By now, most people in the local environmental community know that last Friday afternoon, San Francisco County Superior Court Judge Ernest Goldsmith issued a stay on the Malibu Lagoon restoration project. The project was supposed to begin June 1, but the court order suspended the project until an October hearing on the Coastal Commission project approval. As a result of the court’s stay, the restoration efforts will be delayed until at least the summer of 2012 because the wildlife protection agencies that approved the restoration justifiably require all efforts to occur during the summer months when wildlife impacts are minimized.
At first, I wasn’t surprised by the court decision. After all, the preferred remedy (no restoration) for the project’s opponents wouldn’t be achievable if the lagoon was restored before the hearing on the merits could be held. The entire restoration was scheduled for completion in September, so on the small chance that the project’s opponents win in court in October, they would have no realistic remedy. The Judge wouldn’t order for the restoration efforts to be torn out.
However, the judge’s decision to grant the stay wasn’t based on the potential loss of remedy. Moreover, he wasn’t swayed by the spurious argument that access to the beach was lost, and he implied that the opponent’s suggested restoration alternative was vague. Instead, his decision was based largely on an epic blunder by Coastal Commission attorneys and the Attorney General’s office. Despite the fact that the project’s opponents had requested the record of decision for the Coastal Commission approval back in February, Coastal Commission attorneys never provided the administrative record. In fact, the restoration opponent’s attorneys, the AG and the Judge have never read the administrative record.
Why is it that the Coastal Commission can go to extreme measures to permit rock rip-rap that destroys Malibu Creek stream banks and a horse ranch in the middle of Stokes Creek, but they can’t even get their act together enough to prepare an administrative record for an 11-0 Coastal Commission vote on a habitat restoration?
The AG’s lack of understanding on the detail of the project was stunning. Not only did she admit that she had never read the record, she fell upon the understaffed and underfunded cliché. I’m sure State Parks and the Santa Monica Bay Restoration Commission would have been glad to help putting together the information for the administrative record, but they weren’t even utilized in the process. Heck, they were barely even consulted with in the process. The Coastal Commission and the AG’s office walked into the final without ever cracking a book! Based on this colossal screw-up, what choice did the Judge have but to grant the stay?
The October trial will be on the Coastal Commission’s 11-0 vote approving the project. Unlike last Friday’s hearing, the October hearing will focus on whether the Commission’s unanimous approval complied with the requirements of the Coastal Act. Also, the October hearing will be more likely to discuss the ecological and water quality merits of the restoration plan created by State Parks, the Coastal Conservancy, leading California wetland scientists, coastal engineers, landscape architects and Heal the Bay.
In the meantime, the lagoon’s degradation problems will continue for yet another year. Another year of low oxygen levels and low aquatic life biodiversity. Another year of high nutrient levels and nuisance algae blooms. Another year of Clean Water Act violations.
Filed under: Water Quality |