Monday, December 29, 2014

Waterfront Advocates, Local Regulators Fight for Marsh Restoration at Brooklyn Basin

By Sam Levin
Mon, Dec 29, 2014 at 12:32 PM

click image Brooklyn Basin rendering.
  • Brooklyn Basin rendering.
Environmental activists have long pushed for a marsh restoration at the Oakland waterfront where Brooklyn Basin, a massive development project, is currently beginning construction. Those efforts, however, were recently thwarted when federal regulators took steps to block a proposed habitat restoration project, a major setback for environmental groups. But now, waterfront advocates have a strong ally — the San Francisco Bay Conservation and Development Commission (BCDC), the local government agency charged with protecting the bay and approving waterfront development plans.

I wrote about this fight last month when activists with Waterfront Action, a local environmental advocacy group, learned that Brooklyn Basin's planned marsh habitat restoration on the Oakland shoreline was in jeopardy because of last-minute, convoluted legal concerns that federal regulators had raised. Now, BCDC has issued a strongly worded letter urging regulators to come up with a solution that would allow the waterfront habitat project to continue as planned. 

For details on the actions that led to this latest dispute, check out our print story, "An Environmental Setback at Brooklyn Basin" (November 5). The crux of the fight centers on the environmental obligations of the developers behind Brooklyn Basin, a 65-acre, mixed-use project near the Oakland Estuary, just southeast of Jack London Square. That project is slated to include 3,100 units of housing, 200,000 square feet of retail and commercial space, a marina, new waterfront parks, and more. BCDC initially approved the plan in 2011 after the developers — led by Oakland-based Signature Development Group — agreed to fund a marsh habitat restoration along the adjacent Oakland shoreline. That restoration would be considered "mitigation," meaning it was designed to offset the environmental impacts of the massive development project — a legal requirement for a project of this size. 

The federal agency that has since created an obstacle for the habitat restoration is the US Army Corps of Engineers, which is responsible for reviewing the proposed mitigation and approving the project's permits. The Army Corps recently informed the developers that the proposed one-acre marsh restoration would not fulfill official mitigation requirements, because the site of the habitat is on land that is in the "public trust" meaning the public owns it and the State Lands Commission has jurisdiction over it. According to state law, public trust land can be leased for a maximum of 66 years. Because the Army Corps believes the various parties technically would be unable to permanently protect the habitat beyond 66 years, the agency said the marsh wouldn't work for mitigation purposes.

Waterfront activists Sandra Threlfall and Naomi Schiff at the Brooklyn Basin site. - BERT JOHNSON / FILE PHOTO
  • Bert Johnson / file photo
  • Waterfront activists Sandra Threlfall and Naomi Schiff at the Brooklyn Basin site.

Because of this new determination of the Army Corps, which state regulators have also affirmed, the developers instead have proposed putting funding toward a wetlands site in Redwood City. That means Oakland would lose out on a local habitat project that was a key environmental benefit in the originally approved Brooklyn Basin proposal. 

BCDC expressed initial frustrations with this roadblock last month, and now the agency has written a formal letter stating that it is "extremely disappointed" with this setback, arguing that the various regulators should be able to come up with a solution that allows for the marsh project to move forward. The letter also questioned the merits of forcing an Oakland developer to put money toward Redwood City instead of an Oakland habitat that needs this kind of funding and and will face direct impacts from the large development project.

BCDC Executive Director Larry Goldzband addressed the December 22 letter to the San Francisco Bay Regional Water Quality Control Board, the local arm of the state water agency that must also approve the Brooklyn Basin plan. That board has sided with the Army Corps, arguing that the proposed marsh can't count toward mitigation because of the 66-year lease policy.

Goldzband's letter requested that the agencies find a legal agreement that would ensure the marsh would be permanently protected and could thus count toward project mitigation. He also noted that this is a rare chance to restore local wetlands in the East Bay: 
There are very few opportunities to restore wetlands along the Oakland shoreline at the Oakland-Alameda Estuary. It is incredibly disappointing that this loss of potential habitat and public access might occur for this project. BCDC respectfully requests that the [Regional Water Quality Control Board] continue negotiations with BCDC, [Army Corps], and [State Lands Commission] to draft a deed restriction that would give [Regional Water Quality Control Board] adequate regulatory assurance and require the permittee to construct marsh habitat at the site.

The letter further poked holes in the Redwood City alternative plan, arguing that BCDC policies prohibit developers from funding off-site mitigation projects if there are feasible on-site mitigation opportunities, meaning developers can only put money toward an unrelated habitat initiative if there are no opportunities to improve the surrounding environment that is directly impacted by the project. Additionally, Goldzband wrote that BCDC's policies suggest that it could only approve funding for the "wetland mitigation bank" in Redwood City if the commission already had in place an agreement with that specific mitigation bank (meaning the Redwood City site that is slated to get the Brooklyn Basin funding). There is currently no such agreement in place. 

Because the potential loss of a marsh wetland restoration is such a major change, Goldzband said BCDC would have to hold additional public hearings and a vote on the new proposal. And the letter implies, given its many concerns, that the commission would be likely to vote against this new plan, meaning the project is potentially on track for a major conflict in the coming months if federal and state agencies refuse to compromise and allow the marsh to move forward. He added: "BCDC is committed to cooperating with its partner agencies, especially when such obvious delays and disagreements provide such great fodder for those who believe that governments at various levels cannot work together."

You can read the full letter here

An official with the Regional Water Quality Control Board (the agency that received the letter) did not immediately respond to my request for comment this morning. 

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