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HomeMy WebLinkAboutMINUTES - 05151990 - WC.1 1AI1A v. THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on May 15, 1990 by the following vote: AYES: Supervisors Powers, Schroder, McPeak, Torlakson, Fanden NOES: None ABSENT: None ABSTAIN: None ------------------------------------------------------------------ ------------------------------------------------------------------ SUBJECT: Water-related Issues The Board received the attached report dated May 10, 1990 from the Water Committee (Supervisors McPeak and! Torlakson) recommending various actions relating to water issues. Supervisor McPeak referred to the Quimby Island issue (Recommendation #4) and noted that the recommendation was to request County Counsel to investigate possible legal action and potential for County legal authority through the grading permit process in order to provide better control and enforcement of regulations in the Delta area. Roberta Goulart, Community Development Department, advised that the State Department of Fish and Game, the County Building Inspection Department and the County District Attorney have all determined that they have no jurisdiction in' the Quimby Island matter. She stated that the . Sheriff' s Marine Patrol had re-investigated the site and found no grounds on which to issue a citation. Ms. �Goulart also noted that the Army Corps of Engineers had advised that they are conducting a further review' of the matter and will report their findings to the Board. Former Senator John Nejedly noted that this issue involves the quality of the entire Delta, and urged the Board to develop some kind of mechanism for better control and enforcement of regulations in the area. After discussion by Board members, IT IS ORDERED that the following actions are APPROVED: 1. APPROVED Recommendations #1 through 6 on the attached Water Committee report; 2. INVITED former Senator John Nejedly and the County Fish and Wildlife Study Committee to attend the Delta Advisory Planning Council meeting on Friday, May 18 relative to the Quimby Island issues; 3 . AUTHORIZED letters to the District Attorney and Sheriff requesting continued investigation and monitoring of possible violations in the Quimby Island area; 4. AUTHORIZED letters to the County' s State and Federal legislative delegation requesting their assistance in establishing a mechanism for better control and enforcement of regulations in the Delta; and 5. AUTHORIZED letter to the Bay Area Air Quality Management District relative to possible burn regulations violations in the Quimby Island area. and correct copy of cc: Community Development an ereact on taken that entered on the minutes of the County Administrator Board of Supervisors on the date shown. ATTESTED: '72 &E /490 PHIL BATCH ,ICierk of the Board Supervfson3 and County Admin1sb1W gll • a WC1 TO BOARD OF SUPERVISORS Water Committee FROM; •� - Supervisor Sunne McPeak Supervisor Tom Torlakson DATE . May 10, 1990 SUBJECT; Water-related Issues STA Co- SPECIFIC REQUESTS) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1a. Refer the Delta Advisory Planning Council � (DAPC) letter regarding wetland concerns ' to the Fish !hand Wildlife Committee for consideration and possible incorporation into the Wetlands Report. lb. Request the Fish and Wildlife Committee to submit the revised Wetlands Report to the Water Committee at their next scheduled meeting. 2. Request that a recommended County water reclamation ordinance be prepared by the Contra Costa Water District with comments from the East Bay Municipal Utilities District, using the San Diego Water Authority Reclamation Ordinance and the State Water Conservation Coalition Reclamation Guidelines as references. 3 . Direct the Community Development Department to draft a letter to sanitary districts and water contractors within the County regarding water reclamation] policy and solicitation of comments for a potential ordinance. 4. Refer the Quimby Island water quality issue to County Counsel to -investigate possibilities of legal ,laction as well as potential for County legal authority on levees through the grading permit process, and report to the Water Committee at their next scheduled meeting. 5. Authorize a letter from the Chair to the Department of Fish and Game communicating County concerns regarding the destruction of habitat in levee stripping operations and the need for Fish and Game enforcement of Section 1601 through 1603. of the State. Fish and Game Code. CONTINUED ON ATTACHMENT; X YES SIGNATURE: . RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE S Auii)e sor Sunne McPeak Supervisor Tom Torlakso� AC NOF BOARD ON APPROVED AS RECOMMENDED OTHER 4� I i ,I. .J VOTE OF SUPERVISORS 1 HEREBY CERTIFY THAT THIS IS A TRUE UNANIMOUS (ABSENT CORRECT COPY OF ANJACTION TAKEN AYES: NOES: ERED ON THE MINUTES OF THE BOARD ABSENT; ABSTAIN: OF SUPER S ON THE DATE SHOWN. cc: Community Development (Orig. Dept.) ATTESTED County Counsel - ---------- Fish and Wildlife Committee Staff PHIL BATCHELOR, ',CL OF THE BOARD OF DAPC Staff SUPERVISORS AND COUNT MINISTRATOR County Administrator M382/7-83 BY DEPUTY +L. 'I t, 6. Direct the Community Development Departments to draft an ordinance and define a process whereby County Counsel may take instantaneous . action in oil or chemical spills impacting Contra Costa County. FINANCIAL IMPACT None. - REASONS FOR RECOMNENDATIONS/BACKGROUND 1a. On October 24, 1989, the Board directed Ithe Fish and Wildlife Committee to prepare a workable ;;definition of wetlands, an inventory of priority wetland areas for preservation and enhancement, and financial methods to accomplish these goals. The DAPC letter was written in response to, and includes concerns relating too the Wetlands Report. This letter should be addressed by`. the Fish and Wildlife Committee along with other comments 'received prior to revision of this report. lb. The Fish and Wildlife Committee presented a ;draft Wetlands Report to the Water Committee during their 11 March 5, 1990 meeting. Wetlands definition is somewhat controversial in that each agency (federal, state, local); has varying definitions and restrictions. On March 13 , 1990 the Board recommended distribution of this draft document with a 30-day comment period, subsequent revision ofjthe draft, and re-submission to the Water Committee during; the May 1990 . meeting. A revised draft has been delayed due to the multitude of comments received. 