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Devil's Slide Impasse

Radford 'Skid' Hall, Ph.D.

Pacifica Tribune, May 24, 1995, p. 15A

In the controversy surrounding Devil's Slide and the bypass project, many would suggest it is too late for any further consideration of alternate plans. Alternatives have been fully reviewed and eliminated, designs made, approvals granted, funding committed, litigation settled and the momentum is all moving forward.

Needless to say, such talk angers bypass opponents, and political bodies are being asked to request information and attempt to force consideration of other options.

The City of Pacifica and the MidCoast Council having recently responded to those requests.

Yet, as described by Chris Hunter in the May 17 Pacifica Tribune, the answers provided do little to address the questions or resolve the issue. What lies ahead?

Unbeknownst to many, and in spite of the apparent bypass momentum, several steps remain which may accomplish much of what is being asked for.

The most significant of these is the need for the bypass project to obtain authorization from the Corps of Engineers, under Section 404 of the Clean Water Act.

Caltrans appears to have planned on the bypass project being approved under a somewhat administrative process known as a Nationwide Permit.

The applicability of this form of permit is partially dependent on the amount of Corps jurisdiction impacted and a finding by the Corps District Engineer of minimal individual and cumulative adverse impacts on the environment.

While the exact amount of jurisdiction impacted by the bypass has yet to be finalized and no application has yet been filed by Caltrans, the significance, size and controversy of the project along with expressed concerns of other resource agencies would argue against the applicability of the Nationwide authorization and for a requirement that an individual Corps permit be obtained for the project.

In the review of an application for an individual Corps permit many activities take place, including several opportunities for public input. An initial review of the environmental documents would take place to determine if further impact evaluations should occur, either through supplements or a new document.

Resource agencies have informed Caltrans that they feel issues such as impacts on wildlife migration require additional analysis and as Chris Hunter reported, Caltrans is already considering the possibility of revisiting the EIS/EIR.

An individual permit involves a Corps Public Notice being published and agency and public comment solicited. A public hearing may be held if requests documenting a need are received and found to be valid.

To facilitate processing of transportation projects, a Memorandum of Understanding was established between all the agencies involved.

While this MOU establishes working relationships among the agencies, it does not alter the regulatory requirements nor the opportunities for public involvement.

Of particular importance and interest is the need to comply with a set of regulations known as the EPA 404(b)(1) Guidelines. Simply put, these regulations establish the need that a permit applicant demonstrate that no practicable alternatives meeting. the overall project purposes exist which would have less adverse impact to any aquatic or wetland resources represented by the Corps jurisdiction. In fact, the regulations establish the presumption that such an alternative does exist, and this presumption must be disproven by the applicant.

This normally requires an "alternatives analysis" document which describes in detail for each alternative the elements of logistics, cost, technical feasibility and environmental impact. In addition, the regulations note that is not necessary that an applicant own the site of the alternative as long as it is reasonably available to them.

If a practicable alternative is found to exist which reduces or totally avoids the adverse impacts, it then becomes the one capable of being permitted rather then the proposed project. Were federal regulations to result in such a finding, it would certainly seem to encourage a realignment of federally provided funding.

The process can involve many other aspects, including the need for a full mitigation and monitoring plan to address any unavoidable environmental impacts, and the need to obtain certifications and approvals of state water quality and coastal zone agencies prior to the approval and issuance of any permit.

My purpose in stating this information is twofold. One is to note for the benefit of both bypass proponents and opponents, that a significant review and approval process remains. This is not the fault of any involved entity on either side. It is just the process that presently exists, it must be dealt with and it takes time, often a significant amount of time.

My second purpose is to note for those who are frustrated with the perceived lack of response to requests for disclosure and analysis of alternatives, it is probable that it will ultimately have to occur. Lastly I would personally argue that, in the pragmatic interests of all involved, it is important that all parties work to quickly identify and analyze the least damaging practicable alternative, as only it can be permitted, allow timely construction, and finally be available to resolve the Devil's Slide "impasse.

Skid Hall is a former Pacifica Planning Commissioner and a professional land use and permitting consultant. He also lectures at Stanford University on planning.