BALLONA WELANDS LAWSUIT VICTORY STORIES:
Judge orders halt to Ballona Wetlands restoration project
BY LOUIS SAHAGĂN, STAFF WRITER
MAY 30, 2023
A California Department of Fish and Wildlife plan to introduce tidal flows into the Ballona Creek wetlands has come to a screeching halt after a judge ruled recently that the agency’s environmental impact report on the project failed to adequately account for flood risks.
In a May 17 decision, Los Angeles County Superior Court Judge James C. Chalfant ordered the agency to set aside its certification of the final EIR for the project because it “failed to disclose and analyze flood control design parameters” associated with proposed levees and other infrastructure.
In response to four lawsuits filed by environmental groups, Chalfant ordered the agency to suspend any project activity in the 600-acre West Los Angeles ecological refuge and prepare a new “legally adequate” environmental impact report “if it chooses to proceed.”
Despite the setback, state officials said they intend to correct the EIR and move forward with the controversial project, which is sandwiched between Marina del Rey and urban development upstream of Ballona Creek.
“This restoration project remains the best mechanism to revitalize the Ballona Creek wetlands for many future generations of Angelenos,” said Jordan Traverso, a spokeswoman for the Department of Fish and Wildlife.
Combatants on both sides of the issue, however, suggest that a series of recent events left the fate of the wetlands area uncertain.
On Thursday, the Supreme Court issued a decision that significantly reduces the scope of the Clean Water Act and reduces the federal government’s ability to protect thousands of miles of rivers, streams, creeks and adjacent wetlands throughout the western U.S.
The court said the law’s protections for the “waters of the United States” are limited to wetlands and streams that are directly connected to navigable waterways — a definition that some fret might not include the Ballona Creek wetlands.
Separately, Gov. Gavin Newsom a week ago unveiled a proposal aimed at shortening the contracting process for bridge and water projects, limiting timelines for environmental litigation and simplifying the permitting process for complicated developments in the Sacramento-San Joaquin River Delta and elsewhere.
It remains to be seen how these actions may affect the Ballona Creek wetlands — the focus of one of the longest environmental battles in Southern California history.
In the meantime, opponents of the state project — which was originally scheduled to begin in 2024 — say the judge’s ruling has provided them an opportunity to press for the withdrawal of what they regard as an ecologically unsound proposal.
Chalfant’s ruling applies to lawsuits filed against the Department of Fish and Wildlife by Protect Ballona Wetlands, Ballona Wetlands Land Trust, Grassroots Coalition and Defend Ballona Wetlands.
“We welcome the ruling,” said Marcia Hanscom, a community organizer for Defend Ballona Wetlands. “It gives the mosaic of habitats at the ecological reserve a reprieve from facing utter destruction and upheaval by state officials who — shockingly — favor sending bulldozers and other heavy equipment into these fragile wetlands.”
She fears that dozens of struggling species, and much of their habitat, would be sacrificed by restoration-related excavation, and the addition of 10 miles of bike paths.
Under the state’s plan, more than 2 million cubic yards of soil would be repositioned to create earthen levees up to 20 feet high for flood protection from Pacific Ocean tides.
Exposing the wetlands to tidal influence would be a mistake, opponents argue, because higher salinity levels could wipe out flora, fauna and habitat that currently rely on seasonal rains and brackish water. Beyond that, they say, it would make the area vulnerable to potentially destructive flooding.
In his ruling, Chalfant sided with the petitioners in ordering the state to commit to specific performance
criteria in the event that its activities harmed wildlife and habitat.
Once owned by industrialist Howard Hughes, the property sits just north of Los Angeles International Airport and is home to ring-necked snakes, great blue herons, South Coast marsh voles and the federally endangered El Segundo blue butterfly.
The state paid $139 million in voter-approved bond money in 2003 to buy what was left of the Ballona Wetlands from Playa Capital, the developer of Playa Vista. The deal made the highly degraded expanse of marshes, mud flats and salt pans off limits to development.
The restoration project is supported by nonprofit environmental groups such as Heal the Bay, the Bay Foundation, Friends of Ballona Wetlands and David Kay, a former senior manager at Southern California Edison’s environmental department.
In a recent Patch article, Kay pointed out that Chalfant rejected 24 of the 26 arguments presented in one of the lawsuits. “The judge’s ruling,” he wrote, “represents a spectacular failure by the opponents to achieve their long-stated goal of stopping the restoration project altogether.”
