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Posted by: thepinetree on 09/19/2008 08:27 AM
Updated by: Kim_Hamilton on 09/19/2008 10:40 AM
Expires: 01/01/2013 12:00 AM
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Tri-Dam Rejects Villa Del Lago and Sues Calaveras County....Letter to the Editor by Betsy Duncan
Copperopolis, CA...Interesting news today at Lake Tulloch. Tri Dam held their weekly board meeting today where the Villa Del lago Project was on the agenda to be heard. Upon my arrival I sat in the rear row and waited for the meeting to start. The attorney for the project was the first to speak at which time he requested a 30 day extension. Seems he found out just this morning that Tri Dam is suing Calaveras County. Their claim is that Calaveras County BOS approved the environmental documents without satisfying Tri Dam's concerns. In addition it became that private group of residents is also planning to file suit on the mitigated negative declaration. I have forwarded the Tri Dam Staff Report....
Finally a voice of reason where conservation of our beautiful resources are concerned. I am stunned by the BOS decision not to insist on an EIR for any subidivision actually planning on building into our drinking water, stealing public use surface water and ignoring the impact that development will have on the natural habitat at Tulloch Reservoir. And so it begins.
Thought you might want to know.
Betsy Duncan
Tri-Dam Project Meeting
Date: September 18, 2008
To: Board of Directors
From: Steve Felte
Re: Review of Application Villa Del Lago
PROJECT: The applicant, Tulloch Resort LLC through the applicant’s spokesperson Bernadette Abramson, filed an encroachment permit application seeking approval from Tri-Dam for certain development activities within the project boundary (515’ elevation contour). A copy of the application, updated site plan and applicant’s narrative is attached to this report. Specifically, the project includes the following elements:
DEMOLITION
a. Demolition of the existing hotel, restaurant and associated attached commercial structures.
b. Removal of the boat rental and fuel sales businesses.
c. Removal of the structure occupied by the mini-mart/marina.
d. Removal of the existing marina dock facilities.
CONSTRUCTION
a. Construction of thirty (30) townhomes, one each on thirty (30) parcels created by tentative subdivision map, authorized by Calaveras County. Each residential unit would be constructed on a separate parcel for individual sale and ownership. Construction of homes would extend beyond the 515’ contour elevation and supported by steel driven pilings, driven into the reservoir. Approximately ninety (90) pilings are requested.
b. Installation of thirty (30) dock slips, one per residential unit, each equipped with a personal watercraft port, for a total of 30 ports requested.
c. Retention of the existing boat ramp, to be used for the exclusive use of residents within the subdivision.
d. Installation of public access facilities, as required by Calaveras County.
e. Associated parking, drainage improvements and landscaped areas.
FERC, in issuing FERC License Feb 16, 2006, included in Article 411. Shoreline Management Plan:
Upon license issuance, the licensee shall implement, on an interim basis, the “Tulloch Reservoir Shoreline Management Plan” included in Exhibit E, Report on Land Use Management and Aesthetics of Tri-Dam’s license application filed with the Commission on December 23, 2002.
The first step in this process is for the application to be considered by Tri-Dam for consistency with Shoreline Management Plan and as appropriate request from FERC for authorization to issue the permit, if appropriate.
Applicability of Shoreline Plan to the Proposed Project
One of the biggest elements of applicant’s application is permission to drive 90 steel pilings into the reservoir bed to support the proposed townhomes to be built out over the reservoir. Tri-Dam does not have the authority to consider, approve or disapprove of this element of applicant’s application. TDP has only been delegated authority from FERC to consider and issue permits related to “minor” construction within the Project Boundary. In 1978, Tri-Dam sought permission from FERC to have permitting authority over “piering for structures.” FERC declined to grant such authority to Tri-Dam, stating
“piering for structures could be major construction with major impacts. There is no limitation on the size of the structures. This proposed permit item could allow a large housing development to be erected over the reservoir without further Commission approval. This is not acceptable. Proposals for future private development that includes piers for structures should be filed with the Commission so that adequate public access at the project can be ensured and so that no hazards to navigation and the environment are created.” (Feb. 2, 1979 FERC “Order Approving Reservoir Management Plan and Use of Project Lands”).
