>> with all due respect, yes. >> okay. and if there is just a question for the city attorney, if there is in terms of, you know, legally -- if there is a difference of opinion as to whether or not there is an impact, you know, where they're saying that pumping op raytions are being increased and the department is not saying that that's not true, ~ if there is a difference of opinion legally, where does the benefit of the doubt fall? >> deputy city attorney marla byrnes through the president. i think what you may be getting at, and please clarify if i'm not answering the question that you're asking, is what is the project that's being reviewed under environmental review here. and c-e-q-a requires that we look at what the wrote et is as proposed in comparison to what the baseline conditions are. ~ so, this project doesn't propose to change pumping protocols, then the city is not required as lead agency to look at potential changes to pumping protocols. pumping protocols are taken as a given as the underlying condition of the project and we compare whatever changes the project proposes. so, i think one of the questions here is, you know, what is the project the rec/park is proposing, that which is reviewed under environmental review. >> so, so, if the project is defined to include pumping operations then it's a different project description? >> exactly. and it's a different project description -- rec/park as a policy matter can propose changes to the project and then environmental planning would be required to look at those changes under the environmental review. but here, it's not really characterized correctly as a difference of opinion. rec/park can propose as the agency with jurisdiction whatever project if you [speaker not understood] and then planning [speaker not understood] conduct environmental review of the project as proposed. >> so, i guess the question for rec and park, is one of the project's key objectives to operate the pumphouse more expansively or extensively? >> no, it is not. >> okay. and if there is evidence that suggest that, in fact, it is one of the objectives and we agree with that evident, what is the significance of that? >> deputy city attorney marly byrne. because you have a negative declaration in front of you, the question for you is whether or not there is substantial evidence in the record before this body to support a fair argument that the project could result in significant environmental impacts. however, the question is what environmental impacts would the project as proposed result in. so, again, you're looking at substantial evidence not to support the project description which is what is proposed by the recreation and park commission, but rather to support whether there is a fair argument can be made supported by such substantial evident there will be an impact. >> so, if there is a fair argument to be made, even though it's a fair argument on the other side, what does that mean when you have two fair arguments? what's the implication of that? >> the question is whether you have substantial evidence. so, substantial evidence, c-e-q-a defines it as fact, expert opinion based on fact. other assertions based on fact, it all comes back to whether you have factual support in the record. >> so, let me ask it this way. if one believes that the appellants have submitted substantial evidence as to the inaccuracy of the project description, does that mean that we have to rule in their favor even if the department disagrees with that? >> it does not because it's not -- they have to show substantial evidence to support an argument that the project would have an environmental impact. so, just because there may be disagreement about exactly what the project is proposing or what effects the wrote et may have, if that is not substantial evidence that shows an environmental impact, an adverse environmental impact may result, then that's really what the board needs to be considering today. >> okay. the question where i'm confused, how do you know that there's no environmental impact if you actually haven't done the environmental review, right? i mean, one of the points that they're making that planning said was that environmental review wouldn't change the outcome. how do you know that if you haven't actually analyzed -- >> i'll defer to my colleagues in the planning department to address that question. >> with regard to this project, sarah jones, environmental review officer, we conducted this project, we have completed environmental review. we performed an initial study of specified by c-e-q-a of the project as proposed. ~ a specified other than the contention that the project is different, then the wrote et sponsor represented it to us. we have not seen substantial evidence supporting that contention. we are obligated to conduct environmental review of the proposal that they submitted to us, which did not involve any changes to the pumping itself or the amount of water being pumped out of the wetland complex. so, we are in a position where we did perform environmental review. we did an initial study. the initial study determined that with the mitigations there would be no remaining significant impact on the environment and therefore an e-i-r was not warranted. an e-i-r is one mechanism through c-e-q-a to perform environmental review. it is required when there are significant impacts that cannot be mitigated to a less than significant level. that environmental review was completed for the initial study. >> thank you. i do think there is a certain circular nature to the arguments or to the position that the department has and i'm still not clear on sort of what that means in terms of whether or not the appellant has met their threshold yet. >> okay. before i go to supervisor mar and kim, i know rec and park was also going to make a presentation. so, let me just ask colleagues, supervisor mar, do you want to ask your questions of planning or do you want to wait for rec and park's presentation? >> there's one that's relevant to this question of is there substantial evidence. of their argument . wild equity is saying one expert, greg hammond, the hydrologist that worked with the recreation and park department