Up a Creek with the City Council 

Oakland's efforts to alter the city's pioneering creek ordinance reveal the limits of government's ability to codify nature.

In 1997, the Oakland City Council enacted one of California's most comprehensive creek-protection ordinances. The statute placed limits on what could be built near the city's many streams, and it required developers to obtain permits and file reports on planned riparian projects.

Hundreds of streams and arroyos descend from the Oakland hills, although only tiny sections of many remain above ground. Once used as sources of drinking water or places for youngsters to swim on hot afternoons, they later came to be regarded more as nuisances than assets. Most were ultimately channeled or culverted in some fashion, to prevent flooding and accommodate building along their banks.

The movement to reconnect Oakland and its waterways began in the 1980s. Creek cleanups have since become annual events in many neighborhoods, and some streams even have been freed from their concrete straitjackets and replanted with native vegetation in places. The high point of this effort was the passage of Oakland's five-year-old ordinance, which was universally praised by creek lovers.

But developers -- particularly those who have worked on at least one project in the Oakland hills -- chafed at the ordinance's restrictions. "It ties your hands and makes it impossible to do anything," complains Bill Florence, president of the Oakland Development Council, a lobbying group. Florence says that while he approves of the concept in the abstract, it's the "interpretation" of the ordinance that causes problems. Concerns such as these reached the city council last fall, when councilmember Henry Chang urged his colleagues to take another look at the ordinance.

It would be easy to write off the debate over Oakland's creek protection ordinance as another chapter in the old "developers versus environmentalists" saga. When the issue came before the city council earlier this year, rhetoric flew freely from both sides. But those who listened carefully heard how other forces came into play, including a little-known but very powerful state agency, and perhaps even the vagaries of Mother Nature herself.

At first glance, it appears that Chang and his colleagues concluded that making major changes to the ordinance might not be a good idea. But, in fact, the future of creek protection in Oakland depends upon the council's own action at the end of an eighteen-month remapping of the city's waterways.

Builder Thomas Hennigan Jr. says an "interpretation" problem caused a delay in the construction of two homes he was building near the intersection of Skyline and Grizzly Peak boulevards last year. The city considered a ravine running through the property to be a creek, and the law prohibited him from building anything within fifty feet of its banks. But determining where the top of the stream bank was turned out to be a major hassle, and it was three months before the issue was resolved.

Delays of this type are expensive, Florence notes, and land with even the most questionable creek on it can become almost worthless because of the restrictions. Florence complains that the city's Environmental Services department, which administers the law, is way too stringent. "Our issue is the things they're calling creeks that are not really creeks," he says.

When Chang brought the issue before the council, he indicated that he wanted more "certainty" in the ordinance, so that developers could easily tell whether they were subject to its restrictions. According to press reports at the time, Chang argued that only creeks shown on the Oakland Museum's educational 1995 Creek and Watershed Map of the East Bay should be included. That would have been a nice, easy-to-understand solution, but because the map didn't show most of the city's small hillside tributaries, it also would have released many of the most desirable remaining building sites from the law's restrictions.

Environmentalists counter that Chang's desired "certainty" isn't a big priority with the creeks themselves. Many small tributaries in the upper Oakland hills have a habit of appearing and disappearing, depending on the season. Sometimes creeks dry up or run underground for several consecutive years, until a heavy rainy season causes them to re-emerge. Seismic activity can cause small streams to change course, and even larger streams have a tendency to meander unless they are culverted or run through a concrete channel.

The city's creek ordinance attempted to account for this fickleness. If property owners are unsure whether there is a creek on their property, a member of the Environmental Services department can inspect the area. Lesley Estes, supervisor of the city's watershed program, notes that several key guidelines in the city ordinance define a creek even if no water is flowing. There has to be a defined "bed and bank" -- a v- or u-shaped channel -- or evidence of erosion caused by flowing water. The channel has to somehow link to another stream, and eventually to the Bay. "It's not as difficult as you might think," Estes says, adding that, even in summer, topography and other clues help reveal a creek's location.

By the time the Oakland council considered efforts to revise the ordinance in late February, the supporters of reform had moderated their approach. Chang and his allies backed a staff report that recommended rehiring the company that did the museum's original creek map to do a more detailed survey of the creeks and tributaries. This process is expected to take about eighteen months, and the staff says the company should be able to identify 98 percent of the creekside properties subject to the ordinance, as opposed to the current figure of 85 percent.

Builder Hennigan hopes that a more complete map will benefit developers. "It could help a lot when you go to buy land," he said. Florence of the Development Council remains doubtful, worrying that the city will end up "putting a blanket" over large areas in the hills, making them effectively closed to development.

The blow to the hopes of developers may have come earlier this year, when councilmembers Nancy Nadel and Danny Wan met with representatives of the Regional Water Quality Control Board. The board is responsible for, among other things, overseeing the condition of creeks and rivers that flow into the Bay. Nadel, the council's most outspoken defender of the ordinance, says the meeting was called to discuss ways the board could help the city analyze the ordinance and refine its definition of what is and isn't a creek. "They were very supportive of our ordinance," Nadel recalls.

But the board also noted that major changes to Oakland's law could have had implications that developers would like even less than the status quo. Specifically, if the city backed down, developers would have to deal instead with the regional board, which has a lengthier and often-difficult permitting process. "If the ordinance were to be significantly weakened, we would have to be more vigilant about creeks in Oakland," says Dale Bowyer, section leader of the board's Alameda and Contra Costa watershed section. He says that because Oakland's law is well-written and administered, his agency can "streamline" its approval process for projects that have passed through city channels. "I think that helped a couple of people get religion real fast," says creek activist Annette Thompson, who worked closely with former councilmember Nate Miley to draft the ordinance.

But Thompson and her allies remain skeptical about one of the council's mandates. Chang and councilmember Dick Spees inserted a provision to have the creek map, and any subsequent appeals from developers, ruled on by Oakland's planning commission and city council, rather than the director of public works, as is done now. Thompson and her allies worry that final decisions will now be based on political, not environmental, factors. Their concerns were slightly eased by Nadel's insertion of an amendment to have the experts "advise" the commission before it makes a ruling, but Thompson notes that planning commissioners aren't bound to follow that advice. "They can always say, 'That's nice, it's pretty, but let's go ahead and culvert it.' "

Nadel promises to not let that happen. "I will watch very carefully to see what kind of decisions the planning commission makes."

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