Lagoon Project Foes Pin Hopes on Revocation Request to Be Aired by Commission Next Week
• Coastal Staff Do Not Accord Application Usual Procedures
BY SUZANNE GULDIMANN
The California Coastal Commission will hear a revocation request made by opponents of the State Parks Malibu Lagoon Restoration and Enhancement Project at the commission's Aug. 8 meeting in Santa Cruz.
In what is being described by observers as a departure from established commission procedure, the project contractors, who are currently overseeing the dewatering phase of the plan to drain, dredge and reconstruct the western portion of the Malibu Lagoon, are being allowed to continue construction. In the past, the CCC's executive director has required construction to cease until the revocation issue has been resolved.
While CCC Executive Director Charles Lester recommends that the commission deny the proposed request for revocation, the staff report summarizes a lengthy and complex list of issues, ranging from access to habitat concerns presented by Marcia Hanscom of the Wetlands Defense Fund and Roy Van der Hoek, representing the Coastal Law Enforcement Action Network. There are also letters from a number of other lagoon project critics, including UCLA scientist Travis Longcore.
"Upon reviewing the subject request, and comparing it to the ad ministrative record, the executive director found the revocation request to be indisputably without merit," the staff report states.
"Nevertheless, because some familiarity with the record is necessary in order to demonstrate the lack of merit of this particular revocation request, and to maximize the opportunity for the revocation requester and the public to be heard, the Executive Director determined it would be prudent to set a hearing for an examination of the request and the record."
The revocation request makes several major assertions, including that "project proponents did not reveal the proposed temporary dam location to commissioners and that construction documents were inappropriately withheld from commissioners when they made their decision," the staff report states.
"Further, the revocation request also asserts that information from the 2005 Dagit & Swift fish sampling report, containing information about the presence of breeding tidewater goby in the proposed temporary berm location, was not made available to Commissioners."
The revocation request states: "The placement of the dam was not revealed during the October 2010 hearing to be one the primary breeding areas where the breeding activity of Tidewater Goby had been documented in 2005. While those construction documents were not available to commissioners when they made their decision, it is reasonable to believe that the project managers knew exactly where they were going to construct the temporary dam that would facilitate dewatering of the western lagoon. Had the information from the 2005 fish sampling report combined with the dam location match-up been made available to the commissioners, it is likely a different decision about the project would have been made-either a decision for different conditions about dam placement, timing of the project or even an outright project denial or postponement that would be used to work out the problems of these plans."
The revocation request also alleges that the project agent, Mark Abramson, "was aware of and was one of the chief proponents of removal of the rip-rap at a location further upstream in Malibu Creek (north of Highway 1) by the Adamson family's business, which is the entity which was required and permitted by the Commission to remove the rip-rap."
According to the staff report, "The revocation request asserts that the applicant did not accurately characterize public access to Surfrider Beach during construction. The revocation request states: "[D]using the public hearing for the Coastal Commission permit for this project, it was repeatedly stated that public access would not be impeded during construction and that access to the beach would be open." The revocation request asserts that: "[a]t no time during the permit approval process did the public understood (sic) or been informed (sic), nor was the Coastal Commission itself informed that public access to Surfrider Beach's Third Point would be atop a sandbag constructed dike that has not been engineered as of yet.
"The request asserts that concerns regarding ADA compliance, wheelchair accessibility, stroller accessibility, and other safety concerns have not been vetted nor addressed. Further, the request claims that access is only available sporadically, and that the dewatering pipe will directly block emergency access to lifeguards and as secondary emergency access from Colony residential homes.
"The revocation request raises three separate concerns related to lagoon dewatering. The revocation request claims that the applicant withheld the fact that chlorinated water will be discharged into tide pools from dewatering operations and will harm the tide pools and kill the biota within them. The revocation letter states that the Petitioners "believe that the project proponents had access to and knew of the studies related to MRSA and other toxic contaminants that lay dormant in the sand at Surfrider Beach," which petitioners assert will be resuspended by the dewatering, causing a public health hazard, but that they did not reveal these facts.
"Additionally, the revocation letter raises concerns over rip-rap being placed in the tidal area and that "such a plan was not considered or approved by the Commission." Petitioners assert that if these issues related to dewatering were known, the Commission would not have granted the permit. "
On July 13, an additional email was submitted to the Commission from Marcia Hanscom, regarding the new critical habitat designation at Malibu Lagoon State Park for Pacific Coast western snowy plover that incorporates a section of the construction area and the portion of the beach where the dewatering pipe discharges onto the sand.. CCC staff concludes "The email does not state how this information raises any grounds for revocation of a CDP pursuant to Section 13105(a) of the California Code of Regulations and does not allege that the applicant intentionally included inaccurate, erroneous, or incomplete information. Further, information relating to this new critical habitat designation is unrelated to the permit action and was not in existence at the time of the Commission's action on October 13, 2010 (the new critical habitat designation was not issued until June 19, 2012)."
Hanscom told the Malibu Surfside News that she plans to amend the revocation request to include information recently uncovered through the Public Information Act.
"The State Parks Commission never approved the EIR for the project," Hanscom said. According to the requirements of CEQA, the agency must approve a project of this scope, but there appear to be no approvals from the State Parks Commission. We think this is a huge misrepresentation to the Coastal Commission."
Hanscom told The News that she would like to see the meadow area on the eastern side of the creek dropped from the project to provide a small area of habitat for marsh voles. She added that, after project opponents identified the presence of the voles, two vole carcasses were received by the Los Angeles County Natural History Museum and positively IDed.
Hanscom said that she hopes that the outcome of the revocation process could include the prevention of the deep digging that could potentially alter the Third Point waves in
and would also alter the meadow marsh area that she says is documented in historic photos, halting the controversial dewatering and chemical treatment effort; "rethinking of the installation of metal, 'Disneyland-like' structures and amphitheater;" the re-installation of the three-bridge trail; and "a community-engaged discussion and mediation that would result in a better outcome for restoration of this special State Parks property and true community involvement in the future of Malibu Lagoon."
While staff is recommending denial of the revocation request, activists note that more than half of the Commission is new since the October 2010 approval of the project, and they believe that photographic images and testimony from a significant turnout of concerned community leaders could motivate the Commissioners to grant the request.
Fallout from the State Parks finance scandal in Sacramento that began with the discovery of an illicit $271,000 vacation buyout program and expanded exponentially after the revelation that the Department of Parks and Recreation, which has been collecting donations to keep 70 State Parks slated from closure due to a $22 million budget shortfall, was in possession of an unreported surplus of $54 million continues to impact the beleaguered department's image.
Ruth Coleman, director of the agency resigned at once. Her chief deputy director, Michael Harris, was fired.
Ann Malcolm, the agency's chief counsel, announced her departure last week. Malcolm was actively involved in the lagoon project,
Malcolm met with former Councilmember Pamela Conley Ulich on the project in Malibu and in Sacramento. She was also present when lagoon opponents met with Governor Jerry Brown's environmental deputy at the governor's office and was present in the courtroom as an observer when the appeal petition was denied.
Observers say the shakeup in Sacramento may make it more difficult for the agency to maintain what is being called a fortress mentality.
More information on the revocation request is available at www.SaveMalibuLagoon.com