prepare a minority report.

Additional Relevant Regulations

Other County ordinances, in addition to the County Watercourse Protection Ordinance, may

apply to development and other types of activities in or near a watercourse. These ordinances

include the Grading Ordinance, Stormwater Management and Discharge Control Ordinance, and

Flood Control Ordinance.

State and/or federal permits may also be required for work in or near a watercourse. These

agencies are listed in this paragraph, and some permits are summarized in subsequent

paragraphs. The California Department of Fish and Game (CDFG), the San Francisco Bay

Regional Water Quality Control Board (SFRWQCB), and the U.S. Army Corps of Engineers

(Corps) are the three main permitting agencies. In some cases, other agencies such as the U.S.

Fish and Wildlife Service (USFWS), U.S. Environmental Protection Agency (USEPA), or the

National Marine Fisheries Service (NMFS) may also have some oversight authority.

Section 1600 et seq of the California Fish and Game Code requires that for any work that will:

“1. substantially divert or obstruct the natural flow of a river, stream, or lake; 2. substantially

change the bed, channel, or bank of a river, stream, or lake; 3. use any material from the bed,

channel, or bank of a river, stream, or lake; and/or 4. deposit or dispose of debris, waste, or other

material containing crumbled, flaked, or ground pavement where it may pass into any river,

stream, or lake,” the project proponent must enter into a Lake or Streambed Alteration

Agreement with CDFG.

The SFRWQCB issues permits for activities in waters of the State under the authority of both

federal and State laws. For projects that impact waters of the U.S., the SFRWQCB issues Clean

Water Act Section 401 Water Quality Certifications which certify that the federal permit will not

violate State water quality standards. Most certifications have additional requirements beyond

those imposed by the federal permits. For activities involving the discharge of “fill” (e.g., outfall,

bridges, riprap, abutments, piers, retaining walls, etc.) to waters of the State, the SFRWQCB

issues Waste Discharge Requirements (WDRs), under the authority of the State’s Porter Cologne

Water Quality Act. Every certification issued by the RWQCB is issued concurrently with

WDRs. Projects that are outside of federal jurisdiction, receive only WDRs.

A permit from the Corps of Engineers is required in order to locate a structure or discharge

dredged or fill material, in waters or navigable waters of the United States. Section 404 of the

Clean Water Act prohibits the discharge of dredged or fill material into waters of the United

States without a permit from the Corps.


Description of the Watershed

The San Lorenzo Creek Watershed is made up of many smaller subwatersheds that drain a nearly

50 square mile area of western Alameda County into the Bay. Rain that falls in these

subwatersheds makes its way into many creeks that eventually flow into San Lorenzo Creek. The

watershed begins north of Castro Valley near the County’s border with Contra Costa County,

and in the hills between the urban area of Castro Valley and the City of Dublin. From there, it

runs through the unincorporated communities of Castro Valley, Fairview, Cherryland, Ashland

and San Lorenzo (see map on page 4). While the watershed includes portions of the Cities of

Hayward and San Leandro, this report and the recommendations of the Creek Task Force apply

only to the Unincorporated County.

Upper San Lorenzo Creek Watershed

The upper watershed consists of 37 square miles generally known as the Castro Valley

Canyonlands. This rural area is primarily used for grazing cattle and horses. The subwatersheds

of Bolinas Creek, Crow Creek, Cull Creek, Eden Creek, Hollis Creek, Norris Creek, Palomares

Creek, and Upper San Lorenzo Creek comprise the upper watershed. These creeks are, for the

most part, in their natural state and provide good quality riparian habitat. The steep slopes and

unstable soils of the canyonlands can result in severe erosion problems in some areas.

Middle San Lorenzo Creek Watershed

The middle watershed encompasses nearly 10 square miles and is more developed and less

pristine than the upper watershed. Four creeks are included in the middle watershed: Chabot

Creek, Castro Valley Creek, San Lorenzo Creek from Don Castro Reservoir to Foothill

Boulevard, and Sulphur Creek. These creeks are a highly fragmented combination of natural

creeks, culverts, and concrete channels that run through a mix of suburban density housing and

more rural properties. The exception is San Lorenzo Creek which is generally intact but confined

by urban encroachment.

Lower San Lorenzo Creek Watershed

The lower watershed extends from Foothill Boulevard to the Bay and is highly urbanized.

Development in the area includes single-family homes and apartment buildings, as well as a

variety of commercial uses. San Lorenzo Creek flows in engineered channels through this entire

reach, with little or no riparian habitat present.


INTERIM RECOMMENDATIONS

Early on, Task Force members agreed that the current Watercourse Protection Ordinance could

be implemented more effectively in advance of amending the existing ordinance language if

clear interpretation of the ordinance language was provided and if procedures for processing

development applications were modified to require that more information be provided at the time

of application. On February 27, 2008, the Task Force presented a memo to the Board of

Supervisors’ Unincorporated Services Committee that contained the following list of concerns

regarding implementation of the existing County Watercourse Protection Ordinance:

The County’s general plan and specific plan policies recognize the importance of and

encourage the preservation of the County’s creeks and riparian areas; these policies

should be considered in concert with the provisions of the County Watercourse Protection

Ordinance in the implementation of the ordinance.

Differing interpretations of or lack of understanding of the Watercourse Ordinance has

resulted in inconsistent application of the ordinance by staff and decision-making bodies.

Provisions in the Watercourse Protection Ordinance authorizing the Director of Public

Works to approve development within creek setbacks have precluded public involvement

in these decision-making processes.

Identification of parcels in creek areas immediately upon submittal of development

applications is crucial to ensuring that the appropriate policies and ordinances are applied

in the application analysis.

The granting of grading permits for parcels adjacent to creeks before approval for new

development may be granted, without consideration of potential environmental impacts

on the creeks, and without ensuring that erosion controls are in place may lead to erosion

and excessive siltation which degrade the quality of creeks and riparian corridors.

In the February 27, 2008 memo, the Task Force recommended that County staff take the

following actions to address these concerns:

Clarify when the Watercourse Protection Ordinance is applied. Currently, staff applies

the ordinance only to natural channels designated by a solid or dash and three dots as

shown in blue on USGS topographic maps. The Task Force recommends that the

ordinance be applied more broadly, as indicated in the definition of “watercourse” in the

existing ordinance.

Define the terms “riparian areas” and “inhibit riparian restoration” as they are used in

Article V, Section 13.12.310.B. of the existing ordinance.

Clarify when the Director of Public Works should not allow permits to be issued for

development within a creek setback; adopt a public notification process (which includes

notification of downstream property owners) to be used before a permit is issued to allow


development within a creek setback; and emphasize that, according to the terms of the

Watercourse Protection Ordinance, the 20-foot setback is a minimum (and that other

factors, such as riparian vegetation, should be taken into consideration in determining the

setback in each case). Once determined, the creek setback should be strictly enforced.

