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Were Government Watchdogs Fooled into OKing Playa Vista Pollution Marsh?
Fresh Water "White Paper", published 2001 by Ballona Wetlands Land TrustI. INTRODUCTION
The Ballona Wetlands is a 1087-acre coastal wetlands ecosystem located in western In response to questions raised during the April 10, 2001 permit revocation hearing, this report was commissioned by the Ballona Wetlands Land Trust and Surfrider Foundation–South Bay Chapter to further investigate what had transpired in 1991, to understand what can be learned from the past, and to determine what should be done in the future to avoid pitfalls such as that which befell the Commission in 1991. An additional purpose is to illuminate the process through which those in the private and public sector may help the current Commission in its work to protect and restore This report investigates the following two areas: Finally, this report makes several recommendations for guiding future decisions on the permitting of development in and around coastal wetlands, in general, and the Ballona Wetlands ecosystem, in particular. II. BACKGROUND SUMMARY
On April 10, 2001, ten years after the Commission had first approved the Basin permit, and due to the recent recommencement of construction there, Wetlands Action Network requested a revocation of the Basin permit on several grounds, the two most significant being: Proponents of revocation argued that in 1991, the Commission had accepted MTP-PV’s application without having access to the real facts about the nature and extent of wetlands. While the applicant and its supporters claimed that the area constituted "degraded agricultural land," opponents argued that the land was degraded, yet recoverable salt marsh and, therefore, the Coastal Act prohibited the development or conversion of the area to a freshwater marsh, or run-off basin. Specifically, proponents of revocation maintained that a key document which refuted the applicant’s claim of degraded agricultural land had been intentionally withheld from the Commission by MTP-PV. If the Commission had known about and had reasonable access to this document, a more informed decision would have been made, and the Commission would have voted differently with regard to the Basin permit application. The document was a 1986 report, commissioned by the United States Environmental Protection Agency, by Dr. Terry Huffman.4 The III. THE EPA REPORT
In 1986, the United States Environmental Protection Agency hired Terry Huffman, Ph.D., of HuffmanTechnologies Company, "Approximately 60 percent of the Ballona Creek land tract are found to be periodically inundated aquatic and wetland areas. Aquatic areas occur over an estimated 10 percent of the area and include riparian streams, and open water associated with ditches, low-lying intertidal areas and ponds. The remaining 50 percent of the area consists primarily of periodically inundated wetlands. The varied range of periodic inundation that occurs within the land tract is the result of freshwater runoff from nearby hillsides, shallow groundwater sources, tidal action and localized rainfall. Agricultural lands that would under ‘normal circumstances’ revert back to previously existing wetlands are included as part of the wetland acreage estimate mentioned above. The lands are subjected to some drainage and flood and tidal protection but have not been converted into dry lands." 6 (Emphasis added) A map included in the EPA’s report designated the land west of Lincoln and south of Jefferson (the area currently being graded and filled to create the Basin) as "seasonal agricultural lands."7 Later in the report, Huffman described that same land as "former wetlands prior to levee construction, hydraulic filling with dredged material designed to keep the soils within the root zone well drained," because seasonal nonaerobic crops (typically lima beans) had been grown on the land in prior years.8 Finally, the Huffman- EPA report concluded, "Annual recolonization by salt marsh and brackish [mixed salt and fresh water] marsh species common to the area is found on various portions of filled areas and agricultural lands that have seasonal anaerobic9 conditions during portions of the early growing season."10 If left alone, wetlands formerly used for agriculture tend to revert back to wetlands—in the case of Area B, salt marsh or brackish wetlands. The California Department of Fish and Game agreed, "During the evolution of the now certified Playa Vista Land Use Plan, we predicted that, were it not for the then ongoing agricultural operation, wetlands in Area B would expand. These agricultural activities ceased for approximately three years prior to the Corps' wetland determination, and as we predicted, the wetlands did expand into the area which was formerly used for the production of barley and IV. HISTORY PROVES EPA RIGHT
