BALLONA WETLANDS Ecological Reserve Draft EIS/EIR February 5, 2018 - Rex Frankel's Comments Submitted 1.30.18

DEIR COMMENTS:
BALLONA WETLANDS RESTORATION PROJECT 
Environmental Impact Statement/ Environmental Impact Report State Clearinghouse No. 2012071090
TO: Email: BWERcomments@wildlife.ca.gov

We hereby endorse alternatives 10 and 11 as described in our attached comparison chart of alts 1 and 10/11.

A legally sufficient EIR must contain a truthful and complete project description, an accurate and current baseline description, clear and unambiguous description of impacts on that baseline by the proposal, mitigation measures for all impacts that exceed significance thresholds, and a reasonable range of alternatives that can accomplish reasonable and legally allowable project objectives with the goal of accomplishing the proposal with the least unmitigable significant impacts.

Not surprisingly, this EIR fails in all of these categories. I will focus on a few of those areas which I find are egregiously in violation of CEQA.

BASELINE:

BIOLOGY:

JUNK SCIENCE--The existing biological condition is described as swiftly declining based on the scientific opinion methodology and expert which the CDFW rejected in 1991 when CDFW was acting as a regulatory agency reviewing a private landowner's proposal for this same land. Now that CDFW is the landowner, it has hired the same biological “expert” hired by the former developer. Thus the EIR mirrors that landowner's propaganda of the early 1990's that a swift approval of land use entitlements and their “restoration” plan was necessary or “the wetlands would die”, especially those elevated habitats north of Ballona Creek. The CDFW is recycling that discredited claim to push its unnatural ocean bay creation proposal as opposed to a historically accurate freshwater restoration plan as described as Alternatives 10 and 11. SEE ATTACHED 2/5/1991 CA DFG LETTER, page 2, 1^st full paragraph:

“...In this regard, we specifically believe that normal to above-normal precipitation would result in rejuvenation of the existing approximately 20 acres of pickleweed flats; that it would result in conferring competitive advantage upon the pickleweed which continues to persist in the previously described 17 acres of species; that these 17 acres would reestablish themselves as pickleweed flats...”.

The Coastal Commission did not endorse the landowner's findings either.

On DEIR page 3.4-42: Dock and Schreiber in 1981 (Page B1-9) predicted the pickleweed in parcel A would decline to the point that no Belding's savannah sparrows would nest there.

NOT TRUE, BSS NUMBERS ALWAYS REBOUND IN AVERAGE RAINFALL YEARS. CDFW IN 1991 INSISTED THAT THE STANDARD FOR HABITAT HEALTH SHOULD BE BASED ON AN AVERAGE RAINFALL YEAR. NOW CDFW USES DRY YEARS AS THE BASELINE AND NON HISTORICAL CONDITIONS AS THE BENCHMARKS FOR HABITAT HEALTH

On DEIR page ES-2: a portion of the Ballona Reserve has been identified as “among the most degraded wetlands in California” using standardized wetland condition protocols (Johnston, Medel, and Solek 2015).

USING WHICH PROTOCOLS? WERE THE PROTOCOLS CREATED BY PROJECT BACKERS?

On DEIR page 3.4-62: a CRAM assessment by Karina Johnston (BF 2015) found “slowly deteriorating conditions from 2012 to 2014” (AS OPPOSED TO RAPID DECLINE CLAIMED BY BAY FOUNDATION'S TOM FORD FROM 2007 TO 2013) (SEE ATTACHED Bay Foundation PRESENTATION)

“The assessment found that the most significant impact was a lack of hydrological connection to an estuarine water source.”

This is judging the health of the habitat based on a contrived non-restoration standard, comparing it to a full tidal open ocean bay which Ballona never was.

GEOLOGY:

Again, in attempting to create the phony public perception that this land is “trashed” and thus it needs the extreme industrial scale bulldozing scheme, the EIR falsely claims in two graphic maps (DEIR pages 3.5-13, or 3.6-3) that virtually the entire site (A, C, and most of B) has been “filled” to various depths. The truth is admitted buried in text, (DEIR 3.6-6 in parcel B, most of fills are limited to Culver and Jefferson Blvd.) but that does not correct the false constantly repeated refrain by CDFW's partners the Bay Foundation and Heal The Bay that due to man's altering this land, only three percent is functioning habitat. Heal The Bay defines “functioning” as “full tidal”, of which, even the EIR admits, very little of the Ballona Wetlands was full tidal when human alteration began.