Ensure that all relevant staff is trained with regard to interpretation of the Watercourse

Protection Ordinance, as well as appropriate general plan and specific plan policies.

Implement a process whereby staff can determine that a parcel is in a creek area

immediately upon submittal of a development application.

Be responsible for determining the boundary of a riparian area and/or an area that will

inhibit riparian restoration if property is on a watercourse. An applicant may choose to

initially determine the boundary of a riparian area and/or an area that will inhibit riparian

restoration. In this case, the County is responsible for confirming the boundaries.

Develop the expertise to determine and confirm boundaries of riparian areas and/or areas

that will inhibit riparian restoration.

Grant grading permits for parcels adjacent to creeks only after approval for new

development is granted, taking into consideration potential environmental impacts on the

creeks, and ensuring that erosion controls are in place.

In response to the Task Force’s memo, County staff changed the procedure for accepting and

processing applications for development on parcels adjacent to creeks. Previously, applicants

were required to delineate the creek setback on plans for Tentative Maps, but not for other types

of development applications or for over-the-counter plan checks, although the application review

process still addressed creek-related issues on the property. The Planning Department now

requires that creek setbacks be delineated on plans for all development applications and plan

checks for property having an on-site or adjacent creek. The Public Works Agency requested that

applicants provide accurate creek cross-sections every 20' or less, site topography, and that

riparian habitat be delineated. Planners at the zoning counter confirm the existence and location

of the creek on the property, and refer plan checks to the Public Works Agency for approval

of the creek setback before signing off on plans. Development review applications have always

been referred to Public Works as part of the application review process. Zoning Counter

handouts have been revised to inform the public of the need to include the creek setback on

plans. Applicants will also be informed of this requirement at the pre-application meetings

for development applications.


RECOMMENDATIONS OF THE TASK FORCE

Recommendations Not Specific to the Watercourse Ordinance

In the process of developing recommendations for amendments to the watercourse ordinance,

some important issues were raised that do not apply directly to the content of the ordinance itself.

However, because these issues are closely related to the function and implementation of the

ordinance, Task Force members feel that it is important that these issues be addressed.

A significant concern is the lack of information that is available about the watercourses within

the watershed and properties adjacent to them. The Task Force feels that this lack of information

limited their ability to carry out their task and also limits the County’s ability to implement the

ordinance effectively. Another related concern raised by the group is the lack of an overall vision

for the protection of the watershed and its watercourses. Given the complex variety of land uses

and types of watercourses within the watershed, the Task Force concluded that a comprehensive

watershed master plan is needed to adequately protect these resources into the future.

The Task Force makes the following recommendations:

The County should collect the baseline information listed below regarding streams. This

information will be used as a planning and permitting tool to better identify and better

address creek-related issues.

1) Prepare an inventory of lots that adjoin watercourses and thus would be affected by the

ordinance.

2) Inventory the watercourses and riparian areas within the watershed, and break them down

into various classifications based on factors such as the watercourse’s physical

characteristics.

3) Identify all of the storm drain outfalls in the watercourses. If someone proposes to build

a home, or develop a lot, the County should be able to identify where runoff from that

development will enter the creek.

The County should explore methods and potential funding sources to carry out the tasks

above.

The County should prepare a watershed master plan to inform how development should

occur near watercourses within the watershed.

Recommendations for Ordinance Implementation

Several issues raised by Task Force members had to do with how the existing Watercourse

Protection Ordinance is implemented. The definition of “watercourse” in the existing ordinance

states in part: "Watercourse means any conduit or appurtenant structure or any natural or man-

made channel through which water flows continuously or intermittently in a definite direction

and course or which is used for the holding, delay or storage of water.” A primary concern of the


group is that it has been the practice of the County to not apply the setback requirement in the

ordinance to engineered flood control channels. It is the position of the Task Force that by not

requiring a minimum setback from engineered channels, the County is limiting the potential for

restoration of these man-made channels to a natural state in the future. While recognizing that

naturalizing every engineered channel in the watershed is not a realistic goal, the Task Force

believes that opportunities to naturalize and day-light creeks should be preserved to the extent

feasible, while still protecting public health and safety and respecting the rights of property

owners.

The definition of “watercourse” in the existing ordinance also states: “Natural channels shall

generally be limited to those designated by a solid line or dash and three dots as shown in blue

on the most recent U.S. Geological Survey 7.5 minute series of topographic maps. At the

discretion of the director of public works, the definition of natural channel may be limited to

those channels having a watershed area of fifty (50) acres or more, and this definition will be

commonly used in the administration of this chapter except for those cases in which the director

of public works determines that the definition must be extended to a natural channel with a

watershed area smaller than fifty (50) acres in order to prevent a condition which is a menace to

life and limb, endangers property, is a hazard to public safety, adversely affects the safety, use or

serviceability of adjacent property, public way or drainage channel, or could adversely affect the

water quality of any water body or watercourse were the definition not extended to a particular

natural channel with a watershed area below fifty (50) acres.” According to USGS map

definitions, “solid lines … as shown in blue” represent perennial streams and “a dash and three

dots as shown in blue” represent intermittent streams. While the “watercourse” definition in the

existing ordinance does not explicitly preclude applying the ordinance to ephemeral streams,

which tend to be smaller and flow less frequently than perennial or intermittent streams, it allows

Public Works staff broad discretion in determining the watercourses to which a setback should

be applied. In practice, the ordinance is not applied to ephemeral streams.

Recognizing that ephemeral streams are an important part of the watershed system as they feed

into, and therefore affect, the larger intermittent and perennial streams, Task Force members

agreed that a definition should be added to the ordinance for ephemeral streams and that the

ordinance should apply to these watercourses as well. One member abstained from the vote on

the ephemeral stream definition due to concerns that the proposed definition is too vague and

applying the watercourse ordinance to ephemeral streams could place unreasonable restrictions

on development and maintenance activities, particularly in rural areas. Further discussion of

setbacks from ephemeral streams is included under “Recommendations for Determination of

Creek Setbacks” below.

Section 13.12.320 of the existing watercourse ordinance contains three diagrams of watercourse

cross-sections to illustrate how watercourse setbacks are determined under different

circumstances (see Attachment A). According to Public Works Agency staff, recently adopted

Federal Emergency Management Agency (FEMA) regulations have made the second and third

diagrams obsolete. The remaining diagram shows how the 2:1 slope is applied to a natural

watercourse to determine top of bank, the point from which the setback is measured. Task Force

members reviewed the diagram and recommend that it be revised to better define the terms used

and to clarify how the measurements are done. For example, how is the point from which the


measurement of the 2:1 slope starts determined? The Task Force also recommends that a second

diagram be developed to illustrate application of the setback requirement to an engineered

channel.


The County Watercourse Ordinance should apply to all types of watercourses as defined in

the ordinance, including engineered flood control channels.

The County’s long-term vision should be to restore man-made channels to a natural state

when allowed by health and safety considerations.

