Ballona Wetlands: Appeals Court Hears EIR Case

On December 12, the California Court of Appeals heard from attorneys on both sides of Ballona Ecosystem Education Project’s (BEEP) appeal of a lower court ruling on the Ballona Wetlands Restoration Project Environmental Impact Report (EIR).

The Ballona Wetlands Restoration Project is the state’s plan for restoring hundreds of tidal wetlands acres where they were formerly buried by fill dirt from Marina Del Rey’s construction.

In early 2023, the L.A. County Superior Court required the California Department of Fish and Wildlife (CDFW) to correct two technical elements of the EIR, but otherwise allowed the proposed restoration to move forward. This was a strategic loss for the “anti-bulldozer” opponents of the restoration, including BEEP.

BEEP appealed that decision, which was argued today before a three-judge panel of the California Court of Appeals.

Above: The state proposes to remove 3 million yards of fill dirt, dumped during Marina construction, from this 200-acre area south of Fiji Way and restore tidal wetlands in its place

During this hearing, the attorney representing BEEP focused his arguments on the minutiae of small animal burrows. Federal guidelines require such burrows dug into flood control berms be periodically filled in so as to not affect the berm integrity. The guidelines were referenced in the EIR, but BEEP argued the EIR discussion was inadequate. Though difficult to read how justices will rule, they did not seem persuaded.

Above: The restoration project will remove 1500 feet of the concrete Ballona Creek channel and replace it with vegetated earthen berms, into which small mammals could burrow

BEEP also argued that “restoration” was a misleading term for the project, since it won’t duplicate conditions that existed 4000 years ago. The justices appeared to dismiss this assertion as an argument over semantics. [“Isn’t what’s most important is to say what the project is, which the EIR clearly does?”] asked one justice.

California Deputy Attorney General John Sasaki argued the state’s rebuttal. He was asked a number of questions by the justices about calling the project a “restoration” versus something else. Again, the conversation seemed to settle on the notion that so long as the EIR accurately describes existing conditions and how the proposed project will change things, that is sufficient for the public and permitting agencies to make informed decisions, as required by law. Justices acknowledged the EIR does that.

Above: The Ballona Wetlands as mapped by the U.S. government in 1876. Today’s Lincoln Blvd. would be near the top of the map. Notice the open tidal inlet at lower right, indicating daily tidal ebb and flow.

The court’s ruling will be issued sometime during the coming months.

Enjoy your Ballona Wetlands!

References:

Case No. B331193, California Court of Appeals, 2nd District

Marina Del Rey Patch. Ballona Wetlands: When the Winners are Really the Losers. May 25, 2023. https://patch.com/california/m...

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Author’s disclosure of affiliations:

Dr. David W. Kay served on the Board of Directors of the non-profit Friends of Ballona Wetlands from 2007 until 2015, and served as Board President in 2012-13. He presently serves on the Board of Ballona Discovery Park in Playa Vista. Dr. Kay is a staunch advocate for the state of California's plans to restore the Ballona Wetlands Ecological Reserve.

From 1984 until 2022, Dr. Kay was employed by Southern California Edison Company, exclusively in the company's environmental services organizations. His many responsibilities included restoration of the 440-acre San Dieguito Wetlands near Del Mar. He retired in 2022 as Senior Manager for Major Project Environmental Management at the company, after 38 years of service.

Dr. Kay earned bachelor and masters degrees in biology and a doctorate in environmental science.

See Dr. Kay’s Patch Community Contributor profile here.