To the contrary, on page A-286: full tidal open water was only 3% of the historical Ballona Wetlands.

Further, it is strongly questionable that Parcel A is all fill as claimed by the DEIR. The 1991 Playa Vista archeology report shows most of parcel A as unfilled and “undisturbed surface”. SEE ATTACHMENT

WATER QUALITY:

The EIR relies on a non-existent plan that MIGHT eventually clean up the pollution in Ballona Creek to a level that it will be allowable to remove the protective levees which encase the urban river of crud and thus flood the now-clean Ballona Wetlands with this crud. Thus, the EIR assumes that upon commencement of levee removal, the creek will comply with health standards.

So, on DEIR page F6-29, you state: “No potential impact is anticipated if these pollutant reductions are achieved in accordance with the MS4 Permit.”

THAT IS A BIG “IF”. THERE IS NO EIR DETAILING SPECIFIC PROJECTS THAT WILL ENABLE COMPLIANCE WITH THE WET-WEATHER MS4 PERMIT AND TMDLS, WHICH IS WHEN 99% OF THE POLLUTION FLOWS DOWN THE CREEK. THERE IS NO CEQA ANALYSIS OF THE IMPACTS OF ALL THE REQUIRED PROJECTS, JUST OF A TINY FRACTION OF THEM. FINALLY, THERE IS NO MONEY TO CONSTRUCT THESE WET-SEASON CREEK WATER CLEANUP PROJECTS

ON GROUNDWATER: it has been documented by the violation order issued by the California Coastal Commission that the previous landowner illegally installed drains in a portion of the wetlands upon which they were seeking to fill and erect condominiums. Thus the historic wetness of this land was illegally drained away and thus the biological condition of the surface land was degraded by this illegal action. It is now an ugly coincidence that the illegal draining has continued in the 14 years of CDFW ownership and now that the land is drier CDFW seeks to fill in this land as part of its unnatural ocean bay habitat conversion scheme.

Depriving the Ballona lowlands of freshwater will lead, as it has in the past, to more saltwater intrusion of the aquifer. I expect your response will be that the aquifer is currently not used, but that does not relieve the applicant of discussing this as part of the baseline. (See A-1097 NOP comment, first full paragraph)

CULTURAL IMPACTS:

The EIR states that there is only one Tongva cultural site on the property, DEIR page 3.5-27 paragraph 3, and that it will not be touched by the CDFW project. To the contrary, the former landowner's 1991 much more honest EIR revealed at least ten Tongva sites on the project area. A thread of this fact is revealed in Project Management Team 3/29/2010 meeting minutes on page A-176: “important burials located in Northwest corner of Area C”

I am attaching the volume 23 of the Playa Vista Phase 1 project administrative record which has the previous project's archeology report. It is clear from the maps that Alternatives 1, 2 and 3 will desecrate these sites, either by excavation or deeply burying them.

THESE 9 CULTURAL SITES WERE NOT INCLUDED IN THE BWRP DEIR, BUT WERE FOUND BY PLAYA VISTA'S ARCHEOLOGIST IN THE PHASE 1/MASTER PLAN DEVELOPMENT PROJECT:

--SR 2, WEST OF INTERSECTION OF CULVER-JEFFERSON
--SR 8, NW OF LINCOLN/JEFFERSON INTERSECTION, SHELL SCATTER
--ISOLATED FIND 5, SAME LOCATION AS SR8
--SR 9, NE OF CULVER/JEFFERSON INTERSECTION, SHELL SCATTER
--SR 10. NE PARCEL B, BETWEEN CULVER AND BALLONA CREEK, SHELL SCATTER
--SR 11—PARCEL C WEST OF BALL FIELDS
--LAn-1698, NE PARCEL A
--ISOLATED FIND 1, WEST OF SR 7

(SEE PLAYA VISTA PHASE 1 ADMINISTRATIVE RECORD VOLUME 23, PAGES 13529-13530)
https://drive.google.com/file/d/0B5SGRAMv8RXuS3FMZl84V01CRU0/view

So when the EIR says on page B3-14: “To the extent feasible, cultural resources within the Reserve will be avoided by project construction and will be protected.”

