Creek JPA may challenge permit rejection for flood-control project

Menlo Park, Palo Alto, and East Palo Alto officials hope to rebuild levees, widen channel to protect communities from San Francisquito Creek

After suffering a stinging bureaucratic blow in the permitting process last month, the agency charged with improving flood control around the volatile San Francisquito Creek on Thursday (March 27) approved an approach for getting the long-awaited project back on track: cooperation and, if needed, litigation.

That's the strategy endorsed by the San Francisquito Creek Joint Powers Authority board of directors -- which includes representatives from Menlo Park, Palo Alto, East Palo Alto and other public agencies. The board on Thursday voted unanimously to authorize an appeal of a February decision by the Regional Water Quality Control Board to deny a permit for the project, which aims to protect sections of Palo Alto and East Palo Alto from floods.

Gordon Becker, a fisheries scientist for the Center for EcoSystem Management and Restoration, left, and Jon Stead, right, glance at the free-flowing water of the San Francisquito Creek in September 2013. Photo by Veronica Weber.
The water board's ruling dealt an unexpected setback to the creak authority's project, which targets the particularly vulnerable downstream area between Highway 101 and the San Francisco Bay. The area suffered heavy damage in a February 1998 flood, and officials from the cities around the creek have been looking at ways to protect their communities from the next flood ever since. The creek authority's current project includes rebuilding levees, widening a channel and constructing floodwalls along East Bayshore Road.

But the project suffered a setback last month, when the water board notified the creek authority that the permit application was denied without prejudice. In a Feb. 27 letter, the water board requested that the creek authority submit a new application that analyzes at least two other design alternatives, and that includes more technical data, including "all of the hydrologic and hydraulic modeling performed for the various alternatives evaluated for the Project." It also requested that a future application include upstream alternatives.

The creek authority noted in response that it had already evaluated and rejected many of the alternatives that the water board is advocating, and argued that the urgently needed project shouldn't be delayed by exploration of upstream alternatives that may never materialize. The creek authority's letter stated that it supports the use of upstream detention as part of the broad planning effort and that is has been discussing such projects for several years with Stanford University, which owns property upstream.

"However, we must not hold up a proposed project that eliminates an immediate threat to life and property in an underserved community by waiting for an upstream detention project by a private entity that is far off in the future, or may never happen," the creek authority's response stated.

Before Thursday's meeting, the creek authority's board conferred in a closed session and agreed to authorize staff to file a petition challenging the denial of the permit application. The petition will be filed with the State Water Resources Control Board, which oversees the nine regional boards.

The creek authority is also requesting that the review of the petition be suspended while it tries to resolve its issues with the water board.

Menlo Park Councilwoman Kirsten Keith, who chairs the creek authority's board, said the board agreed to file the petition because the 30-day deadline to challenge the board's denial will soon expire. But the cities are requesting that the challenge be held in abeyance "so we can continue working with the California and regional water boards to have our certification approved," Ms.Keith said.

In the weeks since the permit rejection, staff from the creek authority has been meeting with water board officials in hopes of bridging the gap and satisfying the board's concerns. Len Materman, the creek authority's executive director, said his agency has agreed to provide to the water board an analysis of the two alternatives the board wanted to see.

The water board's main concern, Mr. Materman said, was the impact of the project on the Faber tract, a marshy stretch in East Palo Alto that is home to the endangered clapper rail and salt marsh harvest mouse.

One alternative that the creek authority will have to further explore is extending the new widened channel farther north, to the point where the Palo Alto Airport meets the Palo Alto Municipal Golf Course. The other alternative would create a new bypass channel that would divert some of the flow from the creek to a location near the Baylands Athletic Center. The channel would cut across the southern edge of the airport property and discharge near the site of the former Palo Alto Harbor.

Mr. Materman said he hopes that recent conversations with the water board will allow the creek authority to accelerate the process of complying with the board's concerns. Still, he said, the creek authority will have plenty of work to do in the next few weeks in addressing these concerns.

"The good news is we believe we have have a specific understanding with their executive director of exactly what needs to be done," Mr. Materman said. "Hopefully that means the goalposts are no longer moving. That's our goal."

It helps that the water board denied the permit "without prejudice," which allows the creek authority to try again with some modifications. In its rejection letter, the water board's Executive Officer Bruce Wolfe wrote that the board recognizes "the significance of the Project to the community and the JPA's urgency is securing all permits for the Project and proceeding to construction."

The letter of rejection, Mr. Wolfe wrote, is "intended to provide guidance to the JPA on how to best move forward to secure permits from the Regional Water Board and other regulatory agencies."

"Further, the Regional Water Board is committed to working with the JPA on coordinating and streamlining the permitting process," Mr. Wolfe wrote.

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