LAAS_Letter re DEIR-DEIS final Reduced

The letter below is part of the public record, contained in the final EIR which is posted on the website of the California Department of Fish & Wildlife. Here is the link:

Los Angeles Audubon Society Letter to Draft Environmental Impact Report includes evidence from Land Protection Partners, Dr. Travis Longcore

Cover From: Chatten-Brown & Carstens LLP – Douglas Carstens – Direct Dial: 310-798-2400 Ext. 1

February 5,2018

To: United States Army Corps of Engineers  Los Angeles District, Regulatory Division

California Dept. of Fish & Wildlife – Richard Brody

Dear Ms. Rogers and Mr. Brody:

On behalf of Los Angeles Audubon Society, we submit the following comments regarding the Draft Environmental Impact Statement/Environmental Impact Report (hereinafter “EIR”) for the Ballona Wetlands Restoration Project (Ballona WetlandsProject).

Los Angeles Audubon Society (LAAS) was founded in 1910. Its mission is to promote the study and protection of birds, other wildlife, and their habitats throughout the diverse landscapes of the Los Angeles area, and to stimulate popular interest in and access to nature for all Los Angeles communities. LAAS has over 2,000 members and supporters, 520 active volunteers per year, and provides environmental educational programs to over 5,000 students per year in grades 3-12 and in community college. LAAS operates the longest-running environmental education program in the Ballona Wetlands, serving over 2,300 students in grades 3-5 each year, nearly all from underserved areas of Los Angeles.

In addition, LAAS, under its access agreement with California Department of Fish and Wildlife, provides the only opportunity for the general public to access the Ballona Wetlands, as a part of the monthly Open Wetlands program, staffed entirely by LAAS staff and volunteers. LAAS members have visited and birded the Ballona Wetlands since 1910, and LAAS is the largest bird conservation stakeholder in Los Angeles. LAAS is also the publisher of Los Angeles County Breeding Bird Atlas (Allen, Garrett, and Wimer, 2016), which contains defInitive reviews of the history and status of breeding birds in the County.

LAAS therefore has a substantial interest in the Ballona Wetlands and its management that is reflected in these comments.

First, the project is misnamed as a restoration project. As discussed by the attached report of Land Protection Partners, the project is not restoration but rather removal of currently existing wetlands and replacement with a non-naturally occurring wetland. Therefore, the project description is misleading. (emphasis added.)

Furthermore, the EIR fails to (1) adequately describe the existing environmental setting as a baseline for analysis, (2) provide a stable project description, (3) adequately analyze and mitigate impacts to the existing wetlands and sensitive species that currently inhabit or use it, (4) analyze the land use impacts of an alternative that would violate the Coastal Act because it involves fIlling a wetland but is not a restoration project and (5) present a reasonable range of alternatives that would allow the Department to develop a project that could be a long term benefIt to all the sensitive biological resources on the site and the surrounding community.

CEQA requires that responses to comments must be as detailed as comment: “The level of detail required in a response to a comment depends on factors such as the signifIcance of the issues raised, the level of detail of the proposed project, the level of detail of the comment, and the extent to which the matter is already addressed in the DEIR or responses to other comments.” (City of Maywood v. Los Angeles Unified School Dist. (2012) 208 Ca1.App.4th 362,398.) As required by CEQA, we ask that you respond to each point made in this letter and in the attached LPP Report.

A. The EIR Does Not Meet the Requirements of CEQA.

In numerous ways addressed below and in the accompanying LPP report, the many defIciencies in the EIR for the Ballona Wetlands Proj ect are detailed. In San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Ca1.App.4th 713, Stanislaus County prepared an EIR in connection with approving a residential and commercial development project that was inadequate because it failed to adequately describe the environmental setting, alternatives, or cumulative effects of the project. (ld. at pp. 718-719, 728-740.) The reviewing court concluded that “the [fInal EIR] is a mass of flaws. Beginning with an incomplete project description, continuing with an inaccurate and misleading description of the site followed by an inadequate discussion of alternatives and concluding with an incomplete and conclusionary discussion of the cumulative effects of the development project, the [final EIR] fails to comply with CEQA in all major respects.”

The same may be said regarding the EIR for the Ballona Wetlands Project. It does not contain an accurate, stable project description, and has no adequate baseline analysis; it fails to adequately investigate and report potential impacts; it does not analyze a reasonable range of alternatives; and it impermissibly defers necessary mitigation. These serious omissions or inaccuracies must be remedied in a revised EIR and recirculated.

