Ballona Wetlands Restoration: Litigation Update

[Please scroll to the end for author's affiliations.]

In Los Angeles Superior Court this week, Judge James C. Chalfant set a trial date of January 27, 2022 to hear four lawsuits challenging the Environmental Impact Report (EIR) for the state's Ballona Wetlands Restoration Project. The project will create, enhance and restore 600 acres of the Ballona Wetlands Ecological reserve, maximizing native wetland and upland habitat, updating flood protection for lower Playa Del Rey and providing well regulated public access.

Deputy Attorney General John Sasaki, representing the California Department of Fish and Wildlife, the defendant in the lawsuits, requested and was granted six months to prepare the massive administrative record for the case.

The administrative record includes all the documents upon which the plaintiffs and the state will base their cases and defense, respectively. Sasaki explained that the necessarily large record must include thousands of pages of documentation, including scientific technical reports, upon which the state Department of Fish and Wildlife relied to write its project EIR and select a project plan.

Above: The southern half of the wetlands will be enhanced by enlarging tidal channels, removing Gas Company wells and service roads, and removing the old railroad grade shown in this photo. (D. Kay)

For most projects in California, an EIR is required by the fifty year-old California Environmental Quality Act (CEQA). CEQA ensures that agencies granting permits for a project are well informed on the project's potential environmental impacts, and advised on recommended measures to minimize or eliminate those impacts. An EIR does not authorize construction to begin.

An EIR must be thorough and based on credible evidence, and must consider a reasonable range of feasible alternatives to the proposed project. Case law over the decades has affirmed that an EIR need not be perfect. Nevertheless, the Ballona Project EIR exceeded 1,000 pages, not including hundreds of additional pages in technical scientific appendices. The EIR evaluated thirteen different alternatives before the Department of Fish and Wildlife selected the proposed project shown in the headline renderings above. The plaintiffs argue in their petitions that the EIR is defective and inadequate, but their many prior public statements suggest they simply dislike the selected project.

Deputy Attorney General Sasaki argued that all four nearly identical lawsuits should be consolidated into a single proceeding, obviously to save time and expense. The plaintiff attorneys generally agreed, although one plaintiff counsel, attorney Rachael Kimball, expressed interest in limiting the size of the administrative record.

The plaintiffs request in their lawsuits that state taxpayers foot the bill for their EIR challenges, which is allowed by law for reasonable expenses incurred in the public interest if the plaintiffs prevail in court. As such reimbursement is not a sure thing, they may want to limit the size of the administrative record on which they must spend time (and money) reviewing and building their case.

Above: The state's restoration project will dig out 3 million cubic yards of weedy fill dirt on 200 acres south of Fiji Way, dumped during Marina Del Rey construction. The fill dirt will be replaced with tidal wetlands and native vegetated uplands, surrounded by ten miles of new foot paths and a bike path. (D. Kay)

Consistent with reports about him in the legal press, Judge Chalfant made clear he will limit the size of the plaintiffs' single, joint brief and would not read it beyond his mandated page limit. That could be a heavy lift for the plaintiffs, as they have been known to submit endless pages of repetitive and irrelevant "evidence" to support their various causes over the years.

Above: Some of the fill dirt excavated from the weedy area south of Fiji Way will be repurposed into a flood control levee adorned with a new bike path and separate, parallel foot paths. (CDFW)

The familiar plaintiffs and their counsel are as follows:

- Jamie Hall for Protect Ballona Wetlands

- Brian Pease for Defend Ballona Wetlands

- Todd Cardiff for Grassroots Coalition

- Rachael Kimball for Ballona Wetlands Land Trust

A fifth lawsuit filed by the Ballona Ecosystem Education Project challenges funding recently granted by the state Coastal Conservancy for additional design and public outreach. A separate hearing will be held by Judge Chalfant on August 5, 2021 to determine if that case should also be consolidated with the other four.

Enjoy your Ballona Wetlands!

Above: The Ballona Wetlands Restoration Project will create about 70 acres of new habitat for the endangered Belding's Savannah Sparrow (Patrick Tyrrell).

Author's note on affiliations:

Dr. David W. Kay served on the Board of Directors of the non-profit Friends of Ballona Wetlands from 2007 until 2015, and served as Board President in 2012-13. He presently serves on the Board of Ballona Discovery Park in Playa Vista. David is a staunch advocate for the state of California's plans to restore the Ballona Wetlands Ecological Reserve.

Since 1984, David has been employed by Southern California Edison Company, exclusively in the company's environmental services organizations. His many responsibilities included restoration of the 440-acre San Dieguito Wetlands near Del Mar. He is presently Senior Manager for Major Project Environmental Management at the company.

David earned bachelor and masters degrees in biology and a doctorate in environmental science.

See David's Patch Community Contributor profile here.