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HomeMy WebLinkAboutResponse+for+the+Board+of+Review+-+Administrative+Citations+at+Horizon+LaneResponse to Administrative Citation 25409 Or: The Case of the Creek that Never Was In this letter I will be addressing citations 1, 3, and 4 of the notice of violation, all of which hinge on the City's mischaracterization of the drainage ditch as a creek. I will demonstrate that by any reasonable definition, be it legal, historical, environmental, or based on past usage; the drainage ditch bisecting Horizon Lane is not, in point of fact, a creek or any other kind of federally regulated waterway. Citation 2 (storage containers as buildings), touches on ground that has already been covered by the review board and would not have been challenged if the results of the appeal on the related Parker St citation had been known. We are actively working with the City on plans for the storage containers at Parker St, and given the similarity between the issue at the heart of Citation 2 and the citation at Parker, we will be waiting to submit plans until the Parker Street submission has been completed. We can then take the lessons learned during the creation, review, and approval process at Parker and apply them to the Horizon permit in a time and cost-efficient manner. History of the Drainage Ditch Brief Overview The drainage ditch was constructed as part of a water detention and drainage system by Union Oil of California, intended to stop the spread of oil in the event of a leak during heavy rains. The remains of concrete channels, valves (1) and other apparatus (2) remain on the property today. At the time of our acquisition of the property, the drainage ditch was filled with fragments of steel and concrete from the partially demolished water detention and drainage facility, with additional debris covered with a shallow layer of soil scattered through the remainder of the property. We obtained a permit with the County of San Luis Obispo (3) for the grading and leveling of the lot, as well as the encapsulation of the entire 330' length of the drainage ditch in a temporary pipe, until plans for a proper culvert could be submitted. The temporary pipe portion of the permit (along with temporary power and a couple of other provisions) were not acted upon, in favor of plans submitted to the County for the installation of a permanent culvert (DRC2005-00243) (4). DRC2005-00243 was later invalidated by the annexation of the Horizon Lane industrial area by the City, over the objections of local industrial property owners, by redrafting the annexation to include a large, non-contiguous residential area. Previous Permits James Whitley — Industrial Condominiums James Whitley's attempt to develop the began with an approved Development Plan (D850529:1) on January 9, 1986 (5 p. 3) for the construction of Industrial Condominiums, which was extended three times before expiring without significant headway being made. We were unable to locate copies of these plans or permits related to them, given the nature of the development and the intended location of the structures, it could not have proceeded without provision for a culvert. Whitley restarted his project with Construction Permit 56848 (6 p. 2), issued in 1989. This permit covered the installation of a 72" x 44" drainage culvert to replace the existing drainage ditch, as well as grading, installation of water mains and removal of fill, likely in preparation for his subsequently submitted plans industrial condominiums. On September 14th, 1992 Whitley received a Negative Declaration of environmental impact for his proposed industrial condominiums (7 p. 13). The staff report described vegetation on the site as "Grasses; forbs; mostly barren" (7 p. 13). On January 14"'' 1993, the project gets its final go ahead from the County Planning Commission where the environmental impact negative declaration, tract map and development plan were formally approved. (5) Ferris Trust Permits In late 2000, early 2001 the Ferris Trust was granted a lot line adjustment linearizing the eastern portion of the lot, and on July 201h, 2001 the Lot Line Adjustment was granted (COAL 00-150) (8). The CEQA environment description form described the vegetation on the site as "GRASSES & WEEDS" (8 p. 7). Later that year, the Ferris Trust sought a permit for the installation of 330' of temporary drainage pipe from existing concrete gate valve to exiting road crossing culvert, grading of the lot, installation of temporary power and fencing, and on October 16th, 2002 the permit was granted (3). Over the next few years work proceeded on grading the property, removing multiple dump truck loads of broken up concrete and various industrial debris from the property and drainage ditch. Work proceeded slowly as it was performed primarily by Richard Ferris and Raymond Hanson on weekends so as to keep costs low. In lieu of installation of the temporary drainage pipe, plans were submitted to the County of San Luis Obispo for the construction of a permanent culvert (DRC2005-00243) in late 2005 (4 p. 3). Invention of the Creek In 2005, the City began to speak of annexing the properties in the Tank Farm area, and it is in one of the drafts of the "PH-1 Adoption of the Airport Area Specific Plan" that the first reference to a "Tank Farm Creek" was mentioned, I've copied below Tank Farm Creek is the name applied to the cluster of drainages that traverse the western portion of the Unocal property.... (9 p. 4) It notably contains no evidence or justification supporting the attempted reclassification of the drainage system. After Richard Ferris's 2005 objection to the language this section was removed and does not appear in the final draft of PH-1. (10) The term "Tank Farm Creek" would continue to be used elsewhere however, and no finding or justification has been provided. Annexation In 2006, the City spoke with owners of property in the Horizon Lane industrial district, who largely responded negatively to the prospect of annexation. In response to