For Kay's post:
https://patch.com/california/marinadelrey/ballona-wetlands-when-winners-are-really-losers
Hanscom, however, said Kay misses the point. “In fact,” she said, “the judge gave us what we wanted most: Invalidate the EIR and halt all state work at the reserve.”
“This fight is far from over,” she added. “We’re not giving up on defending the wildlife that clings to survival in these precious remnant wetlands.”
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Court ruling halts controversial Ballona Wetlands restoration project
Environmental activists win case against state plan to bulldoze part of wetland, move 2M cubic yards of soil
By CLARA HARTER charter@scng.com
PUBLISHED: May 20, 2023
In a major development in the battle over the Ballona Wetlands, a judge has reversed approvals for a state restoration plan to bulldoze and reshape vast areas of the sensitive habitat which borders the sand dunes that separate it from the ocean to the west, and the upscale Playa Vista development to the east.
The opinion filed on May 17 by Los Angeles Superior Court Judge James Chalfant found that the Environmental Impact Report (EIR) for the California Department of Fish and Wildlife’s proposed restoration project used incorrect flood risk standards and didn’t commit the organization to specific enough performance criteria for preserving wildlife.
The Ballona Wetlands Ecological Preserve is a 577-acre area of salt and freshwater marshes just south of Marina Del Rey that is home to birds, coyotes, fish, lizards and butterflies, including at least seven endangered species.
The state’s plan called for excavating more than 2 million cubic yards of soil to allow tidal flows to penetrate more areas, and construction of nearly ten miles of bike and foot paths. That project cannot proceed until the department submits a new EIR that addresses the concerns highlighted by Chalfant.
Jamie Hall, a lead attorney who represented Protect Ballona Wetlands, one of four environmental groups that filed suits against the state plan, said, “This EIR was not ready for primetime. They just did not have the necessary information in order to evaluate, and disclose, and mitigate the environmental impacts.”
California Department of Fish and Wildlife (CDFW) stands behind its restoration plan.
“This restoration project remains the best mechanism to revitalize the Ballona Wetlands for many future generations of Angelenos. It will bring outdoor space for connection with nature to a city center where it is deeply needed,” said Jordan Traverso, CDFW deputy director of communications, education and outreach.
“Although the court’s decision is disappointing, the bottom line here is that CDFW prevailed on the majority of claims brought by the petitioners. Facts matter: Petitioners raised 10 claims and CDFW won completely on eight of them,” she added.
Chalfant’s decision settles four similar lawsuits that all sought to halt the state’s proposed restoration plan due to concerns about how it would impact the environment, wildlife and habitats.
Attorney Hall noted, “One of the things that disturbs me most is that it was not going to be realistically possible for them (the state) to achieve what they said that they were going to do—i.e. relocate or trap animals to ensure that they didn’t perish—while they’re bulldozing and grading this land, in order to create artificial habitats.”
Sabrina Venskus, another lead attorney who represented the non-profit Ballona Wetlands Land Trust, said she was satisfied that Judge Chalfant ruled that the state’s flood calculations were incorrect.
“My firm … appreciated his recognition that use of the wrong flood conveyance standard in the project designs posed not only a potential flood risk, but also a potential risk of further fragmentation of critical habitats” in the Ballona Wetlands, she said.
Traverso, who is a spokesperson for CDFW, said the organization plans on resolving the flood control issues in the next design phase and “welcomes the Court’s instruction on this limited part of the ruling.”
The state’s restoration plan was released in 2017 and was immediately divisive, with some environmentalists lauding it and others lambasting it.
At the time, its supporters included several prominent environmental organizations including Heal the Bay Foundation, Los Angeles Waterkeeper and the Surfrider Foundation.
Supporters praise the state’s restoration plan to create greater public access to Ballona Creek–the last
surviving major undeveloped wetland in Los Angeles County—as well as what they see as ecological benefits by increasing tidal flow to more habitat areas.
Ben Harris, staff attorney for LA Waterkeeper, said that the organization maintains its strong support for the restoration project as outlined in the environmental impact report.
“This project is one of the best opportunities we have to restore critical wetland habitat in all of Southern California,” said Harris. “While we are disappointed that the project will be delayed by this court decision, we support the principle that the environmental review process should be thorough.”
“We hope the parts of the environmental review that the court found insufficient can be addressed quickly to allow this needed project to move forward as expeditiously as possible,” he added.
Heal the Bay Director of Science and Policy Katherine Pease, Ph.D, said the organization is currently reviewing the court ruling to understand its implications.