The County should include ephemeral streams in the watercourse definition in the

Watercourse Protection Ordinance.

Recommended Watercourse Definitions – (Modified from Definition in Existing Ordinance):

"Watercourse" means any conduit or appurtenant structure or any natural or man-made

channel through which water flows continuously or intermittently in a definite direction and

course or which is used for the holding, delay or storage of water. Channels shall include

perennial streams, intermittent streams, and ephemeral streams.

“Ephemeral stream” means a naturally occurring stream with a defined bed and bank that

flows only in direct response to precipitation, flows no more than 30 days per year, and flows

to an intermittent or perennial stream. Ephemeral streams do not include swales or sheet

flow.

“Intermittent stream” means a stream that flows at certain times of the year, usually has water

for at least 30 days after a storm, should have a defined stream channel, and is commonly

designated by a dash and three dots as shown in blue on the most recent U.S. Geological

Survey 7.5 minute series topographic maps.

“Perennial stream” means a stream that normally has water in its channel at all times and is

designated by a solid blue line on the most recent U.S. Geological Survey 7.5 minute series

of topographic maps.

“Sheet flow” means an overland flow or downslope movement of water taking the form of a

thin, continuous film over relatively smooth soil or rock surfaces and not concentrated into a

small stream. The Watercourse Protection Ordinance does not apply to sheet flow.

“Swale” means a slightly depressed area that primarily serves as a vegetated flow path in the

landscape, connects the area to a wetland or stream, and lacks differentiation between bed

and bank. The Watercourse Protection Ordinance does not apply to swales.


Recommendations for Determination of Creek Setbacks

The existing watercourse ordinance establishes a minimum setback of 2:1 + 20’. The setback is

measured from the “top of bank,” which is either the point where the slope of the bank of an

open channel approaches the horizontal or, if the bank is steeper than a 2:1 slope (two feet of

horizontal distance for every foot of vertical distance), the point at which a line determined by

calculating a 2:1 slope from the toe of the bank intersects the adjacent ground. An important

issue for the Task Force was that the County tends to require the 2:1 + 20’ minimum setback for

developments adjacent to watercourses, and rarely requires a setback that is greater than the

minimum. Generally, the group felt that the County does not adequately evaluate circumstances

in which the setback should be greater than the minimum.

Consideration of what constitutes an adequate watercourse setback comprised the majority of the

Task Force’s discussions. The group began with a general discussion of setbacks, but recognized

the need to separate consideration of the urban and rural areas, given the differences in physical

characteristics, the type of development allowed, and the issues that apply in these areas. The

discussion of setbacks within the urban area was further broken down by type of watercourse:

engineered channel, mixed urban (a mix of engineered channels, culverts, and natural creeks),

and natural creeks.

The group concluded that no single setback requirement is appropriate for all types of

watercourses, but the question of how to determine an appropriate setback is difficult to answer

since it depends a great deal on site-specific conditions. After much discussion, Task Force

members agreed to maintain the current 2:1 + 20’ minimum setback for engineered channels and

for natural perennial or intermittent streams. They also developed a list of seven criteria to be

used on a case-by-case basis to determine whether the setback should be greater than the

minimum setback. While recognizing the importance of protecting life and property, these

criteria also take into consideration factors such as preservation of riparian habitat and water

quality. The intent is for County staff to develop a creek classification system through which

setbacks are determined based on the type of watercourse and the physical characteristics of the

watercourse.

As noted above, the Task Force agreed to recommend that setbacks be required for ephemeral

streams in both the urban and rural areas. Members also agreed that there should be no minimum

setback for ephemeral streams, but that an appropriate setback should be determined based on

the same seven criteria recommended for the determination of a setback greater than twenty feet

for other types of watercourses.

The setback requirements in the current watercourse ordinance, which are generally applied only

to natural perennial and intermittent streams, are required for all structures constructed in both

the urban and rural areas. There was disagreement among the Task Force members as to whether

the recommended requirement for setbacks from ephemeral streams should be applied to

agricultural structures such as barns and sheds. The Task Force agreed that placement of all types

of structures in rural areas over ephemeral streams should be avoided but allowed when

necessary for the reasonable enjoyment of the property as presented in Table 1. The Task Force

agreed that requiring setbacks from ephemeral streams in all cases could place a burden on


agriculture by sometimes making the siting of agricultural buildings difficult in the canyonlands.

Protection for ephemeral and all stream types is also provided by other regulations and programs

such as the Grading Ordinance and the California Department of Fish and Game which requires

Streambed Alteration Agreements to control stream modifications such as rechanneling and

diverting streams, stabilizing banks, implementing flood control projects, stream crossings, and

diverting water.

Section 13.12.190 of the existing Watercourse Ordinance exempts agricultural operations from

the provisions of the ordinance, “as long as these activities do not significantly pollute or damage

watercourses or cause excessive erosion of banks and deposition of sediments in watercourses

thereby requiring abatement measures and imposing cost burdens on the district and its

taxpayers.” Section 13.12.030 of the existing ordinance defines “agricultural operation" as “any

land-related activity for the purpose of cultivating or raising plants or animals or conserving or

protecting lands for such purposes when conducted on agriculturally zoned lands, and is not

surface mining or borrow pit operations nor preparation for construction or construction of any

structure for human occupancy.”

A point of consensus that came out of discussions about the rural areas was that Task Force

members support agriculture in the watershed and do not want to burden agricultural operations

with restrictions that might threaten their ability to continue. The group agreed that the

exemption for agricultural operations that is in the current watercourse ordinance should be

maintained. There was some concern among members of the group that, if not managed

properly, agricultural operations may have a negative impact on creeks in the rural area, and

ultimately on downstream watercourses as well. Therefore, the Task Force recommends that the

County work to educate property owners in the rural area about best management practices and

encourage them to work with organizations such as the Alameda County Resource Conservation

District (RCD) and the Natural Resources Conservation Service (NRCS) to protect and enhance

the creeks on their property.


The minimum setback for man-made and natural perennial and intermittent watercourses

should be 2:1 + 20’ for new development. Existing legal development within the creek

setback should be allowed to remain and to be rebuilt if damaged or destroyed, but not

expanded beyond its current footprint, if the cost of restoring the damaged portion does not

exceed 75 percent of the cost of replacing the entire structure, as defined in Section

17.52.680 of the County Zoning Ordinance.

Recognizing that a single setback is not appropriate for all types of watercourses, it should be

stressed in the County Watercourse Ordinance that the minimum required setback is only a

minimum. The ordinance should establish a process using the criteria listed below for

determining when a setback should be larger than the minimum.

The following criteria should be used to determine when a setback should be larger than the

minimum. The order in which the criteria are listed does not indicate the priority they should


be given in determining an appropriate setback. Priorities may vary from one property to

another, depending on site-specific circumstances.

Criteria:

1) Protect life, property and bank stability during higher flows and flooding

2) Protect creek aquatic and riparian habitat that constitute one of our most valuable

eco-systems.