HOW IS THIS AN ACCURATE STATEMENT?

RECREATIONAL TRAILS:

The BWRP EIR claims that the there is no public access currently “allowed” on this land. There has been more than 50 years of continuous unblocked public use under the previous landowner. CDFW declared all trails closed in 2004, yet never analyzed the recreational impacts of this closure under CEQA at the time. In fact, the true baseline under prescriptive rights in California easement law is that these trails are all open and continuously publicly used. Thus, re-opening of some of the trails cannot be cited as a project feature or benefit as the public right was never legally taken away.

To claim that the closure of recreational trails did not have to comply with CEQA at the time, yet the re-opening of them is a mitigation for impacts, shows that illegal piecemealing has occurred. CDFW has altered the “baseline” to create an illusory and false project benefit that is being offered in exchange for public acceptance of its massive bulldozing project, cynically offering back a right that already belongs to the public.

ALTERNATIVES:
OVERLY NARROW PROJECT OBJECTIVES:

The problem with the EIR's review of lesser impacting alternatives is that, first, the applicant has so narrowly defined its project goals that nothing but their favored project complies with it.

Second, the project goal of creating a predominantly estuarine ocean bay from a freshwater delta region is admittedly not a restoration. As the California Coastal Act only allows “restoration” in section 30233, the main goal which all the rejected alternatives are judged by is not in itself a legally allowable goal. The project's main goal would actually be considered an unpermitted development scheme under the Coastal Act. When the name of this project is the “Ballona Wetlands Restoration Project”, why are more historically accurate and less habitat destroying alternatives which fit the legal definition of “restoration” being judged by a “non-restoration” standard?

SELF-SERVING AND WRONG DEFINITION OF “RESTORATION”:

On page B3-12, CDFW states: “It should be noted that the proposed restoration includes elements of both habitat restoration and habitat creation...Some aspects of the restoration plan involve “restoration” in the sense of recovering historical conditions. However, most aspects of the restoration plan involve reestablishment of natural processes and ecological functions and either habitat creation (i.e., creating a particular type of habitat where it previously did not exist) or habitat enhancement (i.e., modification of existing conditions). However, to avoid over-complicating the Conceptual Plan, the term “restoration” is used throughout the text and is meant to encompass all of these elements and not only the re-creation of a historical condition. “

To the contrary, on page F3-47: “Habitat restoration is defined as the return of a habitat to a close approximation of its condition prior to disturbance and habitat enhancement is the modification of specific structural features to increase one or more functions based on management objectives (USEPA, 2005). “

WHOSE GOALS? Elsewhere, it is revealed that the Port of L.A. funded some of the early studies with the stated goal being to eventually receive CDFW mitigation credits from work to convert the Ballona Wetlands to an open bay. Even though the Port of LA is not currently mentioned as a funder of this project NOW, it appears that Alts 1 to 3 are designed to attract mitigation funding from fillers of deep ocean water habitats.

ARE THESE THE PUBLIC'S GOALS?

On DEIR page ES-8, the applicant states: “the daylong stakeholder design cherette “supports” the CDFW objectives”

Please provide minutes or other contemporaneous notes from this cherette that proves this assertion. I and other people I work with attended that all day cherette and remember that the overwhelming public opinion was against the massive industrial scale bulldozing scheme now advocated by CDFW.

DOUBLE-STANDARDS:

The rejected alternatives are held to standards that the favored alternatives do not have to comply with. For example, alternative 2 will be flooded by sea level rise (DEIR page 1-13), but alternative 5 is dismissed as “unreasonable” on DEIR page 2-198 for doing the same thing.

2-197: alt 5 is described as the max amount of habitat improvement possible without modifying site elevations or hydrologic connections

BUT THIS IGNORES HABITAT IMPROVEMENT FROM PIPING IN FRESHWATER

2-197: alt 5 is “too speculative” (A CONCLUSORY STATEMENT WITH NO FACTS TO SUPPORT IT)
2-201: under alt 5, “sea level resilience would be limited” (THIS IS NOT A BASIC OBJECTIVE, SEE 2-8)

In fact, sea level rise is a red herring issue, as even under the no project alternative, the existing creek levees are sufficient:

DEIR 3.9-18 paragraph 3: in year 2100, sea level is expected to rise by 59 inches, but the existing Ballona Creek levees would still contain a 100 year flood except at the south side beach, which is not part of the Ballona Wetlands property.

