The following letter is from Jim McGrath, a windsurfer
and Kayaker (and also the Port of Oakland's environmental projects planner, but writing here on his own behalf). LSA is the consulting firm with primary responsibility for the official Environmental Impact Report for the Eastshore State Park plan.
February 27, 2002
Subject: Scoping comments on Notice of Preparation (NOP) of Environmental Impact Report for the Eastshore Park Project General Plan
Dear Ms. Malamut:
The following comments respond to the NOP of February 14, 2002. Based upon my review of the source documents, the underlying legislation, and the content of California's Comprehensive Coastal Management Program, I believe that the inconsistencies between the public access proposed in the plan and that mandated by the various State programs constitutes a significant impact as generally defined under the California Environmental Quality Act. This letter will establish the background showing how I reached this conclusion.
The plan as currently constituted does not provide enhanced windsurfing access to the Albany Bulb, the only location suitable for improving access for windsurfing. However, the failure to recognize extant recreational activities goes much further, ignores established legislative direction, and constitutes a significant impact on its face. This letter is submitted on behalf of recreational users, including windsurfers and kayakers, which must reach the shoreline with our equipment in order to have the recreational access that is mandated under the State law creating this park. I have examined the land and shoreline of all of the Eastshore State Park from either a windsurfer or a kayak in the past year, and this letter reflects my direct observations and expertise as a recreational user of the area. The plan is presently considering measures to restore habitat in areas where such restoration will, in fact, preclude public access. The EIR must, therefore, analyze the impacts of those land use designations, and consider alternative land use designations. Where the plan appears to conflict with established State policy, the EIR must show that compliance is not feasible or provide an overriding circumstances rationale. This letter will lay the conflicts I believe are readily apparent.
ACCESS TO THE WATER FOR NAVIGATION HAS CONSTITUTIONAL STANDING IN CALIFORNIA
Section 4 of Article 10 of the California Constitution provides:
No individual ... shall be permitted to exclude the right of way to such water ... or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall always be attainable for the people thereof. (emphasis added)
In any weighing of competing interests in the shoreline, the recognition in the Constitution that navigational access, including access to the shoreline to launch a craft, is a fundamental right must be given great weight.
BOTH THE FEDERAL COASTAL ZONE MANAGEMENT ACT AND THE MACATEER-PETRIS ACT MANDATE INCREASED ACCESS FOR WINDSURFING AND KAYAKING
Section 303(2)(D) of the Coastal Zone Management Act of 1972 calls for states to develop coastal management programs that provide "...priority consideration ... to coastal dependent uses and orderly processes for siting ... facilities related to ... recreation." In California, this provision is implemented through the McAteer-Petris Act, the parent legislation for the regulatory programs of the Bay Conservation and Development Commission. Various policies under that Act apply, including Section 66605, which gives "water-oriented recreation" priority consideration, and Section 66602 that declares that uses such as "water-oriented recreation" are "essential to the public welfare of the bay area." The latter section also includes the legislative finding that "existing public access to the shoreline and waters of the San Francisco Bay is inadequate and that maximum feasible public access, consistent with a proposed project, should be provided. (emphasis added)" This provision must be read in conjunction with the constitutional mandate cited above.
Without doubt, windsurfing and kayaking are coastal dependent and water-oriented recreational uses that warrant priority consideration in planning. It is also clear that nature walks along the shoreline, the use favored by the Citizens for the Eastshore State Park (CESP) is also a form of water-oriented recreation. All are thus deserving of priority consideration in the planning processes for the Eastshore State Park, and the issue becomes providing a balance among competing uses.
THE AUTHORIZATION FOR THE EASTSHORE STATE PARK ALSO INCLUDES PROVISIONS FOR ASSURING NEW ACCESS
The enabling legislation established the Eastshore State Park as a park system that is to provide a balance of both recreational facilities and habitat. Public Resources Code Section 5003.03 calls for a "... recreational facility within its natural setting ...(emphasis added)" The mission statement for the planning effort calls for a "...recreational facility harmonious with its natural setting." The clear language of these mandates calls for protection of, and development in harmony with, the existing natural setting. The NOP indicates that two areas of the Park, the Albany Bulb, and the Meadow, have been designated as conservation areas. However, contrary to the mandate of the authorization, this designation is based on the potential for habitat restoration in those areas, rather than the existing natural setting. This would be of no concern if the plan did not also propose to limit public access in those areas. The language in the document, and the low intensity use proposed, demonstrates that in those areas public access is to be subservient not to existing habitat values, but will in fact be compromised to restore habitat. Even without the Constitutional recognition of access to the shoreline for launching windsurfers and kayaks, this proposal falls outside of the legislative mandate for the park.
