To see complete pdf file (903kb) click: NHI Letter 3/4/2005

March 4, 2005


Raul Godinez II, P.E., Director
Public Works Agency
City of Oakland
Dalziel Building
250 Frank H. Ogawa Plaza, Suite 4314
Oakland, CA 94612

Claudia Cappio, Development Director
Community and Economic Development Agency
City of Oakland
Dalziel Building
250 Frank H. Ogawa Plaza, Suite 4314
Oakland, CA 94612

Re: Response to City of Oakland’s letter dated January 13, 2005

Dear Directors Godinez and Cappio:

The Millsmont Homeowners Association (MHA) writes in response to your letter dated January 13, 2005 (January 13 letter), regarding the Leona Quarry Subdivision. This letter supplements MHA’s preliminary response dated February 1, 2005.

As we stated in our preliminary response, the January 13 letter does not adequately address issues we have raised previously. We discuss the outstanding issues below, and also recent developments regarding the Alameda whipsnake. We would like to resolve these issues in a mutually agreeable manner. We believe such resolution requires in-person meetings. Thus, we reaffirm our outstanding request for a meeting with the City, DeSilva, agencies with permitting authority, and other interested stakeholders. We request a meeting within 30 days in order to resolve these issues in advance of spring construction. In the alternative, if the City will not meet with us, we request that the City state its refusal in writing.

MHA is not interested in stopping the Leona Quarry Project. Our interests lie in preventing further degradation to and restoring the form and function of Chimes Creek. This degradation is the result of the City’s permitting decisions to permanently route flows to Chimes Creek in excess of its natural capacity. The streambed in the vicinity of the 3000 block of Delmont Avenue has dropped ten feet or more in the past decade. Fences crossing the channel are now stranded ten feet or more above the streambed and serve as monuments to the former depth of the streambed. The rate of degradation greatly accelerated after the Ridgemont development was constructed in the 1980s. The Leona Quarry Project will contribute to this degradation. MHA members are losing an essential feature of their property as a result of upstream development. It is fundamentally inequitable to place the indirect costs of upstream development on downstream property owners.

MHA is also interested in protecting the water quality of Chimes Creek. Every year for the past 15 years, as a result of the City’s failure to implement a proactive program of maintenance and repair, the sewer system in the vicinity of the 3000 block of Delmont Avenue routinely breaks during the rainy season and discharges stormwater and raw sewage into the creek. There are two reasons for the breaks: (1) the capacity of the lines is exceeded; and (2) the lines are exposed and poorly supported in several locations. Such discharges impair MHA’s use and enjoyment of the creek and pose a public health risk. The Leona Quarry Project will contribute to this problem.

In sum, MHA wants a commitment by the City that it will address the direct, indirect, and cumulative impacts of this development on the form, function, and water quality of Chimes Creek.

I. Compliance with Water Quality Standards

The City has not addressed DeSilva’s continuing failure to comply with applicable water quality standards. The Conditions of Approval and the Statewide General Permit for Discharges of Stormwater Associated with Construction Activity (State Water Resources Control Board Order 99-08-DWQ) (General Permit) require compliance with water quality standards.

The San Francisco Bay Regional Basin Plan (Basin Plan) prohibits the discharge of sediment-laden waters where turbidity is more than 10% above background turbidity when turbidity is above 50 NTU, and above 50 NTU when background turbidity is below 50 NTU. See Regional Board, Basin Plan, Ch. 3: Water Quality Objectives (1995). According to the Regional Water Quality Control Board (Regional Board), it appears that construction activities have resulted in violations of the turbidity standard: “the results appear to suggest that there were discharges from the lower detention pond … and turbidity exceedances, on December 7, 8, 27, 30, 31, and January 3,” and “there remain discharges of turbid water from the site.” Email from Keith Lichten, RWQCB, to Julie Gantenbein, NHI (Jan. 24, 2005) (Attachment 1). Further, the Regional Board expressed concern that the January 24, 2005, monitoring report from the DeSilva did not include a discussion of measures taken to further reduce turbid discharges. See id. Indeed, according to reports submitted by Engeo Incorporated, DeSilva’s stormwater management consultants, turbid discharges appear to have occurred throughout January and February. See, e.g., Engeo Incorporated, Notice of Discharge for January 12, 2005 (Jan. 26, 2005) (“[T]he filtration system discharge turbidity (NTU) readings increased to approximately 217 NTU before the readings were noted during routine monitoring.”); Email from Mark Brest van Kempen to Faustino Jun Osalbo (Feb. 24, 2005) (Attachment 2) (“As you saw from the sample I had this morning, a discharge from the quarry gave Chimes Creek a turbidity reading of 568 NTU at 8:00 this morning.”).

