April 28, 2019

Corice ("Cori") Farrar
Chief, Orange & Riverside Counties Section
South Coast Branch
Regulatory Division
U.S. Army Corps of Engineers, Los Angeles District
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http://www.spl.usace.army.mil/Missions/Regulatory.aspx 

 

sent via e-mail April 28, 2019

 

Ms. Farrar-

Thank you for your prompt response to my April 2, 2019 letter re: Alleged Violation of Section 404 of the Clean Water Act/ Request for NEPA Review for SR-241 Construction without valid CEQA/NEPA (UNCLASSIFIED)

I wanted to expand on a few points and then ask you for further comment.

Comment 1:

"We have not received an application for, or authorized impacts to, waters of the U.S. associated with the construction of SR-241/toll road south of Oso Parkway."

Response to Comment 1:

That is because the TCA has been denied any permits to construct any drainage for the SR 241 Toll Road south of Oso Parkway without opening a new environmental review (NEPA with CalTRANS as the lead agency). Currently, all construction south of Oso is being done under CEQA, with the County of Orange as the lead agency based on the construction of Los Patrones Parkway as a FREE arterial road on Private Property owned by the Rancho Mission Viejo Company.

Despite multiple attempts, the TCA was denied a waste water discharge permit to build any drainage project for the Tesoro Extension of SR 241 south of the Oso Parkway. The TCA currently, has no legal authority to build any projects south of Oso Parkway at this time. 

There is no valid NEPA or CEQA for the construction that is currently being completed south of the Oso Parkway Bridge. 

Not to be stopped, the TCA proceeded to enter into "Cooperative Agreements" with the County of Orange and The Rancho Mission Viejo Company to use a 401 Waste Water Discharge Permit "F" Street from "A" Street to Oso Parkway Project Certification Number R9-2014-0144 that was granted to Rancho Mission Viejo for the construction of Los Patrones Parkway as a FREE ARTERIAL ROAD. The Permit granted Rancho Mission Viejo gave Rancho Mission Viejo (a private entity) permission to build three basins between Oso Parkway and Chiquita Canyon Road. Instead, what has actually been built (without any NEW environmental review) is the drainage for the Tesoro Extension of SR 241 that was denied wastewater discharge permits three separate times by several different entities.

What has actually been constructed from Oso Parkway to Chiquita Canyon Road is 9 basins (not 3). They have effectively altered all of the water flow north of Oso Parkway to drain from east to west under Los Patrones Parkway into Chiquita Canada Channel. This flows underneath Tesoro High School (a sensitive receptor) and then into the San Juan River and out to the Pacific Ocean at Dana Point Harbor.  

 Timeline and Documentation

June 13, 2006 TCA submitted an application for Clean Water Act section 401 Water Quality Certification for the Tesoro Extension of SR-241 from Oso Parkway to the I-5 at the San Diego/Orange County line.
February 23, 2006 TCA submitted a final subsequent EIR and Notice of Determination which concluded that the impacts to wildlife, fisheries and vegetation could not be mitigated to less than significant levels.

DENIED

February 6, 2008 

On February 6, 2008, the San Diego Regional Water Board denied TCA's permit.

DENIED

February 6, 2008 

The California Coastal Commission (Coastal Commission) also rejected the toll road extension due to its recreational impacts to San Onofre State Park and San Mateo Creek, water quality effects, wetland impacts, and impacts to other environmental resources.
 DENIED

February 6, 2008 

TCA appealed the Coastal Commission's objection to the United States Secretary of Commerce. After holding its own public hearing, the Secretary of Commerce rejected the appeal, finding, among other things, that less environmentally damaging alternatives were available to meet the project need.
February 9, 2009 TCA formally withdrew their application.
August 10, 2012  On August 10, 2012, TCA filed a a new application with the San Diego Water Board for an initial segment of the toll road. This would extend SR 241 from its existing southern terminus at Oso Parkway approximately 5.5 miles south to Cow Camp Road in the vicinity of Ortega Highway (SR 74) in Orange County 

DENIED

June 19, 2013

A majority of San Diego Water Board members voted to deny TCA's permit.

July 19, 2013  TCA submitted an appeal of the denial to the State Water Board. 

June 12, 2014 

STUCK- The Parties come up with a new plan to have Rancho Mission Viejo build the Toll Road for them using it's 401 Wastewater Discharge Permit for "F" Street aka Los Patrones a free arterial highway in the event their appeal is denied.

