For more than a decade, officials from Palo Alto, East Palo Alto and Menlo Park have been drawing up plans, scouring for funds and performing environmental studies on a project that would finally bring flood protection to residents around the volatile San Francisquito Creek.
Now, with money and designs in place, the three cities find themselves staring at an unexpected and formidable obstacle: a permitting process that has already pushed construction at least until next year and that has local officials seething about the bureaucratic mess they now find themselves in.
The San Francisquito Creek Joint Powers Authority, which includes elected officials from the three cities as well as representatives from the San Mateo Flood Control District and the Santa Clara Valley Water District, has been stuck in bureaucratic limbo since February, when it learned that its request for a permit had been denied by the Regional Water Quality Control Board. In the months since, staffs from the creek authority and the water board have met numerous times in hopes of resolving the impasse. Each time, the water board has requested new information, brought up fresh problems with the design and "moved the goalposts," according to creek authority officials, who have been increasingly frustrated.
Though top officials from both the water board and the creek authority told the Weekly recently that they're getting closer to the finish line, the months of delays have already precluded the possibility of any significant work being done on the levees around the channel this year. Even if the water board were to issue a permit in the next few months -- a time frame Executive Officer Bruce Wolfe said is very possible -- construction will be limited to relocation of utilities and other projects ancillary to the channel. That's because the presence of steelhead trout prohibits work in the channel after mid-October.
The permit delay has created a bottleneck for a project that neighborhoods in all three cities have been looking forward to since 1998, when a February flood damaged about 1,700 properties. Things became more promising over the past two years, as the creek authority began its effort to rebuild bridges along the creek to increase water capacity and as Caltrans began planning for modifications to U.S. Highway 101, which was inundated with water in 1998. But the most ambitious and urgent project is the one that targets the flood-prone area between 101 and San Francisco Bay. The project entails widening the creek channel by rebuilding and modifying levees; removing sediment to create a new marsh plain; and building walls near flood-prone homes and businesses. Provided, of course, the creek authority gets the permit.
The delay is not only causing ongoing flood risk to the area, it is also costing the City of Palo Alto financially. The city plans to redesign the Palo Alto Municipal Golf Course, since the downstream flood project would place a levee on a portion of the course. The renovation would relocate most of the holes, emphasize the course's Baylands setting and create what council members call "the 'wow' factor." The project, however, is now also stalling because of the permit snag. Though the city has repeatedly asked the water board to consider its application for the golf-course renovation separately from the flood-control project, the board has insisted that the projects are too closely related and is declining to give the city a permit until the flood-control project's design is finalized.
With a portion of the course now closed in anticipation of construction that has yet to commence, the course is losing between $50,000 and $60,000 a month, City Manager James Keene said during a budget hearing earlier this month. Nonetheless, the council plans to authorize Keene on Monday to sign a $9 million construction contract for the golf course reconfiguration. That's because bid that the city received from Duinick, Inc., is set to expire in mid-July, Keene told the Weekly.
The golf-course permit uncertainty aside, the main source of frustration for Keene and other city leaders revolves around the flood-control effort. It took years for the cities to work up an agreement about the downstream project and to identify funding sources. Other regulating agencies appear to be on board, as are elected officials from all three cities and the two water districts on either side of the creek. The city's negotiations with the water board, meanwhile, remain at a virtual deadlock, with requests for new design alternatives and more information repeatedly flummoxing creek-authority officials.
"Time doesn't seem to matter to water board staff," Keene told the Weekly. "Unfortunately, time matters very much to the families living along the creek in Palo Alto and East Palo Alto and Menlo Park."
In some cases, Keene said, the water board appears to be going far beyond its purview in assessing projects for water-quality impacts and requesting design alternatives that aren't practicable.
"They need to be sure that the requests they're making are aligned with their responsibilities, which pertain to water quality. They can deal with issues of habitats, we understand this, but you can't make requests that extend beyond that, particularly if they can't be done and they're holding up a project."
At their last meeting on May 22, several members of the creek authority's board of directors voiced frustrations with the tortuous path the permit process has taken and accused the water board of repeatedly changing targets and requesting new information. Palo Alto Councilman Pat Burt advocated submitting a letter formally protesting the latest requests and accusing the water board for reneging on its March commitment, when it requested information with the tacit understanding that provision of the data would complete the process.
"I don't think we should just acquiesce to this," Burt said.
That information request was based on the water board's February letter initially rejecting the project, which stated that the creek authority needed to provide volumes of materials to get the permit. Some information pertained to alternatives that the creek authority had considered in the past but discarded as infeasible. These include the use of land at the Palo Alto Airport for water discharge (which the creek authority said would require the construction of four new levees and would not be approved by the Federal Aviation Administration); upstream projects that would improve water quality (a tough assignment given that most upstream land is privately owned by Stanford University); and reduced discharge of flood water into the marshy Faber Tract. Other requests were both broad and vague, including a requirement that the creek authority provide "a complete set of technical reports and corresponding data."
The requests came as a surprise to the creek authority, which -- according to an appeal it filed -- had been informed by the regional board in September 2013 that its application was complete. Furthermore, most of the issues were not raised by the water board during the comment period for the downstream project's Environmental Impact Report, which analyzed and discarded some of the options that the water board in March said should be studied.
The creek authority finds itself in this predicament despite having filed a formal appeal in March after the water board first rejected its application for a permit. The authority requested, however, that the complaint be held in abeyance (not acted on at this time) so that it could negotiate with the water board.
