The Berkeley Creeks Task Force has now met five times. According to Planning Director Dan Marks, the task force will meet, at most, only 20 more times. If Berkeley's citizens want input on the final creeks legislation they would be wise to address the task force at the March 21 meeting, held at the North Berkeley Senior Center. This is currently the only remaining scheduled meeting specifically designated to take citizen input.
At the Feb. 28 meeting of the Berkeley Creeks Task Force, Chairperson Helen Burke asked the appointed members of the task force to consider whether the City of Berkeley needed a “Creeks Ordinance.” While numerous members of the task force were eager to articulate the reasons they believed Berkeley should have such an ordinance, not one member of the 15-member panel—a panel supposedly representative of all of the citizens of Berkeley—was willing or able to articulate a clear opposition to regulating creeks on a municipal basis. This certainly doesn’t represent the public sentiment stated during the November Berkeley City Council meeting held at Longfellow Middle School, where more than 600 angry Berkeley citizens attended. In the interest of providing a divergent perspective from the unanimous assent of the Berkeley Creeks Task Force, please allow me to offer the following answer to “Does Berkeley Need A Creek Ordinance?”
Myth 1: If Berkeley doesn’t have a Creeks Ordinance bad things will happen
Despite the erroneous statements by Creeks Ordinance advocates on the task force, every creek in Berkeley is currently protected by numerous laws, regulations and restrictions. Regional authorities, including the San Francisco Bay Regional Water Quality Control Board, and the California State Department of Fish and Game, and the U.S. Army Corps of Engineers, currently regulate all activity on all of Berkeley’s creeks. Any work in a creek bed or on a creek bank in Berkeley requires a permit from the Association of Bay Area Governments (ABAG), called a Joint Aquatic Resource Permit Application (JARPA). This permit must be submitted to and requires the approval of the San Francisco Bay Regional Water Quality Control Board, and the California State Department of Fish and Game, and the U.S. Army Corps of Engineers.
I know this because I was required to give each of those agencies an application in order to repair a few feet of the ancient concrete riprap covered creek bank beside my son’s house, work that was required because a tree fell over and tore it out. I’ve had to fill out an ABAG JARPA for each of those agencies. Each of those agencies must approve, inspect, and sign off on any work done along side of, or in any Berkeley creek.
These agencies aren’t just regulating new construction or development. I’ve been told by the Berkeley Building Department we’ll have to go through the whole regional permitting process again if we decide to seismically upgrade the foundation; if we want to repair any of the exterior or interior structure of our 60-year-old garage; if we want to replace the supports for our deck; if we want to expand our kitchen, repair our bathroom or add a bedroom upstairs. It doesn’t matter that the building has been there since 1942. It doesn’t matter that we’re not expanding the footprint of the building. It doesn’t matter that what we might want to do would have no additional impact on the creek.
These are not the only regional authorities enforcing riparian friendly practices on Berkeley’s creeks, at the Feb. 28 task force meeting, Lorin Jensen, City of Berkeley public works supervising engineer, stated that the State of California has regulations coming into force this year and additional more restrictive regulations coming into force over the next few years that will restrict any work or development done creekside.
Least there be a question regarding the scope of regulations safeguarding Berkeley’s creeks, the regional regulations currently in existence oversee all construction on or near creeks, regulate water quality in the creeks, regulate the aquatic viability of our creeks, and make illegal the dumping of toxics or polluting materials (including building materials or any other foreign objects) into our creeks. These regulations require property owners to restrain earth and other natural debris that may fall into the creeks as a result of acts of nature.
The issue isn’t the lack of creek regulations, it’s the lack of enforcement of the existing regulations. Despite statements made by task force members and city staff regarding “troubling” construction on Berkeley’s creeks, including Planning Director Dan Marks’ statement that “someone” recently attempted to “just fill in a creek with a bulldozer,” all construction impinging on or degrading creeks is already highly regulated and uniformly illegal. Even the historic bugaboo sited in an earlier task force meeting regarding a woman on Strawberry Creek who wanted to enclose the creek on her property is irrelevant in today’s highly regulated creekside environment.