None of the Shoreline Management Plans approved by FERC since 1979 delegated to Tri-Dam permitting authority over piers or other structures which would support habitable dwelling units as is proposed in the current application.
This request would therefore need to be forwarded to FERC. It should be noted this application would not be consistent with the Shoreline Plan now before FERC for Approval (see section below regarding 2008 Shoreline plan)
The Application Erroneously Seeks Approval for a “Commercial” Facility
The proposed project does not conform to the private facilities section of the Shoreline Management Plan. At the outset, it is important to note that this project must conform to the Private Facilities rules governing residential uses in Section 6 of the Shoreline Plan. It is clear from the definitions cited below that the proposed project, for purposes of evaluation and consideration under the Shoreline Management Plan, is “private” and not “commercial.” The Shoreline Management Plan defines “Non-Commercial/Residential” as:
A shoreline/reservoir use that involves the use of project lands and waters for facilities where boats can be launched, retrieved or moored for the purpose of providing access to the reservoir for certain residential property owners, particularly off-water lots and multi-family dwellings. Residential properties associated with this classification include townhouses, condominiums and subdivision access lots. (Glossary of Terms).
.
While the County’s zoning classification for applicant’s lots may be “commercial,” such classification does not apply to the Shoreline Management Plan. Although the applicant sought approval for an encroachment permit regarding a “commercial” facility, it is clear from the definitions contained in the Shoreline management Plan that the applicant is actually seeking an encroachment permit for a “non-commercial/residential” facility. Rather than reject the application on these grounds, staff recommends that the application be evaluated under the “private facilities” rules contained in Section 6.0 of the Shoreline Management Plan.
The Application is Contrary to Section 6.3.1.
6.1 General
All parties desiring to construct, expand or rebuild a private single-family facility within the FERC Project Boundary of Tulloch Reservoir (at or below the 515 elevation contour) must obtain authorization from the Tri-Dam Project prior to the initiation of excavation or construction. All facilities must be constructed on the applicant’s deeded waterfront lot for the purpose of providing private access for occupant of single family type dwellings.
6.2 Application Procedure
An applicant must complete the Application Process described in Section 4.0, General Requirements, of this Plan.
6.3 Criteria for Private Facilities
1) All facilities shall be designed to ensure that the facilities are located as close to the shoreline as possible, and shall not extend more than forty feet from the shoreline, at high-water (510 water level) elevations. An owner may apply for a facility that extends further than forty feet if it can be demonstrated that the forty feet restriction would make the facility unfeasible given environmental considerations such as topography or terrain. In addition, it must be demonstrated that the facility would not obstruct or interfere with the access of adjacent parcels and public lake use.
2) Reflectors shall be placed on the two furthermost corners of any dock structure that extends into the water.
3) All fixed pier decking must be at least one foot above the normal high water elevation (510’). No portion of the structure will be approved for habitation purposes, as this area is subject to potential inundation.
4) Floatation materials, if used, shall be puncture resistant and designed not to sink, if punctured.
5) Structures built within the FERC Project Boundary must not contain sinks, toilets, showers, or any other type of device, which could cause any liquid or solid waste to be discharged into the lake.
6) The sides of gazebos, boatshelters and boathouses are not to be enclosed. Handrails may be installed for safety, but must not be enclosed.
7) The maximum allowed docking area for single family residential facilities is four hundred forty square feet of surface area for a slip type dock and four hundred square feet of surface area for a platform dock. In addition, two personal watercraft ports not exceeding 50 square feet each may be permitted. An awning if installed shall not exceed the footprint of the dock area, excluding personal watercraft ports. Overhangs and/or side enclosures are not permitted.
8) Two story docks are not permitted.
9) All facilities shall be setback from the property lines in accordance with county zoning regulations for structures.
10) Only one non-stackable boatlift is permitted for each single family residential dock.
The proposal to construct docks more than 40 feet from the shoreline is inconsistent with the Shoreline Plan, in particular with Section 6.3.1 that requires facilities to be within 40 feet from the shoreline. The applicant may apply for an exception to the application of the 40 foot restriction contained in Section 6.3.1.
Additional Deficiencies
The following additional deficiencies in the proposal were found:
4.2 2) d) Engineered site plan depicting the location of all facilities with elevations shown.