3) Protect creek-side areas where aquatic and riparian habitat could be restored

4) Create a pervious area that absorbs run-off and filters pollutants and sediments

5) Protect creek and bay water quality

6) Protect the scenic value of creeks

7) Expand public access and recreation where appropriate

County staff should further develop the above criteria for inclusion in the Watercourse

Protection Ordinance or as guidance when applying the Ordinance. The following list

provides examples of evaluation points that could be used to determine if each of the above

criteria are a concern for the project being considered:

1) What are the geomorphic characteristics of the land surrounding the creek and what is the

potential for flooding, land erosion, property damage, and drowning?

2) The riparian zone is the transition zone between the creek’s aquatic habitat and the

surrounding terrestrial habitat. What is the current presence and diversity of native plants

and animals in the creek and the surrounding riparian zone? How far does the riparian

zone extend? Are there trees that provide shade for the creek? Does the creek provide

potential habitat for fish for other critical species? Is the section of creek part of a

corridor for the movement of aquatic and terrestrial animals?

3) Was the aquatic and riparian habitat previously altered or destroyed (e.g., by grading or

installation of an engineered channel)? What area next to the creek should not be

developed so that the riparian area may be restored now or at sometime in the future?

4) Does runoff from the surrounding areas flow across the project site and does the ground

surface on the project site function as a natural pervious surface that absorbs run-off and

filters pollutants and sediments before the water enters the creek?

5) Is space needed outside the minimum creek setback area for engineered stormwater

treatment systems to retain and filter the runoff before it enters the storm drain or creek?

6) Is the project site located on a section of creek that has existing visual and natural creek-

related geomorphologic and biological assets and/or is the location highly visible to the

public?

7) Does the site have a high potential for providing homeowners or the public access to or

recreational use of the creek area?

The County should apply the same setback rules (as recommended by the Task Force) to all

perennial (blue line) and all intermittent (blue dot and dash line) streams regardless of their

location (in both urban and rural areas).

The County should apply different setback rules to ephemeral streams than those for

perennial and intermittent streams.


The County should allow the setbacks for ephemeral streams to be less than the minimum

setback recommended for perennial and intermittent streams (2:1+20’) if determined to be

appropriate. For properties where development is managed under Measure D, construction of

permitted structures within ephemeral streams should be limited to minimize impacts listed

in Table 1, List B, allowing for the property owner’s reasonable enjoyment of the property.

This extra allowance for Measure D lands is important because development of permitted

structures is limited by Measure D to two acres and it is often difficult to find two acres in

canyonlands that does not have an ephemeral, intermittent, or perennial stream.

The same seven criteria should be used to determine the setback for ephemeral streams as

those previously recommended above for determining when setbacks for perennial and

intermittent streams should be larger than the minimum.

Through outreach and education, the County should encourage property owners outside the

Urban Growth Boundary, to use conservation and creek protection related best management

practices and to work with the Alameda County Resource Conservation District to protect

and enhance watercourses within the watershed.

Recommendations for Development within Creek Setbacks

Section 13.12.310 of the watercourse ordinance gives the Director of Public Works the authority

to grant a permit for limited development within a watercourse setback under certain

circumstances. Section 13.12.090 of the ordinance establishes a procedure for consideration of

the permit. The feeling among the Task Force members was that the current process gives too

much authority to one individual without providing for adequate public notification and

involvement in the decision-making process, resulting in a process that lacks transparency.

There was also concern that the existing ordinance does not specify factors that should be taken

into consideration in the Director of Public Works’ decision. The Task Force recommends that

this process be revised so that the decision-making authority is shared by the Public Works

Agency and the Planning Department, that a public notification process be included, and that a

public hearing be held to provide an opportunity for the public to comment on the permit

application before a decision is made.

Recognizing that there may be circumstances in which it would be appropriate to allow certain

types of development within a creek setback when no other alternative exists, the Task Force

considered what types of development might be allowed. Rather than create a list of all types of

development that could be permitted, the group developed two sets of findings, one for public

uses such as trails and one for private uses (see Table 1 on page 15). The Task Force

recommends that the County be required to make these findings before development within a

creek setback can be approved to ensure that factors of concern to the group are taken into

consideration in the decision-making process.

Task Force members recognize that some existing buildings are currently legally non-

conforming and additional existing buildings may no longer conform to the creek setback


requirements in the watercourse ordinance if their recommendations are implemented. The

group was concerned about protecting a property owners’ ability to rebuild an existing building

in the event that it is damaged or destroyed. The Task Force recommends that if an existing

structure that would not be consistent with the watercourse ordinance, as it is proposed to be

amended, is damaged to the extent that the cost of restoring the damaged portion does not exceed

75 percent of the cost of replacing the entire structure, that the structure be allowed to be rebuilt

as it was in its original location. If the structure is more severely damaged or destroyed, the

group recommends that every effort be made to bring the replacement structure into

conformance with the revised ordinance. In order to facilitate this goal, the Task Force

recommends that the zoning ordinance be amended to allow for reductions in zoning setbacks to

allow the replacement structure to be relocated on the parcel to accommodate the watercourse

setback. The group felt that this approach balances the objective of watercourse protection and a

property owner’s ability to continue to use their property.


Under the current County Watercourse Ordinance, the Director of Public Works is given the

authority to grant a permit for development within a setback required by the watercourse

ordinance. In order to protect riparian resources, the Creek Task Force recommends that the

permit approval process be revised so that this decision-making authority is shared with the

County Planning Department to create a collaborative decision-making process that

combines the appropriate expertise of Public Works, the land use planning perspective of the

Planning Department, and recognizes environmental perspectives.

The approval process for permits for development within the creek setback should require a

public hearing to allow for public comment on the permit application, public hearing notices

to all owners of property within a minimum of 300 feet of the subject property as well as any

other interested parties who have requested such notification, and an appeals process.

The following findings should be used by the decision-making entity to determine whether to

grant a permit for development within the designated creek setback:


TABLE 1

Findings Required to Grant a Permit for Development within a Creek Setback

In order to grant a permit for development within the designated creek setback, the decision-making entity must make

EITHER ALL of the findings from List A OR ALL of the findings from List B. To the extent feasible, in cases where the

findings on List A can be made, consideration must also be given to all of the Findings on List B.

List A – Public Improvements List B – Private Development

1. The proposed public improvement is necessary to

protect the health and safety of the occupants of the

subject parcel and/or the surrounding area, including

upstream and downstream properties; or the proposed

public improvement will serve the public good and will

be accessible to the general public.

1. The proposed development is necessary for the subject

property owner’s reasonable enjoyment of the property,

as otherwise allowed under County ordinances.

2. Alternatives to the proposed development were

considered and no physically and economically viable

alternative to the proposed development that does not

involve development within the creek setback was

found.

2. Alternatives to the proposed development were

considered and no physically and economically viable

alternative to the proposed development that does not

involve development within the creek setback was

found.

