Report to CNPS Membership on CNPS et al. v. MMWD

By David Long, Co-President CNPS Marin Chapter

The California Native Plant Society (CNPS), Marin Audubon Society, and Marin Conservation League (MCL) have challenged the approval by the Board of Marin Municipal Water District (MMWD, aka Marin Water) for e-bikes to ride nearly 100 miles of fire roads systemwide and regular bikes and e-bikes to ride on nine singletrack trails without prior environmental review. This report provides some background for this case and brings you up-to-date on its status.

Marin Water styled these recreational expansions as “pilot projects” and claimed they were exempt from CEQA review based on four categorical exemptions: sections 15301 (existing facilities), 15302 (replacement or reconstruction), 15304 (minor alterations to land), and 15306 (information collection). CNPS, Marin Audubon, and MCL claim that these pilot projects are not exempt from CEQA and that Marin Water should perform an appropriate CEQA review before authorizing these expanded recreational activities.

Marin Water Watershed: A Biodiversity Hotspot Under Stress from Recreational Activities

Marin Water lands are a biodiversity hotspot containing a wealth of sensitive natural resources acknowledged by inclusion of this watershed in the United Nations recognized Golden Gate Biosphere Reserve. The slopes of Mt. Tamalpais, where proposed Pilot Project trails are located, are particularly rich in rare plants.

Recreational activities have caused serious environmental damage to the watershed. For example, the 60 miles of illegally-created trails on the watershed is nearly equal to the miles of  official system trails. Recreation is also a vector for spreading invasive plants and plant pathogens. Marin Water staff and volunteers are in a continual battle with over a thousand acres of broom and other invasive plants. And the watershed has been hard-hit by plant pathogens such as sudden oak death. However, Marin Water has never conducted a comprehensive environmental review of its recreational activities.

Marin Water’s Recreation Planning Process

Three years ago, when Marin Water began its recreation planning process, we wanted to be optimistic that it would finally conduct a comprehensive analysis of the environmental impact of recreation before authorizing an expansion of recreational activities. During the course of the recreation management planning process, CNPS Marin representatives participated in public workshops on recreational activities and advocated for that environmental review.

In April 2023, CNPS comments submitted with Marin Audubon Society identified the environmental review required for watershed recreation management plan projects.

In April 2024, we submitted comments on Marin Water’s Watershed Recreation Management Planning Feasibility Study, which proposed these pilot projects. Our comments identified why projects that allowed bicycles on additional trails and authorize e-bikes on the watershed are not exempt from environmental review and argued for a comprehensive analysis of environmental impacts prior to authorizing pilot projects.

The Bike and E-bike Pilot Projects Marin Water Approved

On Friday, August 30, 2024 (a single business day before the board meeting that followed a long weekend), Marin Water made public the staff report recommending the creation of two pilot projects: the Watershed Trail Sharing Pilot Program and the E-bike Class 1 Trial – and identified for the first time the nine single-track trails chosen for the Trail Sharing Pilot Program.

The “Trail Sharing Pilot Program,” authorizes nonmotorized bicycles on nine singletrack trails for two years; the “E-Bike Class 1 Trial” authorizes Class 1 e-bikes to ride on all fire roads systemwide and all trails open to nonmotorized bicycles: the single-track trails in the “Trail Sharing Pilot Program.”

Marin Water has nearly 100 miles of fire roads. E-bikes are not now permitted on any of Marin Water’s fire roads. The E-bike Class 1 Trial authorizes e-bikes to ride all of them systemwide. Fire roads traverse areas with special status plants, plant alliances, and wildlife as well as areas that are designated Ecosystem Preservation Areas (Marin Water’s most pristine native vegetation zone with significant numbers of rare plants).

The primary purpose of both pilot projects is stated to be the evaluation of various trail sharing strategies. The intent is to put these new users on existing roads and trails that would receive “minor trail maintenance.” The duration of the pilot projects is listed as two years.

Marin Water expects to collect some data on visitor patterns, environmental conditions, and compliance with its regulations. However, no data specific to e-bikes will be collected, including the impact of authorizing such bikes system-wide to use unpaved fire roads through environmentally sensitive areas.

With respect to CEQA compliance, the staff report described the projects as including “minor trail maintenance, visitor education, and comprehensive data collection activities, all designed to minimize environmental impacts while informing future management decisions.” Marin Water claims that proposed programs are categorically exempt under CEQA Guidelines sections 15301 (existing facilities), 15302 (replacement or reconstruction), 15304 (minor alterations to land), and 15306 (information collection). Marin Water further determined that the exceptions to these categorical exemptions under section 15300.2 are not applicable because proposed activities will not result in “cumulative impacts, unusual circumstances, or other factors that would invalidate these exemptions.”