Thus, sea level rise will have no effect on the wetlands whichever alternative is chosen. Conversely, after 2100, the proposed relocated levee system will provide the same protection as our existing, already paid-for levees.

See maps on F9-33

So why spend $180 million to move uplands from area A to B and to move wetlands from area B to A?

2-202: the DEIR states alt 6 “would not substantially restore ecological functions to predominantly estuarine wetland conditions” (THIS IS A BOGUS ARGUMENT. YOU CAN'T RESTORE IT TO WHAT IT NEVER WAS. THUS THIS IS AN INVALID REASON TO RULE AGAINST ALT 6)

Alternatives 10 and 11 are ruled out based on extremely expensive project components which were suggested by one or two persons in NOP comments, but which are not essential to the basic objectives of the two alternatives. Alt 10 is re-watered with pumped clean freshwater from wells or treatment of creek water. Alt 11 is going back to historical hydrology of a freshwater delta system. The purchase of $400 million in private land or demolition of a section of the 90 freeway were not suggested by any NOP commentors in relation to these alternatives. Thus, the attribution of these extremely expensive and/or disrupting features is not “reasonable” but is a “straw man” erected by CDFW to bamboozle the EIR's readers.

On DEIR page 2-231 and 232: alt 10: “the historic water regime is no longer available to make large amounts of freshwater or brackish marsh self sustaining. Many of the suggested alternatives therefore rely on mechanical means to create and maintain them. ” (WHY DOES IT HAVE TO BE SELF SUSTAINING? DFW DOES PUMPED RESTORATION PROJECTS ALL THE TIME. LOOK AT PLAYA VISTA'S RIPARIAN CORRIDOR—IT'S ALL ALL PUMPED WATER MOST OF THE YEAR) CDFW is a board member of the Ballona Wetlands Conservancy, which operates the Playa Vista Riparian Corridor and Fresh Water Marsh. So CDFW is estopped from claiming pumped water restorations don't work.

2-232: alt 10: fewer restored acres would result under alt 10 than under alt 1 (BASED ON ALT 10 AS CDFW DESIGNED IT, TO FAIL)

2-232: alt 10 features super expensive road raising projects that could cost up to $200 million just to raise the roads

RESTUDY ALT 10 WITHOUT THE EXPENSIVE ROAD-RAISING. THE TWO THINGS HAVE NOTHING TO DO WITH EACH OTHER.

2-236: alt 11 would require purchase of 13.9 acres at a cost of $412M

BASED ON SELECTED SUPER EXPENSIVE PROPERTIES CHOSEN BY CDFW, NOT BY PUBLIC NOP COMMENTORS

2-236--ALT 11 ”would create surface disturbance in areas that are potentially sensitive from a cultural resources perspective” (UNLIKE ALT 1????)

THE HISTORICALLY ACCURATE FRESHWATER RESTORATION PLAN AS DETAILED IN THE ATTACHED 3 PAGE BEEP PROPOSAL IS FEASIBLE, CONTRARY TO THE EIR CLAIM THAT IT IS NOT FEASIBLE. AT THE TIME OF THE NOP, THE Ballona Creek BACTERIAL TMDL TREATMENT FACILITY HAD NO PLANS, NO EIR, NO FUNDING. Now it does.

Now that we have shown that a freshwater restoration plan is possible and feasible, the EIR would be deficient if it did not give such an alternative a full analyses and eventually finding that it is the environmentally superior under CEAQ and least environmentally damaging plan under NEPA.

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BEEP'S RESTORATION VISION:

BEEP's restoration vision was drawn up in 1995 by community members and two scientists, Dr. Rimmon Fay, a marine biologist and former Coastal Commission member, and Dr. James Henrickson, botanist and author of Playa Vista's 1991 plant surveys.  

The BEEP alternative is discussed in Appendix A-2, pages 2065-2137 and Draft EIR pages 2-331 to 339 which are posted here: http://tinyurl.com/ballona-eir (as are all 8000 pages of project reports).

