Ballona Wetlands ~ Facts vs. ALTERNATIVE Facts

Elsewhere in Patch this week a retired utility executive who was present at the Stanley Mosk Superior Court building, Dept. 85, summarized his view of a recent hearing related to four lawsuits filed on behalf of public interest groups related to the Ballona Wetlands. This person appears to be relying on what has been termed in our national political discourse, “alternative facts.”

I was also present, and I’m certain that the Order that Judge James C. Chalfant will issue after July 11, will back up my summary of “what really happened.”

The hearing this week was not “a hearing on how to ‘remedy’ the EIR” (as the sub-headline on his opinion piece erroneously states.) It was, instead, a hearing for the Judge to clarify how his ruling was to be turned into a written order. Judge Chalfant’s May 17th ruling determined that the EIR (Environmental Impact Report) was legally deficient, directing that it be decertified and noting he would issue an injunction to prevent environmental harm to the state ecological reserve.

To that end, Chalfant ruled that he would “suspend any Project activity that could result in an adverse change or alteration to the physical environment,” and he would be issuing an injunction that prohibits the CA Department of Fish & Wildlife from taking any action pursuant to their bulldozing and industrial habitat alteration project unless and until it complies with the California Environmental Quality Act (CEQA.)

Because the environmental and community groups which challenged the EIR were the victors in Judge Chalfant’s May 17th ruling, the Judge, as is the usual custom, asked the winning petitioners to prepare an order for him to sign.

The Judge also directed the two sides to confer to see where they agreed on the order (presuming all sides read his 67-page ruling), and whatever the two sides did not agree on would be submitted to the Court in advance of June 29th, all of which happened. (The two sides, being – A: the winning Petitioners and B: the bulldozing-plan sponsor, CA Dept of Fish & Wildlife - CDFW). The June 29th Court date was so the Judge could learn if there were any outstanding disagreements in preparation of the order. And there were.

The most important question was whether or not the Court would be a continual babysitter for the CDFW and its lawyer, the CA Attorney General, seemingly so they could keep coming back to whine about the fact that they did not like the fact that we WON the lawsuit challenging the adequacy of the Environmental Impact Report (EIR).

The Judge denied that request and stated that he would only retain oversight jurisdiction for compliance with the writ – in other words, he would only see us again in Court if Petitioners sought his help in making sure that CDFW does as he orders. His final order will be written and issued after July 11, when the draft orders are due back, in accordance with what he stated on June 29. If there are legal concerns of the merits of the new EIR, then that would be a "follow on" lawsuit, the Judge said.

Meaningfully, it appeared, from statements made by Chuck Bonham, the Director of CDFW, at a recent Fish & Game Commission hearing, that CDFW hoped the Judge would narrow his ruling. He did not.

Here is what Judge Chalfant's May 17th ruling stated:

“The Petition is granted in part. CDFW was required to disclose and analyze the proper flood control design parameters in the DEIR and FEIR and its failure to do so was a failure to proceed in the manner required by law. Additionally, the project description does not adequately commit CDFW to specific performance criteria when it provides CDFW with authority to reduce restoration goals based on disturbance to other habitats without any supplemental environmental review and when it permits performance criteria changes to provide more attainable goals if hydrology or dissolved oxygen performance goals are not met. …

A writ shall issue directing CDFW to set aside the FEIR [Final Environmental Impact Report] and any Project approvals, prepare and certify a legally adequate EIR for the Project if it chooses to proceed, and suspend any Project activity that could result in an adverse change or alteration to the physical environment until CDFW complies. An injunction shall also issue prohibiting CDFW from taking any action pursuant to the Project until it complies with CEQA.”

When the Deputy Attorney General (representing AG Rob Bonta), speaking for his client, CDFW, sought more than what the Judge had initially ruled, Judge Chalfant stated, “I’m going with the Petitioners.”

While there were a number of things that the AG’s office sought and tried to argue for, the most important part of what transpired in this hearing was that the Judge stated he wanted his original ruling attached to the Proposed Order. So, nothing was weakened, and his ruling stands. That will be evident when his final order is issued in writing after July 11, 2023.

Flood Risk and Biological Impacts:

Of note in the 67-page ruling it appears that some have ignored writings by the Judge that should not be missed – like this:

“…the FEIR does not analyze the wildlife impacts of flood control under the 68,000 cfs standard, including whether larger levees will be required and whether they will impact habitat and impacts to prey, foraging, and nesting areas. The failure to do so thwarts public review of the full scope of both flood control and biological impacts, rendering the FEIR defective. ...