Subsequently, both the Department of Fish and Game and EPA ended up being correct in their analysis. In the years after the publication of the Huffman-EPA report, when the Ballona Wetlands were no longer drained and used for agriculture, those portions formerly used to grow crops, including Area B west of Lincoln and south of Jefferson, began reverting to salt marsh. The period from the later 1980s to the late 1990s could be called a period of benign neglect, in which the land began to repair itself. But in 1997, Playa Capital, L.L.C., the new owners of the Ballona Wetlands, began bulldozing the wetlands area south of Jefferson and west of In 1998, a court-ordered site inspection was conducted by environmental group plaintiffs in a federal lawsuit, filed against the U.S. Army Corps of Engineers for violating the National Environmental Policy Act (NEPA). Plaintiffs commissioned renowned wetland restoration scientists to determine the jurisdictional extent of wetlands in the Playa Vista federal Phase One area, which included land slated for the Basin. This study confirmed that there were jurisdictional wetlands both within, and outside of, the original Corps’ wetland boundaries in Area B. Wayne Ferren, one of the wetland restoration experts, stated in a declaration to the federal court, "In development Area B, south of Jefferson Blvd., I walked the site of the proposed artificial freshwater detention basin (basin) (referred to by Playa Capital as the freshwater marsh). I observed the areas demarcated as jurisdictional wetlands, and I also observed areas outside the demarcation which had previously been mapped as upland: Within the area demarcated as jurisdictional wetland, the majority of the area was dominated by native wetland plants, and therefore a wetland. …Outside the demarcated boundary, the majority of the area had recently been graded/grubbed; however, native perennial wetland plants were beginning to emerge…indicating that a majority of the area mapped as upland is at least Coastal Commission wetland [i.e. containing only one of the three wetland characteristics]. Thus substantial wetlands exist both inside and outside of the demarcated boundaries in Development Area B."12 (Emphasis added) V. SUPPRESSION OF THE EPA REPORT
At the April 10, 2001 revocation hearing, the central questions were whether MTP-PV, the permit applicant, intentionally withheld the EPA report from the Commission, and whether that information would have been significant to the Commission’s Basin permit decision in 1991. Proponents of revocation asserted that the applicant-developer was certainly aware of the EPA report and its significance, but chose to withhold it from the Commission, by not including it as part of the record in the permit application. It is clear that the applicant-developer was aware of the Huffman report. The evidence was contained in an EPA internal memorandum, dated March 23, 1987, which stated, "It is my understanding that Howard Hughes Properties13 representatives will seek to visit EPA this week. Apparently they are seeking to convince EPA not to take further action on the jurisdictional matter or to initiate any enforcement action on the unauthorized fills [that the Huffman report addresses]." (Emphasis in the original).14 Other evidence indicates that the EPA report had been mentioned only as a reference in a lengthy report written by consultant Michael Josselyn on behalf of the applicant developer. At the April 10, 2001 revocation hearing, Commissioners inquired whether the 1991 Commission had been given the EPA report. Under questioning, Commission staff noted that, although the report was not physically in the permit file, it was there by reference. Specifically, the consultant for the applicant-developer, Michael Josselyn, had referred to the EPA report as a reference in his own report,15 which was presented to the Commission as part of the permit application, and which advocated for a lesser re-delineation of wetlands in Area A.16 However, Josselyn's report was concerned with the delineation of Area A (north of Ballona Creek and west of Lincoln Boulevard), not Area B, an entirely separate and distinct parcel of the Ballona Wetlands ecosystem. Understandably, the reference to the EPA report went unnoticed and unremarked by the 1991 Commission, since it was not presented to the Commission as directly related to the subject matter of the Basin permit. Why did the Commission staff use the old 1982 Fish and Game map as the basis to determine wetlands delineation for Area B in 1991, particularly when the developer applicant had also asked for a concurrent re-delineation of the Ballona Wetlands in Areas A and C? Advocates of revocation concluded that, by presenting the outmoded 1982 Fish and Game map, while simultaneously withholding the 1986 EPA report, the developer attempted to lead the Commission to believe that the wetlands in Area B were both qualitatively and quantitatively insignificant, and that its plan to build the Basin was an improvement over the existing situation, and should therefore be approved. At the 2001 revocation hearing, the Sierra Club representative testified, "The point here is that the developer knew of the report, knew that it was relevant, knew that it was important and material and deliberately failed to give it to you [the 1991 Commission] in connection with permitting on that parcel."17 MTP-PV had not made the EPA report available to the Commission in 1991. Instead of providing the Coastal Commission full disclosure of all applicable information required for a thorough and informed decision, the applicant-developer gave the Commission an obsolete wetlands delineation map, dated 1982. This map, created by the California Department of Fish and Game, showed significantly less wetlands than did the EPA report. The outdated delineation map showed that approximately 17% of the Ballona ecosystem was wetlands, as opposed to the 60% found by the EPA in 1986.18 VI. SALT VS. FRESH WATER WETLANDS