Alternative 1, being pushed by the State Department of Fish and Wildlife, owner of this public land, is billed as “Bringing Back Ballona”, however, it is to what it never was, for almost $200 million.

We describe the THE BEEP ALTERNATIVE #10/#11 as  

“No Destruction, All Restoration. Fix What Needs Fixing, Keep What Is Working”

Pictures are posted here http://saveallofballona.org  

It is hard to expect the public to read all of the 8000 pages of project reports by February 5th. However, here is how the two plans compare:

BEEP PLAN SUMMARY: the 1-year-to-success plan:  

BEEP's Project features 3 parallel creek channels to restore the historical “delta” geography: the existing channel in the middle for floods, tsunamis and pollution; 2 new smaller shallow outside channels for clean habitat. The existing Ballona Creek levees will remain where they are, protecting the wetlands north and south of the creek from polluted urban street drainage.  

The wetlands and higher ground on each side of the existing Ballona Creek levees will be re-watered with clean water from the Ballona Creek dry season treatment plants in Culver City (subject of an EIR last fall, construction expected in 2018); water will flow by gravity from the 3 upstream plants via a pipe on each creek levee to the restored parallel creeks.  

Street drainage water pumped from the upper creek into the filtration and disinfection facilities will then flow downhill to the lower creek wetlands, similar to Playa Vista's Centinela Creek re-creation and Freshwater Marsh System which relies on pumped and treated groundwater for all flows except on rainy days.  

CAN THE PUMPS FAIL?  

Playa Vista's pumps have not failed, however, they were turned off for a while in 2016 by Playa Vista and the State's CDFW creating a smelly mess due to stagnation and cattail blockages occuring because there was not being enough capacity in the re-creation of Centinela creek. (Playa Vista's too narrow design for this creek left more land for development, thus the smells in 2016 were a self-created problem)

To see a similar project in which restored wetlands are kept separate from the urbanized flood control channel, visit Lower Arroyo Park in Pasadena.  

A “parallel” creek system at Ballona would allow flood waters and tsunamis at Ballona to be contained within the central and already paid-for protective levee system without subjecting the currently protected wetlands to pollution and flood damage and subjecting nearby low-lying neighborhoods to 9 years of construction and dust and permanent view blockage from 20 to 55 foot tall mounds of dirt along Culver and Jefferson Blvds.

BEEP'S PLAN FEATURES MINIMAL EARTHMOVING ONLY IN 95% OF SITE: to distribute clean piped-in freshwater from water treatment plants (currently slated to be dumped straight into the ocean) to restore the land to approximately what it was before European settlement of this area 200 years ago. Trash and invasive non-native plants will be slowly removed mostly by hand. Re-planting of willow tree groves will begin immediately near freshwater “inlets”. Willows grow 8 to 10 feet a year. Land does not need to be excavated as freshwater source is at 65 feet above sea level, thus areas at Ballona ranging from 3 to 20 feet high can receive restorative freshwater by gravity flow without the need to excavate down to sea-level. Cost is likely $10 million or less.

BEEP'S PLAN ALSO INCLUDES 20% OF THE SITE AS RESTORED SALTWATER HABITAT:

20 percent of the land was historically tidally-influenced saltmarsh and lagoons (120 acres out of the 577 acre project, Source: Volume 1 DEIR page 2-3: footnote 17), this the plan includes:

--SOUTH WETLANDS/PARCEL B: Additional pipes with flapgates to prevent overflows will be bored through the levees to provide muted tidal oceanwater flow to the low lying wetlands on the south side of the creek which are north of Culver Blvd;  

--MIDDLE WETLANDS: the 84 acre main channel of Ballona Creek currently receives full tidal flow and its inner banks will be re-vegetated;  

--NORTH WETLANDS/PARCEL A: finally, up to 1/4th of the north wetlands located on dug-out Marina Del Rey mud could receive full tidal flow through pipes and flapgates. This would require excavation of approximately 12 feet of mud from 30 acres of land (only on 5% of the total project site). This could be used to eventually raise the creek levee heights by 5 feet to accommodate sea level increases, if needed.

10 TONGVA Cultural sites will be left alone; no change  

VIEWS UNDER THE BEEP PLAN: Parcel C wildflower areas and uplands will NOT be buried with 25 feet of dirt to elevation of 55 feet, which would block southerly views from Villa Marina neighborhood. Parcel B wetlands will not be buried by 20 to 25 foot mounds. Views of wetlands from Playa Vista community will not be blocked.