On February 21, 2005, it appears that a significant violation of the General Permit and Conditions of Approval occurred. Mark Brest van Kempen, who lives on the 3000 block of Delmont Avenue, observed flows which were higher than anything he had witnessed in almost five years of living in the Millsmont neighborhood. See email from Mark Brest Van Kempen to Jun Osalbo, City, (Feb. 22, 2005) (Attachment 3). He took photographs which show the creek running at the same level as his backyard, whereas typically there is a more than a ten foot drop from his backyard to the creek. See Mark Brest Van Kempen, Photographs of Chimes Creek at 3835 Delmont Ave. (Feb. 21, 2005) (Attachment 4). Despite the high flows in the creek, Mr. Brest Van Kempen noted that the detention pond on the Project site did not fill up as would be expected. We understand that the City allowed DeSilva to direct runoff from the Ridgemont development, as well as the sub-drains for the western half of the site, directly into the City storm drains without passing it through the detention pond or baker tanks. Given that the detention pond is the primary means for ensuring clean discharge from the site, we are disappointed that the City allowed DeSilva to bypass the detention pond. We understand that this extreme measure was deemed necessary by the City because the detention pond and baker tanks were overwhelmed by the runoff from the site.

The flows in Chimes Creek on February 21, 2005, appeared to exceed pre-Project flows even though the storm itself did not appear to be larger than the 25-year, 24-hour design storm event. We understand that all measures of the stormwater system have not been installed yet. We note, however, that (1) the Conditions of Approval and General Permit require DeSilva to comply with water quality standards during construction; (2) the baker tanks which were in place on February 21, 2005, are additional measures which are not included in the post-Project stormwater management system; and (3) while slopes have not been revegetated (which would decrease runoff), impervious surfaces (which would increase runoff) have not yet been increased. Thus, the fact that the detention basin, which is the primary feature of the stormwater system, and baker tanks were inadequate to retain and treat runoff during this storm event appears to conflict with the Draft Subsequent EIR findings, which state:

“[T]he proposed stormwater system would reduce Project impacts to
pre-project levels, and would maintain pre-project levels even with the inclusion
of redirected flows from the Ridgemont subdivision. Post-Project 24-hour,
25-year peak flowswould be equal to or less than existing peak flows from
a 25-year storm. Thestormwater management system would operate during
a 100-year, 24-hour stormwithout structural failure. In fact the stormwater
system studied in this SEIRwould maintain peak flows from the
100-year storm at pre-project levels.”

Subsequent Draft EIR, p. IV-20.

Plainly the City must be diligent in monitoring and enforcing compliance with water quality standards and permit terms at the Project site. We agree with the City that DeSilva should be recognized for its work in recent months to improve compliance with water quality standards by implementing additional measures under the revised Storm Water Pollution Prevention Plan (SWPPP). However, the City has an ongoing obligation to monitor and enforce compliance. Given this ongoing duty, we were concerned when the City cited a two-month old letter from the Regional Board, sent at the beginning of the rainy season, to support the claim onsite conditions were satisfactory. See City’s Response, p. 3 (“The subdivider recently received a letter from the RWQCB expressing satisfaction with the progress of the erosion measures onsite.”) (emphasis added). A two-month old letter at the beginning of the rainy season is not a reliable indicator of the Regional Board’s current assessment of site conditions or of DeSilva’s compliance with permit terms, especially when Engeo Incorporated issued four Notices of Discharge during the period from December 8, 2004, to January 12, 2005. As the City and DeSilva have previously stated, conditions at the Project site rapidly change due to ongoing construction activities, and compliance measures require regular adjustments.

We request that the City require DeSilva to further revise the SWPPP to include immediate implementation of additional measures necessary to prevent turbid discharges from the Project site. We also request that the City provide information regarding the frequency of the storm event on February 21, 2005, and a description of measures that have been implemented since to prevent a similar event during future storms that do not exceed the design storm. If the City does not agree that the flows on February 21, 2005, exceeded pre-Project flows, we request independent evidence of pre-Project flows for comparable storm events. If the City did not authorize the routing of flows into the storm drain without flows first passing through the detention pond, we request an explanation for the exceedingly high flows in the creek on February 21, 2005.