Did the 1991 commissioners realize that by granting MTP-PV’s Basin permit, they were permitting the destruction of natural salt wetlands of greater value than the artificially constructed, and less valuable, freshwater wetlands? In approving the Ballona LUP in 1984, an earlier Commission had recognized the land in question as primarily upland. This distinction is critical, because it allowed for development in an area that would have been largely protected, if a different wetland delineation had been used. The 1991 Commission staff report allows that "a concern has been raised about creating freshwater marsh habitat in an area that was probably salt and brackish marsh habitat before Ballona wetlands were substantially modified, and thus creating a freshwater marsh [that] would not restore historic resources." However, the staff report dismisses this concern "for two reasons". First, the wetlands have been so reduced and compromised by historical development that they cannot be restored to their original state, in any case. Given these "existing limitations," a freshwater marsh created as part of the developers’ project will satisfy the requirements of "historical diversity" (the previous existence of freshwater marsh, salt marsh, and brackish water). Second, given that the Coastal Commission had approved the 1984 LUP that allowed residential development on the site, a freshwater marsh "will not compromise saltmarsh values" because if the freshwater marsh is not built the developer will build "residential uses," and thus "the saltwater values of the area would be lost."19 Both in the original written public comment on the proposed freshwater marsh, and in the 1991 hearing, opponents to the granting of the permit brought up this distinction between the fresh and salt water wetland. The issue of fresh versus salt marsh was clearly significant to the Commission’s decision.20 One of the opponents to the Basin who testified at the 1991 hearing, marine biologist Rimmon C. Fay, did bring up the value of salt versus freshwater wetland. "During the many hearings on the development of the California coastal plan which led to the…California Coastal Act, there was never a consideration of developing fresh water wetlands at the expense of salt water wetlands, nor a substitution of fresh water wetlands for salt marsh lands." Fay apparently was not aware of the EPA report, since neither he nor other opponents of the Basin permit referred to it, either in support of the fresh vs. salt marsh distinction, or in arguing for a greater wetland delineation.21 In a recent conversation (May 29, 2001), Mr. Fay was asked whether he had known about the EPA report at the time of the 1991 permit hearing, and confirmed that he had not. Nonetheless, the September 1991 transcripts of the permit hearing do make repeated references to salt marsh by the continuing opponents of the project, such as Jim Hendrickson, professor at Commission staff also suggested that if they were assigned to look with suspicion on the wetland delineation issue, the next logical step would be to order other government agency reports and go over them. This was not done. 25 The opposing sides in the lawsuit against the Commission—the Friends and the developer (originally Howard Hughes’ Summa Corporation, now MTP-PV)—had come to a private settlement, a key component of which was the creation of the Basin in Area B, in lieu of the LUP-designated commercial and residential development. Because of this agreement, the Commission did not look any further into the matter of jurisdictional wetlands in Area B. In other words, the Commission saw no compelling reason to "look with suspicion" at the applicant’s documentation, or to fully address the contention by other members of the public that the area should be restored as salt marsh, since the two main parties to the 1984 lawsuit were now agreed. VII. THE MTP-PV AND FRIENDS OF BALLONA AGREEMENT
In September of 1991, the proponents of the Basin urged the Commission to approve the permit immediately. Apparently, the issue of timing was very important. Ruth Lansford, head of the Friends of Ballona, asserted at the 1991 hearing, "MTP has been both patient and forthcoming but their commitment is not open-ended. Understandably, they have to get on with their project and get things going." Why the timing was so crucial is not altogether clear. However, the Friends of Ballona Wetlands suggested that if the Basin permit was not approved, a greater harm would result. "The Friends are concerned that if the commission either substantially delays or denies the freshwater application, Maguire-Thomas Partners might be forced by their fiduciary obligations to simply install standard flood control. Let me make it clear that they have in no way threatened to do that, but they do have that right under our agreement. The Friends, having participated in the planning for this application, are well aware of their significant time and dollar commitments and the pressures they are experiencing to go forward. I cannot stress too strongly how important it is to the Friends to have no development west of Evidently, the Friends believed that the Basin was better than what seemed to be the only alternative—the building of houses, based on the existing LUP. It is possible that MTP-PV had told their former opponents that the choice was the runoff basin or housing27—together with a breakdown of the settlement negotiation. What the actual pressure, if any, was on Maguire Thomas Partners, and their new allies—and on the California Coastal Commission—is uncertain. In 1991, the real estate market in According to the September 1991 hearing transcript, the question of salt marsh was discussed. But most of the discussion centered on the seeming desirability of putting a freshwater marsh on the Area B