and analyzed the hydrology, according to wild equity, they're saying that he explained that the pumping rate will harm the threatened california red legged frog and the laguna solano wet land complex in two wii ways. one, it will cause harm to the california frog by draining more of the frog's breeding habitat, ~ the cover habitat being impacted. and impacting the reproduction of the frog. and then this expert has said, number two, increasing the pumping rate will cause the complex's water level to remain shallow for a longer period of time. and because the ave station grows rapidly in shallow water, it cannot be sustained unless the wetland is dredged regularly. that is a cumulative impact they're mentioning. it releases harmful sediment into the water column and regular releases of these compounds can destruct the wetland's ecology. so, i have questions about the sulfur and dredging and scraping and its creation of that acidic water that would impact them. is that not substantial evidence that gives some fair argument that environmental impact report would be required? >> what they're saying is not true, but it is coming from somebody that knows the area and he is an expert that has worked with the rec and park department. and i'm trying to do my best to know that we have a narrow issue we're looking at, this small project. but it sure seems to me there are a number of significant impacts and there are some legitimate evidence that's come forward. and i think the appellants are raising really significant questions to me. i still don't understand how when you eliminate the cover or whatever you call it, the cover habitat, how that's not going to harm the endangered species we're talking about. >> [speaker not understood]. i'll address the points you raise. you raised a number of points, so, i'll try to address them in turn. the points that you raise around the question of the pumping goes back to this issue that our rec and park is not proposing any changes to the pumping or the amount of water being pumped as part of this project. so, the impacts that are raised as possibilities related to that are not impacts of this project. there's no aspect of the project description that excludes that activity. the dredging issue and the acid sulfates, that is the issue that is addressed through mitigation measure bio 2b and protective measures are put into place to make sure that there are not significant impacts associated with any pollutants being released into the water column. as a result of dredging activity and ongoing maintenance dredging. in terms of the question of the cover vegetation and the habitat for the red legged frog, i'm going to ask lisa bean from rec and park to address that point. >> supervisors, lisa waynn recreation and park department ~. in the mitigated negative declaration, this issue of temporary impact to the removal of that emerging vegetation was evaluated. and it is a short-term impact in order for us to get to the point of having very good breeding habitat back in horse stable pond and the connecting channel. and i will show you some photos in my presentation that kind of show what is good habitat and what is not. and those big cat tails are not good habitat for the frog. we do need to go in there and make better breeding ground for the habitat species itself. >> elimination of the cover habitat might harm some of the eggs. you're saying the creation of a new pond elsewhere will cause a migration to that area and it's healthier for them to be in the other area than the current where you're going to eliminate the cover habitat? >> the cover habitat would really only serve the frog and the snake in their adult phases. so, the work would not be done during the period of time when the eggs would be present. after that work is done, there would be open water habitat which would be very, very good suitable habitat for the breeding of the frog. the perennial pond is one of the many measures that are required by the federal fish and wildlife service in the biological opinion that they put forth when they evaluated both this project and the ongoing operation and maintenance of the golf course. >> and from mr. zushi's comments about the fish and wildlife service, what is it, mitigation bio 2b, if the federal government isn't going to be the quote-unquote partner that it was stated earlier, then how is that mitigation going to be done by the department? >> our recreation and park commission adopted this plan and we are fully capable and ready to implement those mitigation measures. >> so, the u.s. federal or the federal -- what is it, fish and wildlife service doesn't have the staffing to do this serious mitigation, but we have the staffing and the rec and park department to do that? >> well, yes. the fish and wildlife service would not be doing the mitigation. and i believe that their response really said was that at this time they had not allocated resources to the evaluation of the plans and other elements of the mitigation measure. that does not mean that down the road they will not have -- they will deny commenting on our plan, but we will prepare with a consultant who is an expert in this field, we will prepare a plan that meets the requirements of the mitigation measures as well as the rest of the measures that are spelled out and we would provide those to not only the federal fish and wildlife service, but to the california fish and wildlife department of fish and wildlife and other stakeholders. now, is it necessary for them to provide comment back in order for us to implement that mitigation measure? no. >> and president chiu, just since i'm getting my questions out, the number of the residents raised the issue, i don't know if there is substantial evidence to the claim, but they're saying that the construction of this project and other impacts would lead to the berm being worn down and having impacts on the beach that's protected -- and the seawall area as well. i'm just wondering if you could respond to the residents from pacifica that have testified, too. >> absolutely. we're very well aware of the residents of pacifica are very concerned about their beach and we share their concern about the long-term