1. CEQA Requires an Accurate, Stable Project Description.

A stable, finite, and accurate project description is the sine qua non of an adequate EIR. An EIR must contain a detailed statement of all significant effects on the environment of the proposed project. (Pub. Resources Code § 21100.) The Notice of Completion of an EIR is required to include “[a] brief description of the project.” (Cal. Code Regs., tit. 14 (hereafter “Guidelines”) § 15085.) The courts have stated that: “An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.” (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d. 185, 192-93.) “The defined project and not some different project must be the EIR’s bona fide subject.” (MM Homeowners v. San Buenaventura City (1985) 165 Cal.App.3d 357,365, emphasis added.) Further, a project description, including anticipated future uses, must be accurate. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Ca1.3d 376, fn. 6 and 397 (“Laurel Heights I”) [the EIR described the project as occupying only part of a building even though the university had decided to occupy the entire facility]; City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1450 [the EIR for a county detention facility understated the likely duration of temporary facilities, thus minimizing traffic and other impacts].) The Guidelines provide that “project” means “the whole of the action.” (Guidelines, § 15378, subd. (c).)

A Draft EIR must disclose a single proposed project, as this requirement is mandated throughout CEQA and the CEQA Guidelines. For example, pursuant to CEQA, an EIR must contain a detailed statement of “[a]ll significant effects on the environment of the proposed project.” (Pub. Resources Code § 211 00 subd. (b)(1), emphasis added.) The EIR must include “[a]ltematives to the proposed project.” (Pub. Resources Code § 21100 subd. (b)(4), emphasis added.) The CEQA Guidelines also provide that the project description shall include the “precise location and boundaries of the proposed project … ” (Guidelines § 15124 subd. (a), emphasis added.) Examples abound of the presumption by CEQA and the CEQA Guidelines that there must be a single proposed project that is the subject of the environmental analysis. Since statutes should be interpreted according to their plain and unambiguous wording (Sutton v. Industrial Ace. Com. (1956) 46 Ca1.2d 791, 797), CEQA plainly requires the identification and analysis of a single proposed project.

Here, the EIR fails to accurately describe the project. (LPP Report, Section 3.1.) The proposed project is not a restoration within the plain meaning of that term, nor a restoration as that term is deemed in the Code of Federal Regulations. (emphasis added) (Ibid.)

Furthermore, the EIR fails to identify a single preferred or proposed project and instead provides a description of various alternatives that might be carried out. (DEIR, Chapter 2.)

CEQA has always required identification and description of the proposed project. Recently, the Court of Appeal explained in detail why identification of a single proposed project is required and presentation of multiple alternatives without emphasis on which one the public agency anticipates approving is uninformative. In a recent case condemning such an uninformative practice, the court explained: [the EIR] presented five different alternatives for addressing the Upper Truckee River’s contribution to the discharge of sediment into Lake Tahoe, and indicated that following a period for public comment, one of the alternatives, or a variation thereof, would be selected as the project. As the trial court indicated in its statement of decision, “for a project to be stable, the DEIR, the FEIR, and the final approval must describe substantially the same project. A DEIR that states the eventual proposed project will be somewhere in ‘a reasonable range of alternatives’ is not describing a stable proposed project. A range of alternatives simply cannot be a stable proposed project.”

The DEIR in this case functioned more as a scoping plan under Guidelines section 15083 …the failure to identify or select any project at all, impairs the public’s right and ability to participate in the environmental review process. A description of a broad range of possible projects, rather than a preferred or actual project, presents the public with a moving target and requires a commenter to offer input on a wide range of alternatives that may not be in any way germane to the project ultimately approved. (Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Ca1.App.5th 277,288.)

The EIR states CDFW preliminarily identified Alternative 2 as the Environmentally Superior Alternative”. (EIR, p. 4-13.) This being the case, the EIR must clarify if Alternative 2 is the proposed project under consideration. With that identification made, the DEIR must be recirculated.

2. CEQA Requires an Adequate Environmental Setting Baseline Description.

The baseline environmental setting is a critical component of an EIR. The baseline for CEQA analysis must be the “existing physical conditions in the affected area” (Environmental Planning Information Council v. County of El Dorado, supra, 131 Cal.App.3d at p. 354, 182 Cal.Rptr. 317), that is, the ” ‘real conditions on the ground’ ” (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Ca1.App.4th at p. 121, 104 Ca1.Rptr.2d 326; see City of Carmel-by-the-Sea v. Board of Supervisors, supra, 183 Ca1.App.3d at p. 246, 227 Ca1.Rptr. 899), rather than the level of development or activity that could or should have been present according to a plan or regulation. (Communities For A Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Ca1.4th 310,320-21.)