The supporting document prepared for the planning effort, the "Eastshore Park Project Resource Inventory" , April 2001, does not demonstrate that existing habitat values of those two areas warrant such protection. Indeed, the plain language of the mandate recognizes that the park exists within a much larger natural setting - San Francisco Bay! It is that setting that generates both the recreational and habitat values, or setting, for the park. Neither Albany Bulb nor the Meadow are recognized as having an existing natural setting that warrants preclusion of access. The legislation could not possibly have speculated on a future setting; it established a planning process to suggest that future setting. In doing so, it called for a balance, not for recreating habitat at a scale that would preclude recreational use. The Inventory describes the Albany Bulb accurately as a "large and isolated landfill area with edges steeply sloped from the Bay to upland areas. The shoreline is armored with concrete debris around the entire perimeter of the landfill." The Inventory continues (PL-11) that no plant species observed in the study area ... are of 'scientific, educational, or interpretive value' from a native plant ... perspective." Indeed, about "95% of the plant species observed ... were exotic species..." Nor, as some have argued, is the site quickly recovering from disturbance. Regarding succession, the Inventory states, "No natural plant communities would be expected to develop in upland (non-wetland) areas unless the existing exotic vegetation were removed and propagules of native species were introduced." (PL-7) Later on, the Inventory identifies seasonal wetlands in some areas of the Meadow as sensitive habitat, but it is clear that such existing values constitute only a small portion of the Meadow, and the remaining habitat is characteristic of a highly disturbed area. The shoreline of all of these areas is highly disturbed, consisting of debris. Only in the limited areas of the Bay Bridge (Radio Beach) and Albany Beach has sedimentation recreated a nearly natural community.
The windsurfing and kayaking communities strongly support preservation and enhancement of the existing habitat of the Eastshore State Park. As resource dependent users that rely on self-propelled watercraft, we recognize preservation of the resource as the underlying principle of stewardship of its use. However, the mandate in the legislative authorization, and in your mission statement, is to create "... a recreational facility harmonious with its natural setting..." Designating areas suitable for recreational access only for conservation, or for recreation on a unnecessarily restrictive basis, does not strike such a harmonious balance. Neither does it reflect the mandates in the State Constitution and the Coastal Management Program. These conflicts must be recognized, contrary to the conclusion in IX b) of the checklist, which concludes without analysis that there are no conflicts. (p. 22)
WINDSURFING, KAYAKING, AND OTHER WATER-ORIENTED ACTIVITIES ARE RESOURCE DEPENDENT AND MUST OCCUR WHERE THE RESOURCES ARE PRESENT
Windsurfing is resource dependent in two different ways. First, windsurfing can only occur on the waters of the Bay that are deep enough (at least 2 to 3 feet deep) to accommodate the equipment. Second, windsurfing can only occur where there is sufficient wind to support the activity. In San Francisco Bay, winds are generated by storm activity, and by the spring and summer pattern where strong winds blow from the location of the Pacific high to the low-pressure area in the Central Valley. Nearly every day between March and October there are winds on the Bay strong enough to sail. (Those winds are absolutely dependent on the Bay itself as part of the engine that generates the wind.) However, quite frequently those winds are weaker near the shore.
Albany Bulb is uniquely located in the entire East Bay as a site that extends further into the wind field than any other location. It is not unusual that the Albany Bulb will be the only windsurfing site in the developed portion of the East Bay with sufficient wind to allow windsurfing at the site. Further, the Bulb is also located at a point on the north- south running shoreline where the westerly winds tend to be stronger as the mass of air turns northwest toward the Delta and Sacramento. As such, this site is of unique resource value.
Kayaks weigh considerably more than windsurfers, and can only be carried a very short distance to the water. Although there are cart-like devices that allow kayaks to be moved, the weight of kayaks is generally above 50 pounds, limiting their mobility significantly.