As Petitioners argue, the defects in the FEIR's project description surpass those in Stopthemillennium where the EIR provided "only conceptual drawings of a development that might not be built." 39 Cal.App.5th at 11 (emphasis added). Here, the FEIR is based on flood control design criteria that currently are infeasible under the Corps' requirements and cannot be built. The FEIR's inadequate depiction of the Project design underreports impacts, misleads the public, and thwarts the EIR process, rendering it inadequate as a matter of law.”

The petitioners have also been shocked to review the many email messages over more than three years wherein Governor Newsom’s administration officials argued with the US Army Corps of Engineers, with state officials preferring a less-protective flood risk standard be used for such a massive construction project that would demolish the Ballona Creek levees, spread out the soil that provides a high-ground refuge for wildlife and build new levee berms on top of fragile wetlands and other imperiled coastal ecosystems. Clearly, the Judge was also disturbed by this, as it became one of two primary reasons to rule with the Petitioners.

Vice President Kamala Harris, then a US Senator: Nearly made a fatally-flawed mistake

Included in many email messages we’ve read – and the Judge has now also read – is a revelation that the State Coastal Conservancy, which has spent millions of dollars planning what is being increasingly known throughout the state as the Ballona Boondoggle, wanted to fudge on the flood risk numbers to the point where, after significant arguing with the Army Corps of Engineers officials did not move them to accept a standard less protective of the public, they hired a Washington DC lobbyist to persuade then-US Senator Kamala Harris to ask Congress to alter our flood risk standards for the area.

Senator Harris, trusting an entity being overseen by her long-time political friend, Gavin Newsom, included this request in legislation she authored. Thankfully, after hearing from constituents and elected officials in the area, she asked the Conservancy officials to withdraw the request. Can you imagine Ted Cruz and Jim Jordan deciding on what our flood risk standards should be?

Fortunately, this flood risk issue – which, instead of being addressed during the CEQA (California Environmental Quality Act) review, was revealed only after the Ballona Wetlands Land Trust received these email messages via the Public Records Act - must now be addressed in full sunlight, and according to statements in Judge Chalfant’s lengthy ruling, wherein he quoted CDFW staff numerous times, will take much longer than CDFW Director Bonham wishes.

Excerpt: "… CDFW's own employee stated that the 68,000 cfs flow rate presented a real problem that may require re-visiting a few chapters, raising the levee height, and all the calculations that go with it.” [emphasis added]

Now, residents who reside in and work in the Ballona coastal floodplain – including those living in Del Rey, Marina del Rey, lower Playa del Rey, Playa Vista and Venice – will have the opportunity to see in the light of day what this nine-year industrial alteration project would mean to the flood risk they already live with, given new sea level rise projections, and they will all be able to question and comment on why and how lowering soil elevations helps protect their properties, whether or not their property values will be impacted and what the impacts will be to the roadways they rely on to obtain food, travel to work and live their lives.

Additionally, federal, state, county and city agencies will be able to understand better what the correct flood risk calculations mean to the various concerns and responsibilities they oversee, and their comments will be legally welcomed in the process.

CEQA Loophole:

There is a huge loophole in CEQA that has not ever been addressed – and we intend to shine some light on this, as well. After all of the concerns are raised and commented on – when there is a State-sponsored project – the certification (approval) of the EIR can be completed by ONE BUREAUCRAT. That happened the last time – one person whose desk is in San Diego and really doesn’t know this ecosystem or landscape signed off on the certification of the EIR. Unlike when there is a project considered under CEQA by the County or the City – there is no elected body to appeal to. Yes, just one person whose job is reliant on making CDFW Director Chuck Bonham happy will sign off on the CEQA certification.

Governor Gavin Newsom – does he have strong environmental values which are backed up by his actions? Or does he just talk about them?:

Those groups that are challenging the project proposal, and especially the community coalition, Defend Ballona Wetlands, and Protect Ballona Wetlands (a group that works for environmental protection & sensitive public access), can’t fathom why a Governor who claims to be in favor of biodiversity and minimizing impacts from climate change would want to proceed with a project that is contrary to his initiatives claiming the importance of these values.

Here’s the most shocking and terrifying concern that many in our community now have: Governor Gavin Newsom has not only passively supported this project (we’ve never heard him speak publicly about it), but he also has been working to dismantle CEQA – the California Environmental Quality Act - the law which the four petition lawsuits were filed under. Fortunately, these lawsuits were filed before he signed the law last year whereby it is now the law that projects that are called “restorations” do not need a CEQA analysis or review for the public’s benefit.

