History
The Sierra County Planning Commission wants to reduce the stream setback currently required because they believe it causes the need for too many variance applications. The Commission believes current code as interpreted by historic practice is too restrictive. Current code requires new construction, including septic systems be setback 100 feet from the high water line of streams. The high water line in Sierra County historically has been interpreted to be the limit of the100-year floodplain.
On September 14, 2005 the Planning Department made a decision to revise the definition of high water line in order to avoid the need for applicants to get a variance to build closer to streams than required by the code. The HSRA argued such a policy change cannot be made unilaterally through a Planning Department staff Memo. Such a policy change has wide ranging ramifications and must be evaluated through a public process under the California Environmental Quality Act. The revision was revoked.
However, since then, variances allowing building and septic facilities be constructed within the setback have been routinely granted without environmental review. The practice is an end run around meaningful review of a sweeping policy change. It is argued each individual project will not cause a significant impact and can be exempt from CEQA. We believe, however, the cumulative impacts of the practice will be significant. The ramifications of allowing construction to occur closer to streams than what is currently allowed must be reviewed so that the public is informed and decision makers have a clear understanding of the consequences of the policy change.
Until the County moves to adopt a new ordinance amending the zoning code to be consistent with their intentions, the only way to oppose the evasive process the County currently uses to avoid meaningful environmental review, unfortunately, is to challenge projects which are approved through the evasive procedure.
In its most recent attempt to revise the stream setback ordinance in order to reduce the need for variances, the Planning Commission is considering a new definition of "high water line". Instead of the limit of the 100-year flood plain which is an objective, calculable standard mapped in the community areas of the County by FEMA, the Commission proposes to substitute a highly subjective definition without reference to data or maps and without benefit of an Initial Study. The proposed definition which is also the ideological basis for approval of current projects is:
"The line found by examining the bed and banks and ascertaining where the presence and action of water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks evidenced by: a clear natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, or the presence of litter and debris etc."
The definition is taken from a Supreme Court Case decided in 1851. The particular description is taken from a partially dissenting opinion of one of the Justices. In the description the Justice was not attempting to define "high water line", but rather trying to determine the location of a boundary line between the State of Georgia and the State of Alabama defined as the western bank of the Chatahoochee River (Howard v. Ingersoll, 54 U.S. 381, page 54 U.S. 427). The Justice did not intend to define the high water line of a river with this description then; and, the description shouldn't be used to do so now. Nor was the description meant to be useful when trying to determine stream setbacks to protect water quality. The Commission is proposing to use this definition not to help determine useful and practible stream setbacks, but to minimize, if not avoid altogether, having any limitations on development near streams.
An Analogy
In the recent project involving granting a variance to build a house closer to the Downie River than ordinarily permitted, we believed the risks involved called for more investigation than what was being offered.
Streams and adjacent areas are complex areas. Extra caution is necessary when considering construction near a stream. Stream setbacks provide buffers which maintain the chemical, physical and biological integrity of water resources, remove pollutants delivered from urban stormwater, reduce erosion and sediment entering the stream, stabilize stream banks, provide infiltration of stormwater runoff, maintain base flows, contribute organic matter that is a source of food and energy for aquatic ecosystems, provide tree canopy to shade streams and promote desirable aquatic organisms, provide riparian wildlife habitat and furnish scenic value and provide recreational opportunities. An Initial Study is the appropriate tool to use to determine the risks and benefits of development adjacent to streams when a policy change is being contemplated.
Before crossing the street, do you look both ways? If so you are doing an Initial Study. On some streets in some circumstances, the solution is simple. No traffic, two lanes, no obstructions, healthy legs, good vision—cross the street. According to CEQA procedures, you would have made a Negative Declaration. If after your Initial Study you find a street with lots of traffic, multiple lanes and foggy weather, you might opt to walk to the corner where there’s a traffic light and wait for oncoming traffic to stop. You've mitigated the risk. Under CEQA that would be a Mitigated Negative Declaration. If, after the Initial Study, you find the risks of crossing the street are substantial, an alternative route isn't obvious, and your need to get to the other side is great, you might opt to investigate more thoroughly or in CEQA terms prepare an Environmental Impact Report. After careful study you could make an informed decision on whether or not the risks of crossing a dangerous street are worth it. You might decide your need to get to the other side outweighs the consequences. You would minimize the risk in whatever way possible and go for it. Under CEQA you would have issued a Statement of Overriding Considerations.
Building next to a stream or revising the definition of high water line without considering the ramifications by at least preparing an Initial Study is like crossing a busy street with your eyes closed.