In response, prior to Marin Water’s Board of Directors meeting on September 3, on behalf of CNPS Marin, I submitted comments that described observations from walking and photo monitoring most of the proposed pilot project trails including detailed descriptions of serious environmental and safety impacts that cyclists and trail sharing would create. Photo evidence showed that pilot project trails were not designed for trail sharing with bicycles and are in bad shape even for hikers with conditions that make trail sharing unsafe and environmentally damaging.  These include narrow deep trenches and gullies caused by erosion and stairs that cyclists will avoid by trail detours and widening. Andrea Williams, former Marin Water botanist, submitted comments detailing the locations of special status plants and alliances that likely would be adversely affected by bikes and e-bikes on pilot project trails and locations and where rare bats would likely be affected by high pitched sounds emitted by e-bikes. Marin Audubon Society submitted comments on the likely adverse impact the pilot projects would have on Northern Spotted Owls and rare bats. Marin Conservation League submitted comments expressing concern about Marin Water’s use of categorical exemptions to avoid CEQA review.

At the September 3, 2024 hearing before the Marin Water Board of Directors meeting, numerous members of the public voiced concern about potential conflicts with cyclists, including collisions with hikers and equestrians and damage to natural resources. Individual cyclists and cyclist groups supported the project. The Board then unanimously approved the two pilot projects.

Environmental Groups Challenge Approval of “Pilot Projects” by Marin Water

On Monday, September 30, 2024, CNPS, Marin Audubon Society, and Marin Conservation League filed suit in Marin Superior Court challenging Marin Water’s approval of these pilot projects without prior CEQA review. The suit was based on the comments previously submitted to Marin Water demonstrating likely environmental impacts to rare plants and communities, wildlife, and public safety, as described above.

Basis for the Challenge in CEQA Guidelines

The suit claims that Marin Water’s reliance on CEQA categorical exemptions is misplaced.

Three categorical exemptions relied on by Marin Water to exempt pilot projects from CEQA review, sections 15301 (existing facilities), 15302 (replacement or reconstruction), 15304 (minor alterations to land) are inapplicable because none involve the addition of fast-moving bikes to steep trails in an environmentally sensitive area. The exemptions claimed might be appropriate to “minor trail maintenance” that Marin Water claims will accompany the pilot projects, but the project description fails to account for the addition of bikes to the trails and the surrounding physical environment.

The Section 15301 (existing facilities) exemption “consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use.”  The pilot project authorization for e-bikes to use watershed roads and fire roads systemwide and all bikes to ride nine single-track trails involves an “expansion of existing or former use” far greater than “negligible or no expansion.”

The Section 15302 (replacement or reconstruction) exemption “consists of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced.”  This has no applicability to a project that significantly expands bicycle use and authorizes an extensive new use by motorized bicycles. No structures would be involved.

The Section 15304 (minor alterations to land) exemption “consists of minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry and agricultural purposes.”  This also has no applicability to an expansion of bicycle use and the authorization of a new recreational use – motorized bicycles.

Section 15306 (information collection) also cannot be used to justify the pilot projects because qualifying projects under this section may “not result in a serious or major disturbance to an environmental resource.” Comments by CNPS Marin, Marin Audubon Society, Andrea Williams (former Marin Water biologist), and others evidence that pilot projects are likely to cause serious or major disturbance to environmental resources, with impacts to native plants, wildlife, and human safety. This is true both for the “Trail Sharing Pilot Project,” which would likely impact environmentally sensitive resources and human safety along pilot project trails, and for the “E-bike Class 1 Trial,” which would authorize motorized bikes to ride systemwide on Marin Water’s nearly 100 miles of fire roads for the first time.

The impact of e-bikes would be exacerbated because Class 1 e-bikes authorized by the e-bike pilot project are difficult or impossible to tell apart from Class 2 and Class 3 e-bikes, which are not authorized. A Class 1 e-bike motor provides a pedal assist; a Class 2 e-bike uses a throttle to control speed — in effect an electric motorcycle. A Class 2 e-bike looks like a Class 1 e-bike when a cyclist is turning the pedals. Extensive illegal use of roads, fire roads, and trails by Class 2 e-bikes, and even higher-powered Class 3 e-bikes, is a reasonably foreseeable consequence of the e-bike pilot project.

The CEQA Guidelines also provide for ‘exceptions’ that limit the use of categorical exemptions, of which three appear applicable to this project.

The section 15300.2 (a) exception for sensitive location may apply. This exception applies where the project is to be located “in a particularly sensitive environment” such that it “may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.”  In this case, there is a possibility that the project area overlaps with Northern Spotted Owl critical habitat or activity center mapping designated by the US Fish and Wildlife Service or state Department of Fish and Wildlife. (This information has been requested from Marin Water.) This exception also appears to apply because the e-bike pilot project authorizes motorized bicycles to ride through Marin Water’s officially adopted and mapped Ecological Preservation Zone, designated for special protection as Marin Water’s most pristine native habitat.

The section 15300.2 (b) exception for cumulative impact also applies here. The e-bike pilot project in opening up the watershed’s roads and unpaved fire roads systemwide to motorized bicycles would have a significant environmental impact that is cumulative to that of allowing bicycles and motorized bicycles on pilot project trails. These impacts include increased erosion, sedimentation, trail widening, crushing of vegetation as well as human safety impacts.

