Key Take Away Point: Construction cannot be commenced on any individual component of the Ballona Wetlands Restoration Project until the U.S. Army Corps of Engineers approves a Final Environmental Impact Statement for the Project and other state and federal approvals are obtained. However, even if some initial construction sequences could be implemented without approval of a federal EIS, those sequences are not designed to achieve the primary goals of the project, such as equitable public access, resiliency to sea level, and addressing invasive vegetation. The decision by the California Department of Fish and Wildlife to withdraw its application for a federal EIS in 2019 and its failure to submit a new application since that time, are signs that CDFW has given up on the larger project and is narrowly focused on just the initial sequences referenced above.
Background: Large projects that are likely to have substantial impacts on the environment in California typically require what is called an Environmental Impact Report (EIR) under a state law called the California Environmental Quality Act, or CEQA. When a project will also have an impact on federal interests, such as federal property or, in the case of the Ballona Wetlands, a federal flood control project, then the project will also likely require an Environmental Impact Statement (EIS) under a federal law called the National Environmental Policy Act, or NEPA. That is why the California Department of Fish and Wildlife and the U.S. Army Corps of Engineers, the state and federal lead agencies for the Project, published a joint Draft EIR/EIS in September of 2017.
That Draft EIR/EIS itself explained that “[t]he Corps and CDFW are preparing this joint EIS/EIR in the interest of efficiency and to avoid duplication of effort.” Both CEQA and NEPA strongly encourage joint environmental impact documents for that very purpose. However, in the spring of 2019, CDFW announced that the Corps was taking too long to complete and approve a Final EIS, and therefore planned to publish a stand-alone EIR. In September of 2019, the US Army Corps of Engineers sent a letter to CDFW stating that, due to a lack of activity, the Corps considered CDFW’s application for federal approvals (EIS and Section 408 permit) to be withdrawn. CDFW published its standalone EIR in December of that year without an EIS. CDFW then certified that Final EIR in December of 2020, stating that it would take roughly two years for the Corps to publish a Final EIS. After that Final EIR was struck down by a court ruling in May of 2023, CDFW decided to revise only the EIR portion of the joint EIR/EIS that was published in 2017. This is a highly irregular approach that is far more likely to result in the waste of several more years and several more millions of dollars in public funds than to result in any implementable project.
In fact, we believe that CDFW has already determined internally that the Project is no longer feasible, and is now attempting to salvage only two small construction sequences (described in more detail further below) out of the thirty-five sequences that make up the entire project. CDFW believes that it can construct these first two sequences (which are substantially modified from what was described in the original draft EIR/EIS) without an approved federal EIS, but they have provided no information in support of that dubious position. One of the most basic principles of environmental analysis and permitting is that “the whole of a project” must be analyzed together. This principle was not designed to be a legal obstacle, but rather to ensure that the actual, cumulative impacts of a project were taken into account together and avoid the risk of unintended consequences.
This principle was highlighted by a comment letter from the US Fish and Wildlife Service, which stated that:
“The Corps has not finalized the project’s EIS or issued a Record of Decision under the National Environmental Policy Act (NEPA). Because a significant aspect of the full project involves structural changes to the Ballona Creek levees, which would require Corps permits under the Clean Water Act and Rivers and Harbors Act, we are concerned that it could become necessary to redesign aspects of the project during the Corps’ permitting process. Therefore, we recommend against proceeding with construction of any project phases prior to further analysis by the Corps to ensure that the final design of the project is not hindered by any phases that have already been constructed.”
In addition to an EIR and EIS, the project requires numerous other permits from various regulatory bodies, such as the California Coastal Commission (Chapter 3 of the Coastal Act) and the Los Angeles Regional Quality Control Board (Section 401 of the Clean Water Act). Like CEQA and NEPA, these environmental protection statutes require analysis and permitting of the whole project, not just segments of the project. It will not be legally or ecologically defensible for these and other regulatory bodies to analyze just the initial sequences of the project when those sequences are intertwined with later sequences.