Here, the EIR fails to adequately describe the baseline. (LPP Report, Section 3, “Baseline Conditions.”) The EIR does not adequately described the baseline conditions for sensitive vegetation (LPP section 4.1), nor sensitive wildlife species in the form of invertebrates (LPP, 3.2.1), reptiles (LPP 3.2.2) or birds (LPP 3.2.3.)

Furthermore, even though usually the baseline is taken as conditions on the ground at the time of the notice of preparation, where that baseline is uninformative or misleading, a different baseline should be used. A departure from the norm stated in Guidelines section 15125(a) is justified by unusual aspects of the project or the surrounding conditions. (Neighbors for Smart Rail v. Exposition Metro Line Const. Authority (2013) 57 Ca1.4th 439,451.) Here, the unusual circumstance of past illegal drainage that is currently being addressed justifies use of a baseline of conditions that existed before illegal drainage began.

In this case, illegal drainage has contributed to a destruction of a portion of the Ballona Wetlands that otherwise would be thriving. On December 14, 2017, the California Coastal Commission ordered the capping of illegal drains installed by the developers of Playa Vista at the Ballona Wetlands Ecological Reserve that have prevented rainwater from soaking into the marshy soils. Therefore, the EIR should address a baseline condition that accounts for the end of illegal drainage activities. Neither the Guidelines nor case law allows an agency to set an illusory noenforcement baseline that absorbs all ongoing illegal actions. While the baseline may include the effects of prior illegal activity, the situation is different when an agency has a concurrent, present responsibility to remedy ongoing illegality. A baseline may not assume non-enforcement of an established regulatory scheme. The rationale in League to Save Lake Tahoe v. Tahoe Reg ‘1 Planning Agency (E.D. Cal. 2010) 739 F. Supp. 2d 1260 (LSLT’), is applicable to the instant case by illustrating how an agency may not shirk its enforcement responsibilities and then absorb its disregard into the baseline. In LSLT, the agency sought to regulate the number of authorized buoys on Lake Tahoe in order to improve water quality. (LSLT, 739 F. Supp. 2d at 1266.) The EIR’s baseline incorporated all existing buoys, including unpermitted ones, which were to either be granted permits or replaced with permitted buoys. (Id. at 1273.) However, under its governing statute, the agency was explicitly required to improve environmental quality, which included removing unauthorized buoys. (Id. at 1276.) The Court of Appeal concluded that the baseline allowing ongoing illegal activities was inappropriate. (Id. at 1277.)

3. The EIR Fails to Adequately Investigate and Report Potential Impacts.

An EIR must analyze all potentially significant impacts of a proposed Project on the environment. (Public Resources Code § 21082.2(a).) “An agency must use its best efforts to find out and disclose all that it reasonably can.” Berkeley Keep Jets Over the Bay Committee v. Board of Port Com’rs (2001) 91 Cal.App.4th 1344, 1370, quoting Guidelines, § 15144, italics added by court.)

“CEQA is essentially an environmental full disclosure statute, and the EIR is the method by which this disclosure is made.” (Rural Landowners Assn. v. City Council (1983) 143 Ca1.App.3d 1013, 1020.) “In many respects the EIR is the heart of CEQA.” (County of In yo v. Yorty (1973) 32 Ca1.App.3d 795,810.) The purpose of an EIR “is to provide public agencies and the public in general with detailed information about the effect which a proposed Project is likely to have on the environment, … ” (pub. Resources Code § 21061; emphasis added.) Contrary to these principles, numerous of the impacts that are analyzed in the DEIR are understated.

“The agency should not be allowed to hide behind its own failure to gather relevant data.” (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296,311.)

Deferral of the disclosure and analysis of these impacts violates CEQA and results in the failure of the EIR as an informational document. An EIR should provide “the environmental price tag for a project” such that decision makers and the public know, “how much they-and the environment-will have to give up.” (Natural Resources Defense Council v. City of Los Angeles (2002) 103 Cal.App.4th 268,271.)

As explained in the LPP Report (Section 4), the impact analysis of various impacts is woefully deficient in the EIR. Impacts from the proposed trail system are understated. (LPP, section 4.1). There is a lack of post-restoration vegetation maps. (LPP, 4.2.)