3. The proposed development will not create a hazard to

people or structures either on the subject property or on

properties upstream or downstream.

3. The proposed development will not create a hazard to

people or structures either on the subject property or on


4. The proposed development will not result in the

removal or degradation of significant in-stream or

riparian corridor habitat, nor will it harm the health of

the aquatic and riparian habitat and function in the

creek system.

4. The proposed development will not create, exacerbate,

or prevent the abatement of erosion and bank de-

stabilization problems either on the subject property or

on properties upstream or downstream.

5. The proposed development will not increase

stormwater runoff into the watercourse. Where

feasible, pervious surfaces will be used in place of

impervious pavement.

6. The proposed development will not degrade the water

quality of the watercourse through the disposal or

deposition of oils, chemicals, poisons, or trash; or

through increased sedimentation and particulates from

disturbed soils either on the subject property or on


7. The proposed development will not result in the

removal or degradation of significant in-stream or

riparian corridor habitat, nor will it harm the health of

the aquatic and riparian habitat and function in the

creek system.

8. The proposed development will not further impede the

maintenance or repair of the watercourse or related

structures either on the subject property or on



If an existing structure that does not conform to setbacks required by the current watercourse

ordinance is damaged or partially destroyed to the extent of seventy-five (75) percent or less,

as defined in Section 17.52.680 of the County Zoning Ordinance, restoration of that structure

should be permitted provided that such restoration is permitted by all other County

ordinances. Section 17.52.680 of the County Zoning Ordinance states that: “The proportion

of damage or partial destruction shall be based upon the ratio of the estimated cost of

restoring the building to its prior condition to the estimated cost of duplicating the entire

structure as it existed prior thereto.”

The County zoning ordinance should be revised to allow for flexible zoning setbacks when

replacing non-conforming structures that have been damaged or destroyed to an extent

greater than seventy-five (75) percent, as defined in Section 17.52.680 of the County Zoning

Ordinance, so the structures may be brought into conformance with current creek setbacks.

The Creek Task Force recommends that the County Zoning Ordinance be amended to add

language that would allow flexible zoning setbacks for properties adjacent to creeks for the

replacement of damaged structures:

o For properties adjacent to watercourses (as defined in the County watercourse ordinance),

a structure that has been damaged more than seventy-five (75) percent, as defined in

Section 17.52.680 of the County Zoning Ordinance, may only be restored in compliance

with the current watercourse setbacks required in the County watercourse ordinance.

o If a structure that has been damaged more than seventy-five (75) percent, as defined in

Section 17.52.680 of the County Zoning Ordinance, cannot be restored to its original size

in its original location on the property in conformance with the current watercourse

setback requirements in the County Watercourse Ordinance, the required zoning setbacks

may be reduced below the minimum zoning setbacks required for the zoning district in

which the property is located, to the extent necessary to comply with the watercourse

setback.

o Where the required zoning setbacks are reduced to accommodate the watercourse

setback, the total square footage of the restored structure cannot exceed that of the

damaged structure.

o The flexible setback provision should apply in all zoning districts with required setbacks.

o Zoning setbacks shall not be reduced to accommodate the watercourse setback if the

reduced setback(s) would result in a violation of any other County ordinance or code.

o Zoning setbacks shall not be reduced to the extent that health and safety on the subject

property or the surrounding properties would be compromised.

o If the zoning setbacks cannot be reduced to the extent necessary to allow for the

replacement of the structure in compliance with the current watercourse setbacks required

in the County watercourse ordinance, the property owner may apply to the County for a


permit to develop within the watercourse setback in accordance with the County

watercourse ordinance.

Recommendations for Property Owners’ Rights and Responsibilities

Section 13.12.060 of the watercourse ordinance states: “Every person owning property through

which a watercourse passes, or said person's lessee or tenant, shall keep and maintain that part of

the watercourse within said property reasonably free of trash, debris, excessive vegetation and

other obstacles which would pollute, contaminate or significantly retard the flow of water

through the watercourse; shall maintain existing privately owned structures within or adjacent to

a watercourse, so that such structures will not become a hazard to the use, function or physical

integrity of the watercourse; and shall not remove healthy bank vegetation beyond that actually

necessary for said maintenance or other maintenance specified in Section 13.12.190C of this

chapter, nor remove said vegetation in such a manner as to increase the vulnerability of the

watercourse to erosion.” Many of the Task Force members own property adjacent to a creek

within the watershed. The general feeling within the group was that the County does not provide

sufficient information about the individual property owner’s responsibilities for maintaining the

creek or adequate guidance about how to perform this maintenance, or adequate support to

accomplish these tasks.

The County Public Works Agency has prepared a document titled “Creek Care, A Guide for

Residents in the San Lorenzo Creek Watershed.” This booklet includes general information

about watersheds and creeks, and provides advice for watershed residents about how to maintain

the health of the creeks in the watershed. The Task Force believed that the County’s creek care

guide could be expanded to provide more specific information for property owners and it should

be made more widely available. It was also suggested that the County consolidate all information

about the rights and responsibilities of property owners and the responsibilities of the County, as

well as restrictions on uses, activities, and structures near watercourses, in one ordinance or

similar mechanism that is separate from the watercourse ordinance, so that is easily accessible to

the public.

There was also concern among the Task Force members that the County does not provide the

same level of maintenance in and around creeks that it had in the past, placing more

responsibility on the property owner for this work. The group recommends that the County seek

funding to restore the previous level of maintenance.


The County should increase annual maintenance efforts to the level of service provided by

the County prior to 1990 and secure revenue enhancement (i.e. assessment districts, property

tax, grants) that would allow for this increased service.

The County should consider a separate creek ordinance that addresses in detail all issues

pertaining to creek maintenance including property owner rights and responsibilities, and the


responsibilities of the County. In addition, the uses, activities, and structures that are or are

not allowed within a specified distance of a creek should be clarified.

The County should revise and enhance its existing creek care guide, distribute the revised

guide to the owners of property adjacent to creeks, and make the guide available on the

county website.

Recommendations for Grading Related to Creeks

Early in the process, Task Force members brought to the table certain issues of concern

pertaining to grading. Members expressed concern about properties being graded and left

undeveloped for extended periods of time. Erosion control measures often fail or are not always

in place, resulting in erosion of creek banks and deposition of silt into local creeks.

Other concerns included past and current projects for which a grading permit should have been

obtained, but work begins without application for a permit, and the permit is applied for after the

construction, the permit is never obtained, or the permit is granted regardless of the violation.

There exists a mentality that it is easier to beg forgiveness than ask permission. Consequences

for violations are inadequate to deter non-compliance.


The County should enforce regulations for grading projects that are permitted and should be

permitted (but for which a permit was not obtained), and new or existing ordinance should be

developed or modified to allow for this enforcement.

The County should develop appropriate process to ensure that timing between the issuance of

a grading permit and construction of a project does not allow for erosion into the creeks and

storm drains.

