Questions Raised about Permits for Controversial Lagoon Project

BY SUZANNE GULDIMANN

Opponents of the Malibu Lagoon Restoration and Enhancement Project say that they cannot appeal a ruling made by a San Francisco Superior Court judge until the ruling is formally issued in writing, but lawyers for the project opponents have submitted a letter to the California Department of Fish and Game, raising questions about permits for the project.

"On behalf of Wetlands Defense Fund, Access for All and the Coastal Law Enforcement Action Network, we write to request that the Department of Fish and Game fulfill its permitting responsibilities for the Malibu Lagoon Restoration and Enhancement Project," the letter from the Law Offices of James Birkelund states. "As the California state agency tasked with protecting our wildlife habitats, your agency's examination of project impacts to the rare and especially sensitive habitat in Malibu Lagoon is essential."

The letter states that the department "has the duty to consider: 1. Requirements for a streambed alteration agreement, 2. requirements for incidental take permits under the California Endangered Species Act, and 3. other state laws, such as Fish and Game code sections [pertaining to water pollution, fish passage ] and the need for the project to undergo additional environmental review with a subsequent or supplemental environmental impact report, pursuant to the California Environmental Quality Act."

The letter states that the DFG has "previously raised serious concerns with the project."

It points out that a streambed alteration waiver issued in 2007 required that "the project must be the same one and conducted in the same manner…including completing the project within the proposed term and same seasonal work period," and that the work is now scheduled to take place in the summer, rather than in the winter, concluding that "the 2007 waiver is therefore by its own express terms no longer of any force or effect."

The letter proposes that a new supplemental or subsequent EIR is needed for the project, based on "new information, which was not known and could not have been known at the time the EIR was certified complete."

The letter cites a recent U.S. Geological Survey report, currently undergoing peer review, which "determined that bacteria pollution in Malibu Lagoon and offshore waters is likely from natural sources," and the fact that the Tapia Water Reclamation Facility is no longer permitted to discharge waste during the period from April 15-Nov. 15.

"Discharges at the time the project was initially designed occurred year-round," the letter states. "Now, since there is no excess water coming downstream from Tapia to Malibu Lagoon during the late spring, summer and early autumn, the project need to enhance water flushing is also no longer evident. These changed circumstances must be analyzed under CEQA."

The tiny endangered tidewater goby fish is also discussed in the letter, which states "…since the department issued the now-expired waiver for a streambed alteration permit, additional information indicates that the planned reconstruction would be unlikely to support a thriving population of tidewater goby and would further alter the ecology as compared to historic conditions existing before human disturbances.

"According to the U.S. Fish and Wildlife Service critical habitat designations, tidewater goby require 'persistent, shallow, still-to-slow-moving aquatic habitat;' yet the plan for the project is designed to provide deep, faster moving water."

The letter concludes "Because the department is a responsible agency with discretionary approvals pending, it must consider whether the project warrants further environmental review with a subsequent or supplemental EIR."

The State Parks plan to drain, dredge and re-contour the western portion of the Malibu Lagoon has attracted substantial opposition in the Malibu community.

Observers say the project appears set to become a major issue in the April 2012 Malibu City Council election.