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My Sediments, Exactly: This private construction site in Silver Creek, monitored by the city of San Jose, shows the muddy runoff that occurs during winter months when animals living in nearby waterways are already battling for survival.

Dirty Business

San Jose's lax monitoring of construction sites--including its own--could put city in violation of state and federal environmental-protection laws

By Loren Stein

By Loren Stein

AS EXECUTIVE director of the Santa Clara County Audubon Society, Craig Breon sees his surroundings with a different sensibility than most valley residents. So when he began noticing five years ago that during the rainy months some of San Jose's construction sites were discharging excess sediment into creeks and streams, he realized this could be an important matter to bring to the attention of San Jose city officials.

Then Breon and his staff discovered an even more troubling fact: the biggest offender was the city of San Jose, at many of its own construction sites.

A newly released report by Breon's environmental group charges that sites the city is funding throughout San Jose--as well as private sites the city is supposed to be monitoring--are consistently violating the Clean Water Act by failing to prevent storm-water and sediment runoff into nearby waterways. The surplus of dirt, gravel and other pollutants can overload and contaminate streams and creeks, causing flooding as well as harming water quality and reducing oxygen levels, which can end up killing fish and other wildlife that feed off flowing water.

For the last two rainy seasons, the environmental group monitored, videotaped and took hundreds of photos of up to 20 construction sites in San Jose, a fraction of the roughly 200 active sites up and running during the winter months. The group also monitored problem sites in Palo Alto, Mountain View, Sunnyvale and Los Altos. But because San Jose is the biggest city in the Santa Clara Valley and is doing the most development, the scope of the problem is much larger here.

The group's findings: a shortage of city and state inspectors; sloppy, incomplete and disorganized record-keeping; inadequate training of inspectors; poor information-sharing between departments; and an overall lack of resources devoted to storm-water pollution prevention. The report also cites the inability of inspectors to issue stop-work orders if violations are found, as well as an apparent reluctance by the state Regional Water Quality Control Board to enforce the Clean Water Act against a city such as San Jose.

The group's recommendations include issuing fewer rainy-season grading permits, if necessary, which could cause costly delays of large-scale development projects.

"City sites are not held to even the meager standards applied to private development sites," writes Kelly Crowley, who authored the report for the Santa Clara Valley Audubon Society. She notes that the problems at public projects that Audubon staff observed trumped private projects. This is ironic, she says, since the city dictates how much erosion control is carried out through the contracted-bid process. And that area of oversight is weak as well, according to Crowley. "The city of San Jose lacks the political will to make developers pay their fair share of the costs of development," Crowley says. "So instead the public is paying with polluted streams and dirty water."

Shifting Costs

In environmental terms, sediment is considered a pollutant, much like motor oil, and can have a ripple effect on stream health and the environment. In addition to causing flooding, too much sediment can degrade water quality, kill vegetation along stream banks, cause premature siltation of reservoirs and increase the temperatures of streams (by making them shallower). It can also, in effect, "pave" the bottom of streams. The result: fish eggs can't survive, insects are suffocated and wildlife such as frogs and birds have less to feed off of.

Construction sites have erosion rates equivalent to those of active surface mines, discharging 48,000 tons of dirt per square mile every year, notes the report. To address overall runoff, including from construction sites, the Santa Clara Valley Water District spent more than $3.2 million during 2001 to remove sediments and repair erosion in Santa Clara County waterways.

"The county is paying for maintenance and damage they didn't cause," Crowley says. "San Jose is shifting costs away from private developers to the public."

Three sites are among the worst cited by the Audubon report. Los Lagos Golf Course, a large municipal course that was built by the city of San Jose and completed in April, spans Coyote Creek, one of the county's most important creeks. When surveying the site during its construction, Audubon staff discovered many sediment-runoff violations, as well as ineffective inspection over an entire rainy season. Meanwhile, the contractor and subcontractor spent much of their time and energy arguing over who was responsible for erosion control.

San Jose's Hellyer Avenue Extension project was one of the messiest the group observed, with no construction entrance, mud everywhere, no fiber rolls along the site's perimeter and most of the storm drains lacking any protections from sediment runoff. Complaints to the city about the site were not heeded.