Cumulative impact analysis is also called for because Marin Water is treating the two pilot projects as one project for data collection and analysis, in which no distinction will be made between regular bikes and motorized bikes. Consequently, the impacts of the two pilot projects should be analyzed together.

Indeed, there is evidence that two pilot projects were proposed here — one for bikes, the other for e-bikes — rather than one to avoid environmental review. Although two pilot projects are proposed, Marin Water does not distinguish between them in the collection and analysis of data. No data will be separately collected on e-bikes; all bicycles will be considered the same. It will be impossible to determine the specific impact of motorized bicycles, either systemwide on the nearly 100 miles of fire roads or on the pilot project trails. Different classes of e-bikes are difficult or impossible to tell apart without close inspection of small print on the bicycle frame, and the pilot projects will collect no data to determine the incidence of illegal Class 2 and Class 3 e-bikes that will ride the watershed as a result of opening up all roads and fire roads to e-bikes.

The section 15300.2 (c) exception also applies here. This section prohibits the use of categorical exemptions where there “is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”  Unusual circumstances would occur in this situation given that none of the exemptions claimed envision the addition of bikes on steep trails in sensitive habitats that are currently limited to hikers and horse riders. Those facts would be ‘unusual’ vis a vis the exemptions claimed (i.e., minor alteration of land etc.)

In addition, Marin Water has a long history of illegal bicycle activity, including illegal trail building, cyclists riding illegally on trails where bicycles are prohibited, riding off-trail. and night riding when the watershed is closed. It is reasonably foreseeable that the pilot projects’ encouragement for cyclists to ride pilot project singletrack trails and motorized cyclists to ride on fire roads systemwide will encourage further illegal activity, causing serious environmental damage as has accompanied past influxes of cyclists.

Temporary Restraining Order

On September 2, 2024, environmental organization petitioners filed a petition for Temporary Restraining Order (TRO). A TRO maintains the status quo to give the court an opportunity to consider the case on the merits.

Following approval of the pilot projects, Marin Water did some “minor maintenance” of pilot project trails. Additional photo monitoring of pilot project trails for the TRO hearing showed that they are still woefully inadequate for trail sharing.  No actual trail sharing can occur on most proposed pilot project trails; they are too narrow, eroded, and degraded for more than one user to be on the trail at a time (Figure 6). Virtually all sharing must take place with at least one participant, perhaps both, leaving the trail to trample the surrounding vegetation.

On one proposed pilot project trail, the Pumpkin Ridge Trail, a series of steps takes the trail up a steep slope (Figure 9). Bicycles cannot go up them and should not go down them. Marin Water’s proposed solution to this incompatibility is to ask cyclists to carry their bicycles or motorized bicycles up the stairs. E-bikes are heavier than regular bikes making them difficult to carry up the steps even if cyclists were willing. Surrounding the stairs are woods and meadows with rare plants. Cyclists have already started to create self-help trails through those woods and meadows containing rare plants to get up and down this slope to avoid the stairs (Figure 10).

Judge Andrew Sweet heard the TRO motion on October 3 in a hearing that began in the morning and was continued until late afternoon. At the end of the hearing, the court issued a Temporary Restraining Order to maintain the status quo preventing Marin Water from beginning the pilot projects until at least November 1, the date set for a hearing on our motion for Preliminary Injunction. Petitioners are seeking a Preliminary Injunction to continue the status quo until the case is heard on the merits.

Desired Outcome of this Challenge

The case seeks a ruling that the pilot projects are not exempt from CEQA, which would result in appropriate CEQA review by Marin Water.

In 2005, Marin Water prepared a Road and Trail Management Plan (RTMP) with an accompanying Environmental Impact Report; a Road and Trail Inventory was also prepared for that plan. However, the RTMP was not a Recreation Plan: its primary focus was erosion and sedimentation from roads and trails and it assumed no change in bicycle access to roads and trails. The 2005 RTMP and the accompanying Road and Trail Inventory need to be updated and expanded to encompass recreational activities, with appropriate environmental review.

When California State Parks and Marin County Parks and Open Space did recreation planning and CEQA review of recreational activities, they adopted trail standards to minimize and mitigate the environmental impacts of recreational activities and enhance user safety. Marin Water, with its many eroded and badly degraded trails, is seriously in need of trail standards.

Oral Arguments

If you would like to hear oral arguments on Petitioner’s (CNPS, Marin Audubon Society and Marin Conservation League} motion for a preliminary injunction, you may attend the hearing in person or via Zoom at 1:30 p.m. Friday, November 1, 2024.
Marin County Superior Court, Courtroom E
3501 Civic Center Drive
San Rafael, California 94903

https://www.zoomgov.com/j/1605153328?pwd=eUU1OE9BTG5tWHgrOFNKMmVvd2tFQT09

Meeting ID: 160 515 3328 Passcode: 360075