The following document is from 2001. See the Save Gateway Valley home page here for recent news. Golf has been removed from the proposal. Golf-related issues are in green

by Erik Olafsson

1. The Montanera Development encroaches on the newly established Unit 6 of the critical habitat for the Alameda Whipsnake. The Alameda whipsnake (Masticophus lateralis euryxanthus) was federally listed as threatened on December 5, 1997 and critical habitat was established November 2, 2000)(Federal Register Vol. 65, No. 192 October 3, 2000, 50CFR Part 17). Gateway Valley is breeding and foraging habitat for the Alameda whipsnake and a corridor between the two larger critical habitat units 1 (Tilden-Briones) and 2 (Chabot-Las Trampas). At the very least, U.S. Fish and Wildlife Service protocol level surveys should be performed for the Alameda whipsnake on the proposed project site and the proposed mitigation site with the cooperation of the U.S. Fish and Wildlife Service and Robert C. Stebbins, Emeritus Professor of Zoology, and Emeritus Curator in Herpetology at the Museum of Vertebrate Zoology, U.C. Berkeley. No surveys for the Alameda whipsnake have been performed since the 1991/1992 pre-protocol surveys by Dr. McGinnis.

2. The California red-legged frog (Rana aurora draytonii) was listed as a federally threatened species June 24, 1996, and critical habitat was established on April 12, 2001(Federal Register / Vol. 66, No. 49 / Tuesday, March 13, 2001 / Rules and Regulations). This species has a documented presence on the site at a rancher-created pond tributary to Brookside Creek, as well as in Briones' Sindicich Lagoons 5 miles north of the project site (1995) and in Las Trampas Creek just east of Saint Mary's College 3.5 miles from the project site (1994). A California Red-legged Frog Site Assessment Report Gateway Valley Orinda, California dated April 1997 was prepared for Orinda Gateway, LLC by Wetlands Research Associates, Inc. This report does not follow the Guidance on Site Assessment and Field Surveys for California Red-legged Frogs (Rana aurora draytonii) U.S. Fish And Wildlife Service February 18, 1997. Under the protocol, number 1, "Surveys should be conducted between May 1 and November 1. These sampling dates were selected because they allow surveys to be conducted with minimal disturbance of breeding frogs, eggs, or tadpoles during a period when frogs can be reliably detected." The Wetlands Research Associates staff made a field visit on March 12, 1997 between 10:30 A.M. and 12:30 P.M. A second field visit was conducted on March 27, 1997 "of other potential habitat" (the "other potential habitat" was not disclosed in the report). These dates in March do not follow the U.S. Fish and Wildlife Service protocol. The site assessment did not conduct night "eye-shine" surveys as specified in the survey protocol. Only two adults were observed in the project site on March 12, 1997. Perhaps more would have been counted had this survey been conducted according to the U.S. Fish and Wildlife survey protocol. A new survey for California red-legged frog should be conducted as part of the U.S. Army Corps of Engineers compliance with the National Environmental Policy Act of 1969 as amended, and should cover the project area, staging areas, access roads, as well as any mitigation areas proposed (i.e. the McCosker Ranch property). It would also be useful for the biologist to check the ponds for the distinctive grapefruit-sized California red-legged frog egg masses in December/January.

3. Moraga Creek, affected by the project, has a known population of Foothill yellow-legged frog (Rana boylii), a federal species of concern. This species will be adversely affected by the project as presently designed though it will not be considered in Section 7 consultations with the U.S. Fish and Wildlife Service.

4. In Table 14 of the Final SEIR Revisions page 190, many special-status species are left off of the list, including the Berkeley kangaroo rat (Dipodomys heermanni berkeleyensis - federal species of concern - presumed extinct but should still be addressed in the document), San Francisco dusky-footed woodrat (Neotoma fuscipes annectens - federal species of concern), Bridges' Coast Range shoulderband snail (Helminthoglypta nickliniana - federal species of concern), Silvery legless lizard (Anniella pulchra pulchra - federal species of concern), fragrant fritillary (Fritillaria liliacea - federal species of concern), Presidio clarkia (Clarkia franciscana - federal species of concern), Kellogg's horkelia (Horkelia cuneata ssp. sericea - federal species of concern), Mt. Diablo phacelia (Phacelia phacelioides - federal species of concern), and many others. These species will not be involved in a Section 7 consultation between the Corps of Engineers and the U.S. Fish and Wildlife Service, but they are important biological resources that may be needlessly adversely affected by implementation of the current project description. The new Biological Assessment for the EIS should include up-to-date primary lists from the U.S. Fish and Wildlife Service, California Department of Fish and Game California Natural Diversity Database (Rarefind II), and the California Native Plant Society, and should include a complete plant survey of the project site in the proper season to aid identification.

5. The developer's survey for California tiger salamander (Ambystoma californiense) (Wetland Research Assoc. Inc. April 1997) predates the official survey protocol published by the California Department of Fish and Game (Inland Fisheries - Informational Leaflet No. 44). A new survey in the Biological Assessment for the EIS using the new protocol is a prudent measure especially considering the current (June 11, 2001) emergency Endangered Species Act petition for this species before the U.S. Fish and Wildlife Service and the July 5, 2001 California Endangered Species Act petition, both by the Center for Biological Diversity.

6. The project treatment of the two streams, Brookside Creek and Moraga Creek permanently foregoes the future use of the headwater streams by salmon species, should San Pablo Reservoir Dam or San Leandro Reservoir Dam ever be removed and other culverts day-lighted in the future. This would negatively impact the Central California Evolutionary Sensitive Unit (ESU) of the steelhead salmon, a federally listed species by destroying the headwaters of a steelhead spawning stream.

7. The previous biological studies for the Gateway Valley project didn't address whether the proposed project may adversely affect essential fish habitat (EFH). The Army Corps of Engineers must follow coordination and consultation requirements established by the 1996 reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act and the Department of Commerce's EFH consultation regulations (50 CFR 600.905 ? 930). The Army Corps of Engineers must determine whether essential fish habitat may be adversely affected by the project and if so, notify the National Marine Fisheries Service and provide them an EFH assessment, and follow their conservation recommendations.

8. The grading of 5.1 million cubic yards of dirt will remove 4,287 large trees, 1084 of which have trunks 15 or more inches in diameter. Eighty five percent of these trees are California natives: bay coast live oak and willow. The developer will not be able to mitigate in kind and in area for this severe loss of trees. Compliance with the 404(b)(1) Guidelines mandate that the Corps pick the Least Environmentally Damaging Practicable Alternative (LEDPA). Since the developer proposed a no- project alternative, and a project without the golf course, those options should be considered.

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