preservation of their beach. but this project has absolutely no relationship to the seawall or the beach. >> thank you, supervisor mar. supervisor kim. >> thank you. i'll try to reserve my questions for park and rec until after the presentation. but this is specifically to planning. if you could just go over again what the factors were that led to the determination that the original pumphouse that was implemented didn't require environmental review and what factors led to the determination that a mitigated negative declaration was required for this project. just to clarify i think for the sake of the public the factors that you considered in making those decisions. >> supervisor kim, to my knowledge, we -- there was no project submitted to us in 2009 for changes to the pumping. if there is not a discretionary action being taken, that is not a project that we would review under c-e-q-a and it would never come to the planning department. so, it was not a determination that we made at that time. >> okay. so, you had stated earlier that there was no environmental review required for the project, but actually in fact, no project was submitted to planning for consideration whether environmental review was needed? i was just trying to understand. >> deputy city attorney [speaker not understood]. if i may, c-e-q-a is only triggered when you have two components. one, this has to be discretionary approval action on behalf of a government agency. and two, there has to be the possibility of having some kind of change in the environment. without both of those things occurring, it's not even considered a project under c-e-q-a. so here, you need both factors. here there was no discretionary review required to do the ongoing maintenance activity where you're replacing a pond in kind with another pond. it doesn't -- c-e-q-a is just not triggered for that kind of activity. so, it's not that planning chose not to do environmental review or that rec/park chose not to submit it. it's the legal requirements of c-e-q-a were not triggered. >> okay. this is really helpful. so, back in 2008 it was a replacement of the pond? the pump park station. so, when was the pumphouse station first implemented? i apologize i don't know all of this history of sharp park ~. >> me either exactly, but that pump has been there for a long time. i would guess the original pumps were from the '60s or '70s. >> is that pre-implementation of c-e-q-a? >> deputy city attorney [speaker not understood]. i believe c-e-q-a was enacted in 1964 and, of course -- no? sorry, my apologies, 1973. so, you shouldn't be asking me. 1973. so, he yes, it could have been potentially been done before c-e-q-a. >> it could be great if we could get that answer that, one when the pumphouse station was implemented pre-1973 or post. i would be interested to see if there was environmental review or the original pumphouse station. just because i think a number of the concerns that we heard from members of the public would of course be the impact of the pumping. so, if you understand what the review was at the time. i understand that there is no discretionary approval if you're just switching out the pumphouse from old to new -- >> there was never a review of the original. without having the specific dates of the pumphouse, i can say that one aspect when this project -- a question right now was submitted to us [speaker not understood] the review was possible impacts to the pumphouse as a historical resource. so, that would be an indication that the pumphouse has been there, in fact, for at least 50 years. >> it would be great to clarify that. actually, i'll reserve the rest of my questions for rec and park after that presentation. >> thank you, colleagues. unless there are any other questions to the planning department, why don't we proceed to a presentation from the rec and park department. >> okay, good afternoon, supervisors. lisa wane, i serve as the open space manager of the san francisco recreation and park department. i'm here today to speak on behalf of the project sponsor recreation and park department. i am -- my background is in conservation biology and wetland ecology and i have been overseeing land management and natural resource management for the recreation and park department for over 15 years and much of that work has been done at sharp park. i'm going to explain a little bit about the project and the background and the purpose in need. sharp park say 400 acre property located in pacifica. a third of paraproperty is occupied by golf course. the remaining of that property is designated as significant natural resource areas. the area we'll talk about is on the western side of the property, the dark green brown area which is the laguna solano wetland complex is what was referred to earlier. this is the home and habitat to the two federally and state protected species. it's important to note that all the area that you see on the aerial there is the watershed to la begin a solano and horse stable pond ~. so, the water that hits the residential area is highway 1 and all the watershed above the golf course all flow down to the southeast corner of the property to the laguna solano pumphouse where waters and pump through a pipe to the pacific ocean. as we said, there are two pipes -- two pumps that exist in that pumphouse that operate at set speeds. so, they're either on and working and pumping at a set rate or they're off and not pumping. so, the rate at which the water is removed from the system is dependent on the pumping of those pumps themselves. how much water is removed from the system is primarily determined by how much water comes through the watershed on a rainy year there is a lot of water that move through the watershed. on a year like this those pumps offer very little, and very little water removed from the property. there are two animal species. the first one is pictured here, the california red legged frog. i mostly want to draw your attention to the picture in the lower right-hand corner. that is the red legged frog egg mass. that's about a thousand eggs and a gelatinous mass the size of a grapefruit. that habitat there is largely open water as you can see so the sunlight can penetrate