If development is delayed after grading has been completed, the land owner is responsible for

maintaining erosion control measures and compliance with the County’s NPDES permit

requirements and the County should enforce compliance.

In cases when a stormwater permit is issued, a grading permit should not be issued until the

stormwater permit is issued.

Recommendations for Stormwater Management and Discharge Control

The Task Force recognizes that the County has a new Stormwater Municipal Regional Permit

and that this permit outlines the County’s responsibilities and compliance measures. One area of

concern in the new permit is the County’s responsibility to inspect and enforce the maintenance

of stormwater treatment facilities that are more readily required as part of construction projects.



The County should ensure that existing stormwater treatment measures remain intact and

function as designed.

The County should provide the appropriate level of inspection services needed to effectively

inspect and enforce maintenance of stormwater treatment measures and secure revenue to

enable these services.

The County should enforce stormwater regulations for grading projects that are permitted and

should be permitted (but for which a permit was not obtained), and develop new or modify

existing ordinance to allow for this enforcement.

PROCESSES FOR COMPLETING THE TASK FORCE REPORT AND AMENDING

THE WATERCOURSE PROTECTION ORDINANCE

The draft recommendations report was presented at public meetings before the Castro Valley

Municipal Advisory Council, the District 4 Agricultural Committee, the County Agricultural

Advisory Committee, and the Board of Supervisors’ Unincorporated Services Committee. The

Task Force has made revisions to the draft recommendations based on public comments received

at these meetings; and will ask the Planning Commission for their recommendation before the

full Board of Supervisors is asked to accept the report and direct Public Works staff to amend the

Watercourse Protection Ordinance in accord with the Task Force’s recommendations.

San Lorenzo Creek Watershed Task Force Recommendations - June 27, 2011

Attachment A:

Alameda County Watercourse Protection Ordinance


Attachment B:

Minority Report by Rex Warren

San Lorenzo Creek Watershed Task Force Recommendations - June 27, 2011 Attachment B (added 10/3/11)

Public Comments Received on the Draft San Lorenzo Creek Watershed

Task Force Recommendations Report (4/28/11)

Page 1

Public Comments Received on the Draft San Lorenzo Creek Watershed Task Force Recommendations Report

(4/28/11)

Castro Valley Municipal Advisory Council, January 10, 2011 Daniel Woldesenbet, Director of the County Public Works Agency, said that many factors need to be taken into consideration when amending the watercourse ordinance, including property rights, funding, and the existing regulatory environment. He said that setbacks are difficult to determine as it is a technical process. Rex Warren, Task Force member, said that he was representing Cull Canyon property owners. He objects to the inclusion of ephemeral streams. He feels that the proposed definition is too vague and water running along the side of a road could be considered an ephemeral stream. He said that agricultural properties can’t be treated the same as urban properties and asked that information be provided regarding where creeks are being affected in rural areas. He added that no definition of riparian habitat has been provided. Kristy Peixoto, Task Force member, said that the Task Force recommendations should not go forward until more information is provided. Chris Higgins, Task Force member, said that he is not sure that the Task Force got the inclusion of ephemeral streams right. Linda Bennett, Task Force member, said that there is a need to protect the creeks from property owners who are not good stewards of the land. Dean Nielsen, MAC member, said that he does not like the way setbacks are calculated. He said that because the creek on his property in Palomares Canyon is deeper than it is on his neighbor’s property, he would be required to have a bigger setback than his neighbor would. He said that he is in favor of protecting riparian areas, but agricultural land cannot be treated the same as other types of land. In response to a question from Cheryl Miraglia, MAC chair, regarding the importance of ephemeral streams, Chris Higgins provided an example of an ephemeral stream that was affected by development in his neighborhood. Bruce King, Task Force member, noted that it is important that water be allowed to percolate into the ground along streams, which is why development should not be placed on top of them. Dean Nielsen stated that in the Madison Avenue area, slope is a more important factor than streams. Cheryl Miraglia said that the proposed criteria for determining when a setback should be greater than the minimum are too loose and need to be more specific. She said that the Task Force did a



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good job and she agrees with most of the recommendations, but she is not sold on including ephemeral streams as not enough detail is provided with regard to how they would be defined. Dave Sadoff, MAC member, said that he feels there are ways to make it work. He said that he agrees with 90% of the recommendations. He noted that the final definition of ephemeral streams can include exceptions, such as ditches along the side of the road. John Ryzanych, MAC member, said that in South San Francisco a housing development was built over an ephemeral stream and three houses have been lost. Cheryl Miraglia noted that on page 13 of the recommendations report, the type of structure that could be developed in a creek setback should be clarified. The MAC members requested that the Creek Task Force bring the revised recommendations report back to them for review when it has been completed. District 4 Agricultural Committee, January 12, 2011 Rex Warren, Task Force member, said that he has a problem with applying the ordinance to ephemeral streams. He said that including ephemeral streams will make it harder to site a building within the two-acre building envelope allowed by Measure D. He noted that he would like to see more science and data about the effects of development near ephemeral streams before the Task Force recommendations go forward. He said that the ordinance will be one of the most severe in the state if it is amended as the Task Force recommends. Kristy Peixoto, Task Force member, said that she does not support the inclusion of agricultural areas in the recommendations. She said that the Natural Resources Conservation Service (NRCS) recommends against including ephemeral streams; and the letter submitted by the Contra Costa/Alameda County Cattlemen’s Association (attached) states that agriculture should be exempt from the ordinance. A member of the public noted that San Lorenzo would not exist without sediment and expressed concern that under the proposed definition of ephemeral streams, the sub-drains on her property would be considered ephemeral streams. Rex Warren asked what needs to be cleaned up. He said that there is no pesticide contamination and the sediment is naturally occurring. He said that no problems have been identified in the rural areas. A member of the public stated that her property has piping to the creek so there is no erosion. If there were no pipes, then there would be erosion. It was noted that the Clean Water Program regulates manure and other potential pollutants already. Run-off can be controlled and usually the best place for development in the



