Coastal Commission wants new hearing on Los Cerritos Wetlands grading case

The state Coastal Commission has found substantial issues on the city's approval of a permit for restoration of the graded area near Los Cerritos Wetlands.

It approved a new hearing on the issue during a hearing in Santa Cruz.

Critics of the controversial permit, including several commissioners, contend the city's approval of the local coastal development permit -- without a detailed habitat restoration plan -- "does not conform with or carry out the goals and policies for the project site as set forth by the City of Long Beach certified Local Coastal Program (LCP)."

According to a commission staff report: "The certified Long Beach LCP sets forth the following land use policy for the project site, which is Subarea 23 of SEADIP (Southeast Area Development and Improvement Plan):

"a. The two wetland concepts generally outlined shall include a 8.3 acre brackish pond on Area 23 provided that the Executive Director of the California Coastal Commission determines (i) in addition to the setback for buffer, the elevation and setbacks between development and wetland edge shall be sufficient to ensure stability during liquefaction events caused by the maximum credible earthquake; (ii) that the location and operation of the proposed wetland are acceptable to the Regional Water Quality Control Board, the State Department of Health and to the Local Mosquito Abatement District.

"b. If approval from these agencies results in reductions to the net size of the proposed wetland, restoration at this site shall only occur if the remaining area is sufficient to create a wetland at least the same size as the existing brackish pond at the Marketplace.

"The city's approval of the local coastal development permit also does not conform with or carry out the following goals and policies contained in the Open Space Element, which are equally weighted policies of the Land Use Plan (LUP) portion of the city's LCP:

"1. Goals: Open Space - Preservation of Natural Resources

"b. To preserve and enhance the open space opportunities offered by the inland waterways of the city through improved access and beautification.

"g. To preserve areas which serve as natural habitats for fish and wildlife species and which can be used for ecologic, scientific, and educational purposes.

"h. To locate, define, and protect other beneficial natural habitats in and about the city.

"5. Goals: Open Space - Shaping Urban Development
a. To maintain and enhance existing and potential open space areas which are important as links, nodes, and edges, or provide relief from urban built-form.

"8. Policies: Open Space Node - Alamitos Bay & Recreation Park Conserve and enhance Alamitos Bay - Recreation Park open space node by:

"e. Improving the quality of the Bay waters by controlling all forms of possible pollution, both in Bay and in tributaries upstream;

"h. Maintaining close surveillance over all proposed projects in the Bay area through the environmental review process;

"i. Exerting design controls on proposed improvements in order to prevent degradation of the aesthetic environment;"

Additional details from the commission report:

"Project Description

"The vacant 9.38-acre project site, situated between Loynes Drive and the north bank of Los Cerritos Channel (Alamitos Bay) in southeast Long Beach, is part of an old landfill operation ... that filled coastal marshland in the 1940s and '50s. The top layer of the landfill was disturbed by unpermitted grading that occurred on March 19 and 20, 2009. That unpermitted grading altered the topography and removed most of the vegetation from the site. Apparently, the grading also exposed the old dump. Commission staff issued an emergency permit on April 9, 2009 to allow the applicant to take immediate action to mitigate elevated methane levels (up to 7700 ppm) detected at the site by the South Coast Air Quality Management District. Following the issuance of the emergency permit, the applicant constructed a new cap on the dump using 1,000 cubic yards of imported fill dirt.
"The subject of this appeal, Local Coastal Development Permit No. 0904-15, is an after-the-fact approval for weed abatement and for the import of 1,000 cubic yards of soil to construct a new cap on the surface of the old dump. The project site is Subarea 23 of SEADIP (Southeast Area Development and Improvement Plan), a specific plan that covers the southeast portion of the City of Long Beach.

"B. Factors to be Considered in Substantial Issue Analysis

"Section 30625 of the Coastal Act states that the commission shall hear an appeal of a local government action unless it finds that no substantial issue exists with respect to the grounds on which the appeal has been filed. The term 'substantial issue' is not defined in the Coastal Act or its implementing regulations....

"Even when the commission chooses not to hear an appeal, appellants nevertheless may obtain judicial review of the local government's coastal permit decision by filing petition for a writ of mandate pursuant to Code of Civil Procedure, Section 1094.5. Staff is recommending that the commission find that a substantial issue exists for the reasons set forth below.

"C. Substantial Issue Analysis

"... In this case, the local coastal development permit may be appealed to the commission on the grounds that it does not conform to the certified LCP or the public access policies of the Coastal Act....

