June 15, 2006

Charles Gardner
157 Miramontes Ave
Half Moon Bay, CA 94019

SUBJECT:           Foothill Boulevard and LCP Wetland Protection Policies

Dear Mr. Gardner:

This letter is in response to your inquiries about Coastal Act wetland protection policies and other topics related to the construction of Foothill Boulevard in Half Moon Bay contained in your letter of June 11, 2006.

First, as stated in our June 6, 2006 letter to the Half Moon Bay City Manager: "Commission staff is not aware of and has not reviewed any actual plans or related environmental impact analysis for this project." As such, Commission staff has no opinion at this time concerning the feasibility of constructing a bypass connecting Highway 92 and Highway 1 in a manner that avoids wetlands.

You ask in your letter how the Coastal Commission permitted wetland fill for the Devil's Slide Tunnel project and whether the same process could be used to approve wetland fill for the construction of Foothill Boulevard. Related to this question, you ask if the Coastal Act "conflict resolution process" would apply in the case of Foothill Boulevard.

The Coastal Act provides that development may only be permitted where the development may be undertaken in conformity with all coastal resource, public access, and public recreation protection policies of the Act and/or an applicable local coastal program. The "conflict resolution process" provided by Coastal Act Section 30007.5 may only be invoked where an unavoidable conflict exists between competing Coastal Act policies. For example, construction of an impoundment for irrigation on a stream that supports steelhead could present a conflict between Coastal Act policies that seek to maintain agricultural production on the one hand and policies that require protection of habitat supporting sensitive species on the other hand. The Commission is required to resolve such conflicts in the manner that is most protective of significant coastal resources. The conflict resolution process is not applicable in cases where a proposed development is simply inconsistent with the Coastal Act absent a conflict between competing Coastal Act policies. In these cases, the development is simply prohibited.

In the case of the Devil's.Slide Tunnel project, the Commission determined that construction of the tunnel was necessary to protect public access to the coast but that the project could not be undertaken without filling wetlands. Thus, the Commission found that the tunnel project presented an unavoidable conflict between Coastal Act policies that on the one hand promote public access and on the other prohibit wetland fill. The Commission noted the "traffic nightmare" that occurs when the existing Highway 1 at Devil's Slide is closed, which greatly impedes the public's ability to achieve access to this coastal area and also has a severe adverse effect on the heavily tourist-dependent economy of the San Mateo County Mid Coast. The Commission also noted that the previously approved "Martini Creek" Devil's Slide bypass was far more environmentally damaging than the tunnel, not only to wetlands and environmentally sensitive habitat, but to public access and recreation, scenic public views, and the overall character of the San Mateo County Mid Coast. Based on these findings, the Commission determined that the conflict presented by the tunnel project between Coastal Act public access policies and the wetland fill prohibition should be resolved in favor of maintaining public access to the coast.

In order to permit wetland fill for the construction of Foothill Boulevard, the Commission would first have to determine that not constructing this road would be in conflict with the Coastal Act. While the Commission found that the Devil's Slide Tunnel is necessary to maintain public access to the coast, it seems unlikely that the same finding would be reached in the case of Foothill Boulevard. Unlike Highway 1, Foothill Boulevard would not serve as a major coastal access route to the region, and would not provide the kind of substantial coastal access benefit necessary to override the Coastal Act wetland fill prohibition. Thus, the alternative of not constructing Foothill Boulevard in order to avoid filling wetlands would not appear to present a conflict with the Coastal Act. For this reason, Commission staff does not believe that wetland fill could be authorized to allow construction of Foothill Boulevard.

The questions raised in paragraph numbers four through nine of your letter concern attorney-client privileged communications regarding ongoing litigation that staff is not at liberty to discuss. Rest assured, however, that the changes to Pacific Ridge development project proposed in the settlement agreement may only be authorized though an amendment to the approved coastal development permit for the project. To grant such an amendment, the Commission must find, after a public hearing, that the amended project would be consistent with all applicable policies of the Coastal Act and the Half Moon Bay LCP. You may provide written comments and testify at the Commission hearing on the amendment application.

Finally, it is not Commission staffs practice to post correspondence or other materials on the websites of other organizations. I hope that this letter helps to clarify our position concerning the wetland protection policies of the Half Moon Bay LCP and the Coastal Act as they relate to Foothill Boulevard.

Sincerely,


Chris Kern
Coastal Program Manager
North Central Coast Distirct

cc: Debra Auker, Half Moon Bay City Manager