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Canyonlands is next to creeks as that’s where the useable land is. Measure D limits where development can be located. A member of the public said that the biggest slides in the Canyonlands happen along the sides of the road after the County kills the vegetation. A member of the public said that he owns 2 properties on San Lorenzo Creek, but under the existing ordinance, he can’t build on one of them and he can’t build a retaining wall to stop erosion. He said his neighbor can’t build a deck. Bill Lepere, Public Works Agency staff, said that if there is erosion on the property, the property owner can take action to protect the property. He said that he may need a grading or watercourse ordinance permit. The agricultural property owners voted unanimously in opposition to applying the watercourse ordinance to ephemeral streams in rural areas. In addition, it was noted that it should not be necessary to get a permit to rebuild a structure that’s destroyed and that agricultural structures should be exempt from the watercourse ordinance. Supervisor Miley said that he would recommend taking the recommendations report to the County Agricultural Advisory Committee to allow the opportunity for additional input from the agricultural community. Rex Warren asked if a creek would be counted toward the area of the two-acre building envelope required under Measure D. He also asked for scientific information that supports the need to apply the watercourse ordinance to ephemeral streams. Unincorporated Services Committee Meeting, January 26, 2011 Howard Beckman spoke in favor of a program of "naturalization" of engineered flood protection infrastructure, and referred to a white paper by Jim McGrath that addresses the impact of sea level rise on the ability of watersheds to discharge stormwater runoff into the bay. The preferred solution provided in the paper is to restore natural streams. He also cited another document: “The 50 Year Plan, From Channels to Creeks,” March 2009, Mitch Avalon, Deputy Chief Engineer, Contra Costa County Flood Control and Water Conservation District. Two members of the public noted the importance of preserving groundwater aquifers and spoke in support of expanding the scope of the Task Force to include aquifers. They also spoke in support of preserving green space to allow water to percolate into aquifers and repairing infrastructure intended to divert water from stormdrains into aquifers. Agricultural Advisory Committee Meeting, March 22, 2011 Members of the committee made the following comments:



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The difference between intermittent and ephemeral creeks should be clarified and a minimum number of days of flow should be added to the definition of ephemeral creeks. Fish and Game regulations are already restrictive enough; no additional regulation is needed. The watercourse ordinance doesn’t do anything that isn’t already being regulated. The criteria for determining when the creek setback should be more than the minimum are subjective and could result in property owners not being able to use their land. There is not enough in the recommendations about helping property owners clean up trash, etc. along the creeks. The cost of clean-up is a burden on property owners. The ordinance should specify that that it is for West County only. The ordinance should clarify that a permit from Fish and Game is needed to clean out a creek. Rex Warren, Creek Task Force member, said that he was representing Cull Canyon property owners. He requested that the AAC recommend that all rural areas be excluded from the proposed ordinance amendment. He said that grading should be addressed elsewhere. The definition of ephemeral creeks is too vague. The rural areas are already subject to Measure D which restricts development. He said that there is no actionable science or data to support the recommendations. A member of the public said that the definition for “agricultural operations” in the existing ordinance should be standardized across all county ordinances. He said that horse operations are at the cusp of uncertainty. He added that the ordinance gives a lot of power to the Director of Public Works to approve permits for development within a creek setback and other groups, such as the AAC, should be included in that process. The Creek Task Force members present agreed to postpone their April 7th meeting to May 5th to allow the AAC time to submit additional comments in writing. Clayton Koopmann and Chuck Moore agreed to form a subcommittee to prepare comments in writing and submit them to the Creek Task Force before their May 5th meeting. Additional Written Comments Received to Date (Attached): Letter from Contra Costa/Alameda County Cattlemen’s Association, January 5, 2011 Email from Tim Koonze, City of Hayward Public Works Agency, January 14, 2011 Letter from the Canyonland Property Owners, March 25, 2011 (34 signed letters were received) Letter from the Ward Creek Alliance, received April 6, 2011 Letter from the Alameda County Agricultural Advisory Committee, received April 22, 2011



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From: Tim Koonze [[email protected]]

Sent: Friday, January 14, 2011 4:44 PM To: McElligott, Elizabeth, CDA Cc: Richard Patenaude; Erik Pearson Subject: Draft Report of Recommendations for the Revision of the Alameda

County Watercourse Protection Ordinance Elizabeth, The proposed document titled “Draft Report of Recommendations for the revision of the Alameda County Watercourse Protection Ordinance” dated January 2011, is clearly a step in the right direction to provide better protection of our watercourses. After reviewing the document I have the following comments:

The words damaged, partially destroyed, and destroyed should be defined to avoid any confusion when implementing the ordinance.

The seven questions that must be answered by the director of public works should be more precise to ensure that all parties are consistent in their interpretation.

There should be clear direction for review and processing of applications within cities and other agencies other than the unincorporated Alameda County. The proposed changes imply that prior to the placement of any structure near a watercourse, a permit must be issued by the Alameda County Public Works Director. If it is the intention to require such a permit the ordinance should be revised to make that requirement clear.

There should be a diagram indicating how to calculate the setback from the watercourse when the bank is less than 2:1 and there is no clear delineation as to the ”top of bank”.

If you have any questions regarding these comments, please email me or contact me at (510)583-4207. Thank yiou. Tim Koonze Associate Planner



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Ward Creek Alliance

25305 Second St.

Hayward, CA 94541

[email protected]

Comments re:

Draft Report of Recommendations for the Revision of the Alameda County

Watercourse Protection Ordinance – Prepared by the San Lorenzo Watershed Task Force

The mission statement of the Draft Report of Recommendations for the Revision of the

Alameda County Watercourse Protection Ordinance (Draft Report) states that this

ordinance will regulate only those waters within the San Lorenzo Creek Watershed. This

eliminates all creeks and headwater streams waters within unincorporated Alameda

County that lie within other watersheds. Ward Creek is one of the creeks that has been

excluded from protection. This must be corrected to include Ward Creek and all creeks

and headwater streams that lie within unincorporated Alameda County.

On p.5 of the Draft Report a list of concerns states that “the County’s General Plan and

Specific Plan policies …should be considered in concert with the provisions of the

County Watercourse Protection Ordinance (WCO)…” The word “should” has

historically been a troublesome word in Alameda County planning issues. To prevent

problems down the road the word “must” would best replace it. The phrase “in concert”

is also problematic in its lack of clarity. The language used in this ordinance must be

clear and tight to avoid questions of intent in the future.

On P. 5 the task force asks staff for a definition of “riparian areas”. The 1977 Specific

Plan for Areas of Environmental Significance already provides this definition. It

recognizes the difficulty for the administration to identify riparian areas so the language

is tight: “…for administrative convenience, riparian corridors will be established

adjacent to watercourses and other bodies of water extending a sufficient distance from

it such that all riparian vegetation is included.” Specific Plan for Areas of

Environmental Significance (SPAES) 1977. The definition already exists in the 1977

Specific Plan for Areas of Environmental Significance. This is a good Specific Plan and

a lot of time was invested in its development. But it is only good if it is enforced.



Page 11

On P. 6 it states that staff response to an accurate delineation of riparian habitat on a

proposed project site is for the applicant to provide a map with the riparian habitat to be

delineated. This leaves the fox guarding the hen house.

On P. 7 the Task Force asks for a comprehensive watershed master plan. This must also

include those ephemeral and other streams that lie outside the San Lorenzo Creek

Watershed but within the unincorporated Alameda County, such as Ward Creek.

On p. 8-9 the Task Force expresses concern regarding the point from which the

measurement of the 2:1 slope starts. We agree with this concern but also remind staff

that regardless of where this point lies, as per SPAES no development can occur within

the riparian corridor or the area where riparian vegetation grows.