2. County water reclamation policy in ieffect since February 1989, calls for reclaimed water useto be considered in new developments. This policy requires all developments to meet reclamation standards, ;which would be consistent with water district standards. On March 14, 1989 the Board requested the Water Committee to follow-up on an ordinance or resolution to ;require use of reclaimed ,- .water and dual use water systems in new developments. The Water Committee has addressed this issue, through the review of the San Diego Water Authority Water Reclamation, Ordinance for applicability to our County, and recommends that the Contra Costa Water District and the East Bay Municipal Utility District provide guidance as to a recommended ordinance. The State Water Conservation Coalition Reclamation Guidelines were also recommended to be evaluated for use in a County Reclamation Ordinance. 3. The Water Committee recommends that a letter be sent to sanitary districts and water contractors within the County in order to make them aware of County reclamation activities and incorporate their comments into a proposed ordinance/ resolution. The letter will request these agencies to comment prior to the next Water Committee meeting as. this issue will be addressed in more detail at that time. 4. As a result of re orts and evidence p presented during Board meetings of April 3 , April 10, and April 17, 1990 regarding the dumping of debris off Quimby Island aspart of levee repair, the Board has referred aspects of this issue to many County Departments. The Water Committee recommends that this matter also be referred to County Counsel, to investigate possibilities of approaching federal prosecutors with a civil, criminal or class action lawsuit. The Water Committee also wishes County Counsel to research County authority on levees, for better control and 11enforcement of regulations in the Delta area through more stringent grading permit requirements, or through levee habiiat protection measures. 2 . l , 5. See above The Water Committee also recommends that a letter be sent to the Department of Fish and Game communicating County concerns regarding destruction of valuable habitat areas during clear-cutting; activities on delta levees. Very often, during levee restoration operations, vegetation is completely strippedioff the levee, resulting in a loss of valuable habitat areas:, The Department of Fish and Game has ; very limited jurisdiction and resultant enforcement capability, but has begun setting up policy in order to work with reclamation districts under Sections 1601 through 1603 ofthe State Fish . and Game Code. More aggressive pursuit of these Sections in Delta areas by Fish and Game would require Osome agreement with the Army Corps of Engineers which `:jhas not been forthcoming to date. 6. The Water Committee, in consideration of problems associated with the Shell Oil Spill, in the interest of, preparedness, proposes to have an ordinance drafted giving `County Counsel authority to take immediate action regarding oil or chemical spills. The ordinance would provide for actions to be filed by County Counsel on behalf of the Board for' environmental damages once the magnitude of the spill becomes known. As part of this ordinance,. a process must be defined based on type and severity of a potential spill ford instantaneous action to occur. I 3 ' CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT I TO: Water Committee DATE: May 10, 1990 Supervisor Sunne McPeak FILE: Supervisor Tom Torlakson FROM: Roberta Goulart, Staff i SUBJECT: Quimby Island Water Quality Violations i, 1 On April 3, 1990, due to complaints that trees, bushes and other debris were dumped into Old River off Quimby Island as part of levee repair, the Board of Supervisors directed the Community Development Department = (CDD) to enlist appropriate agency involvement for determination of regulatory violation and enforcement. i On April 10, and April 17, 1990, the Board took further action; The Board invited the State Department of Fish and Game and the Army Corps of Engineers to appear before the Board to report on agency regulatory 'jurisdiction and enforcement. The Board requested a background report from CDD, referred this issue to the Building Inspection Department to determine enforcement authority, to the District Attorney's office for possible proscution, and a re-investigation by the Sheriff's Marine Patrol. Complaints were initially handled by Sergeant Rod Carpenter of the Sheriff's Marine Patrol. Sergeant Carpenter visited the site on April 11 1990, saw debris in .Old River, and left a note at the site indicating that debris must be removed under Section 5652 of the State Fish and Game Code. Sergeant Carpenter notified the Department of Fish and Game regarding potential violations and learned that the Department was already involved in efforts to regulatei� clear-cutting of vegetation in this and other levee areas. The Department of Fish and Game has no regulatory and enforcement ability in this instance, although the Department has begun to set up policy to work with reclamation districts to reduce clear-cutting practices under Sections 1601 through 1603 of the State Fish and Game Code. Sergeant Carpenter also notified the Central Valley Regional Water Quality Control Board, the U.S. Coast Guard and the State Lands Commission, but these agencies have no jurisdiction in this case. The remaining debris (dirt and some debris floated downriver) was removed on April 2; 1990, and subsequently burned. 