Impacts to endangered species are not sufficiently addressed, including to the EI Segundo Blue Butterfly (LPP 4.3.1), California Least Tern (LPP 4.3.2) , Coastal California Gnatcatcher (LPP, 4.3.3), and Least Bell’s Vireo (LPP, 4.3.4). Similarly, impacts to special status plants are not sufficiently addressed including the Lewis’ Evening Primrose (LPP, 4.4.1) and Woolly Seabite (LPP, 4.4.2). Nor are impacts to Special-Status invertebrates or reptiles such as the Silvery Legless Lizard or San Bernardino Ringnecked Snake sufficiently understood (LPP, section 4.6).

Impacts to sensitive status birds must be more fully analyzed including the following: Belding’s Savannah Sparrow, California Gnatcatcher, California Horned Lark, Burrowing Owl, Nesting Raptors, and other special status upland, marsh, and shorebird species (LPP, section 4.7). Furthermore, impacts to special status mammals are not adequately analyzed, nor the impacts from night lighting and noise (LPP, sections 4.8, 4.9 and 4.10).

4. CEQA Requires a Reasonable Range of Project Alternatives.

An analysis of alternatives to a proposed project is a critical component of an EIR. (Citizens o/Goleta Valley v. Board o/Supervisors (1990) 52 Ca1.3d 553,564.) The alternatives analysis serves an important purpose in providing the reviewing agency adequate information about feasible means to avoid impacts and gives the public a clear window into governmental decisionmaking about environmental impacts. (Laurel Heights Improvement Assn. v. Regents o/University o/California (1988) 47 Ca1.3d 376, 404.)

A public agency may not approve a project “if there are … feasible mitigation measures available which would substantially lessen the significant environmental effects … ” (Pub. Resources Code § 21002.) The California Supreme Court concluded that:

Under CEQA, the public agency bears the burden of affirmatively demonstrating that … the agency’s approval of the proposed project/ollowed meaningful consideration 0/ alternatives and mitigation measures. (Mountain Lion Foundation v. Fish and Game Commission (1997) 16 Ca1.4th 105, 134, emphasis added; accord Village Laguna o/Laguna Beach v. Board o/Supervisors (1982) 134 Cal.App.3d 1022, 1035.) While an EIR is “the heart of CEQ A”, the “core of an EIR is the mitigation and alternatives sections.” (Citizens o/Goleta Valley v. Bd. Of Supervisors (1990) 52 Cal.3d 553, 564 (“Goleta 11′).)

Here, the EIR fails to provide a reasonable range of alternatives. (LPP Report 2.4.)

a. Project Objectives May Not Be Unreasonably Narrowly Defined.

As the LPP Report explains, the EIR’s project objectives are unreasonably narrowly defined. (LPP Report, section 2.4.1.) CEQA does not allow a project proponent or agency to so narrowly define project objectives that it eliminates feasible alternatives. The objectives should not limit development to only one type of wetlands project (a newly created wetlands without historical precedent) as compared to other viable alternatives that would be more similar to historic natural conditions.

The CEQA Guidelines recognize that “The objectives of a project are important to consider in determining what constitutes a reasonable range of alternatives to a project.”  (Guidelines § 15124(b).) However, the objectives for a project cannot be so narrowly defined so that they essentially foreordain the selection of the agency’s proposed alternative. Case law under NEP A can be helpful in interpreting CEQA.

Early CEQA cases relied heavily on NEPA case law. (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 80, and Friends of Mammoth v. Board of Supervisors (1972) 8 Ca1.3d 247, 261.) ”NEPA cases continue to play an important role in adjUdication of CEQ A cases, especially when a concept developed in NEP A decisions has not yet been applied to CEQA cases. (Del Mar Terrace Conservancy, Inc. v. City Council (1992) 10 Cal.App. 4th 712, 732.)

NEP A case law is indeed helpful here. As the 7th Circuit said in Simmons v. U.S. Army Corps of Eng’rs (7th Cir. 1997) 120 F.3d 664,669, the purpose [the NEPA term used for objectives] of a project is a slippery concept, susceptible of no hard-and-fast definitions. One obvious way for an agency to slip past the strictures ofNEPA is to contrive a purpose so slender as to define competing ‘reasonable alternatives’ out of consideration (and even out of existence). The federal courts cannot condone an agency’s frustration of Congressional will.

