Public Comment

One afternoon this past March, after several consecutive days of rain, the clouds cleared and I walked the length of upper Cerritos Creek in north Berkeley. This humble creek—and likely many others—fails to conform to the impassioned rhetoric and vision of the creek ordinance hawks. Such creeks should not be governed by any of the “one-size-fits-all” creek ordinance amendments proposed. Allow me to introduce to you upper Cerritos Creek as it appeared that March afternoon so you can understand why. 

Cerritos Creek begins 220 feet below Spruce Street, downhill from the slide and sandbox at Dorothy M. Bolte Park. The creek is wholly within Berkeley for only 2,300 feet; this segment is upper Cerritos Creek. Two-thirds of this creek is open. The remainder is underground in 18-26-inch corrugated, fiberglass or concrete pipes.  

For the first 400 feet of upper Cerritos Creek the ground is damp but there is no moving water. In the next 300 feet, before it enters an 18-inch corrugated pipe just above Florida Avenue, the creek width generally varies from one to two feet and contains less than two inches of trickling water. A storm drain from Northampton Avenue discharges into this section, but there is no significant flow now. This 300-foot segment runs across backyards, under fences and a wooden sundeck and within 30 feet of residences, including within five feet of one home. Natural vegetation covers or grows along the banks of almost all of the first 700 feet.  

Some creek water flows under the culvert inlet above Florida and into the aggregate base beneath the street, repeatedly causing premature failure of the asphalt pavement. Beginning 175 feet further downstream, the corrugated pipe under the Florida-Boynton intersection is loaded with gravel and cannot contain creek water because its underside is corroded. The underground culvert continues for 450 feet, beneath the corner house and in backyards within 30 feet of the next six homes along Boynton. It then discharges into the open creek bed. For the next 600 feet, until it enters the 26-inch culvert just above Arlington, the open creek is one to three feet wide and two to three inches deep as it passes less than 30 feet from all but one of the next 10 residences. Storm drainage from five streets is piped into this segment, but little flow is occurring this afternoon. The creek flow at the Arlington culvert is 1.5-2 cu.ft./min. West of Arlington the water cascades from the culvert to the open channel more than 10 feet below. 

Nearly all lots on Boynton through which the creek or culverts pass are relatively small, typically 50 feet by 100 feet. Few if any structural improvements along upper Cerritos Creek equal or exceed the 40 percent development area allowed.  

Neighbors living along upper Cerritos Creek are mystified that any of the proposed creek ordinance amendments could be thought reasonably to apply to such creeks. All proposals, except that of Neighbors on Urban Creeks (NUC), would impose straightjacket regulatory approaches to discrete, non-uniform situations. Although NUC presents a more rational regulatory approach than others, it is overbroad as applied to upper Cerritos Creek. 

Regulatory proponents, from inside and outside Berkeley, have lectured us with rhetoric, romantic images and, at times, a textbook knowledge of streams generally. They use Strawberry and Codornices creeks in their examples but give no evidence they know anything about upper Cerritos Creek or how ill-fitting their cookie-cutter experiment is for this modest creek and its neighborhood. Their rhetoric and images do not meet the reality of this creek.  

By stepping back, it becomes clear Berkeleyans have lost sight of or never knew the problem(s) this regulatory effort is intended to solve. Consequently, we have numerous, complex and overarching bureaucratic solutions madly circulating in search of problems yet to be defined and agreed upon.  

• No one would argue construction activities along creeks should be allowed to degrade the quality of the creek bed or water. In fact, state and local environmental regulations already prohibit such degradation.  

• No one would argue construction over or near a creek or culvert should not be engineered carefully by licensed professionals. In fact, adequate building, engineering and safety standards already apply.  

• Fish will never swim upper Cerritos Creek. They would never find adequate water depth or food and would be washed away by major storms.  

• The general public will never walk along open segments of upper Cerritos Creek. Except for Bolte Park, the creek is wholly within private property. Deer occasionally wander the creek bed, but they are never confused for burglars.  

• Some advocate treatment of storm sewer discharges to creeks, but none of the ordinance amendments proposes treatment.  

• Expensive disputes over discretionary review and lawsuits are minimized if the creek ordinance covers only major creeks included by broad consensus.  

• The continuing dispute over who is liable for culvert failures—the elephant in the room no one can talk about—does not justify cramming all creeks into a uniform ordinance designed for Strawberry and Codornices creeks.  

There is no reasonable basis to include upper Cerritos Creek and its adjacent properties in Berkeley’s creek ordinance. Further, what is true for unexamined upper Cerritos Creek is undoubtedly true for other creek segments.  

After all the community effort spent on amending the creek ordinance, the City Council will do something. For some in our society, it is an inconvenient fact of good governance that for laws to be good they should be tailored to fit the circumstances they are intended to address or correct. So, what reasonably can be done to get the square pegs in square holes and the round pegs in round holes? The council should amend the ordinance following the NUC principles but limited to major creek segments within public lands and along private lands where there is broad consensus. Thereafter, other creeks can be considered for possible inclusion. The Planning Commission should prepare a list of such creeks, grouped in order of priority and importance.  

One size does not fit all. Ask any 10-year old kid with an older sibling. 

Patrick Finley is a Berkeley resident.