'I �i I The Corps indicated prior to the April 17, 1990 board meeting that if debris had remained in the river, the landowner would have been in violation of Section 13 of the Rivers and Harbors Act. Work in or on the water side of a levee requires a permit under Section 10 of the Rivers and Harbors Act,' and Section 404 of the Clean Water Act. Numerous discussions with Corps members Art Champ, Tom Coe, Lou Caldwell and Greg Rayner indicate their research shows the �current. situation poses no violations of Corps regulations, as work to the waterside of the levee had previously been completed and current work was on the land side and top of the levee. Some flexibility is allowed regarding permits,1 for reclamation district work on levee stabilization. If a violation had occurred under the .Rivers and Harbors Act, the Corps' enforcement activities would have to occur through the court system. The Corps had reviewed the. situation and is in frequent contact with Reclamation District 2090 which is familiar with permit requirements. As a result of the April 17, 1990 meeting, the Board requested a letter (attached) to. be sent to the Army Corps of Engineers requesting the Corps to issue a citation under Section 404 of the Clean Water Act, based on significant evidence presented to the Board. A letter was received from the Corps (also attached) statingthat the Corps' position remains the same in that no permits were required, therefore, no citations are necessary. At the April 17, 1990 meeting, the Board also referred this issue to the Fish and Wildlife Committee for immediate investigation; to the Delta Advisory Planning Council and the Water Committee to develop a process for better control and enforcement of regulations in .the Delta Area, including more stringent grading permit requirements. The County Building Inspection Department has investigated this situation and determined a grading permit is not required as the County 'currently has no jurisdiction regarding, levee operations. The Sheriff's Marine Patrol has re-investigated the site, and found no grounds for citation at this time. The District Attorney's office, also investigating the situation has, to date, found no criminal violation for prosecution to occur. RG:jal jl47:qui.mem Attachment a 2. CONTRA COSTA COUNTY { COMMUNITY DEVELOPMENT DEPARTMENT TO: Interested Persons DATE: May 16, 1990 FILE: FROM: Roberta Goulart Planner SUBJECT: Report'to the Board on May 15;. 1990 Supervisor Fanden has requested an update of the situation at Quimby Island, regarding the dumping of debris into Delta- `waterways. Mr. Nejedley and the owners of ski-shacks along the waterway claim debris still remains beneath the water. The Board has referred this issue to several County ,'Idepartments, and other agencies have been involved as well. The Department of Fish and Game ,has reported to the Board and to the Water Committee that although they are currently working with reclamation districts to reduce clear-cutting of vegetation on levees, they. have no jurisdiction in this case. The Army Corps of Engineers has previously stated they have found no violation, and have recently reviewed the videotape John Nejedley has provided. Although Section 404 of the Clean Water Act has an exemption for work on levees, the Corps is engaging in a fly-over of the site, and will later review photos taken on that flight with previous photos taken of the area. The� Corps will also address claims.that levees are being extended into the waterway`. The Corps will then report their findings to the Board, and will report in person at the June 5.th meeting if significant evidence is found. The Sheriff's Marine Patrol has re-investigated the site, circling the island at low-tide. The Marine Patrol has coordinated with the Department of Fish and Game, and found no grounds by which a citation could be issued. The Building Inspection Department has determined they have no jurisdiction in this case. The District Attorney's Office has. researched this situation, viewed the videotape, reviewed the situation in detail with Fish and Game, and has determined that no State law would apply here. This situation could be a potential permit violation under the Army Corps of Engineer's, or a federal violation through the Environmental Protection Agency. Therefore, the District Attorney has no jurisdiction, and no action can be taken. As Supervisor Torlakson has noted, the Board's Water Committee has reviewed this situation and is recommending to the Board that County Counsel become involved to investigate possibilities .of legal action, as well as potential for County legal authority on levees through the grading permit process or other means. f �r The Delta Advisory Planning Council will meet this Friday to discuss this issue and the potential for a process for better control and enforcement of regulations in the Delta. In conifer_Sations with the Army Corps of Engineers, I have learned that the .Corps does not hold exclusive jurisdiction on levees, and would welcome local participation through grading ordinances or the building inspection process. The Corps is currently unable to address many of the less serious situations in the Delta due to hundreds of outstanding problems and wholly . inadequate staffing. I have also learned that the Department of: Fish and Game has recently suffered further cutbacks in personnel, and enforcement activities will be severely curtailed. . This, coupled with a near-extinct Sheriff's Marine Patrol, raises some serious questions regarding enforcement capabilities in the Delta area, even if a long-range inter-agency program was organized. RG:jal jl48:qui.mem 2.