207 Second Street, Suite B, Sausalito, CA 94965 --- (415) 331-4505 --- fax 332-8799

MEMORANDUM REPORT

LOCCNA has specifically asked us to address the following questions:

• Does the DEIR provide an adequate characterization of the fish resources of Codornices Creek?

• Does the DEIR provide an adequate characterization of the impacts that the project, as preferred by the proponents, might have on the fish resources of Codornices Creek?

• Does the DEIR propose measures that are adequate to mitigate the project's likely impact on important Codornices Creek fish resources?

Our qualifications for providing LOCCNA this review, with which you are well familiar, are included here as Attachment 1.

1. Does the DEIR provide an adequate characterization of the fish resources of Codornices Creek?

1-a. Are steelhead in the reaches of Codornices Creek below the project?

In the discussion of Biological Resources [page 4.6-11 and, again, at page 4.6-16] the authors appear to be deliberately dismissive of prospects that steelhead have colonized Codornices Creek above Ordway Street. At 4.6-11 the authors acknowledge that "rainbow/steelhead trout (ranging from 4-12 inches in length)" were collected near the BART right-of-way on March 19, 2000. Since resident rainbow trout spawn in the spring it is highly unlikely that their progeny would be four inches long in March. It is more likely that four-inch fish are the progeny of winter-spawning steelhead.

We consulted Rob Leidy, who has been conducting a survey of San Francisco Bay Area stream fishes for the U.S. Environmental Protection Agency since the 1980s. Mr. Leidy has observed large steelhead/rainbow trout in Codornices Creek in recent years.

We have inspected a color photograph provided us by LOCCNA of the rainbow/steelhead fingerling taken by University of California instructor Tom Dudley during the March 19, 2000 Codornices Creek fish sampling referred to in the DEIR and, based on phenotypic characteristics, the fingerling's size and markings [oval parr marks, black spots on the back and dorsal fin], we conclude that the fish is a young steelhead likely produced in Codornices Creek, likely upstream of the site of its capture. We do not agree with the author's statement on page 4.6-11 that, in this case, "genetic studies are required to differentiate a juvenile or non-spawning rainbow from a steelhead trout."

1-b. Is there steelhead habitat above the project site?

The DEIR [at page 4.6-15] asserts that "the area upstream of the project area has minimal trout habitat." This does not comport with Alice Rich's 1989 findings [Rich, 1990 at page 13] that Codornices Creek between Spruce Street and Glen Avenue [i.e, above the 1301 Oxford Street site] "has undercut banks and abundant bank and overhead vegetation which provide shade and cover for fishes" nor with Jeff Hagar's finding that there are "good pools" and gravel "suitable for spawning resident trout" upstream of the 1301 Oxford site [page 4 of Hagar Environmental Services' report, DEIR Appendix TA-10].

1-c. Can steelhead transverse the site to reach the habitat above it?

The DEIR states [page 4.6-14] "This concrete arch culvert appears to be a definite barrier to fish migration, even for the strong-swimming steelhead trout."
This statement does not comport with Jeff Hagar's finding [page 3 of the Hagar report] "It is possible that during higher flow conditions the stage of the pool increases to such an extent that if a steelhead were present it would be able to leap into the culvert."
Whether or not the plunge pool below the 1301 Oxford Street culvert is deep enough to permit upstream-migrating steelhead to reach the habitat above the site, described in both the Rich and Hagar reports as being suitable for steelhead, the culvert obviously confounds upstream steelhead migration and represents an adverse impact on the steelhead resource of Codornices Creek.

2. Does the DEIR provide an adequate characterization of the impacts that the project, as preferred by the proponents, might have on the fish resources of Codornices Creek?

The DEIR, at Section 4.5, recognizes that the hardening of the site through the proposed construction and paving will increase runoff from the site to the creek. The DEIR also recognizes that Codornices Creek, as it flows through the project site, is in a relatively deep channel with steep banks of unstable soil.