"In this case, staff recommends that the commission determine that the appeals do raise a substantial issue with respect to the grounds on which the appeals have been filed regarding consistency with the certified City of Long Beach LCP. The certified LCP requires that open space and natural habitat areas shall be preserved and that the waters of Alamitos Bay be protected from polluted runoff. The following goals and policies, contained in the Open Space Element of the City's General Plan, are equally weighted policies of the Land Use Plan (LUP) portion of the City's certified LCP:

"1. Goals: Open Space - Preservation of Natural Resources

"b. To preserve and enhance the open space opportunities offered by the inland waterways of the city through improved access and beautification.

"g. To preserve areas which serve as natural habitats for fish and wildlife species and which can be used for ecologic, scientific, and educational purposes.

"h. To locate, define, and protect other beneficial natural habitats in and about the city.

"5. Goals: Open Space - Shaping Urban Development

"a. To maintain and enhance existing and potential open space areas which are important as links, nodes, and edges, or provide relief from urban built-form.

"8. Policies: Open Space Node - Alamitos Bay & Recreation Park Conserve and enhance Alamitos Bay - Recreation Park open space node by:

"e. Improving the quality of the Bay waters by controlling all forms of possible pollution, both in Bay and in tributaries upstream;

"h. Maintaining close surveillance over all proposed projects in the Bay area through the environmental review process;

"i. Exerting design controls on proposed improvements in order to prevent degradation of the aesthetic environment;

"The appeals contend that the project site should be recognized as containing wetlands and sensitive habitat, and that it is subject to the public trust. These assertions go right to the heart of the matter. The coastal development permit process should identify the impacts of the approved development on coastal resources, and then establish the limits on the scope of the approved development and require specific mitigation measures in order to protect open space and natural habitat as required by the certified LCP. The city's local coastal development permit findings do not acknowledge the proposed project's adverse impacts to coastal resources or attempt to explain how the adverse impacts will be minimized or mitigated. The city's findings also do not provide an adequate degree of factual support for its conclusion that the approved development conforms with the certified LCP and the public access policies of the Coastal Act.

"The project site is open space, and the reports prepared for the applicant and the Los Cerritos Wetlands Trust support the assertion that the site contains wetlands and sensitive habitat. A report1 for the project site submitted by the Los Cerritos Wetlands Trust indicates that the site has significant biological value because of its characteristics and its proximity to the tidal channel and the adjacent salt marshes. The Los Cerritos Wetlands are about 200 feet south of the project site, on the south side of the Los Cerritos Channel. While the project site is primarily upland (about 16 to 20 feet of fill covering former salt marsh), the report states that there are seasonal wetlands (vernal ponds) that form on lower elevations on the western side of the property. Hydric soils and least two species of native plants that are wetland indicators (Polypogon monspeliensis and Lepidium latifolium) have been documented on the site.

"The El Dorado Audubon Society and the report submitted by the Los Cerritos Wetlands Trust state that the open space is an important foraging area and refuge for several species of birds, including raptors, herons and egrets. Wildlife on the site also includes fence lizards and small mammals (squirrels, rabbits and rodents).

"The local coastal development permit authorizes the removal of vegetation and the placement of 1,000 cubic yards of fill on the site, but lacks the provisions necessary to protect habitat and native vegetation on the site. The local coastal development permit also does not include adequate conditions to require the applicant to mitigate and/or restore any habitat destroyed as a result of the approved development. The local coastal development permit does not include any mitigation to protect the adjacent tidal areas from runoff and sediment that may erode from the site subsequent to the vegetation removal and grading. Even though the local coastal development permit contains Condition 10 that requires the applicant to 'comply with a remediation plan to be prepared by staff,' the city has not put forward any such plan. The local coastal development permit's lack of limits on the scope of the approved development and the lack of specific mitigation measures raises a substantial issue with respect to the grounds of the appeals.

"Condition 10 raises a substantial issue as to its conformity with the certified LCP because it is vague and unclear. The condition does not define what needs to be remediated. Is it the dump and the methane gases, or the habitat and vegetation that must be remediated? The condition includes no details, standards or parameters. The condition should, at a minimum, describe what types of native plants must be planted on the site (and when) in order to mitigate....

"Additionally, the local coastal development permit is unclear as to whether the city's approval of weed abatement is solely retroactive, or whether the permit is authorizing future episodes of vegetation removal activities on the site. Either way, the permit does not include the provisions necessary to protect native vegetation, wildlife and water quality from the adverse impacts of vegetation removal. Thus, a finding of substantial issue will help to clarify the scope of the approved development, and whether a coastal development permit must be obtained for any additional vegetation removal.

"Another substantial issue is the conformity of the development with the LCP designation of the property. The certified City of Long Beach LCP designates the project site as a restoration site, specifically an 8.3-acre brackish pond. The project site falls within Subarea 23 of SEADIP (PD-1 - Southeast Area Development and Improvement Plan), a specific plan that covers the southeast portion of the City of Long Beach. ...

"A de novo hearing will scheduled for a future Commission meeting."