And yet, Governor Gavin Newsom is the one person who can direct his agencies (CA Dept of Fish & Wildlife and State Coastal Conservancy, which has already spent more than $15 million on planning this project – planning with the wrong flood risk standards!) to withdraw the project.

Questions for California Governor Gavin Newsom about Ballona Wetlands:

In March, 2018, Lt. Governor Gavin Newsom visited the Ballona Wetlands at the request of several Sierra Club leaders, along with a few officials from the Coastal Commission, CA Dept of Fish & Wildlife and the State Lands Commission. Biologist and Environmental Scientist Robert Jan “Roy” van de Hoek led the tour that rainy day, and a neighbor/supporter living on the bluffs hosted us all for a short time after which Newsom needed to catch a jet ride at LAX (he was Acting Governor that day, as Governor Brown was away from California).

That day we had so much hope for his valuing of Ballona and understanding the care and protection needed for this special place. Unfortunately, with barely a year of getting situated as our new Governor, Gavin Newsom’s priority became – rightly - the COVID-19 pandemic.

Somehow between then and now, the Governor clearly became convinced of “alternative facts” – possibly because one of the architects of the proposed Ballona bulldozing plan was hired in the Natural Resources Agency as a top lieutenant. While that person has since been fired by the Governor, while he was in the Sacramento loop he sprinkled around plenty of misinformation about the status of Ballona now, including how rich this special place is in terms of biodiversity and diversity of species.

In light of the current facts and circumstances, if I had the opportunity to sit down with the Governor and talk with him about this project, these are a few of the questions I would ask him:

1. Did you really support a more dangerous flood risk standard than the US Army Corps of Engineers and the LA County Flood Control officials asked for in communications this lawsuit has now revealed?

2. Did you know that your administration officials asked then-Senator Kamala Harris to ask Congress to decide on what the flood risk standards should be for the coastal Los Angeles area of Ballona? Really? CONGRESS???? Fortunately, this scheme was found out; Senator Harris was briefed, and she then asked your officials to withdraw their proposal – just before she was elected to become the Vice President of the United States. Whew!

3. Do you really favor bringing bulldozers and other heavy construction equipment into a fragile coastal ecosystem, excavating more than 2 milion cubic yards of soil and then spreading it over currently functioning habitat to build new levees/berms – essentially playing God or Mother Nature with a mosaic of ecosystems that are in a state of equilibrium now?

4. Do you really support removing habitat for the White-tailed Kite, which has been protected for years by the Fully Protected Species law? How do you think this species will return – by magic? (The White-tailed Kite is at Ballona for the food, which will be bulldozed away – no one has ever recovered the Salt Marsh Harvest Mouse – another Fully Protected Species – or the South Coast Marsh Vole – rare enough to be placed on the Endangered Species List – the two main prey mammals for this imperiled, beautiful bird.)

5. Why do you support a project that would lower soil elevation when the ocean sea level, immediately adjacent to this land, is rising?

6. Do you really support a nine-year construction project that would wreak havoc with the nearby roads (including major connectors to LAX) and communities for that entire time, sending wild animals into neighbors’ yards to seek shelter and food or otherwise crushing them under the blades of the bulldozers? (some would be trapped and caged, according to CDFW – but moved where? Wild animals trapped and caged – thousands of them – really?)

7. Given that there are seven endangered species – and many more on the CA List of Species of Special Concern – relying on Ballona’s habitat as it is now – how can you justify continuing with this project that is not only extremely unpopular, but scientifically questionable, given the newest science about this site?

References:

May 17, 2023 Court Ruling: https://drive.google.com/file/d/12qiMPyofWzkMOzT0d6rIYRF2egLjikeq/view?usp=sharing

Westside Curent: https://www.westsidecurrent.com/news/environmental-group-victorious-in-legal-challenge-to-ballona-wetlands-project/article_3592dbc2-f546-11ed-9168-9363c8a19df7.html

LA Times article - June 1, 2023 –pg.B1 https://drive.google.com/file/d/1JapEJTH8F6WxOFAHosJC5VADtfjSxHJU/view?usp=sharing

Daily News: https://www.dailynews.com/2023/05/20/court-ruling-halts-controversial-ballona-wetlands-restoration-project/?share=wsventtnrpoloetaarsy