By Joe Eaton
There’s a big dispute over a small island at the edge of the Suisun Marsh. John Sweeney, the current owner of Point Buckler Island via a limited liability corporation, faces enforcement action by the Bay Conservation and Development Commission and the San Francisco Bay Regional Water Quality Control Board for diking and draining a tidal wetland and dumping excavation spoils in Suisun Bay. The extensive work he did was subject to regulation by state and federal agencies, and no authorization for it was ever requested or granted.
The 39-acre island, shaped like a westbound tortoise, lies on the eastern side of Grizzly Bay, separated from its larger neighbor Rich Island by Annie Mason Slough (or, in some records, Andy Mason.) No one seems to know who Buckler or Mason were. Point Buckler’s history is also obscure. Sometime in the first half of the twentieth century one of Suisun Marsh’s duck clubs converted the island’s tidal wetlands to wetlands “managed” to attract waterfowl. Reportedly its first owner was Sicilian immigrant Gaetano Seeno, founder of a local construction dynasty.
Though the island changed hands over the years, it was consistently and seasonally drained and flooded for waterfowl. In 1984, the US Department of Agriculture’s Soil Conservation Service prepared an Individual Management Program (IMP) for the Annie Mason Point Club, emphasizing the need for levee maintenance and water control management. Though the levee was reportedly intact in 1985, new breaches rapidly developed. By 1993, the waters of Suisun Bay had broken through the levee in five places and typical tidal-marsh vegetation—cattails, tules, bulrush—had covered the interior. Nearly two decades before Sweeney purchased the property from the estate of Cynthia Torres in 2011, Point Buckler had reverted to tidal marsh.
With his earnings from Sailing Billboards Outdoor Media, which sold advertising space on sailboats, Sweeney has been acquiring land around and in Suisun Marsh. He owns or has an interest in parcels on Chipps Island and Spinner Island, and has alluded to additional properties. In 2011, Sweeney used a shipping container to plug a levee breach on Chipps Island, a method not covered by the US Army Corps of Engineers’ Regional General Permit 3. After exchanges with the regulatory agencies involved in the marsh, the Corps issued a notice of alleged violation advising him of a potential fine under the Rivers and Harbors Act.
According to Corps regulatory project manager William Connor, the container was removed four years later and the breach was repaired using approved materials; no fine was imposed. The Regional Water Board contends that this experience should have made Sweeney aware of regulatory requirements that also applied to Point Buckler.
[space height=”12″] Bulldozers, Helipads, and Goats
In a legal document, the Water Board says Sweeney had announced on Facebook that he intended to develop Point Buckler as a kite-sailing resort without going through the permitting process. In March 2014 Steve Chappell, director of the Suisun Resource Conservation District, and BCDC staffers Joe LaClair and Cody Aichele-Rothman visited a duck club on Rich Island. Across the slough, they could see a crane, a bulldozer, and piles of excavated dirt. Chappell, surprised by the apparent activity, asked BCDC if a marsh development permit had been issued. None had.
By that spring, Sweeney had rebuilt portions of the deteriorated levee and constructed new levee sections using soil excavated from inside the original perimeter, filled tidal marsh and channels, dug four crescent-shaped ponds, installed a dock and new water control structure, placed trailers and shipping containers around the island, built roads, removed marsh vegetation, installed a goat pen, and set up windbreaks and two helicopter pads. He also planted ornamental trees, all of which succumbed to the island’s saline soil. The work was done in habitats designated for the protection of endangered or other special-status fish and wildlife species.
BCDC, in correspondence with Sweeney since January 2015, issued a cease-and- desist order in April 2016 with a proposed $952,000 fine for violations of the McAteer-Petris Act and Suisun Marsh Preservation Act. The Water Board’s first formal move was a notice of violation in July 2015, followed by a cleanup and abatement order in September that was later rescinded for procedural reasons. An amended civil liability complaint and tentative cleanup and abatement order followed in May 2016, citing violations of the Clean Water Act and Basin Plan subject to a proposed $4.6 million fine.
On the federal side, the Corps asserted jurisdiction in a March notice and referred the matter to the US Environmental Protection Agency for potential enforcement. According to EPA spokesperson Bill Keener, the agency is currently investigating the case and has been working closely with state agencies. (Federal and state agency staff have visited the site, most recently in March when they were escorted by Solano County sheriff’s deputies.) In January, the nonprofit California River Watch weighed in with a notice of intent to sue Sweeney under the federal Endangered Species Act; it’s not clear what subsequent actions have been taken.
Sweeney claims the 1984 agreements for a prior duck club (IMP, see above) empowered him, as successor owner, to rebuild the levee and undertake other “maintenance” work without applying for a permit. But by 2011 there was little levee left to maintain and the island was fully open to the tides. “A managed wetland has to have levees and artificial control of water,” says Chappell. “If you don’t have levees, you can’t manage the water for waterfowl habitat.”
Though Point Buckler has been publicized as a kite-sailing facility, offering six-figure memberships to Silicon Valley executives and other clients, Sweeney and his attorneys continue to refer to Point Buckler as a duck club. Recent field visits yielded no evidence of steps taken to manage the site for waterfowl.
