Who Filled In Mussel Slough?

An important draining basin and environmentally sensitive area on the west side of Hanford, a remnant of Mussel Slough, has mysteriously been filled in. Those responsible for filling in the slough have not yet been identified.

Robin Mattos, a founding member of the Hanford Environmental Awareness Team (HEAT), noticed a backhoe in the area in early May, while driving around Centennial Dr. and Millennial Way. On further inspection, she could see that a remnant of Mussel Slough had been completely filled in. She estimates the slough was filled in sometime between March and May.

This remnant of Mussel Slough, located close to Lowe’s on West Lacy Blvd., was the subject of a contentious lawsuit in 2007. At that time, half of the remnant was slated to be filled with the construction of Lowe’s. HEAT filed a lawsuit to force the developer to mitigate for the damages caused to the slough and to prevent the other half from experiencing the same fate.

As a result of the suit, the developer, David Paynter, of Paynter Realty and Investments, had to pay for all of HEAT’S legal fees, a scientific study about the slough and mitigation costs. Mitigation included extending Mussel Slough to make up for the part he filled in and creating a draining basin. Paynter also had to replant the riparian trees he removed. He was ordered to put $17,000 into an escrow account to ensure that the replanting was completed.

Mussel Slough is an intermittent waterway that branches off the Kings River and runs through Hanford to the Tulare Lake Basin. Since Kings River was dammed at Pine Flat, the slough only fills during wet years and also catches runoff, serving as a draining basin. When Mattos first reported that the remnant had been filled in during a Citizens Advisory Committee meeting, she tried to impart the seriousness of the community’s loss. Mussel Slough, named for the bounty of mussels found in the waterway in the 1800’s, was formed during the last glacial period and is still identified as a natural waterway.

“The slough has a purpose and should be treated with respect and not cemented over,” Mattos said.

The slough was not totally connected in the 1980’s, but is a valuable asset used for water recharge. The slough also sustains riparian habitat and wildlife. Although the Kings River flows only four miles from Hanford, and People’s Ditch runs right through town, the city has no surface water rights. Hanford relies solely on ground water for its municipal water supply. This means the city needs waterways like Mussel Slough to filter the water and have it percolate down to the aquifer.

The slough has always been considered a valuable community resource, but has been difficult to monitor. Monitoring of the slough has fallen under the jurisdiction of the California Department of Fish and Wildlife (CDFW). As the city grows, parts of the slough have become victim of errant farmers or developers who have historically filled it in, hoping it would go unnoticed. Most local farmers are mystified why someone would fill in the slough.

Referring to its value, one farmer said, “Don’t they understand how important it is?”

Hanford’s 2002 General Plan states in its Open Space, Conservation and Recreation Element that the city desires to “maintain slough remnants and watercourses within the Hanford Planning Area as components of storm drainage retention program and a possible recreational trail system. Public access within sensitive habitat areas of the sloughs or waterways shall be considered individually to ensure protection of the habitat resource.”

The Open Space, Conservation and Recreation Element goes on to say that, “where appropriate and feasible, establish permanent mechanisms to protect wetlands and riparian corridors, The City shall preserve natural watercourses, wetlands and riparian corridors through requirements of land dedication and open space improvement imposed during the land development process.”

The 2007 lawsuit was, in part, trying to get the city to enforce its own General Plan. The lawsuit also created three legal documents that should have ensured the second half of the Mussel Slough would not be filled in. First, there was a Memorandum of Understanding (MOU) between the City of Hanford and HEAT. The MOU stated that the city would immediately inform HEAT of any future development in the area west of Centennial Dr., where the section of the slough is located. The intent of the document was to preserve the slough, not just notification.

A second legal document was signed between Paynter and the CDFW. Sloughs are the jurisdiction of the CDFW, and any alteration of a slough needs its prior approval. The agreement says, “The Operator (Paynter) may not commence any activity that is subject to Fish and Game Code Section 1600 et seq. until the Department has found that such Project will not substantially adversely affect an existing fish or wildlife resource.”

The MOU supports the Fish and Wildlife Agreement by saying, “the parties agree that the CDFG Stream Alteration Agreement No. 2007-0081-R4 is a contract in which David Paynter has agreed to the jurisdiction of the CDFG over the Mussel Slough natural channel included in SAA No. 2007-0081-R4 and the City agrees not to object to, and waives any future objection to SAA No. 2007-0081-R4 (Mussel Slough-Kings County), and City agrees to continue irrigation and maintenance of the habitat referred to in SA 2007-0081-R4 at a level consistent with the performance of Paynter under the SAA.”

A third legal document born from the suit was a Settlement Agreement between Paynter and HEAT. The settlement outlined the legal fees and biologist fees to be paid by the developer to HEAT. The Settlement also outlined CDGF’s role in monitoring how Paynter was going to mitigate for filling in half of the Mussel Slough remnant in order to build Lowe’s.