On June 12, 2014, the TCA approved an Option Agreement with Developer [Rancho Mission Viejo] for an alignment for TEx. [the Tesoro Extension of SR-241]  The TCA also authorized its Executive Director to confirm to the County of Orange (County) that it has authorized and is in support of the proposed Agreement for Grant of Fee Credits in accordance with the Major Thoroughfare and Bridge Fee Program.  On June 13, 2014, the County received a letter from the TCA Acting Chief Executive Officer confirming this position.

Agenda Staff Report

Attachment A - Agreement for Grant of Fee Credits

Exhibit A - Grant Deed to County of Orange

Exhibit B - Irrevocable Offer to Convey

June 24, 2014

Orange County Board of Supervisors approved Agenda Item #25

25. Approve agreement D14-034 with RMV Community Development LLC for Transportation Corridor Agency fee credits for the Major Thoroughfare and Bridge Fee Program; authorize Director or designee to carry out terms of agreement and execute related documents; approve grant deed, Irrevocable Offer to Convey Real Property and Memorandum of Fee Credit agreement from Rancho Mission Viejo, LLC for right of way purposes of "F" Street; authorize Director or designee to execute related documents and necessary amendments; and find that Environmental Impact Report 589 previously certified by the Board of Supervisors on November 8, 2004 satisfy the requirements of the California Environmental Quality Act - District 5

September 23, 2014  The State Water Board remanded the matter back to the San Diego Water Board with direction

DENIED

November 24, 2014

Rancho Mission Viejo files an incomplete application for a 401 waste Water Discharge Permit for "F" Street aka Los Patrones Parkway as a free arterial road.

DENIED

March 16, 2015

The permit was denied again. TCA has no permission to build south of Oso Parkway. 
April 9, 2015 Rancho Mission Viejo completes its application for a 401 waste Water Discharge Permit for "F" Street aka Los Patrones Parkway as a free arterial road. 

So the TCA - the County of Orange and Rancho Mission Viejo Pivot to the Ranch Permit for "F" Street aka Los Patrones a FREE ARTERIAL ROAD.

At the same time they initiated a new EIR for Affordable Housing that showed their true intent which was to build only one alignment from the terminus of SR-241 at Oso Parkway to Pico in three segments.

This EIR was signed by Rose Fistrovic on May 15, 2015

The Water Board Permit granted to Rancho Mission Viejo as a private entity building a FREE ARTERIAL ROAD was signed by the Water Board on June 4, 2015

June 4, 2015

The San Diego Water Board "administratively approves" Rancho Mission Viejo's permit for "F" Street aka Los Patrones Parkway as a free arterial road and expressly states:

"F" Street is not the Tesoro Extension of SR-241 that was denied waste water discharge requirements by the San Diego Water Board in 2013 (proceeding on Tentative Order R9-2013-0007) or a facility related to SR-241 and the Tesoro Extension is not covered by this Certification. "F" Street will be operated by the County of Orange as a free road." 

However, contained within the permit was permission to do the grading and Wastewater Discharge south of Oso Parkway between the on and off ramps of Los Patrones Parkway. So in essence- the TCA used Rancho Mission Viejo's permit for Los Patrones to do the same work that has been denied all along. TCA/CalTRANS should have been named on this Permit. 

The projects that were actually built under this permit were:

1. Oso Bridge Project

2. "F'" Street aka Los Patrones Parkway Project  Tesoro Extension of SR-241 with modifications

3. The Oso Bridge Gap Closure Project 

These 3 projects are really the Tesoro Extension of SR-241 with modifications.

Rancho Mission Viejo had an obligation to disclose all of the following Agreements to the Water Board because a decision on the Ranch Permit was still under review.

(1) Agreement for Grant of Fee Credits

(2) Grant Deed to County of Orange

(3) Irrevocable Offer to Convey

and  

The July 18, 2006, Affordable Housing Agreement was approved pursuant to the Development Agreement for the Ranch Plan 

Rancho Mission Viejo only disclosed Agreement for Grant Fee Credits and not the property offers.

Was the San Diego Regional Water Board complicit in this "arrangement"?

It appears that the San Diego Water Board administratively approved 401 Wastewater Discharge Permit R9-2014-0144 granted to Rancho Mission Viejo (a private entity) to build what is actually the Tesoro Extension of SR-241 with modifications, and did so behind closed doors in violation of the law and its own policies. As such, it appears individuals at the Water Board may have been part of the Collusion and Criminal Fraud to complete SR-241 from Oso Parkway to the I-5 at the San Diego/ Orange County line.