land in question, given the only apparent alternative (that of residential development). It was "only apparent" because the Commission (and those members of the public opposed to the Basin permit) did not have access to the most compelling documentation available—the EPA report. Had this report been in the Commission’s application file, it could have persuaded the staff to recommend against the developers’ Basin permit application. In a telephone conversation (June 8, 2001) James Raives, the staff member who wrote the 1991 staff report, acknowledged as much. The Commission’s lack of knowledge of the most current wetland assessment, combined with the Friends–MTP-PV agreement, tipped the scales away from saving the salt marsh. Indeed, the 1991 Basin permit decision was based on the information in front of the Commission at the time, information that did not include the EPA's wetland assessment. VIII. LEGALITY OF THE BASIN AS RESTORATION OF THE BALLONA WETLANDS
The underlying point in the agreement that had recently been reached between the Friends and MTP-PV was repeated by one of the developer's key allies at the September 13, 1991 Commission meeting. Councilmember Ruth Galanter, who had run for, and won, her Los Angeles City Council seat on a platform of opposing the development of the Ballona Wetlands, said to the Commissioners, "The plan that you approved, or your predecessors approved in the 1980’s, would have allowed where this marsh is going to go, over two thousand units of housing. We believe that having a restored marsh is better than having housing in that location…I think the basic issue is, do you want this restored or not? All of us do."29 Although the Friends of Ballona and Councilmember Galanter likely had good intentions, unfortunately what the Commission permitted was arguably not a restoration at all, as envisioned by the Coastal Act. In fact, the Basin was to displace what was both historical and, as evidenced by the EPA report, presently existing salt marsh wetland. While wetland fill for restoration purposes is allowed by Section 30233 of the Coastal Act, the freshwater Basin is not a restoration, because it is creating something that was not there historically. Restoration is defined as: "the act of restoring; renewal, revival, or reestablishment; a return of something to a former, original, normal, or unimpaired condition; or restitution of something taken away or lost."30 The distinction between freshwater and salt marsh is critical, as demonstrated by scientists’ statements: "Further loss of these [salt marsh] habitats cannot be tolerated. These proposed fills in the Ballona Wetland area will not only destroy existing salt marsh habitat but will also destroy the eastern portion of Area B—an area into which salt marsh plants have been expanding since the cessation of agricultural activities. It is likely that this old agricultural land was initially a salt marsh and it is therefore the best area for current salt marsh restoration efforts. The conversion of this area to a freshwater wetland is a waste of its potential."31 Maguire Thomas Partners-Playa IX. THE QUESTION OF OWNERSHIP
In its revocation request, Wetlands Action Network questioned whether Playa Capital, L.L.C., was actually the owner of some of the acreage designated for the Basin construction. This issue had arisen at a public hearing in February 2001, held by the State Controller of California. During the hearing, the Controller, who is also a member of the State Lands Commission, informed the public that the State of California owned 60 acres of Area B, approximately half of which the state had previously taken title to, with the remainder to be moved into state ownership in lieu of the developer's fees or taxes within four years. At the April 10, 2001 revocation hearing, the Commission and staff rejected the validity of the ownership issue, due to conflicting reports as to when the land was coming into state hands. However, research indicates that even the Commission itself was under the assumption that the land slated for the Basin was actually owned by the state at the time the permit was considered in 1991. The staff report from the 1991 permit application states unequivocally that, "the Commission is concerned about the long-term protection of the mitigation site [the freshwater marsh]…The Commission also notes that a portion of the proposed wetland system site is owned by the State Lands Commission."35 (Emphasis added). In 1992, another reference to the ownership question is contained in the revised Adopted Findings: "The Commission also notes that a portion of the proposed wetland system site is expected to be conveyed to the State pursuant to an agreement between the applicant and U.S. Trust Co of CA as trustee for the benefit of the Controller of the State of CA, dated Sept. 28, 1990." 36 (Emphasis added). The Commission, therefore, acknowledged during the permit process in 1991, that the State of The conveyance of a portion of Area B from the developer to the state served as consideration for the state’s granting of an option to purchase Area C in 1990.37 Gifts of public property to a private party are unconstitutional under the California Constitution. Since allowing a private party to use state property as mitigation for a private project’s environmental impact is arguably a gift of public property, the approval of the Basin permit in 1991 might be construed as unconstitutional. X.
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© Copyright
2007
Rex Frankel. Last update: 9/27/2007; 12:04:54 PM. |