Similarly, to allow the specific objectives to serve the interest of precluding an environmentally preferred alternative would defeat the will of the California legislature in enacting CEQA.

b. Feasible Alternatives Must Be Analyzed in the EIR.

The LPP Report correctly identifies how alternatives dismissed from the analysis are intentionally misrepresented as infeasible. (LPP Report, p. 2.4.2.) A potentially feasible alternative may not be eliminated unless its costs would make proceeding with a project impractical. Before a more costly or less profitable alternative may be rejected, a project proponent must present evidence that lost profits or added costs are so severe as to make it “impractical to proceed with the project.” (Uphold Our Heritage v. Town of Woodside (2007), 147 Cal. App. 4th 587, 599.) When the public offers reasonable alternatives to the proposed Project, the agency should provide a meaningful analysis of them. (Pub. Res. Code § 21091(d)(2)(B); Guidelines § 15088(c); Berkeley Jets, supra, 91 Cal.AppAth at 1367.)

While “An EIR need not consider every conceivable alternative to a project, ‘it must consider ‘a reasonable range of potentially feasible alternatives … ‘” (Guidelines § 15126.6(a), emphasis added.) “The range of feasible alternatives [for an EIR] shall be selected and discussed in a manner to foster meaningful public participation and informed decision making.” (Guidelines 115126.6 (f).) “[T]he discussion of alternatives shall focus on alternatives to the project or its location which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives, or would be more costly.” (Guidelines § 15126.6(b).)

A public agency has the duty to prove that mitigation measures and alternatives are ”truly infeasible.” (City of Marina v. Board of Trustees of the California State University (2006) 39 CalAth 341,369; Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 134.)

c. The No-Project Alternative Must Be Accurate By Including Likely Changes Even Without a Project Approval.

One of the required components of an adequate EIR is the No Project Alternative.

“The ‘no project’ analysis shall discuss the existing conditions at the time the notice of preparation is published … as well as what would be reasonably expected to occur in the foreseeable future if the project were not approved, based on current plans and consistent with available infrastructure and community services.” (Guidelines, § 15126.6, subd. (e)(2), emphasis added.) “[W]here failure to proceed with the project will not result in preservation of existing environmental conditions, the analysis should identify the practical result of the project’s non-approval and not create and analyze a set of artificial assumptions that would be required to preserve the existing physical environment.” (Guidelines, § 15126.6, subd. (e)(3)(B).) The Guidelines state that the no-project alternative is not necessarily the same as the environmental baseline. (Guidelines, § 15126.6, subd. (e)(1). “[A]s a practical matter, these provisions mean the no-project discussion will often be primarily devoted to comparing the proposed project to a project that could be built under existing zoning and plan designations even though the baseline is existing physical conditions. The Guidelines have repudiated “the proposition that the analysis ofthe ‘no project’ alternative in an EIR ‘must describe maintenance of the existing environment as a basis for comparison of the suggested alternatives to the status quo.'” (Woodward Park Homeowners Ass’n, Inc. v. City of Fresno (2007) 149 Cal.AppAth 892, 715-716.)

In the present case, the no project alternative impermissibly assumes no activities will occur at all. (EIR, p. 2-16 [Alternative 4].) Instead, the EIR analysis must include in the no-project alternative the likelihood that flood control improvements will be made even in the absence of a wetlands project approval.

5. Deferral of Mitigation Measures Is Forbidden By CEQA.

CEQA requires formulation and analysis of mitigation measures as part of the EIR review process. Deferral of mitigation is prohibited because it deprives the public of the opportunity to review the effectiveness of potential measures.

Mitigation measures must be “required in, or incorporated into” a project. (Pub. Resources Code § 21081 (a)(1); Federation of Hillside and Canyon Assoc. v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1261.) Deferral of the analysis of the feasibility and adoption of mitigation measures violates CEQA. (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296,306-308.)

Here, as the LPP Report states, the EIR improperly defers analysis of a habitat restoration plan, failing to even include a final vegetation map for the project alternatives. (LPP, section 2.7.)

B. The Project May Not Violate the Coastal Act By Filling Wetlands for an Impermissible Purpose.

As explained in the LPP Report (section 2.1.2), the project would not be allowed by the Coastal Act since it proposes dumping marina dredge spoils on existing jurisdictional wetlands under the guise of a restoration project. Any project that is not a true restoration project, but rather replacement of existing wetlands with a newly created wetland of a different type would be prohibited by the Coastal Act.