The Item was never placed on the Agenda. The Item was never placed on the Agenda as a consent Item. Item was never announced to the public.

The March 16, 2015 San Diego Regional Water Board meeting where the final denial was made had a large group of people that spoke in opposition to the TCA's appeal because the Item was listed as the "Tesoro Extension of SR-241 Toll Road" item.

The Rancho Mission Viejo permit was never on the San Diego Water Board meeting Agenda - not even on consent.

April 15, 2015 San Diego Water Board meeting had one consent item:

#6 Sycamore Land Fill

May 13, 2015 San Diego Water Board meeting there were no consent items.

On June 4, 2015 Rancho Mission Viejo's 401 Waste Water Discharge permit was granted. Administratively Approved behind closed doors with NO public input.

June 24, 2015 San Diego Water Board meeting there were 4 consent items:

# 6, 7, and 8 for Calmut Company

#9 for San Diego Ship Repair

The San Diego Regional Water Board failed to follow the law:

401 Wastewater Discharge Permit R9-2014-0144 contains the following language at page 24. 

Further documentation that shows the intent to continue to build the Tesoro Extension of SR -241 in segments to avoid CEQA and NEPA can be found in the Final Program EIR IP#15-157 SCH No. 2015051062 entitled Orange County Affordable Housing Implementation Plan- Ranch Plan dated November 2016.

at page 446

The parties admit that if the toll road option is built environmental studies result in the following potentially significant impacts.

Currently there is no environmental oversight of this project.

 
  

Comment 2

"That said, in 2012, we determined that no impacts to waters of the U.S. would occur as proposed for the construction of SR-241 Tesoro Toll Road Extension Project, an approximately 4.8-mile-long new four-lane toll road between Oso Parkway and Cow Camp Road.  This means that portion of the toll road could proceed without any permit from the Corps because it would be outside the Corps’ jurisdiction and authority under section 404 of the Clean Water Act."

Response to Comment 2: I would appreciate clarification on who has jurisdiction over Canada Chiquita Channel LO6; as well as Canada Gobernadora L07 and EL Horno Creek L05. 

The following is a map of South Orange County's Integrated Regional Watershed Management Program. This map shows which entity has ownership (jurisdiction) for each segment of the watershed. Ownership of the areas in gray are said to be "unknown". If ownership is unknown, are these segments of water being properly protected, maintained and monitored? This is very important because the gray area portions of the San Juan Creek Watershed are where the TCA is currently building the Tesoro Extension of SR-241. Are they doing so in violation of the Clean Water Act? 

Tesoro High School is built on top of Chiquita Canyon Channel, a rare Alkali Riparian Marsh that was actually under federal review for protection at the the time Chiquita Canyon High School aka Tesoro High School was being built (1996- 2001 when it opened).

Source: Integrated Regional Water Management PLAN for South Orange County updated 2018

L06 is named Canada Chiquita Channel. Portions of L06 sit on Parcel 125-096-82 which is owned the Capistrano Unified School District. All four parcels of land that Tesoro High School was built on have been placed into the right-of-way for the Tesoro Extension of the 241 Toll Road aka Los Patrones Parkway aka "F" Street by entities that did not own the land (which is a potential violation of the Subdivision Map Act CC 2001-01 which is currently under review after a formal complaint was filed). These entities had no right to encumber the school districts property. Unfortunately it appears that when the County approved construction of the Oso Bridge Gap Closure Project they did so without opening a new environmental review. The County of Orange has been "Administratively" approving shifts in the alignment of Los Patrones /aka a modified alignment of SR241. All of the drainage for the Oso Bridge, the Oso Bridge Gap Closure Project and the Modified alignment fo SR241 has been designed to drain all wastewater discharge into Canada Chiquita Channel and underneath Tesoro High School which was built on a known, very rare and unique Alkali Marsh (one of 8 identified within the State of California). 

The amount of water that has been designed to flow into Canada Chiquita Channel is substantial compared to what was permitted. 

You can view Video of Chiquita Canyon Channel at Tesoro High School.

Comment 3

"While we have issued permits to other permittees authorizing impacts to waters of the U.S. associated with the construction of  developments and infrastructure in that area, including “F" Street from "A" Street to Oso Parkway and the Cow Camp Road extension, these two projects were presented as infrastructure but not as toll road elements.  Accordingly, we completed our NEPA reviews pursuant to our relatively small jurisdiction and authority."