II. Consultation with Agencies with Potential Permitting Authority

The City has not consulted with the U.S. Army Corps of Engineers (Corps), Regional Board, California Department of Fish and Game (DFG), or U.S. Fish and Wildlife Service (FWS), which have permitting authority under Clean Water Act (CWA) section 404, CWA section 401, Endangered Species Act section 10, and Fish and Game Code sections 1603, 2080, respectively, to ask whether permits are necessary. The City instead is assuming that permits are not necessary.

A. CWA section 404 and 401 Permits

The CWA has three potential permitting requirements for this Project, which cannot be satisfied by one permit. CWA section 402 (National pollutant discharge elimination system), 33 U.S.C. § 1342, requires a permit for an activity which will result in discharges of any pollutants into waters. CWA section 404 (Permits for dredged or fill material), 33 U.S.C. § 1343, requires a permit for the discharge of dredged or fill material into navigable waters. CWA section 401 (Certification), 33 U.S.C. § 1341, requires any applicant for a federal permit to conduct any activity which may result in the discharge into navigable waters of the United States (e.g., a section 404 dredge or fill permit) to provide the permitting authority with a certification from the state that the discharge will comply with state water quality standards. DeSilva is covered by an NPDES permit issued by the Regional Board under CWA section 402, but it has not satisfied the permitting requirements of CWA sections 401 and 404.

The Draft Environmental Impact Report (Draft EIR) states, “Chimes Creek is subject to Corps jurisdiction as “waters of the United States” under Section 404 of the Clean Water Act,” but then goes on to find that a section 404 permit is not necessary. Draft EIR, p. IV.B-12. The Regional Board was not satisfied by the Draft EIR’s findings, and the Board raised the issue again in its comments on the Draft Subsequent EIR:

“Should the project include work in jurisdictional waters of the United States, …
then it could likely require a permit … pursuant to Section 404 of the [CWA].
Such permits also require a project proponent to apply and receive Water Quality
Certification from the Water Board pursuant to Section 401 of the CWA. We
would review the issues discussed in our September 5 letter as part of making the
determination required as a part of issuing Water Quality Certification, that a
project complies with State water quality standards.”

Letter from Keith Lichten, Regional Board, to Claudio Cappio (Dec. 4, 2003), City of Oakland, Final Subsequent EIR (Oct. 22, 2003), p. IV.E-1.

By letter dated October 25, 2004, we requested information regarding the City’s consultation with the Army Corps and Regional Board regarding the applicability of CWA sections 401 and 404 to the Leona Quarry Project. The City instead provided information regarding the Regional Board’s satisfaction with DeSilva’s compliance with water quality provisions related to the design of the detention basin. See Jan. 13 letter, p. 4. Again, the issue of designing the detention basin to comply with Alameda County’s NPDES permit provisions is separate from the Project’s compliance sections 401 and 404.

By letter dated January 14, 2005, we requested that the Corps and Regional Board confirm whether they had been contacted by City or DeSilva regarding the applicability of CWA sections 401 and 404 permitting requirements to the Leona Quarry Project. By letter dated January 26, 2005, the Army Corps confirmed that neither the City nor DeSilva had contacted them regarding the Project. See letter from Jane M. Hicks, Acting Chief, Regulatory Branch, Corps, to Julie Gantenbein, NHI (Jan. 26, 2005) (Attachment 5). By email dated February 22, 2005, the Regional Board confirmed that they did not complete a jurisdictional delineation or receive an application for water quality certification for work on the Project site. See email from Keith Lichten, Regional Board, to Julie Gantenbein, NHI (Feb. 22, 2005) (Attachment 6).

The City does not have the authority to determine the Corps’ and Regional Board’s jurisdiction for purposes of CWA sections 401 and 404. The City’s determination that CWA sections 401 and 404 do not apply to this Project, in the absence of consultation with the Corps and the Regional Board, exceeds the City’s legal authority. The fact that DeSilva has been grading in jurisdictional waters without a section 404 permit or section 401 certification creates a potential liability for the City, as lead agency under the California Environmental Quality Act (CEQA), and DeSilva, as the discharger. According to the Regional Board,

“If a discharger fills jurisdictional waters in the absence of an appropriate permit
from the Corps and/or our Agency, then we may seek appropriate redress under
the relevant sections of the California Water Code, including, but not limited to,
adopting a Cleanup and Abatement Order requiring abatement of the discharge
and its effects and the Board considering Administrative Civil Liability. We may
also pursue informal enforcement, such as issuing a Notice of Violation and
requesting the discharger to informally abate the problem, if that discharger is
cooperative and particularly if a problem was caused inadvertently, is easy to
correct, or otherwise does not have a significant water quality impact.”