2-a. The status of Codornices Creek and its steelhead habitat

The proponents propose [page 4.5-13] to deal with the increased runoff and slope instability issues by laying back the creek bank slopes, rocking the toe of the banks, and constructing three gabion walls "near the concrete culvert outfall".

The DEIR correctly notes that the steelhead of Codornices Creek are included in the Central California Coast evolutionary significant unit [ESU] and, as such, were listed as a threatened species under the terms of the federal Endangered Species Act [ESA] in 1997. In February of 2000 Codornices Creek, in its entirety, was designated as "critical habitat" necessary for the recovery of the Central California Coast steelhead ESU [50 CFR Part 226]. On September 8, 2000 the federal regulations concerning the "take" of these steelhead, including the degradation of habitat critical for their recovery, became effective.

The maintenance by the 1301 Oxford Street landowners of the culvert in its present condition is, likely, a "take" of steelhead under the terms of the ESA. The paving over of the culvert, as proposed by the project proponents, exacerbates the present ESA problem with the culvert and moves away from the Codornices Creek community's long-term effort to restore the creek and its steelhead habitat through daylighting and riparian restoration.

2-b. Is the proposed work in the creek a benefit or a likely adverse impact?

The rocking of the toe of the bank of the creek and the construction of gabion walls, while well intentioned, represent proposed modifications to designated essential steelhead habitat and, as such, will require permits from the California Department of Fish and Game and the U.S Army Corps of Engineers.

Continuation of the fish passage problems at the existing culvert, the proposed paving over of the culvert, the proposed rocking of the toe of the creek bank, and the proposed construction of gabion walls in the stream are all potential adverse impacts on ESA-listed steelhead and their federally-designated critical habitat, and, as such are potential "takings" of these protected fish.

These adverse project impacts are not identified, as in the case of maintaining the problematic culvert in its present condition or making it less remediable though paving it over, or, as in the case with the proposed rocking and gabions, are incorrectly identified [at 4.6-8] as "beneficial impacts" of project development when they are, in fact, likely adverse project impacts.

c. Does the DEIR identify all the permits needed for the project?

At 3.8 "Required Permits and Approvals" the DEIR authors fail to note the need to obtain a streambed alteration permit from the California Department of Fish and Game and a Section 404 permit from the U.S. Army Corps of Engineers. Although the DEIR asserts that the project would fall under the Corps' nationwide, blanket permit for stream alterations, this is probably not the case given the designation of the stream as critical habitat for steelhead recovery and the 8 September 2000 finalization of the regulations concerning the 'take' of steelhead,

3. Does the DEIR propose measures that are adequate to mitigate the project's likely impact on important Codornices Creek fish resources?

The project proponents' plans to pave over Codornices Creek clearly moves in a direction adverse to the Berkeley/Codornices Creek community's years-long effort to restore the stream's natural functions. Alice Rich points out in the DEIR/Technical Appendices that the creek is in better shape than when she studied it in 1989. That is a tribute to Berkeley's leadership and the vision, shared until now, of reopening the city's covered stream sections, eliminating pollution sources, stabilizing stream banks, and restoring riparian vegetation. Much of the labor to accomplish stream restoration in Berkeley has, of course, been volunteered.

As we point out above, the authors of the DEIR appear patently dismissive of Codornices Creek fishery values and the degree to which the proposed project will adversely effect steelehead. This dismissive tone disserves the project proponents, the Codornices Creek community, and the stream's steelhead resource alike.

As we point out above, continuing the culvert at 1301 Oxford Street in its present condition is an arguable "take" of steelhead under ESA regulations, which state that the destruction or adverse modification of habitat critical to the recovery of threatened or endangered species jeopardizes their continued existence. Paving over Codornices Creek [i.e, rather than revisiting the stream daylighting option advanced by the Waterways Restoration Institute] represents alteration of critical habitat and lends further jeopardy to the Central California Coastal steelhead ESU.

The DEIR does not, therefore, advance measures adequate to mitigate the adverse effects of the project, as proposed, to the Codornices Creek environment.