this, the annexation was amended to include a large swath of noncontiguous land intended for residential development (10), reducing the voting share of the Horizon Lane/Suburban Road industrial district sufficiently to render their concerns and consent irrelevant. Despite both our objections and verbal reassurances to the contrary (11 p. 2), annexation of our property went forward, and both our outstanding permit for a temporary drainage pipe and the in -progress plans with the County were invalidated (4 p. 3). Maintenance of the Drainage Ditch The invalidation of both the County approved plans for the temporary drainage pipe and the in -progress permit for the installation of a culvert left the ditch in state that was vulnerable to landslides that risked blocking drainage from the Tank Farm property in the event of a heavy rain. Acting in accordance with the US Army Corp of Engineers published guidance on the permitting required for the maintenance of drainage ditches (12), work was performed to stabilize the sides of the ditch, including additional compaction and the installation of interlocking masonry blocks to line and reinforce the sides. The 2017 Citation In 2017, the City of San Luis Obispo issued a citation identical in substance to this 2020 citation. After a product meeting with the representatives of the Fish and Wildlife commission, and a compromise with the City of San Luis Obispo to lower the height of the masonry blocking, this issue was resolved... until the same issue was cited a second time, a little more than four years later. San Luis Municipal Code Chapter 12.23 12.23.020 A. Creeks including San Luis Obispo Creek and its tributaries and any other "Water of the United States", as defined in 40 CFR 122.2... "Tank Farm Creek" The attempt to characterize the Union Oil constructed drainage ditch as a creek is without merit. It ignores the prevailing definition of creeks as natural, regularly flowing formations. It ignores findings from previously submitted and accepted environmental reports. It ignores previously approved permits acknowledging it as a drainage ditch and approving the installation of culverts of various types. It ignores the history of the water detention and drainage facility on the property. It ignores all of this, all in an attempt to "prettify" a partially decommissioned petroleum storage facility. The City of San Luis Obispo's own commissioned report "Chevron Tank Farm FEIR" characterizes it thusly "Tank Farm Creek, itself is largely an artificial ditch..." (13 p. 21). In the "Overview" section they make a point to mention that the unnamed tributary is 'locally known as "Tank Farm Creek"" rather than arriving at any determination themselves (13 p. 5). It is worth noting that the much of the work done in the report needs to be reconsidered in light of later rulings by the Supreme Court and the formally adopted 2019 Revised Definition of the "Waters of the United States" (14) Water(s) of the United States Notably excluded from the definition 'Water of the United States' are "Ephemeral features", which are defined as in 120.2.3.iii "surface water flowing or pooling only in direct response to precipitation" (15), which is an accurate description of this (and any) drainage ditch. According the Supreme Court Decision in Rapanos V. United States (2007) and the EPA's own 2019 guidelines for determining 'Waters of the United States' (14) ...the ordinary meaning of the term "waters" does not include areas that are dry most of the year, and which may occasionally contain "transitory puddles or ephemeral flows of water." See Rapanos, 547 U.S. at 733 The 2019 revised guidelines are even more explicit in the exclusion of drainage ditches of the sort at Horizon Lane. The drainage ditch which is dry through the overwhelming majority of the year - flowing only in direct response to rainfall, and only for short periods of time (hours, not days). So little water flows that the "Chevron Tank Farm FEIR" report completely omits indicating the drainage ditch in its maps of ephemeral flows (13 pp. 45-47) Conclusion Multiple government agencies have affirmed, via Environmental Impact Declarations, Planning Commission Resolutions and Construction Permits that the ditch running through Horizon Lane is, in point of fact, a ditch. Our reinforcement of the drainage ditch was not only allowable by the rules published by the US Army Corps of Engineers, but was required to safe guard drainage of the Tank Farm area against flooding during heavy rains. And by the City's own FEIR report, the Section 120.2.3.iii of the CWA and the EPA's own 2019 ruling, the ditch running through Horizon Lane is not subject to any special regulatory treatment. Signed, Warren Ferris References 1. Union Oil Detention System - Valve Assembly. San Luis Obispo: 2021. 2. Union Oil Detention System - Winches and Concrete Wall. San Luis Obispo: 2021. 3. County of San Luis Obispo. D020086S - Drainage Pipe, Grading. San Luis Obispo: s.n., 2002. 4. -. Parcel History. Parcel History. San Luis Obispo : s.n., 2021. 5. -. D910080D - Development Plan and Vesting Tentatitive Tract Map. San Luis Obispo, California, United States s.n., January 14, 1993. 6. -. Pages from 56847 - 850-OOO1D. San Luis Obispo : s.n., 1986-1989. 7. -. S900008T - Miscelleanous Paperwork Related to Tract Map 2035 (Whitley). San Luis Obispo, California, United States : s.n., January 14, 1993. 8. -. COAL 00-0150. 2001. 9. Ferris, Richard. Letter Dated 2005 - Excerpt from final draft of Adoption of the Airport Area Specific Plan. San Luis Obispo : s.n., 2005. 10. City of San Luis Obispo. PH1 Annexation of 620 Acres... San Luis Obispo : s.n., 2007. 11. Ferris, Richard. Letter Dated April 26th 2007. San Luis Obispo : s.n., 2007. 12. US Army Corps of Engineers. Maintenance Exemption Summary. Sacramento: US Army Corp of Engineers, 2005. 13. Padre & Associates. Chevron Tank Farm FEIR Appendix. San Luis Obispo : s.n., 2008. 14. Federal Register. Revised Definition of "Waters of the United States". 2019. 15. Clean Water Act -120.2 Definitions.