“The need for restoration of the Ballona Wetlands is clear and supported by science,” she said. “Heal the Bay continues to advocate for a healthy, functioning coastal wetland ecosystem.”
Detractors believe that the plan is too heavy-handed in its manipulation of the natural environment and seek a restoration strategy that would be less disruptive and could be implemented faster.
Walter Lamb, president of the Ballona Wetlands Land Trust, said he is worried that the CDFW’s plan will take too long to complete and wants the state to pivot to near-term conservation strategies.
“With urgent issues of sea level rise, environmental justice, and declining biodiversity, we can’t wait another ten or 20 years waiting for an overly massive project that is not likely to ever be implemented,” Lamb said, referring to CDFW’s plan.
Community organizer Marcia Hanscom, who has worked to protect the Ballona Wetlands since 1995, was surprised and delighted by the court ruling.
“We’ve been up against some very challenging and powerful forces, including some environmental groups who were somehow persuaded that it’s okay to bring bulldozers into a fragile wetland ecosystem,” Hanscom said. “I’m just gratified that the court listened to us.”
The debate over how to best care for Ballona has been ongoing for more than three decades.
During the 1990s environmental activists campaigned for the state to acquire the land, which it did in 2003. Then in 2004 the State Coastal Conservancy began convening stakeholder meetings to discuss preservation efforts, and in 2005 the wetlands were officially designated a State Ecological Reserve.
Since then many visions for the land have come and gone including a controversial 2013 proposal to build a pet hospital on the site. CDFW came forward with its vision for restoration in 2017 and its EIR was certified in 2020, but that plan was put on hold when the four lawsuits were filed.
Chalfant issued his ruling on March 17. The state’s plan will be on pause until a revised EIR is certified.
“We are hopeful that the California Department of Fish and Wildlife will reset the process for future management of this special place, truly involve all stakeholders, and determine a new baseline of what the ecosystem includes,” said Hall, “especially since so many more rare species have returned to Ballona since this plan first was considered.”
There have been improvements in the health of the wetlands in recent years. But challenges remain, such as the spread of invasive species and pollution from RV encampments on the edge of the wetlands, said Venskus, the attorney for the Ballona Wetlands Land Trust.
The environmentalists in the Defend the Ballona Wetlands group have put forward their own 20-point gentle restoration plan. Their plan calls for convening an indigenous tribal council for guidance on conservation efforts, improving and expanding walking trails, targeting habitat restoration for endangered species, fostering animal breeding sites and removing invasive species.
“Next up we are calling on the governor,” said Marcia Hanscom, who helped develop the gentle restoration plan and was part of the lawsuits. “We would like to see him withdraw the project and have his administration work with the stakeholders who are here, who love this place, to figure out together what is really needed.”
CDFW has expressed no interest in significantly altering its plan, which the state department maintains is the best way to revitalize and preserve the Ballona Wetlands for generations to come.
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In 2021, Grassroots Coalition and Ballona Ecosystem Education Project filed a lawsuit trying to overturn the certification because the project falsely advertises itself as a “restoration,” when, in fact, it is nothing of the sort.
Petition to Protect: Court issues injunction against CDFW’s Ballona restoration
By Morgan Owen, Argonaut Associate Editor May 25, 2023
Los Angeles Superior Court Judge James C. Chalfant overturned the California Department of Fish and Wildlife’s Environmental Impact Report's certification for the Ballona Wetlands Restoration Project in a ruling seen as a victory by environmental groups opposing the project. This decision prevents CDFW from continuing any work on the restoration until it regains certification and complies with the California Environmental Quality Act.
This ruling comes as part of four lawsuits made by environmental groups against CDFW, who alleged the Ballona Wetlands Restoration Project would fail to protect wildlife in the area and that the project was misrepresented as a restoration effort when in fact, it would have devastating effects to the local ecology. In light of the lawsuits' similarities, Chalfant ordered he would address all complaints in one hearing. His decision applies to all four cases.
According to a summary of the Ballona Wetlands Restoration Project published by CDFW, the objective of the initiative was to “focus on restoring wetland and other ecological functions within the reserve, maintaining existing levels of flood risk management provided by the Ballona Creek channel system, and providing public access for compatible recreational and educational opportunities.”
