This document is from 1997. See the Save Gateway Valley home page here for recent news.

For a good description of the site, and a concise summary of the proposed project as of 1997, read the section of this letter entitled "Project Description." Elsewhere in this letter, the EPA clearly states its objection to the Gateway Valley Project and discusses in detail four main areas of concern (compliance with federal guidelines, significant degradation, mitigation, and insufficient information). NOTE that the project has changed some since then, and some parts of this older proposal are no longer found in the new plan, though most of the bigger questions still apply.

United States Environmental Protection Agency
Region IX
75 Hawthorne Street
San Francisco, CA 94105-3901

Nov. 7, 1997

Colonel Richard Thompson, District Engineer
US Army Corps of Engineers
San Francisco District, CESPN-CO-R
333 Market Street
San Francisco, CA 94105-2197

RE: Public Notice (PN) No. 22762S, dated October 8, 1997, Southwest Diversified Inc., Gateway Valley Project, Contra Costa County, California

Dear Colonel Thompson,

The Environmental Protection Agency (EPA) has reviewed PN 22762S, dated October 8, 1997, regarding the Southwest Diversified, Inc.'s (applicant's) proposal to construct a residential community, referred to as the Gateway Valley Project, in the City of Orinda, Contra Costa County, California. These comments have been prepared under the authority of, and in accordance with the provisions of the Federal Guidelines (40 CFR 230) promulgated under Section 404(b)(1) of the Clean Water Act. Rebecca Tuden of my staff has participated in two site visits to the Gateway Valley Project area (July 29, 1997 and August 5, 1997).

EPA objects to this project and believes that, as proposed, this project may result in substantial and unacceptable impacts to Aquatic Resources of National Importance (ARNI) and result in cumulative adverse impacts to the unique seep/stream/riparian complex of the Brookside and Moraga Creek watersheds. We also concur with the U. S. Army Corps of Engineers (Corps') reference in the Public Notice that the applicant did not consider off-site alternatives or on-site minimization alternatives and, as such, is not in compliance with the Guidelines. Finally, we have insufficient information to make a determination about the extent of the project's impacts and believe that the mitigation proposed as compensation for the known impacts is inadequate.

Project Description

The 978-acre project site is located within the City of Orinda, near the Highway 24 Caldecott Tunnel. The site is bordered by Highway 24, East Bay Regional Park District (EBRP) lands, and East Bay Municipal Utility (EBMUD) watershed lands. The current and historic uses on the site include cattle grazing with part of the site operating as a quarry rock removal area. The applicant proposes to develop the site as a residential complex including an 18-hole golf course, clubhouse, driving range, soccer fields, baseball fields, and hiking and biking trails.

The 978-acre site is characterized by steep hills and valleys. There are a number of active landslides in the area which are a result of natural processes of the geology and overgrazing. According to the applicant, the instability of the area requires that remedial grading be performed over the entire development site. As a result of the grading activities required to make the site suitable for development, almost the entire drainage system within the project area will be filled with between four and 40 feet of fill.

The two major streams on the site are Brookside Creek and Moraga Creek. These creeks support significant stands of mature riparian vegetation including willow, alder, and oak woodland. These creeks are the headwaters of two major watersheds: San Pablo Creek and San Leandro Creek. Brookside Creek also contains pool and riffle areas, a special aquatic site designated in the 404(b)(1) Guidelines. Another unnamed tributary runs through the site which, while retaining the sinuosity of an undisturbed creek, has lost much of its vegetation due to overgrazing.

The site also contains numerous seeps and springs. These groundwater connections are the primary source of hydrology supporting the perennial streams in the site and are vital to maintaining the riparian ecosystem in the dry Mediterranean climate which characterizes this area. The California red-legged frog, a federally listed species, has been found on the site. We understand that the area serves as breeding and foraging habitat for the frog and may also serve as a breeding source for frog populations in the adjacent EBRP and EBMUD lands.

The Gateway site has a total of 8.74 acres of jurisdictional wetlands and 52,612 linear feet of waters of the U.S. including intermittent and perennial streams. The applicant proposes to fill 5.27 acres (77%) of the wetlands within the project boundaries including 3.82 acres of seeps and 1.45 acres of seasonal wetlands. The applicant also proposes to fill 26,164 linear feet of perennial/intermittent streams; approximately five (5) miles.