The Coastal Act allows destruction or filling of wetlands in only very narrowly limited circumstances set forth in Public Resources Code section 30233 (a). (LPP Report, section 2.1.2.) Filling of wetlands is allowed only when “there is no feasible less environmentally damaging alternative” and is limited to, among others. “Restoration purposes.” (Ibid.)

Public Resources Code section 30240 contains a mandate to protect wetlands and a prohibition against their destruction: “Environmentally sensitive habitat areas [ESHA] shall be [1] protected against any significant disruption of habitat values, and [2] only uses dependent on those resources shall be allowed within those areas.” (Id., emphasis added.) Section 30107.5 of the Coastal Act defines “environmentally sensitive area” as an “area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments.” It is a well-established rule of statutory construction that the word ‘shall’ connotes mandatory action … ” (Rea Enterprises v. California Coastal Zone Conservation Com. (1975) 52 Cal.App.3d 596, 606).

In Bolsa Chica Land Trust v. Superior Court (1999) 71 CaLApp.4th 493, the court confirmed that, for ESHA resources, the requirement for protection is heightened.” (Id., at p. 506; see, also, Feduniak v. California Coastal Com’n (2007) 148 Cal.App.4th 1346, 1376.) That protection is guaranteed by imposing “consequences ofESHA status,” i.e., “strict preferences and priorities that guide development.” (Sierra Club v. California Coastal Comm’n (1993) 12 Cal.App.4th 602,611; McAllister v. California Coastal Commission, supra, 169 Cal.App.4th 912,923.)

“The language of section 30240(a) is simple and direct.” (McAllister, supra, 169 Cal.App.4th at 928.) As the court stated: The statute unambiguously establishes two restrictions on development in habitat areas: (1) there can be no significant disruption of habitat values; and (2) only resource-dependent uses are allowed. The only potential ambiguity involves the phrase ‘those resources,’ which does not refer back to a list of resources. However, the context makes it clear that the phrase could only be referring to the resources that make an area a protected habitat-i.e., ‘plant or animal life or their habitats [that] are either rare or especially valuable because of their special nature or role in an ecosystem …. ‘ (§ 30107.5)

Thus, together, the two restrictions limit development inside habitat areas to uses that are dependent on the resources to be protected and that do not significantly disrupt habitat values. This interpretation not only reflects the plain meaning of the statutory language but also harmonizes the two parts of section 30240(a) in the only way that makes sense, protects habitat areas, promotes the goals of the Coastal Act, and complies with our mandate to construe the Coastal Act liberally to achieve its purposes and objective. (McAllister, supra, 169 Cal.App.4th at pp. 928-929.)

For these reasons, the Coastal Act does not authorize a development in, or use of, ESHA that requires that ESHA be buried and destroyed in order to accommodate the so called restoration project. Furthermore, delineation of existing wetlands areas may not be deferred to other processes such as Coastal Commission review of the Ballona Wetlands Project. (Banning Ranch Conservancy v. City o/Newport Beach (2012) 211 CaLApp.4th 1209, 1233.) A word search of the EIR reveals it does not mention the acronym “ESHA” or refer to the “Coastal Commission” at all.

C. If the Proposed Project Is to Be Further Considered, the EIR Must Be Recirculated.

The EIR must be recirculated after infonnation, including identification of the specific proposed project, is added to make it legally adequate. It will not be possible to rely upon the response to comments because the EIR is so deficient as to render public comment “in effect meaningless.” (Laurel Heights L supra, 6 Ca1.4th at 1130.) The purpose of an EIR is to provide the public with detailed infonnation about a project before it is approved. (Pub. Resources Code §§ 21002.1; 21003.1.) “[W]hen significant new infonnation is added to the EIR after public notice is given of the availability of the RDEIR, but before certification, the EIR must be recirculated for public review …. ” (CEQA Guidelines § 15088.5; Pub. Resources Code § 21092.1.) After the information to address the deficiencies identified here and by other public comments is added, a revised RD EIR must be recirculated.


Thank you for your consideration of these comments. The EIR as currently written is inadequate, and an appropriate project alternative has not been proposed. Extensive revisions would be needed to make the EIR legally sufficient. As currently proposed, the No Project alternative is the superior option. Please advise us of any future hearings about this matter in accordance with Public Resources Code section 21092.2.


Dougla P. Carstens


Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from our team.

You have Successfully Subscribed!