North Coast Journal

March 1995 - ENVIRONMENT


It's a federal case


by Marie Gravelle

A dispute over North Coast wetlands intensified earlier this year, turning a minor project into a federal case. U.S. attorneys recently put the city of Eureka and about a dozen property owners on alert: A lawsuit is in the works and if the issue isn't settled, regulatory fines of $10,000 a day could wipe everyone out.

Ironically, fear of being wiped out by rising tides led to the dispute in the first place. About five years ago, tidal flows and heavy rains had property owners along Jacobs Avenue expecting the worst. Their industrial buildings sit on "bottom" land just north of Eureka proper. The elevation is at or below sea level. The only thing keeping these businesses from washing away into the Eureka Slough is a gravel and dirt dike constructed decades ago.

The dike had been in bad shape for years. Complete repairs, which would include forming an assessment district with affected property owners, were estimated in a 1985 report to cost close to $1 million. Jacobs Avenue business owners balked at the price tag.

After petitioning the city to come to their aid, property owners in 1990 invited Eureka leaders to the site. An emergency winter situation was evident.

Former Councilman Tom Hannah, in a recent telephone interview, said he remembers going out to look at the site.

"At the time it was real critical," Hannah said. "They were concerned about the water spilling over."

But the area included no city property. Nevertheless, city leaders, including Hannah, went back to City Hall with ideas on how to help the private property owners.

"We were just trying to help," said John Arnold, Eureka's current city manager. Although Arnold wasn't here in 1990, he has talked to city employees and former council members.

The story is that Terry Curl, a former assistant city manager, acted as a go-between, and attempted to help landowners get repair permits from the U.S. Army Corps of Engineers. At some point, Curl told landowners to go ahead and do the repairs. At least that's what landowners now say. Curl said recently he told them to submit planning designs first before doing any work.

"They didn't listen," Curl said. After a meeting with Curl, the independent business owners got out their trucks and their gravel and fixed the problem. No sweat.

Now, several years later, the Corps is ready to sue. Extensive repair permits were not approved, attorneys say, and a small segment of the Eureka Slough was filled during the work.

The kicker is that the issue involves wetlands, critical wildlife habitat that's disappearing across the entire nation. In California, 90 percent of the native habitat has already been destroyed. While wetlands provide feeding and nesting grounds for wildlife, they also act as nature's filter, removing pollutants and cleaning water supplies.

The Eureka project involved less than an acre of wetland loss, but at this stage any loss is unacceptable to federal and state regulators.

"It may not seem that important to these landowners," said Pat Bupara, the assistant U.S. attorney who's investigating the case. "But unfortunately, if everybody were able to do this, there wouldn't be a Eureka Slough at all."

The attorney said he is fighting for the "integrity" of the federal Clean Water Act, which requires permits for all such projects.

In this case, temporary permits were awarded by the Corps prior to the 1990 work. Those permits allowed for a small amount of "fill," but it was supposed to be placed in sandbags and attached to the existing dike, a Corps official said.

"What they did was a lot more than that," the official said. Instead of intruding into their own properties, business owners allegedly intruded into the wetland.

And while the Corps did want a more permanent solution, it wanted work plans before supplying permits for extensive construction.

Walking along the top of the dike during a recent visit, Bupara found that a more permanent solution would have been better for all concerned. "The work (done in 1990) is already eroding," the Bay Area-based attorney said, pointing to cracks and slides on the wetland side of the dike. The dike is 2,200 feet long and 10 feet wide; it runs parallel to Highway 101.

Without the dike, tidal flows would fill much of the industrial area and probably intrude upon the highway. Like a finger of the bay, the slough moves inland across the bottom lands toward the forested hills on the east. Dikes along its entire route have kept the water confined since the early '40s.

The slough itself looks like a major river at high tide and a mass of mud at low tide. During Bupara's tour of the dike area, ducks, herons and egrets were using the water. A harbor seal even joined the throng. It's also a favorite spot for kayakers and canoeists.

The recent uproar seems to have taken everyone by surprise. "I was just a councilman looking at some property," Hannah said, "but I understood the issue had been settled some time ago."

"I didn't even think about it," Curl said. "When I saw what the property owners were doing, I stopped it."

Yet Hannah and Curl's involvement may have gotten the city in its present situation.

"City officials wrote letters directing these people to repair the dike, saying it's OK with the Corps," said Corps attorney John Eft.

By doing their own repairs, the landowners saved maybe more than $1 million, and avoided costly environmental engineering studies.

"When they did that, they violated the law," Eft said. "They acted on some bad advice from the city. So, we're naming them all in the lawsuit."

Property owners cited by the Corps include Eureka Police Chief Arnold Millsap. Contacted recently, Millsap said he sold his rental property on Jacobs Avenue in 1989, a year before the alleged misdeed. At least one owner listed by the Corps is deceased.

The impending lawsuit sprang, like many lawsuits, out of frustration. Corps attorneys say they've been dealing with the city for years, ever since a local engineer noticed the dike work being done. The city said it has proposed solutions, but the Corps hasn't agreed.

Mitigation or a settlement could include removing the fill or reclaiming wetlands in another area around the bay. The Corps filed the lawsuit to beat the statute of limitations.

While property owners are keeping mum, they're telling city leaders they feel caught in the middle. They say Curl gave permission for the dike repairs. City officials also say Curl gave the OK, but say he did so on a verbal commitment from the Army Corp.

The city has spent decades and quite a bit of money dealing with the area property owners. In 1985 the city paid about $40,000 to hire an engineering firm to look at the project and consider creating an assessment district, Arnold said. The city would have paid to repair the dike if landowners could be assessed yearly to reimburse the city.

"We're prohibited by the California constitution from spending public money on private land," Arnold said. The assessment district could have worked, he said, if property owners hadn't vetoed the idea.

"The city's defense is that we weren't involved," Arnold said. "We were just trying to help."

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