Response to Comment 3:

The TCA, the County of Orange and Rancho Mission Viejo have made material misrepresentations to the San Diego Water Board in obtaining the 401 Waste Water Discharge Permit "F" Street from "A" Street to Oso Parkway Project Certification Number R9-2014-0144 

They are intentionally building the Tesoro Extension of SR241 in segments for the specific purpose of avoiding any Federal Review. There are substantial facts to suggest that a criminal fraud investigation into their actions is in the Public's interest.

I would request that your agency come and visually inspect (bring a drone) the work that has been completed to date, and see if the work complies with Certification Number R9-2014-0144.

Comment 4:

"Many activities may proceed without Corps oversight or review if no impacts to waters of the U.S. are proposed.  When projects propose impacts to jurisdictional waters of the U.S., then a Corps permit would be required and we would assure NEPA review for our permit decisions."

 

Response to Comment 4

Given this "NEW" information, I am asking the Army Corps of Engineers to determine if a NEPA review is needed.

Comment 5:

"Lastly, I noted that you referenced the Freedom of Information Act (FOIA), but I did not discern a request for specific documents.  Should you wish to submit a FOIA request, it would be most helpful to describe the documents requested in sufficient detail to allow us to locate them with a reasonable amount of effort.  In making a request, please be as specific as possible with regard to names, titles, dates, places, events, subjects, recipients, type of document.  Upon receiving a FOIA request, we make a search and produce any responsive records we locate, expect those that are already publicly available through another agency or an online resource.  Should you wish to submit a FOIA request, please submit it to our District’s FOIA Office:..."

Response to Comment 5:

I sent the following FOIA request on February 16, 2019 to Yolanda D. This email address is being protected from spambots. You need JavaScript enabled to view it.. I was told to send it to the Carlsbad office not the LA Office. 

I have not received the documentation I requested to date.

 

Conclusion:

The TCA is using a 401 Waste Water Discharge permit granted to Rancho Mission Viejo to build a FREE Arterial Road, to complete the waste water discharge for the Tesoro Extension of SR 241 from Oso Parkway south to the I-5 at the County line. The TCA, The County of Orange and Rancho Mission Viejo are building the road in segments for the express purpose of avoiding any Federal environmental review. The drainage is almost complete down to the Ortega Highway (5.5 miles south of Oso Parkway). The TCA is already planning the next segment of road, Ortega Highway to Pico Avenue in San Clemente. The Tesoro Extension of SR 241 is within a few miles of San Onofre State Beach. This has all be done without any oversight or the required Federal environmental review. 

As such, I am requesting a Federal Review to ensure the Public that they are in compliance with the permit they are working under.

My concern is heightened for the following reasons:

This year, the heavy rain caused all nine basins to overflow. So much water ran into San Juan Creek that Capo Beach was destroyed. See: OC Register Capo Beach crumbles with walkway destroyed, palms uprooted, old buried cars exposed from surf battering.

Was this also caused by the extraordinary amount of water flowing from San Juan Creek into Dana Harbor at that location?

My concern is that without proper environmental review and construction oversight, as they proceed to the I-5 at San Onofre State Beach, what will happen to the buried canisters of nuclear waste at San Onofre Nuclear Power plant should they also alter the water flow into the San Mateo Water Shed without proper oversight?

I would feel better if an entity other than the County of Orange took a look at what is going on here. 

If you could help me get that FOIA request filled that would be great. I think one of the problems we have in south Orange County with rogue agencies is that this project is in Orange County (LA jurisdiction for the Army Corp of Engineers) but because parts of the project are also in San Diego County, San Diego has been given Jurisdiction over this project which is why my FOIA request was referred to Carlsbad. 

Orange County is so large now, there needs to be Federal Offices in Orange County, not just San Diego and Los Angeles.

As a concerned citizen who lives right at the San Diego Orange County line; just a walk away from the San Onofre nuclear power plant, I would like assurances that altering stream beds without environmental oversight, will not result in similar destruction of our beaches as have happened in Dana Point. Unlike Capo Beach, with metal cars that were uncovered, we have nuclear waste that is buried at the beach in canisters that may be faulty. I would feel safer if Federal Agencies would review what is going on here and ensure the public that buried nuclear wast canisters will not be destroyed by high surf and water flow from changes to the San Mateo Water Shed. That could be disastrous for all of California. 

Source: Orange County Register- Spent nuclear waste burial halted at San Onofre until NRC can probe 'near miss' with canister

Thank you so much for your time and prompt response. I look forward to hearing from you. 

Dawn Urbanek,

San Clemente Resident, Taxpayer and Student Advocate Capistrano Unified School District