WINDSURFING AND KAYAKING ACCESS DEPENDS ON VEHICULAR ACCESS
There are thousands of windsurfers in the Bay area. Many of those windsurfers sail after work. Twenty to fifty windsurfers can be found on any windy weekday at Berkeley Marina, with another fifty or more sailing at Pt. Isabel. In all cases, windsurfers bring their equipment in their vehicle, and need to rig within a reasonable walking distance from the launch location. It is not reasonable to try to walk a quarter mile or further with a 10-foot long board, and a 17-foot high sail! Denying parking within a hundred feet of the location in the wind to launch is, in fact, denying access. Although kayaking does not depend on wind, it does depend absolutely on vehicular success to an area near the water where a kayak may be safely launched. Because kayaks are generally paddled at 1 to 3 miles per hour, launching sites must be located about every 2 miles for the Bay to be effectively accessible.
PLANNING FOR THE EASTSHORE STATE PARK MUST PROVIDE AN INCLUSIONARY VISION FOR PUBLIC ACCESS, NOT AN EXCLUSIONARY INTEREST
The windsurfing community supports the vision that Albany Bulb be a location that promotes the values of solitude, nature walks, and wildlife promotion. However, our vision is inclusionary, not exclusionary. We believe that windsurfing, and parking to allow windsurfing, is compatible with those values as long as the parking area for windsurfing is subservient to the visual character of the recreational experience, and the provision of access for windsurfers does not conflict directly with the enjoyment of solitude, nature walks, and wildlife promotion. A small area for parking could readily be hidden within the over forty acres of the Albany Bulb. A parking area for 100 cars would occupy less than an acre, including landscaping. The parking area and trails could be located where the parking area would not be visible to users seeking a shoreline nature walk. Indeed, the most visually prominent feature of public access, a road, would be required for the facility to be managed by the East Bay Regional Park District. Thus, we believe that a small access area can readily be accommodated on the Albany Bulb without compromising the fundamental values of solitude, nature walks, or wildlife promotion. The converse is not true; denying any opportunity for parking effectively eliminates Albany Bulb as a windsurfing location. Such a result is clearly inconsistent with the constitutional standing of navigational access.
While I understand and appreciate the value of natural wilderness, and agree that such areas should remain road less, the wilderness in question at the Albany Bulb is the Bay itself. The Bulb is an artificial feature, characterized by concrete slabs and rubble everywhere, particularly along the shoreline. While the area has some habitat value, it cannot be described as a natural wilderness of the character and magnitude that warrants road less protection. Indeed, restoration of the area to a more natural habitat, and to a more natural shoreline, will take substantial intervention and construction activities. Cover or removal of rubble and exotic vegetation will take both construction equipment and substantial public investment. Under these circumstances, it cannot be said that allowing a small area for windsurfing access will compromise the values that the site presently represents.
NOT PROVIDING PUBLIC ACCESS AT SUITABLE AREAS IN THE EASTSHORE STATE PARK WILL LEAD TO LONGER RECREATIONAL TRIPS AND GREATER AIR QUALITY IMPACTS
Most windsurfers use computers or pagers to determine where the wind is blowing. Wind measurement devices are located on Angel and Treasure Islands, as well as most popular launch locations. If sensing devices indicate that there is wind in the center of the Bay (i.e. Angel and Treasure Islands), but not at Berkeley or Pt. Isabel, windsurfers will drive to Crissy Field, Treasure Island, or Coyote Point to find wind if it is not possible to launch at an East Bay location within the wind field. Provision of access at Albany Bulb will reduce these trips. Conversely, limiting access at Albany Bulb will lead to increased vehicular traffic, and this impact must be studied in the EIR.
THE EIR MUST INCLUDE ALTERNATIVES THAT PROVIDE HIGHER DENSITY RECREATIONAL DEVELOPMENT AT ALBANY BULB AND THE MEADOW
Nothing in the Inventory suggests that recreational development of greater intensity could not be accommodated on the Albany Bulb and the Meadow by locating development to avoid existing habitat. To adequately address the fundamental questions of access to the Bay, which we repeat has constitutional standing, the EIR must include at least one higher intensity scenario that provides the recreational facilities for the meadow and the Bulb suggested in the public outreach process.
Very truly yours,