We request that the City provide actual notice to the Corps and Regional Board of its determination that a CWA section 404 permit and section 401 certification are not necessary and the factual basis for that determination, and request the agencies’ concurrence with that determination within 30 days.

B. Fish and Game Code Section 1603 Streambed Alteration Agreement

The City has allowed DeSilva to proceed with grading activity without consulting the Department of Fish and Game regarding the need for a Fish and Game Code section 1603 streambed alteration agreement. The City did not evaluate the applicability of section 1603 during environmental review on the assumption that no construction activity would occur in the project headwaters. The City does not have authority to determine the DFG’s jurisdiction under section 1603.

The failure to consult with DFG regarding the applicability of section 1603 is egregious given the existence of a streambed on the Project site. Lowney Associates’ Daily Field Reports describe work in a “former streambed”: “Four of the scrapers cut from the slope to the east of the former stream bed. The soils were placed as fill in the former stream bed.” Lowney Associates, Daily Field Report No. 40 (July 14, 2004); see also Daily Field Report Nos. 36-39, 41-46. For purposes of DFG’s jurisdiction, a stream is defined broadly as, “a body of water that flows at least periodically or intermittently through a bed or channel having banks and supports fish or other aquatic life.” See 14 CCR § 1.72. As stated in Mark Brest van Kempen’s declaration, prior to grading activity there was a creek on the Project site, which supported cattails, reeds, willows, frogs, and damselflies, and thus appeared to meet the criteria for DFG jurisdiction. The City, let alone Lowney Associates, is not authorized to determine that a streambed is no longer viable. The absence of flow in the streambed during the dry summer months of July and August does not mean the streambed is no longer functional. The City’s determination that Fish and Game Code section 1603 does not apply to this Project, in the absence of consultation with DFG, exceeds the City’s legal authority.

We request that the City provide actual notice to DFG of its determination that a section 1603 streambed alteration agreement is not necessary and the factual basis for that determination, and request the agency’s concurrence with that determination within 30 days. We note that failure to comply with section 1603 may result in a civil penalty of up to $25,000 for each violation.

C. Federal and California Endangered Species Act Incidental Take Permit

Neither the City nor DeSilva consulted DFG or FWS regarding potential impacts to Alameda whipsnakes, state- and federally-listed threatened species, which may be present on the Project site. See letter from Robert Floerke, DFG, to Claudia Cappio (July 16, 2002), p. 2; pers. comment John Krause, DFG (Mar. 1, 2005). DeSilva’s failure to comply with measures required under the Special Status Species Mitigation Monitoring Plan (SSSMMP), and the City’s failure to adequately monitor compliance with and enforce the SSSMMP, increases the likelihood that the Project will adversely impact the Alameda whipsnake and its habitat.

Section 2080 of California Endangered Species Act (CESA), Fish and Game Code § 2080, prohibits the take of state-listed threatened and endangered species. Under CESA section 2081, DFG may authorize individuals to take listed species if the take is incidental to an otherwise lawful activity, the impacts of the authorized take are minimized and fully mitigated, and the take will not jeopardize the continued existence of the listed species.

Under section 9 of the federal Endangered Species Act (ESA), 16 U.S.C. § 1538, take of listed species is prohibited. Violations are subject to a $25,000 penalty. See 16 U.S.C. § 1540. Liability runs to both the individuals conducting the activity and the agency that permitted the activity; thus both the City and DeSilva could be held liable for any take. However, under ESA section 10, 16 U.S.C. § 1539, FWS may authorize individuals to take listed species if the take is incidental to an otherwise lawful activity, the impacts of the authorized take are minimized and fully mitigated, and the take will not jeopardize the continued existence of the listed species.

In its comments on the Draft and Final EIRs and in subsequent emails and calls to the City, DFG requested that the City and/or DeSilva consult with DFG and FWS regarding the potential impacts of the Leona Quarry Project on Alameda whipsnake. Pers. Comm. John Krause, DFG (Mar. 1 , 2005). Despite these requests, the City has not consulted, or required DeSilva to consult, with DFG and/or FWS regarding an incidental take permit or measures necessary to mitigate potential impacts. The City also avoided mandatory consultation with FWS under section 7 of the ESA, 16 U.S.C. § 1536, by failing to obtain a CWA section 404 dredge or fill permit from the Corps.

