Did the Court ruling set aside the Final Environmental Impact Report (FIER) that the California Department of Fish and Wildlife (CDFW) certified on December 30, 2020?

• Yes. The Court set aside CDFW’s certified FEIR in response to a legal challenge (called a Petition for Writ of Mandate) that was filed pursuant to the California Environmental Quality Act (CEQA) in January of 2021 by the Land Trust and other Petitioners. CDFW must now prepare a certify a new EIR and circulate it for public comment.

Does CDFW have to redo all of the work it did in creating the previous EIR?

• No. The Court’s ruling was limited to two deficiencies. However, a substantial amount of work, which will likely take one or more years to complete, will be required to address one of those deficiencies, which related to CDFW’s use of an errant flood capacity measurement in its engineering designs. The second deficiency identified by the Court was the lack of commitment in the EIR to conduct additional environmental review if CDFW later determines that it must lower its performance criteria. While it is important for this deficiency to be addressed, the Court itself assessed that it would not take a great deal of effort to do so.

• To give a sense of how the Court’s ruling on the flood capacity deficiency will impact the amount of additional analysis that CDFW must now undertake, it is important to understand how the flood capacity is connected to other aspects of the EIR. One of the biggest of those issues is sea level rise. Not only will the corrected design of the flood control levees need to account for ever increasing future projections of sea level rise, but the timing of when the levees could potentially be relocated has a profound impact on how existing habitats will be affected by sea level rise. It is important to note that the Court did not accept the argument made by one of the Petitioners that the FEIR was deficient because it showed sea level rise inundating habitat for the endangered Belding’s Savannah Sparrow over time. The Court actually cited one of our own previous cases (Ballona Wetlands Land Trust vs City of Los Angeles) to support its finding that CEQA only requires disclosure and analysis of impacts of a project on the environment, not impacts of the environment on a project. However, because the project could not be completed anywhere near the time that was envisioned in the previous EIR (which had a completion date as early as 2026), the new EIR will likely include new information that will show that the project will impact the environment by exposing habitats to immediate, as opposed to potential future, inundation by higher sea levels. Therefore, if the new EIR fails to account for the project’s immediate impact on existing habitats, we believe that we would be able to challenge the EIR on those grounds using the new information in the revised EIR.

Did the Land Trust Appeal the Court’s Ruling?

• No. We had no incentive to appeal the Court’s ruling because all of our goals were achieved with the ruling. We made two arguments in our brief, one relating to the errant flood conveyance, which the court recognized as the principle issue of the litigation, and another relating to CDFW’s failure to clearly identify a preferred alternative for the project. As noted above, the Court agree that the errant flood capacity must be corrected, but also determined that CDFW had adequately identified a preferred alternative to satisfy CEQA’s disclosure requirements. Given that CDFW has been ordered to revise its EIR on the flood capacity issue, the preferred alternative issue is moot.

• Another Petitioner did appeal the ruling with the hopes that an appeals court will add to the list of deficiencies that CDFW must address in revising its EIR. 

What will happen now at the Ballona Wetlands?

• The Land Trust alleged numerous flaws in its CEQA complaint, but only had the space in our legal briefs to focus on two key issues.

• The first issue related to CDFW’s errant use of an obsolete flood conveyance standard of 46,000 cubic feet per second (cfs) instead of the current standard of 68,000 cfs.

• The second issue related to the EIR’s failure to identify a preferred project alternative, thus making it difficult for agencies and public stakeholders to meaningfully comment and make comparisons.

• Perhaps the easiest flaw in the EIR for the general public and for the Court to understand is that of the errant flood conveyance standard. Since 2017, the U.S. Army Corps of Engineers has been unequivocal and unwavering in its guidance to CDFW that it will not permit a project designed for anything less than 68,000 cfs. However, CDFW has openly acknowledged that it designed the Project to accomodate a flood conveyance flow rate of only 46,000 cfs. In its Opposition Brief, CDFW disingenuously argued that: 1) the Corps might permit the current designs that are based on a flood conveyance flow rate of 46,000 cfs; 2) that its current design could actually accommodate 68,000 cfs even though they used 46,000 cfs for the relevant modeling; and 3) even if some changes to the design are eventually required, they may not be significant enough to render the EIR deficient. These arguments are not legally sound, however, because it was up to CDFW to provide supporting analysis in the EIR itself, and they intentionally omitted any such analysis, despriving agencies and public stakeholders from vetting such analysis. A Project that will certainly need to be redesigned to accommodate the higher flood conveyance flow rate will have new environmental impacts that will need to be analyzed. That said, it is impossible to predict with certainty how a Court will rule.

• EIR flaws that the Land Trust was not able to include in its brief included the lack protection for the endangered Belding’s Savannah Sparrow, insufficient resiliency against sea level rise, insufficient analysis of impacts to aesthetics, retention of unpermitted parking lots in the reserve, inadequate analysis of other wildlife species, deferred mitigation, and several others.

What’s next for the ecological reserve

• Regardless of the Court’s ruling on May 9th, there is very little likelihood of any large-scale restoration taking place at the ecological reserve any time in the near future. As such, the Land Trust has been advocating for years for an increase in interim access and stewardship to help promote the expansion of native habitat and to provide more outdoor nature education to students and passive nature recreation for the community at large. An “Interim Stewardship and Access Management Plan” was published in 2005, but not implemented. CDFW is more likely to agree to this if the EIR is overturned than if it is upheld, but we will continue to press for it either way, as the ecological reserve is suffering from a lack of basic care and community involvement.