If you have further questions concerning our review of the DEIR or our 1 September 2000 survey of Codornices Creek, please feel free to contact us at your earliest convenience.

References

Pacific Municipal Consultants. 2000. Draft Environmental Impact Report,
Congregation Beth El Synagogue and School, 1301 Oxford Street,
Berkeley. Prepared for the City of Berkeley Planning Department.

Pacific Municipal Consultants. 2000. Technical Appendices, Draft Environmental
Impact Report, Congregation Beth El Synagogue and School, 1301
Oxford Street, Berkeley. Prepared for the City of Berkeley Planning
Department.

Rich, Alice A. 1990. Codornices Creek Fishery Resources Habitat Survey and
Enhancement Feasibility Study. Prepared for Judith Goldsmith
representing the Codornices Creek Association. A. A. Rich and
Associates, San Anselmo, CA.

Personal Communications

Robert Leidy, U.S. EPA, Region 9, San Francisco
Gary Stern, National Marine Fisheries Service, Santa Rosa

Appendix 1

William M. Kier
Principal Fisheries Ecologist
Kier Associates, Fisheries and Watershed Professionals
207 Second Street, Sausalito, CA 94965
415/331-4505; fax 332-8799
wkier@hooked.net

Prior Employment

Staff director, committees on fish and wildlife, natural resources and water resources; director, office for research and policy development, California State Senate, Sacramento, California.

Assistant chief, environmental services division, California Department of Fish and Game, Sacramento.

Assistant Secretary, Resources Agency of California, Sacramento.

Fisheries scientist and research supervisor, California Department of Fish and Game, Sacramento

Education

University of California, Berkeley and Davis, B.S. in zoology, Sacramento State University, graduate studies in ecology, statistics

Representative Experience

Project manager, fisheries. Prepare environmental compliance documents, negotiate Clean Water Act and Endangered Species Act permits for the Battle Creek Salmon and Steelhead Restoration Project. Navigant Consulting, Inc., for the U.S. Bureau of Reclamation, Sacramento.

Principal investigator. Prepare, present to the State Water Resources Control Board, recommendations for implementing a plan for salinity and pollutant control for the San Francisco Bay-Delta estuary. The Bay Institute, Sausalito, CA. 1988.

Project manager. Develop the Long Range Plan for the Klamath River Basin Conservation Area Fishery Restoration Program. U.S. Fish and Wildlife Service, Portland. 1991

Project manager. Develop the Garcia River Watershed Enhancement Plan. Mendocino County Resource Conservation District, Ukiah, CA. 1992.

Principal author, Watershed restoration - a guide for citizen involvement in California. 1995. NOAA Coastal Ocean Program Decision Analysis Series No. 8, Silver Spring, MD.

Project manager. Monitor the use by fish of the Napa-Sonoma Marsh Wildlife Area. California Dept. of Fish & Game, Yountville. 1996

Project manager. Assess chinook salmon habitat restoration potential of Butte
Creek, Butte County, CA. Institute for Fisheries Resources, San Francisco. 1997.

Project manager, Develop a salmon and steelhead restoration plan for the Battle
Creek watershed, Shasta and Tehama counties, CA. California Department of Fish and Game and Metropolitan Water District of Southern California. 1999.

Project manager, Survey northern California streams for the presence and absence of coho salmon. National Marine Fisheries Service, Tiburon, CA 1999.

Project manager, Develop computer-based system to support management of spatial and temporal watershed and fisheries information for the State of California's North Coast Watershed Assessment Program. California Department of Forestry, Sacramento. 2000

Project manager, Develop computer-based system to support management of spatial and temporal watershed and fisheries information for the Trinity River Fish and Wildlife Management Program. U.S. Bureau of Reclamation, Sacramento. 2000.

Professional affiliations

American Fisheries Society. Certified Fisheries Scientist No. 1934.
American Institute of Fishery Research Biologists
Pacific Fisheries Biologists
American Society for Photogrammetry and Remote Sensing