It appears that the extent of the City’s consultation regarding listed species was to respond to DFG’s Draft EIR comments in the Final EIR. In its response to comments on the Draft EIR, the City justified the decision not to follow DFG’s recommendations or obtain an incidental take permit on the fact that the mitigation plans required by the City would contain adequate mitigations and avoidance measures to prevent potential impacts to the Alameda whipsnake. Unfortunately, the City has not ensured timely implementation of mitigation measures.

Essex Environmental Inc. first reported outstanding items required to comply with the SSSMMP in June 2004. However, measures to achieve compliance were not implemented until late January 2005, almost eight months later. See Essex Environmental, Inc., Environmental Inspection Report (Feb. 1, 2005). Eight months is an unacceptable delay between report of noncompliance and corrective action. It is not clear from Essex’s reports why outstanding items and reports of non-compliance were not addressed in a timely manner. See, e.g., Environmental inspection Report (Aug. 11, 2004) (“The Non-Compliance issued four weeks ago … is still an outstanding issue that needs to be resolved.”), (“The contractor needs to either build a new whipsnake exclusion fence isolating the north slope work area or submit plans for approval to the City of Oakland for an alternative measure for Alameda whipsnake in the area of the slope repair in the lower quarry. … (refer to Environmental Inspection Report of June 9, 2004).”).

We are particularly concerned that City staff recommended approval of the final maps in spite of several months of reports from Essex that DeSilva was not complying with Conditions of Approval related to protection of biological resources, including the Alameda whipsnake. Condition of Approval No. 37 provides:

“For the duration of the project, the City Development Director shall have the
authority to determine whether the Project Applicant and the Project substantially
comply with terms and conditions of this approval …. Upon a determination of
non-compliance, the Director shall have the authority to suspend further Project
approvals, including without limitation final subdivision maps, grading permits,
building permits or certificates of occupancy for the duration of such

It seems that regular reports of non-compliance beginning in June 2004 would warrant suspension of Project approvals. We request that City staff provide the legal and factual basis for its decision to recommend approval of the final maps despite repeated notices of noncompliance.

Further, it appears that the SSSMMP may not be entirely consistent with the language in the CEQA Mitigation and Monitoring Program (MMRP). See letter from Mark Cassady, Essex Environmental, Inc., to Marcel Uzegbu (April 27, 2004). According to Essex Environmental, the SSSMP uses “‘qualified wildlife biologist,’ ‘wildlife biologist,’ and ‘biological monitor’ interchangeably for preconstruction activities that are required in B.1a of the MMRP to be performed by the ‘qualified wildlife biologist.’” See id. In addition, the original plan, consistent with the Alameda whipsnake mitigation measures, stated that all vegetation clearing in whipsnake habitat would be done by hand, but the new plan allows for some clearing to be performed by heavy equipment, including a front loader. See id. It seems that clearing by front loader as opposed to by hand would have increased impacts and would require increased mitigation. It does not appear that the City ever addressed these inconsistencies; instead it appears that the SSSMMP may be materially different from the plans which were analyzed under CEQA.

We request that the City provide actual notice to DFG and FWS of its determination that an incidental take permit is not necessary and the factual basis for this determination, and request the agencies’ concurrence with that determination within 30 days.

In the course of contacting FWS regarding the Alameda whipsnake, we also request that the City require DeSilva to consult with FWS regarding birds protected under the Migratory Bird Treaty Act of 1918 (MBTA), 16 U.S.C. §§ 703-712. FWS is the federal agency responsible for administering the MBTA, which prohibits the taking of any migratory bird, or any part, nest, or egg of any such bird. See 16 U.S.C. § 703. The Project may be adversely affecting whitethroated swifts, which have been observed nesting and foraging on the site. See, e.g., Essex Environmental, Environmental Inspection Report (Sept. 3, 2004). While the Draft EIR defines special status species to include species protected by the MBTA, it does not evaluate measures necessary to comply with the MBTA with respect to the white-throated swift. See Draft EIR, p.IV.B-13. It is not clear whether this omission is intentional, or if the City did not believe whitethroated swifts were present. However, given the documented presence of white-throated swifts onsite, the City and DeSilva should evaluate measures necessary to protect them.

