BALLONA
WELANDS LAWSUIT VICTORY STORIES:
Judge
orders halt to Ballona Wetlands restoration project
BY
LOUIS SAHAGĂN, STAFF WRITER
MAY
30, 2023
https://www.latimes.com/california/story/2023-05-30/judge-orders-halt-to-ballona-wetlands-restoration-project
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.”
…........
http://ballona-news.blogspot.com/2018/09/not-o-kay.html
..........
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
https://www.dailynews.com/2023/05/20/court-ruling-halts-controversial-ballona-wetlands-restoration-project/
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.
=====================================
https://www.westsidecurrent.com/news/environmental-group-victorious-in-legal-challenge-to-ballona-wetlands-project/article_3592dbc2-f546-11ed-9168-9363c8a19df7.html
https://yovenice.com/2023/05/23/judge-rules-against-bulldozing-plan-in-ballona-wetlands-ecological-reserve/
https://www.argonautnews.com/news/what-happened-to-the-ballona-wetlands-restoration-project/article_88917e16-7bff-11ed-8f24-e7aa47bf467c.html
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.
https://www.argonautnews.com/community/petition-to-protect-court-issues-injunction-against-cdfw-s-ballona-restoration/article_a5dcbb00-fa82-11ed-84c2-df3a223aae73.html
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.