A SUMMARY OF THE STATE'S PLAN, Alternative 1: it features 9 years of heavy earthmoving and wildlife destruction to convert a degraded historically freshwater creek delta system, which originally featured salt marsh, freshwater and drier upland habitats, into a mostly deep ocean saltwater zone at a cost of at least $182 million in taxpayer funds.  

It is not historically accurate, thus it is NOT A “RESTORATION” PROJECT. Therefore it violates the voter-drafted California Coastal Act which only allows “restoration” of a wetland to what it was before urban settlement damaged it.  

Alternative 1 requires excavation of the site down to sea level or below to flood it with ocean water based on the MISTAKEN ASSUMPTION THAT NO CLEAN FRESHWATER SOURCE IS AVAILABLE to do a historically accurate restoration.

ALTERNATIVE 1 FLOODING AND POLLUTION: Already paid-for protective creek levees will be demolished. They are unnatural, but they prevent even-less-natural highly polluted urban street drainage from contaminating the wetlands. During rainstorms, the Wetlands will be flooded with polluted water from Ballona Creek turning the area into a bacteria and metals “sink”. Although the creek is promised to be fully clean by April 2021, there is no plan to do this, except during the dry season when 1 percent of pollution washes down the creek.  

TO CLEAN UP THE OTHER 99% OF CREEK POLLUTION: Cost of rainy-day creek cleanup is estimated by LA City Sanitation Dept. to be $3 billion, but there is no EIR examining the impacts of their plans to dig up every park and street in the Ballona creek watershed in order to percolate and divert most water (and thus the pollution) away from the creek drainage system, which will largely dry up freshwater sources for wildlife using the creek which could potentially flow to the wetlands. (THUS THE “NEED” FOR A SALTWATER ONLY PLAN)

TONGVA SITES UNDER THE STATE PLAN: 10 Native American cultural sites were ignored in the EIR; they will be either excavated or buried under Alternative 1

VIEWS UNDER THE STATE PLAN: Locations of large areas of wetlands and uplands will be switched. 20 feet of soil from north side of Ballona Creek will be dug up, transported to south of Ballona Creek marsh areas and east of Lincoln Blvd wildflower areas to create 25 to 55 feet above sea level hills (which were never at Ballona). New Parcel B levee north of Culver Blvd from Vista Del Mar neighborhood to Lincoln Blvd will block views of the wetlands for everyone at street level.  

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FINALLY, TWO BIG ISSUES:

RECREATIONAL TRAILS UNDER ALTERNATIVE1: 

THE STATE PLAN FIXES A SELF-CREATED PROBLEM: On Draft EIR Vol. 1 page 3.11-12, they state: “Alternative 1 would provide a network of bike and pedestrian paths and public access to portions of the Ballona Reserve that are inaccessible under existing conditions. This would be a long-term beneficial effect.” The EIR does not mention that all the trails were closed by the State Fish and Game Commission in 2004, despite over 50 years of use by the community; many of those trails are slated to be flooded by the State's preferred plan.

BEEP PLAN: The surrounding community will decide which of the miles of existing but “closed” trails will remain.  

SEE PAGE 11 OF http://www.idarchitect.com/wp-content/uploads/Ballona.pdf FOR “EXISTING” TRAILS AND PUBLIC ACCESS. DOCUMENT WAS CO-PUBLISHED BY CDFW in 200
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SEA LEVEL RISE IMPACTS UNDER THE STATE PLAN: Wetlands will be exposed to damage from sea level rise; 5 feet expected by 2100. Seasonal salt and freshwater wetlands and restored upland habitats will be drowned by the ocean, and those remaining after construction of the plan will be eventually submerged by sea level rise; all of this reducing nesting and hiding places and drinking water sources for mammals, butterflies, birds, reptiles and amphibians. 3 native habitats will be reduced to largely 1.  

SEA LEVEL RISE UNDER THE BEEP PLAN: Wetlands will remain protected by Ballona Creek levees which are considered adequate for the expected 5 foot rise by 2100. If things change, levees can be raised. Sea level rise will have no negative effect on Ballona preserve