III. Further Degradation of the Form and Function of Chimes Creek

The City has not adequately responded to the concern that peak flows resulting from discharges from the Leona Quarry Project will further degrade Chimes Creek. Previous permits issued by the City for upstream development appear to have had a substantial impact on the form and function of Chimes Creek as it flows through the Millsmont neighborhood. Based on personal observations and documents maintained by Alameda County Public Works Agency (ACPWA), it appears the channel bed has dropped ten feet or more in the past decade. See ACPWA Photographs at Delmont Ave. (Attachment 7). The rate of degradation greatly accelerated following the construction of the Ridgemont development. Chimes Creek is not just a channel for flow; it is an essential feature of MHA members’ property. The City has allowed upstream development without adequate measures to protect downstream property. As a result, MHA members are faced with impaired of use and enjoyment of the creek and decreased property values. Although the Project likely will contribute to this problem, City staff have stated DeSilva is not required to perform creek restoration.

The City cites the hydrologic analyses undertaken for the environmental documents to support the argument that DeSilva is not required to perform creek restoration because the Project will not increase pre-Project runoff. However, the Regional Board stated that the City’s hydrologic analyses fell short of showing “that the project would be expected to reduce downstream impacts due to a modified runoff hydrograph, because it does not make the connection between flows from the project site and those that may be causing erosion downstream.” Letter from Keith Lichten, Regional Board, to Claudia Cappio (Sept. 5, 2003); see also letter from Keith Lichten to Claudio Cappio (Dec. 4, 2003) (“our comment letter is not listed in Appendix B of the DSEIR, and based on our review of the DSEIR, … our comments have not yet been addressed.”). The Regional Board requested that the Supplemental EIR:

“[R]equire a fuller analysis of downstream creek conditions, including a
shear/stress/erosion analysis that looks at the creeks in the field in order to
determine what sorts of flows are causing the erosion. This is crucial analysis,
because it is possible that a well-intentioned attempt to reduce flows can actually
exacerbate erosion problems in a creek. … An analysis that looks only at changes
in flows from the project site, without an understanding of how those flows may
be interacting with the downstream creek, is necessarily inconclusive.”

Id. The City elected not to undertake the further study recommended by the Regional Board. In the absence of the Regional Board’s concurrence with the City’s determination that CWA section 401 does not apply to the Project, the need to address downstream degradation is a live issue. If the Regional Board determines that section 401 does apply, it is possible that the Regional Board will issue a water quality certification which includes conditions necessary to address the direct, indirect, and cumulative impacts of the Project on downstream water quality.

We appreciate the recent invitation to meet with City staff to discuss and review the hydrologic model for this Project. In advance of that meeting we request that the City provide (1) the estimated pre-Project (or baseline) peak flows during the 25-year, 24-hour design storm event, and (2) the estimated post-Project, mitigated peak flows during the design storm event. We also request that the City provide flow exceedance curves for Chimes Creek pre-Ridgemont development, post-Ridgemont development, and post-Leona Quarry development. This data should help explain how the City’s permitting decisions have affected flows in Chimes Creek.

IV. Further Degradation of the Sewer Line Along Chimes Creek

The City has not addressed the systemic problem of the failing sewer line along Chimes Creek. City staff’s January 25, 2005 Supplemental Report describes an incident on December 4, 2004, but does not mention the fact the sewer line along Chimes Creek is exposed in several places as a result of degradation and erosion of the streambanks. The sewer lines are suspended in mid-air where the banks have eroded away, and are only partially supported by ropes and wood under-girding. See MHA, “Sewer Lines at Chimes Creek” (Dec. 4, 2004), “Sewer Line Breaks Again” (Jan. 2005), available at
Every year for the past 15 years the sewer line has broken routinely and discharged untreated sewage into the creek during storm events. The most recent break occurred on February 21, 2005.

We acknowledge that City staff generally have been responsive to MHA’s reports of breaks in the sewer lines and have attempted to secure the exposed sewer lines with rope and wooden planks. However, we are dissatisfied with this reactive program of repair that has persisted for 15 years. The City has an affirmative duty to maintain City infrastrucure and comply with water quality standards, which it is not meeting with respect to the sewer lines on Chimes Creek. As mentioned previously, we believe the primary causes for the poor condition of the sewer lines are (1) exceedance of current capacity, and (2) exposure of the lines caused by erosion of the streambanks. The exposure and routine breaks in the sewer lines impair MHA’s use and enjoyment of the creek and poses a threat to public health. The Leona Quarry Project will contribute to this problem.