Although regulated by the state, the Legacy Landfill in Alviso is inspected by the city and monitored by Audubon staffers because it lies within city boundaries. Crowley says they watched aghast as black water leached from the site and flowed into an adjacent wetland. "It was shocking to see that sort of clear Clean Water Act violation," she says. "It was a classic, devastating scenario. As an environmentalist, it's one of the most worst things you can see."

Hand Slaps and Hammers

Regardless, the issue appears to be low on San Jose Mayor Ron Gonzales' agenda, Crowley says. "My impression of the mayor is that he doesn't really care about environmental issues. Clearly, what's most important to him is development. ... If it was a priority, and local politicians wanted it to happen, the resources would be there."

Crowley adds that the oversight situation is similar to that at San Jose's Santana Row, which made headlines last month when part of it went up in flames. Some say that the city may be less aggressive than others in policing construction sites so that too much regulation doesn't drive up costs.

However, water pollution from city construction sites is alarming to several members of the San Jose City Council, who discussed the issue briefly in last week's City Council meeting. "Few things are more important than protecting our rivers and waterways. San Jose needs to be as aggressive as possible in its storm-water runoff, and I'm concerned about our policies dealing with construction," says City Councilmember Ken Yeager, who directed city staff to respond to concerns raised in the report. Said Councilmember Forrest Williams at the meeting, "These are not new revelations. Why have we still not gotten there?"

"The report shows we've not made much progress since last year," laments Councilmember Chuck Reed in an interview. The city has to do a better job if it is to comply with the Clean Water Act and the state-issued urban-runoff permit (called the National Pollutant Discharge Elimination System, or NPDES), he says. "The development community doesn't take it seriously, and our enforcement mechanism is such that they don't have to. We need to have a system of inspection and enforcement that people respond to instead of saying, 'Yeah, yeah, yeah.'"

If the city is found in violation of the state and federal statutes, the state Regional Water Quality Control Board (which oversees San Jose's compliance with NPDES) can threaten or issue a moratorium on development in the city, Reed adds. "Sometimes, the hand slaps can be more like a slug in the jaw," he says. "They've got big hammers, and we have to be cautious about that."

Jan O'Hara of the Regional Water Quality Control Board, who oversees the municipal storm-water permit for the Santa Clara Valley, agrees that the report shows the system in San Jose is not working. "It points out the problems in San Jose could be solved with some rearranging of funds and responsibilities so enough inspectors are out monitoring sites during the rainy season," she says. "If the City Council was looking at this and taking it seriously, I'd find it very encouraging."

Runoff Patrols

The buck is supposed to stop at the doors of three city departments when seeing to it that erosion is controlled at San Jose construction sites. The Department of Planning, Building and Code Enforcement reviews and approves plans; Public Works inspects construction sites; and Environmental Services enforces city ordinances that implement provisions of the Clean Water Act.

Although the release of the Audubon Society report was a surprise, the findings in it were not new, says Lindsey Wolf, program manager in the director's office for San Jose's Environmental Services.

"These are issues we've been wrestling with as well," she says, adding that the department released its annual Urban Runoff Management Plan to the City Council last week. Carl Mosher, director of Environmental Services, reassured the mayor and City Council at the meeting that San Jose was in compliance with state and federal pollution-prevention laws.

Environmental Services will be putting together a written response to the report within the next two weeks, Wolf says, and is taking steps to better train city inspectors, upgrade data systems and put in place new procedures. She notes, however, that due to budget constraints, hiring new inspectors is out of the question.

Kelly Crowley isn't dissuaded. She and other environmentalists will be out again this winter with their cameras and notepads scrutinizing city construction sites for runoff violations. Crowley notes that improvements were made at several city sites last year precisely because developers knew their sites were being watched.

"The system works when it has to," Crowley says. "If [the city] had better record-keeping and more inspectors, they could make substantial headway."


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From the September 19-25, 2002 issue of Metro, Silicon Valley's Weekly Newspaper.

Copyright © Metro Publishing Inc. Metroactive is affiliated with the Boulevards Network.

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