Sweeney has, however, installed a single culvert at the southwest corner of the island. According to Stuart Siegel, who prepared a 452-page technical assessment report for the Water Board, “A typical duck club has multiple flood-and-drain water control structures. The new structure is too small, without the capacity to flood and drain the marsh to provide waterfowl habitat in Susiun Marsh. Field evidence indicated it was used to drain but not to reflood.” Siegel also says there’s “zero evidence of planting food or cover crops for waterfowl.”
Sweeney did excavate four crescent-shaped ponds strung across the island and placed duck decoys in them. But the ponds, full of sulfur-tainted water and bacteria, are unlikely waterfowl magnets. “Why dig a hole and put decoys in it if you’re planning on flooding the whole marsh?” asks wetlands ecologist Peter Baye, a contributor to the technical assessment. Sweeney’s attorney, in complaints against BCDC and the Water Board, contends that the agencies’ actions have discouraged efforts to develop the island as a duck club.
Sweeney has tried to enlist Suisun Marsh’s duck club owners in his fight. But at an Suisun RCD board meeting in May, five owners spoke out in support of the district’s role in the marsh and Chappell’s leadership. None of the speakers backed Sweeney.
Sweeney and his attorneys also accuse the Susiun RCD, BCDC and the Water Board of anti-club animus. Dyan Whyte, Water Board assistant executive officer who heads the prosecution team for the Point Buckler action, doesn’t buy that. “We at the Water Board, like BCDC, very much support recreation on the Bay, including the use of managed wetlands for duck clubs,” she says. “We routinely work with club owners on maintenance and provide grants to help them improve their practices.” However in this particular case, Whyte notes, there’s “no credible evidence of any intent to operate Point Buckler as a managed wetland.” As for the kitesailing venture: “If Mr. Sweeney had come to us with an application to develop a kiteboard facility on the island, we would have worked with him to figure out an environmentally-friendly way that could have been done.”
The Damage Done
Longtime participants in wetland restoration and regulation were staggered by what was done at Point Buckler. “I’m aware of some cases where a landowner had inadvertently filled wetlands and gotten into trouble with the Corps or disputed wetland jurisdiction, but nothing of this scope where a landowner did extensive work without first even consulting with appropriate regulatory agencies,” says BCDC chief counsel Marc Zeppetello.
“Sweeney adopted a 1950s approach, going back to what we were doing 50 years ago that triggered the formation of BCDC in the 1960s and passage of the Clean Water Act and Endangered Species Act in the 1970s,” adds Siegel.
“There’s been nothing like a 30-acre diking and draining of a tidal marsh in anyone’s professional lifetime,” comments Baye.
“The harm is extremely significant,” says Whyte. “Through the federal and state governments, the taxpayers are investing tens of millions a year to try to figure out how to save the Delta, which has been on the brink of collapse with pelagic organism decline since 2002. Tidal wetlands are the lungs of this ecosystem. We can’t afford to lose any more of them at this critical time. It’s not acceptable that someone can take 30 acres of tidal wetland out of service.”
With no baseline surveys, it’s not known what wildlife species used Point Buckler’s tidal marsh before it was drained. However, the wetlands were potential habitat for the threatened California black rail and endangered northern salt marsh harvest mouse, as well as two California bird species of special concern, the Suisun song sparrow and salt marsh common yellowthroat. The endangered Ridgway’s rail may also have occurred there. If those species were there, they’re gone. The tules and cattails are dead, supplanted by thistles and one of Suisun’s worst weeds, the notorious perennial pepperweed. “It’s now the dominant green plant,” says Baye. “Excavating the borrow ditches and spreading soil between levees created ideal seedbed conditions.” And it’s hard to get rid of with temporary deep flooding or herbicides. Small patches of Mason’s lilaeopsis, a State-listed rare plant, persist.
Special-status fish were also impacted as documented in an appendix to the Technical Assessment. “The highest abundance of delta smelt in the 40-year Department of Fish and Wildlife surveys in Suisun Marsh was in the water right around Point Buckler,” says Siegel. Its wetland would have been a significant food source for the endangered fish. Juvenile steelhead and Chinook salmon followed tidal channels into the island’s interior, feeding and hiding from predators in the vegetation. Point Buckler is within critical habitat designated for the smelt and the Central Coast population of steelhead.
Some feel more was lost than the habitat itself. “People in the marsh spent 15 years setting up a streamlined permitting process,” says Carl Wilcox of the California Department of Fish and Wildlife, veteran of decades of wetlands restoration. “What happened is totally counter to the process and the effort people have made to build trust amongst regulatory agencies and landowners out there to facilitate wetland management.”
Despite objections from Sweeney’s counsel, the Water Board is holding to the scheduled August 10 hearing on its cleanup and abatement order. Any settlement of the proposed $4.6 million penalty would require a public notice process and the Board’s formal approval. On the BCDC side, the parties have agreed that the April 22 cease-and-desist order will remain in effect until October 6. In the meantime, Sweeney will be able to submit a statement of defense. A public hearing before the agency’s enforcement committee, with presentations by BCDC staff and Sweeney, is set for September 1. The committee will then recommend a decision to the full commission, meeting on October 6.
While the legal arguments continue, wind and wave have been gnawing at the marsh. “The two-year-old levees are now wave-cut vertical scarps,” adds Baye.
Dyan Whyte firstname.lastname@example.org