MHA previously expressed concern over what we understood to be City plans to condemn private property along Chimes Creek in order to install larger sewer lines to accommodate wastewater from Leona Quarry. Installation of larger sewer lines is inconsistent with the EIR, which finds the current sewer lines adequate to accommodate increased volume from Leona Quarry. The City assured MHA, “there are no City plans for condemnation of property along Chimes Creek;” “[t]he City proposed to replace the existing sewer line with the same pipe size within the existing public easement.” See Jan. 13 letter, p. 4. However, this assurance appears to conflict with the staff’s “Supplemental Report on the Status of Leona Quarry Subdivision Project Related to Compliance with Conditions of Approval and Response to Letters from Natural Heritage Institute Regarding Concerns from Millsmont Homeowner’s Association on Leona Quarry Subdivision Project” (Jan. 25, 2004) (Supplemental Report), which provides:

“City staff analyzed the capacity of Line S and determined that some sections
outside the creek area will need to be upsized to accommodate the additional flow
from Leona Development.
… Staff plans to hold a meeting with the owners to
explain that this work might affect their property, seek their input and address
their concerns.”

Supplemental Report, p. 3.

We request written clarification of the apparent conflict between City staff’s descriptions of proposed sewer line work along Chimes Creek. We request copies of the City’s records of discharges of the sewer lines along Chimes Creek in the Millsmont area for the past five years within 30 days. We also request a commitment from the City that it will develop and implement a proactive plan to stabilize the sewer lines that are exposed along Chimes creek. We hope the City’s recent schedule of public meetings to discuss this issue is representative of the City’s intention to implement such a proactive program in the near future.

IV. Creek Restoration

The City still has not provided MHA a copy of the technical report regarding the creation of a creek on the Project site required under Condition of Approval 23(g). Condition 23(g) requires “[a] review and recommendations pertaining to the creation of a perennial creek through the site that drains into the lower detention basin ….” The City did provide a copy of the two page summary of the technical review. See letter to Jim Summers, DeSilva Group, from Frank Groffie and Frank Berlogar, Berlogar Geotechnical Consultants (Oct. 13, 2004) (Attachment 8). According to the summary, DeSilva’s geotechnical consultants advised DeSilva that, “a perennial creek, particularly if unlined, would not be appropriate from a geotechnical standpoint.” Id. Unfortunately, the summary does not discuss the consultants’ specific findings of fact on which this conclusion is based.

Berlogar’s conclusion appears to be inconsistent with Phil Williams & Associates, Inc.’s (PWA) initial findings regarding creation of a creek on the Project site. PWA has stated:

“Topographically, the site represents the headwaters area of Chimes Creek. It is
likely that it included the first and second order channels of the creek, which were
fed by local springs in addition to winter rainfall-runoff. The quarry excavation
eliminated these channels. The conceptual plans for the site indicate some
consideration of incorporating a “restored” creek channel in the proposed
development. We recommend inclusion of a restored stream system on the site,
which will provide habitat, aesthetic, and water quality benefits.

Additional water quality and habitat benefits can be provided during the design of
the detention facility, as well as design attributes of the developed areas. These
are typically developed in coordination with the [Regional Board] as part of their
401 certification program, and are designed to minimize/remove typical urban
runoff pollutants.”

City of Oakland, Draft Subsequent EIR (Oct. 22, 2003), App. C, Philip Williams & Associates Ltd., Initial Report (Nov. 2002), p. 11. Given the significant potential benefits of creation of a creek on the site, we expect the City considered more than a two-page summary prepared by DeSilva’s consultants before dismissing this measure from consideration.

We request a copy of the full report prepared by Berlogar Consultants regarding the creation of a creek on the Project site, and a copy of the City's findings regarding the full report within 30 days.


In conclusion, we respectfully request that City staff respond to this letter and the issues raised. We prefer to resolve these issues in a mutually agreeable manner. We believe a face-to-face meeting is necessary to achieve resolution, and so we request that the City convene a meeting within 30 days. Participants should include the City, DeSilva, Regional Board, DFG, FWS, and other interested stakeholders. The City should not allow the Project to proceed without resolving these outstanding issues.


Richard Roos-Collins
Julie Gantenbein