HEAT and the Hanford community were lead to believe that the MOU, Settlement Agreement and Agreement between Paynter and the CDFW would stop any further filling of Mussel Slough.  The Mussel Slough was filled nevertheless.

An exasperated Mattos said, “We aren’t a bunch of tree huggers. We just want a place for the water to drain and some open space.”

Is There a Connection to Bajun American Properties?

On February 27, 2015, a site plan review was submitted for a future apartment complex that will sit right on top of a section of Mussel Slough filled in by David Paynter eight years ago. Sometime between March and May of this year the remainder of the slough was filled in. Bajun American Properties is the developer behind the projected apartment complex.

Hanford resident John Zumwalt filled out the site plan review application as an agent of Bajun American Properties.  Zumwalt was also the consultant for Paynter Realty and Investments in 2007, when Paynter was building Lowe’s. He was also the consultant for the developers of Target and Wal-Mart. Going against civic conventional wisdom, Zumwalt is also an advisor for the Citizens Advisory Committee as they wade through the General Plan Update. This is a position that would not be allowed in other cities due to conflict of interest.

Bajun American Properties is proposing to build a two-storey, 216-unit complex on the corner of Centennial Dr. and Millennium Way. The empty land is zoned as medium density residential. The Community Development Department came to the conclusion that the apartment building would not have an adverse impact on the environment and prepared a negative declaration. A negative declaration is prepared when a city doesn’t feel it is necessary to complete a full Environmental Impact Report (EIR.) Despite protestations from the community, the negative declaration was approved on June 1.

HEAT intends to appeal the city’s decision. Darlene Mata, community development director of Hanford, says that their request to appeal came in one day late and rejected the appeal.

It is HEAT’s position that an EIR must be done before the complex is built, especially in light of the fact that someone made the unilateral decision to erase the Mussel Slough remnant. According to Andy Mattos, also a founding member of HEAT, any complex larger than 100 units has to go through an EIR. He also found in Hanford’s city code that HEAT actually had 14 days to file an appeal, not 10 as stated by Mata.

A letter from HEAT’s lawyer, Richard Harriman, outlines additional reasons why it is not legally appropriate for the city to approve a negative declaration for the Bajun American Properties apartment complex. He reminded Mata that the negative declaration is in violation of the MOU signed between the city and HEAT in 2007. As described above, the MOU stated that not only should HEAT have been notified that a site review plan application had been submitted, but that any development inside the litigated area must go through the EIR process. Mata was not the community developer in 2007 when the MOU was signed.

The appeal is still being reviewed by HEAT’s lawyer. If the appeal is rejected HEAT intends on suing to force the city to complete an EIR.

A Healthy Community

Mattos emphasized that HEAT is not anti-development.

“My family lives here,” she said. “My agenda is to advocate to make this a community that people want to live in.”

That includes steady economic development. But HEAT seeks a fair and equitable exchange between loss of use of land, natural resources and development. “It’s not a new concept. HEAT’s agenda is to advocate for developments to invest in the people that live, attend school, work and retire here,” Mattos said.

In Harriman’s letter to the City of Hanford, he points out the dismal lack of park space available to Hanford residents. This is even more ironic given the fact that Hanford is an agricultural community where open space is cherished. The Hanford Parks, Recreation and Open Space Master plan states that a community should have 6.5 to 10.5 acres of developed open space per 1000 people. According to Mata’s response to Harriman’s letter, Hanford only has 3.1 acres per 1000 people. That 3.1 acres includes the undeveloped portion of Hidden Valley Park that has survived several chops on the seller’s block. If the undeveloped half of Hidden Valley Park is sold, the per acre, per person ratio would be even more unacceptable.

Coincidently, Mussel Slough has a beautiful remnant in the middle of Hidden Valley Park. Parts of Mussel Slough, as recently as the 1980s, meandered through the community of Hanford from Hidden Valley Park to the proposed Bajun American Properties apartment complex.

In Visalia, the city council has encouraged connecting commercial developments with parks and residential areas. A bicyclist can ride from Cutler Park outside of Visalia along St. Johns River Parkway, through a residential area, and then to Orchard Walk East to shop at Target or get a coffee at Starbucks. The cyclist can proceed to Riverway Sports Park, where his children can play or they can watch a soccer game.

HEAT also supports creating walking and bike trails to connect residential and commercial zones throughout Hanford. A bike path meandering along the tree-lined banks of Mussel Slough from Hidden Valley Park to Hanford’s Target could have attracted shoppers from all around the Valley, and would have been a boon to developers and the community.

“An investment in our community by a builder or developer creates a partnership. If we are safe and  healthy because our partners invested in us, we are likely to invest in our partners.  There’s a quid pro quo of job creation, recreation,  a safe place to live and retire, access to higher education, and the developer’s project being a successful investment,” said Mattos.