Issues identified
The court identified two issues with CDFW’s Final Environmental Impact Report, saying the department failed to adhere to the California Environmental Quality Act. The ruling concluded that the project used an incorrect figure when determining a flood conveyance capacity detailed in the Draft EIR. The opinion also emphasized that CDFW was aware of this error before publishing its Draft EIR and failed to adequately disclose or analyze the environmental impacts of the correct flood conveyance standard.
“My firm appreciated the thought and effort that the court clearly put into this detailed ruling, and also appreciated his recognition that use of the wrong flood conveyance standard in the project designs posed not only a potential flood risk but also a potential risk of further fragmentation of critical habitats that could result from constructing levees and berms designed for the correct flood conveyance capacity,” said Sabrina Venskus, who represented Ballona Wetlands Land Trust throughout the case.
The second issue identified in the opinion is that the project does not commit CDFW to specific performance criteria and permits CDFW to reduce restoration goals “based on disturbance to other habitats without any supplemental environmental review.” The court deemed this qualifies as “improperly deferred mitigation” based on precedent from Preserve Wild Santee v. City of Santee, where a similar issue occurred regarding mitigation for the endangered Quino Butterfly.
In light of these two issues within the Final EIR, Chalfant granted environmental groups’ request to overturn all approvals and certifications for the Final EIR. As a result, CDFW will have to correct the errors and bring the EIR back into compliance with the California Environmental Quality Act. Chalfant also issued an injunction to suspend all activity on the project until that point.
Larger implications
Chalfant’s decision will have broader implications for the Ballona Wetlands Restoration Project, likely delaying the project originally set to begin in 2024, by years. The most significant effect of this ruling is that the EIR may need to be reopened for public comment, although that point is not made entirely clear in Chalfant's opinion paper.
“Depending on what needs to be revised in the EIR and to what extent it needs to be revised will dictate to what extent the analysis will be subject to public comment,” Jordan Traverso, the deputy director of communications, education and outreach for CDFW, said.
After CDFW published the initial Draft EIR in 2017, the public had until 2018 to submit letters in support or opposition of the project, ultimately totaling more than 7,500 responses referencing 3,000 different issues. CDFW was required to respond to all public comments, causing another two years to go by before the Final EIR was approved. Chalfant's ruling noted that in the Final EIR, “CDFW’s responses to public comments were dismissive, conclusory, evasive, confusing or otherwise nonresponsive.”
The other implication of this ruling is that restoration efforts for the Ballona Wetlands have ostensibly been delayed until CDFW resolves the issues identified by the court, jeopardizing the habitat and wildlife while humans fight over the best course of action.
Walter Lamb, president of the Ballona Wetlands Land Trust, said he hopes CDFW will view the ruling as an opportunity to consider how community stewardship could improve the ecological health of the wetlands while the EIR is being revised. Lamb has been a staunch opponent of the project and a firm advocate of community stewardship in the wetlands.
“It is long past time to find common ground on near-term management policies for this critically important ecosystem,” Lamb said. “With urgent issues of sea level rise, environmental justice, and declining biodiversity, we can't wait another 10 or 20 years for an overly massive project that is not likely to ever be implemented.”
Defend Ballona Wetlands, one of the environmental groups named in the lawsuit hopes this development will inspire Gov. Gavin Newsom to withdraw the project. Opponents of the project have already created a petition, numbering 11,510 signatures.
How will CDFW proceed?
It is not certain how long this setback for CDFW will delay the Ballona Wetlands Restoration Project, if CDFW decides to proceed with the project at all. The ruling states, “A writ shall issue directing CDFW to set aside the Final EIR and any project approvals, prepare and certify a legally adequate EIR for the project if it chooses to proceed.”
However, the possibility that CDFW abandons their initiative does not appear likely, as they have already spent more than $12 million producing the Final EIR. What’s more, Traverso said the department does not characterize Chalfant’s ruling as a rejection of the EIR and asserted that the opinion largely favored the department over concerns raised by environmental groups. Traverso said that of the 10 claims brought against CDFW, they won eight, only losing concerning the two issues identified earlier in the article.
Traverso stated that CDFW is under the impression that “of those (points) the petitioners did win, none require CDFW to revise the analysis already contained in the EIR or to do anything we hadn’t already identified as something that might become necessary in the future.”
“The restoration project remains the best mechanism to revitalize the Ballona Wetlands for many future generations of Angelenos,” Traverso said.
The next step in this process is for the petitioners named in the case to prepare a proposed judgment and writ of mandate. They will present that to CDFW for review and state their objections. All parties will then present themselves to the court for judgment on June 29.