On P. 11 the criteria for a setback larger than minimum are listed. We would suggest that

the Task Force include strict adherence to the definition of riparian corridor/area in

paragraph 1 P. 8 of the 1977 Specific Plan for areas of Environmental Significance as one

of criteria. This will protect all of the riparian vegetation/habitat on site. Criteria should

be changed to include…“ riparian corridors will be established adjacent to

watercourses and other bodies of water extending a sufficient distance from it such

that all riparian vegetation is included.” Specific Plan for Areas of Environmental

Significance (SPAES) 1977.

In addition, in paragraph 5 p. 11, there are 3 “should”s that could cause problems in the

future. To avoid these problems it would be best if these be would be changed to “will”

or “must”. Clear language in this ordinance will make things easier for everyone.

We want to thank the Task Force for recognizing the importance of ephemeral streams in

a watershed system but it is confusing why they would recommend on p. 12 that

ephemeral be treated differently than perennial or intermittent streams. Ephemeral

streams are of equal importance as is the riparian vegetation around them and we

recommend that they be treated as such.

We agree with the Task Force in that under the current Watercourse Protection Ordinance

the Director of Public Works should be relieved of the enormous responsibility of

granting permits for development within setbacks.

We strongly believe that it is under very rare circumstances that any development should

occur within a setback or riparian corridor. Adverse impacts on sensitive habitat

generally can not be avoided if development is allowed.

Yet the Task Force has created a number of findings in order to receive a permit for

development in sensitive areas. The findings in Table 1 P. 14 are extensive and are full

of troublesome words and concepts. For example: In List B No. 1, who determines what

is the owners “reasonable” enjoyment? List B No. 5 Who determines what is feasible in



Page 12

“Where feasible”? List B No. 7 What is “significant in-stream or riparian corridor

habitat”? There are too many of these problem words to list here.

The findings must use clear language that leaves no question for the property owner,

administrators or decision makers. This is why the WCO is being revised. An ordinance

must have a clear mandate in order to relieve the Director and Staff from the task of

carrying out the directive. These findings fail to do this.

If a structure is partially destroyed and was built in a riparian corridor later than 1977 it

was in most likely in violation of SPAES and the subject of its reconstruction should be

under far more scrutiny then is required in the Draft Report of Recommendations for the

Revision of the Alameda County Watercourse Protection Ordinance. Many of these

structures are likely to cause adverse impact to creek habitat.

The Recommendations for Grading Related to Creeks should include a requirement for

fining the landowner if sediment is allowed to enter the headwater or creek or leave the

site at all. It discusses holding the landowner responsible but does not discuss how.

The Recommendations should describe how the County will ensure that existing

stormwater treatment measures will remain intact and function as designed.

Thank you for this opportunity to comment on the Draft Report of Recommendations for

the Revision of the Alameda County Watercourse Protection Ordinance. We appreciate

the time that was invested in this project by the many volunteers who signed on.

Sincerely,

Terry Preston



Page 13

Alameda County Agricultural Advisory Committee

c/o Liz McElligott, Assistant Deputy Director

224 West Winton Avenue, Room 111, Hayward, CA 94544

April 22, 2011

San Lorenzo Creek Task Force:

Re: Draft Recommendations

The Alameda County Agricultural Advisory Committee has numerous concerns regarding the

proposed amendments to the ‘San Lorenzo Creek Water Course Ordinance’ presented by the San

Lorenzo Creek Task Force, specifically those revisions impacting lands outside the urban growth

boundary.

The current Watercourse Ordinance exempts agricultural operations from the provisions of the

ordinance, ‘as long as these activities do not significantly pollute or damage watercourses or

cause excessive erosion of banks and deposition of sediments in watercourses thereby requiring

abatement measures and imposing cost burdens on the district and its taxpayers.’ However,

proposed revisions to the new ordinance seek to include rural lands outside the urban growth

boundary. The Alameda County Agricultural Advisory Committee opposes the recommendations

brought forth by the San Lorenzo Creek Task Force for the following reasons.

1. No scientific data, including water quality testing, has been presented as a reason to

change the current policy to include land outside the urban growth boundary/agricultural

lands.

The original ordinance was developed to address issues created by large developments

within the urban growth boundary as stated by the Task Force presenters at the AAC meeting. Issues occurring within the urban growth boundary are far more frequent, easy

to pinpoint, and more severe than potential issues that may occur in rural locations

outside of the urban growth boundary.

2. There is already a policy in place to address the issues within the urban growth boundary

which are the primary concerns of the Task Force. The definition of a ‘water course’ as

presented in the draft recommendations is extremely vague and ill-defined. A minor event such as a mudslide or new deer trail can alter the path of a stream course as defined

in the recommendations.

3. There is no expressed scientific basis to justify the recommended setbacks, which include fairly extreme setbacks from stream courses. Coupled with the recommended definition

of a ‘water course’, the setback will create major issues for current rural land owners.



Page 14

This is an issue because terrain in the canyon lands limits the available locations where

building and agricultural infrastructure can occur.

Measure D already restricts the building envelop in rural locations. There is no need for

additional setbacks and duplication.

4. This recommendation could be a costly and unnecessary duplication of existing

regulations, The U.S. Environmental Protection Agency, U. S. Fish and Wildlife Service,

California Department of Fish and Game, and Regional Water Quality Control Board already have regulatory authority and jurisdiction to address potential impacts to the

streams in the San Lorenzo Creek watershed.

5. We believe the County staff’s expertise is too limited about agricultural lands to monitor

and enforce the recommended ordinance as revised. The proposed recommendations will

give too much power to the planning department when it comes to making building and

permitting decisions regarding agricultural lands. Under the proposed recommendations, staff would be the sole decision makers in the building/permitting process. We

recommend a provision for staff to consult with technical advisors when warranted.

6. The financial impact and resources are not addressed in the recommendations. It appears

that there is not adequate staff or funds to enforce the current ordinance which is

restricted to within the urban growth boundary. Should the agricultural lands be added, further information about costs and funding sources need to be determined.

7. Pollutants running off county roads and litter/debris thrown from the roadway by

motorists appear to us to be far more significant issues impacting the streams in rural portions of the San Lorenzo Creek watershed. This issue should be addressed before

imposing unnecessary restrictions on rural land owners without justifiable cause and

documentation about water course issues in the rural area.

The Alameda County Agricultural Advisory Committee strongly recommends that the

San Lorenzo Creek Task Force exempt agricultural lands outside the urban growth

boundary from the proposed recommendations and continue to focus the Task Force’s efforts within the Urban Growth Boundary.

Respectfully,

Clayton Koopmann, Chuck Moore, Millie Kimbro, members of the

San Lorenzo Creek Task Force Sub-committee, Alameda County Agricultural Advisory

Committee

Darrel Sweet, Chairman

ALAMEDA COUNTY COMMUNITY DEVELOPMENT AGENCY€¦ · District 2 District 2 Wilma Chan Alice...

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