As mitigation for the project, the applicant proposes to create seasonal wetlands (7.09 acres) and to construct stormwater retention basins that would support wetland plants (2.09 acres). In addition, the applicant proposes to recreate Brookside Creek on top of the graded area. Finally, seasonal drainages would be constructed throughout the site to collect water from the development area. The drainages may be planted with riparian over story.

EPA has the following concerns with the project:

Compliance with the 404(b)(1) Guidelines: According to the Federal Guidelines (40 CFR 230.10(a)), no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant environmental consequences. As noted by the Corps,, this project does not require access or proximity to an aquatic site to fulfill its basic purpose and, therefore, is not a water-dependent project. In such cases, the Guidelines presume the availability of a less environmentally damaging practicable alternative (LEDPA).

In addition, the applicant has failed to examine off-site alternatives and on-site avoidance and minimization alternatives. In particular, the applicant has not demonstrated that the basic project purpose of residential housing could not be achieved with a smaller development footprint, increased density and/or without a golf course. Therefore, according to the 404(b)(1) Guidelines, it is presumed that there are other less damaging practicable alternatives than the proposed project and the permit may not be issued.

Significant Degradation:The Guidelines indicate that no dredged or fill material shall be permitted if it will cause or contribute to significant degradation of waters of the United States (40 CFR 230.10(c)). Wetlands, and particularly riparian areas, are becoming reduced in size and highly fragmented - resulting in disjunct remnants of an ecosystem. We are particularly concerned that the remedial grading will result in gross alteration of groundwater hydrology and the streambed; eliminating the source of hydrology to the perennial and intermittent streams. Although the seeps and springs cover less than 1% of the surface area, they are the primary source of water during the dry season.

The aquatic resources in the project's vicinity include a significant emergent wetland/seep/stream/riparian/woodland ecosystem. This diverse and highly complex system, connected to significant open space of EBRP and EBMUD lands, offers a rare ecosystem in the East Bay hills. The proposed project will severely degrade and destroy these wetlands and the irreplaceable seeps/springs.

The loss of over five miles of creek, and associated riparian habitats, perennial and seasonal stream bed habitat and seeps is significant. Therefore, EPA believes that this wetland/groundwater/riparian complex in this project site is an Aquatic Resource of National Importance (ARNI). As specified in the 1992 Memorandum of Agreement (MOA) concerning Clean Water Act Section 404(q), Part IV procedures, EPA believes the discharges associated with this proposed project may have a substantial and unacceptable impact on these aquatic resources.

Mitigation: The final stage in the 404(b)(1) sequencing process is mitigation for unavoidable impacts. The proposed mitigation is inadequate to offset the project's impacts. We are concerned that the proposed recreation of five miles of creek on top of a re-graded landscape is highly experimental and has not been demonstrated to be a reliable approach. The proposed mitigation also fails to provide compensation for the loss of functions from the seeps/springs in the project site. In particular, these areas provide a perennial source of hydrology to the streams and riparian vegetation in the area. A draft conceptual mitigation plan fails to provide the necessary certainty that the proposed mitigation will offset the project's impacts. We recommend that a detailed mitigation and monitoring plan be prepared and submitted to the resource agencies for review and comment.

Insufficient Information: As indicated in the Public Notice, there is insufficient information on the long-term adverse effects of this project on the California red-legged frog, on the hydrology of the perennial streams, and of the ability to re-create Brookside Creek on top of the graded area. Further study and analysis of the potential cumulative impacts of this proposed project on the hydrologic, biogeochemical and hydrogeomorphic functions of the watershed are needed (40 CFR 230.11 (g)(2)). We are also concerned about the potential cumulative impacts to the water quality and physical integrity of the San Leandro and San Pablo watersheds by drastically altering the headwaters of those watersheds.

Until all the project-related impacts are clearly quantified and described, we can not fully evaluate the effects of the proposed project on the aquatic ecosystem and are unable to make a reasonable determination as to whether or not the proposed discharge will comply with the Guidelines (40 CFR 230.12). Given the uncertainty of the project's effects and the significance of impact, we recommend that an Environmental Impact Statement (EIS) is necessary to fully satisfy obligation of the National Environmental Policy Act.