The creek authority's March appeal accused the regional board for continuing the request that the JPA provide it "with an ever changing menu of substantial additional information." Staff from the two agencies met or had conference calls on at least five occasions between September and February. But the water board's requests continued to change, making it tough to fulfill the requirements, the creek authority maintains.
"The conversations led to broad staff requests whose lack of specificity made measurable compliance effectively impossible, such as the request for a 'complete set of technical reports and corresponding date.' The conversations also involved staff requests that the JPA analyze new and shifting project alternatives -- including those that were impracticable on their face, such as a proposed alternative requiring reconfiguration of the nearby airport runway, a hugely expensive undertaking to a facility under the dominion of the FAA."
In both the appeal and in its letters to the water board, the creek authority has stressed the urgency of the project and the danger presented by further delays.
"Because of the continuously degraded condition of the existing, uncertified levees, every winter season that transpires before the project is complete brings an increased risk of danger to the JPA communities," the appeal states. "Moreover, this danger extends beyond those most commonly associated with the ever-present flood risk."
The denial of the application also threatens water quality, the appeal argues.
"Under current conditions, flood flows pass through homes, garages, businesses and streets before being discharged into the San Francisco Bay," the appeal states. "After the project is built, these waters will flow over a broad new marsh constructed within the San Francisquito Creek channel."
In addition to the appeal, the creek authority offered a point-by-point response to the water board's rejection letter, which argued that delaying the project based on the idea that Stanford's upstream land could be used for water detention is "unfair and dangerous to a community that has experienced multiple floods." Upstream detention, the response notes, is part of the creek authority's broader long-term effort.
"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 response states. "Particularly when the proposed project also improves environmental conditions."
Since the February rejection, staff from the water board and the creek authority had met March, April and May. In March, after a conversation with the water board's Wolfe, creek authority Executive Director Len Materman informed his agency's board that he believes he now has a specific understanding of that exactly needs to be provided for the permit process to be completed. The board asked that he explore two alternatives: a new widened channel in the northern part of the project, where the airport meets the Palo Alto Municipal Golf Course; and a new bypass channel that would divert flow toward the Baylands Athletic Channel. Materman told the creek authority's board in March that his agency will meet these requests.
"Hopefully, that means the goal posts are no longer moving," Materman said.
That hope, however, didn't last long. On May 21, staff from the two groups met with representatives from other regulatory agencies such as the California Department of Fish and Wildlife, the U.S.Army Corps of Engineers and BCDC. The following day, Materman informed his agency's board of directors that the water board requested at that meeting even more information, including models showing water runs for 9,400 cubic feet per second (cfs) at the Faber Tract, rather than the 7,400 cfs that the creek authority calculated would flow into the area.
Materman also said that the water board requested that the creek authority fill in and even out sections of levees at the Faber Tract, a project that the creek authority has agreed to do. The board also asked for analysis of two alternatives, one that would widen the creek mouth near the Faber Tract and another that would create a bypass at Embarcadero Road.
After giving his report, Materman was asked by Board Member Kirsten Keith, a Menlo Park councilwoman, whether he was surprised by these requests from the water board, given his prior discussions with the board's executive director.
"Given how this has gone, it wasn't surprising," Materman responded. "When we met with the executive officer on March 19, we thought we had the final list and we talked about the issue that the goal posts have been moving on the project -- the regional water board's goal posts. It's a little surprising they continue to move, given that."
Burt cited Materman's meeting in March with Wolfe and observed that the requests now coming from the water board go well beyond what was requested then. There have been "a number of times where we had an understanding and then we were surprised by what we subsequently saw as a change in requirements after we thought we had agreements."
At the May 22 meeting, Materman acknowledged that because of the permit delays there will be no levee reconstruction in the channel this year.
"The only thing we can probably do within the creek channel this year is utility relocation and that is getting really tight too," Materman said.
Wolfe told the Weekly that the water board and the creek authority have narrowed their differences in the weeks since. The creek authority, he said, no longer objects to the 9,400 cfs standard (Materman said the project was always designed to meet this flow, but the creek authority used the 7,400 cfs number because that is the flow it expected given other projects in the area). The water board, meanwhile, is no longer requesting projects that require the use of airport land. The water board, he said, is not trying to slow the project down. He also said that the additional materials his staff has been requesting is consistent with the design changes he had discussed with Materman in March.
"We're trying to do it what we can keep it moving," Wolfe said. "We're not trying to stand in the way."
Wolfe also said the agency is getting "close" on the golf course project. He said the board will not require the permit for the creek project to be completed before it releases the permit for the golf course renovation. It does, however, need to work out a few more details with the city about the renovation.
"Depending on how this week's meetings go, we might be in a position to say, OK, we know sufficiently well what the design is going to be (for the flood-control project) and how it will impact the golf course and we can move forward with the project on the golf course," Wolfe told the Weekly.
Wolfe said his agency's staff was expecting to meet with creek authority's on June 12 to discuss the latest design modifications. One of the remaining concerns is making sure that the design doesn't impact the marsh.
"We're optimistic that we're getting close to the design that can be considered the least environmentally damaging practical alternative," Wolfe said.
But after numerous requests from the water board for more information and new alternatives, Materman is less optimistic. He noted that other regulatory agencies, including U.S. Fish and Wildlife and the Army Corps have already effectively approved the project but are waiting for the water board's permit before they issue their own. It didn't help that the June 12 meeting ended up being canceled by the water board because the agency's staff said it had "more questions," Materman said. The meeting has now been rescheduled or July 1.
"I think we're getting closer, but if the question is 'Are we there?' No," Materman told the Weekly. "Do I have confidence that regional water board will not ask for new things? No."