Note: This could be corrected by providing profiles and construction drawings prior to transmittal of the application to FERC.
4.2 2) f) A list of all permits and agency approvals identified by the applicant for the construction, operation and maintenance of this facility.
Note: The County provided a list for their approvals; however, this was not supplemented by the applicant.
4.2 7) All Facilities must be fully contained within the applicant’s property lines and may not cross private property lines.
Note: (1) The plan shows a dock straddling the property line with the adjoining property that is a single family residence. May need relocation to conform. (2) The individual docks must be contained within the specific ownership of each townhome. This could be corrected by an amendment to the subdivision map to show lots extending out into the reservoir for each townhome and/or otherwise configured to provide compliance with this requirement.
4.2 8) Any project shall be designed with the protection of the public health, safety and welfare in mind, as well as for the protection of the scenic and wildlife habitat values of the area.
Note: this proposal is not consistent with the values listed in Section 4.2.8. Questions have been raised about these issues in the proceedings before the County; the location of structures over the reservoir, sewage facilities, scenic and wildlife issues (reference transcripts, letters and County administrative record) were all raised and by 3-2 votes found to be either inadequate or adequate by the County Planning Commission or Board of Supervisors respectively. Tri-Dam filed two written requests that the environmental document prepared by the County address a number of items, including the required California Environmental Quality Act analysis of potential environmental impacts to the reservoir including fisheries, wildlife habitat, water quality and recreation, etc. A copy of each letter is attached for reference. In addition to these letters, oral testimony was provided by staff at each of two Planning Commission hearings and two (2) Board of Supervisors meetings. It is imperative that the CEQA document adequately and fully address each of the impacts, as the FERC process would require demonstration of compliance with the National Environmental Policy Act.
4.6 Violations and Enforcement
Loss of any consideration for future reservoir use applications until the violation is successfully resolved.
Note: The applicant is in violation on their personal residence regarding size of dock, personal watercraft ports and covering. The applicant has been notified and despite promises to remove the offending structures, has failed to bring the structures into compliance.
2008 Shoreline Management Plan
FERC also directed Tri-Dam to file an amended plan that includes the recommendations from environmental reports and studies. A revised plan was filed in June 2008 and is pending approval. The proposed Shoreline Plan would not allow the proposed project.
Goals, Policies and Implementation Measures
Encourage Cooperative planning and management efforts among the multi-jurisdictional agencies at Tulloch Reservoir.
Note: The revised plan went through an extensive process with Calaveras County and interested parties and was amended to be consistent with development goals developed and supported by the Calaveras Board of Supervisors.
Shoreline Development Permitting Process
3.0 --- Tri-Dam received special authorization for the Shores of Poker Flat permitting a unique authorization to construct buildings extending beyond the 515 elevation and into the reservoir. This unique authorization will be preserved for Poker Flat. All other areas will be limited to shoreline protection and docks with related access facilities in keeping with efforts to preserve and protect the remaining shoreline of Tulloch Reservoir.
The authorization for Poker Flat came directly from FERC.
CEQA Compliance
Tri-Dam, in response to notice of intent and review of a draft Negative Declaration prepared by Calaveras County, filed 2 letters requesting the document address impacts of the project on the Reservoir. Tri-Dam’s representative (Steve Felte) also verbally expressed concern about the adequacy of the CEQA document
The County Planning Commission rejected the CEQA document and upon appeal the Board of Supervisors approved the project based on amendments to the resolution approving the project, in absence of requiring additional environmental analysis of the identified environmental issues. The Board of Supervisors approved the environmental document without satisfying Tri-Dam’s concerns. Consequently, Tri-Dam has filed suit.
Final Note:
Even if Tri-Dam was to approve the proposal, its approval would have to be conditioned on FERC approval. According to the license issued by FERC, the project requires FERC concurrence and authorization prior to formal authorization of the encroachment because the project involves a request for more than ten (10) dock slips/docks and construction of proposed facilities within the 515’ contour and specifically extending below the 510’ contour elevation.
Recommendation: Reject the proposed project as inconsistent with the overall public good and with shoreline management plan’s restrictions on the construction of private facilities more than 40 feet from shore. Assuming the identified defects can be overcome, work with the applicant to submit an application directly to FERC for permission for a revised townhomes project.
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