down to the eggs themselves. very little vegetation surrounding it. enough vegetation to attach the egg masses to, but not enough to shade it and crowd it. the san francisco garter snake is the other species of concern down there, also protected by the california endangered species act and federal endangered species act. it is illegal to harm these species in any way without a [speaker not understood] permit. it was admitted earlier the favorite food source of this endangered animal is the california red legged frog. so, to put this project in context, i'd like to give a little background. the property was transferred to the san francisco park and recreation department in 1917, and a requirement of that deed transfer is that the property operate for recreational purposes. the golf course was constructed in the 1930s and throughout most of the 20th century the property was managed. that is to say, the channels were excavated, the sediment was removed, the vegetation was removed, and the pumps operated once they were installed. in 2005 the san francisco recreation and park department received a letter from the u.s. fish and wildlife service indicating that we were in violation of the federal endangered species act because of the operation of pumps stranded california red legged frog land masses. that's to say the removal of water from property was exposing embryonic frog eggs to defecation and threatening their survival. in response to that, we developed what's called a compliance plan which was eventually presented and approved by the recreation and park commission that had a number of measures to mitigate, if you will, or reduce the impact of our operations of our golf course on the property. and one of those, one of those measures was the pumping protocols which we still -- we still follow today. ands as i explained earlier, the basic pumping protocols are a biologist registered with the federal fish and wildlife service like myself goes and surveys the property for any egg masses throughout the rainy season from around november through april. and if we find any red legged frog masses at the edge of the water margin where they might be vulnerable to defecation, that is if the water levels go down, they could be exposed to air ~, we modify the pumps such that the water level comes up to protect those egg masses he. and we're serving on average once or twice a week ~ at sharp park, evaluating the water levels relative to the egg masses. these protocols have been in place since around 2009, maybe a little bit earlier. the project does not change its protocols in any way. and this year we have had -- we observed no stranded egg masses as i mentioned. so, from my perspective as a conservation biologist, these protocols are working. we have gone from a situation where we had many stranded egg masses to a situation where we have had none observed this year. the biological opinion that is really the background and the template on which the mitigated negative declaration is prepared and evaluated has a number of conservation measures and terms and conditions. this is a short list of those measures and there are well over 40 of them in the biological opinion. so, you can see we have been working to implement a number of these measures to meet our requirements and our deadlines with the federal fish and wildlife service. we still have some of them to go and i'll call your attention to the very bottom of the list. the perennial pond, which is one of the measures that are evaluated in the mitigated negative declaration and that we need approval for in order to move forward to meet our federal requirement. so, the project and the measures that are included in the biological opinion have been evaluated and are required by the federal fish and wildlife service and we are anxious to meet our federal requirements. okay. so, about the project, the project itself is pretty limited in scope as we mentioned earlier, and addresses worker safety, infrastructure pro he tex by keeping sediment out of the pump system. ~ protection and importantly also provides some species conservation in the form of creating a constructed perennial pond, removing a cart path from a wetland and by doing the sediment and vegetation removal which would restore the breeding habitat for red legged frog. so, first to worker safety, it was a very unsafe access for workers trying to manage the debris he and the trash that ends up at the beginning of the pumphouse so the construction of the access walkway and the steps will enable worker to successfully [speaker not understood] from the trash rack leading to the pumps. as i mention, the only way to get water off of the property is through the pumphouse. if sediment and plant material allowed to buildup at the entranced to the fume house ~ pumphouse shown here, vegetation and sediment could be drawn into the system and damage the pumping strut. infrastructure. so it's necessary to keep the area around the pumphouse clear of vegetation and sediment to protect the structure. finally species conservation, this is a picture from 2005. the dark area is open water. so, ten years ago. little bit more reduced in 2010 and much more reduced in 2013. and this, as i mentioned, the red legged frog really relies on these open water habitats and what we have seen in terms of loss of open water here is a corresponding loss to the egg mass -- the number of egg masses that are laid here. the overall number of egg masses that exist in the property are increasing, but here where the [speaker not understood] cat tails are choking it out we've seen reduction in those egg masses. by clearing the vegetation and the sediment around the pumphouse and the connecting channel, not only are we protecting our infrastructure but we're restoring habitat for these species. thank you. i'm happy to take questions. >> thank you. colleagues, any questions? supervisor campos. >> thank you very much for the presentation. just a quick, quick question, and maybe this is a dumb question, but it's with respect to the compliance plan that was approved by the, the rec and park commission. does that ever go to the fe

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