Myth 2: A Berkeley Creeks Ordinance will solve Berkeley’s creeks problems
Despite Berkeley’s idealistic (or imperialistic) desires, a Berkeley Creeks Ordinance will have little or no effect on creeks within UC Berkeley, or creeks bounded by Albany, Emeryville or Oakland, or creeks within or bounded by East Bay Municipal Utilities District lands, East Bay Parks District lands or within or bounded by unincorporated Alameda county. In each of these cases, only a super regional authority would have the necessary power to effect change. Typically creeks are not contained within a single municipality so a Berkeley Creeks Ordinance will have no relevance or import outside its boundaries.
Additionally Berkeley is not in any shape financially to take responsibility for the substantial creek footage that is within the city’s possession or right of way. The city acknowledges that even the culverts it is responsible for are no longer safe, yet there is neither money, nor the political will to address this critical problem.
City staff have acknowledged in these task force meetings that despite the fact that the citizens of Berkeley authorized a tax measure specifically for capital improvements to the city’s storm drain sewer system, a tax that produces $1,9 million in revenues per year, not one thin dime has been spent in the last two years on capital improvements to that system, and only a minor portion of the revenues garnered over the life of the tax have been spent on the very thing that tax was authorized for! It is clear that the City of Berkeley is not responsible enough to manage its own finances let alone what are reasonably regional issues.
Lastly, when the City of Berkeley was recently asked to address a creek related construction situation at 2323 Glen Ave. in North Berkeley, according to statements made by city staff at the most recent task force meetings, the city’s response was to modify the existing law to exempt a single property owner from the constraints of the 1989 Creeks Ordinance. Despite that municipal laws must be equitably enforced, both historic and recent examples show that the city does not have the will to create or enforce laws equitably when responding to Berkeley’s creek problems!
Myth 3: Berkeley has something unique to contribute to the body of creeks ordinances
What does the City of Berkeley have to offer to the body of existing regional, state and national watershed regulation? What extra expert authority does Berkeley have when it comes to California’s and the Bay Area’s shared water resources? Berkeley can’t even accurately identify where many of these creeks are located. Berkeley can’t unimpeachably prove that these creeks are actually running in their historic locations. Berkeley can’t daylight its own creeks, nor can it maintain its culverted creeks. Berkeley can’t even manage the money it does get for infrastructure maintenance! Clearly creek regulations are not well suited to city specific solutions, especially this city. There is little of real value that the little City of Berkeley can add to these issues, but there is much harm that can come to Berkeley’s citizens from ill-advised, pie-in-the-sky ordinances. This task force would do the least harm and the most good by sending a recommendation back to
Council that the entire Creeks Ordinance be rescinded, allowing the regional authorities to do the job they’re best suited for. This is exactly what a similarly charged creeks task force did in Santa Barbara. But that’s not going to happen because a fair and equitable Creeks Ordinance is not what the majority of task force members are looking for.
Myth 4: Berkeley wishes to restore its creeks
The elephant in the living room here is the word “restore.” As Public Works Engineer Lorin Jensen stated at the March 7 meeting, in an ideal world the city would not allow any development within 100 feet of the center of a creek. Even simple restoration is tremendously expensive and Berkeley simply doesn’t have the money. Nor is the City of Berkeley likely to have sufficient money to restore its creeks anytime in the foreseeable future. But more importantly, there is no agreement on what the word “restore” means. Some members of the task force use the word “restore” when they’re really talking about “daylighting.” Daylighting Berkeley’s creeks will be many, many times more expensive and intrusive in Berkeley’s urban core than simple creek restoration. Daylighting will mean the necessary removal of public and private property structures that too closely adjoin Berkeley’s numerous creeks. Daylighting Berkeley’s numerous creeks will turn Berkeley into a very different community, resembling more affluent Woodside than livable Oakland. Daylighting Berkeley’s creeks will create an idyllic, exclusive park-like community for those fortunate enough to not live too close to a creek and those wealthy enough to be able to buy whatever suits their fancy. It’s a pretty park fantasy but it’s not Berkeley. This all became painfully transparent at the March 7 task force meeting When member Diane Crowley (Wozniak) asked the task force to request that a portion of the city’s current $3.5 million transfer tax windfall be used to repair the city’s failing culverts. There was no love for the proposal and immediately task force member Joshua Brandt suggested that setting money aside for daylighting creeks would be as useful. Numerous task force members began nodding their heads and smiling. Only a fool would not have noticed this response.
Fred Dodsworth lives near Schoolhouse Creek.