What Does “Sequences 1 and 2” Refer To?
The Ballona Wetlands Restoration Project, as described in the Draft EIR/EIS published in 2017, consists of 35 construction sequences broken into two phases. All 35 sequences were analyzed together as a single project and they are interdependent on one another. The first two sequences were defined as follows:
Sequence 1: Southeast Area B gas line 1167—remove and relocate existing gas line to Gas Company Road
Sequence 2: South Area B enhancement – enhancement including channel excavation
The sole purpose of sequence 1, which may not even be needed, is to clear the way for sequence 2. CDFW has speculated that these two sequences could be implemented without federal approvals because they do not alter the Ballona Creek flood control channel. As a result, the project team put their efforts to get federal approvals on hold and diverted remaining resources to their attempt to get permits only for these first two permits. However, there are many problems with this approach, and this management decision may well have put the entire project at risk of failure.
First, there has been no analysis of sequences 1 and 2 as a standalone project, which would be required under the California Environmental Quality Act. Second, sequences 1 and 2 were never intended to be implemented by themselves, and the new channels proposed to be excavated would not serve their purpose without some new water source to fill them. This water source was deigned as a new culvert which would be installed beneath a new flood control berm to connect the newly excavated channels to the newly configured Ballona Creek. However, none of those new design elements are included in sequences 1 and 2, and they would require federal approvals. Since the whole point was to avoid the need for those approvals, the project team explored other potential sources of water, such as reconfiguring the outfall for the Freshwater Marsh to feed tidal flows into Southeast Area B, or allowing more water to flow through the tide gates in West Area B. Both approaches have significant downsides.
More water coming through the West Area B tide gates would likely inundate important salt pan habitat. Additionally, CDFW’s own analysis indicates that those tide gates may need to be permanently closed due to sea level rise as soon as 2050. Reconfiguring the Freshwater Marsh outfall also has sea level rise implications. For all of these reasons, it is extremely unlikely that CDFW will get permits to implement sequences 1 and 2 as a standalone project. Without a federal EIS and Section 408 permit, no construction is likely to commence on the project.
Text of USACE letter to CDFW:
DEPARTMENT OF DEFENSE
UNITED STATES OF AMERICA
DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS, LOS ANGELES DISTRICT
LOS ANGELES DISTRICT, CORPS OF ENGINEERS
VENTURA FIELD OFFICE
60 SOUTH CALIFORNIA STREET, SUITE 201
VENTURA, CALIFORNIA 93001
September 17, 2019
SUBJECT: Withdrawal of Permit Application
Mr. Ed Pert
California Department of Fish and Wildlife
3883 Ruffin Road
San Diego, California 92123
Dear Mr. Pert:
I am responding to your application (File No. SPL-2010-01155-BLR) dated May 16,
2016, for a Department of the Army permit to discharge fill material into waters of the
United States (U.S.) under Section 404 of the Clean Water Act (33 U.S.C. 1344) and
place structures in navigable waters of the U.S. under Section 10 of the River and
Harbor Act (33 U.S.C. 403), in association with the Ballona Wetlands Restoration
Project, in Ballona Creek near Marina del Rey, Los Angeles County, California.
Our files indicate that, although you have provided preliminary engineering design
information, you have not provided the more detailed engineering information that is
needed to complete the preliminary technical analysis for your Section 408 application,
which was recently determined by the Corps to be required to complete the Final
Environmental Impact Statement (EIS) for the Ballona Wetlands Restoration Project.
Based on your most recent estimate, and recognizing that delays can occur, you
anticipate providing the required detailed engineering information to us in
approximately two years. We understand that it can take a substantial amount of time
to complete a detailed engineering design for a complex wetland restoration project
and, although your application is considered withdrawn, we anticipate reinitiating
review of your previously submitted permit application and restarting the Final EIS
process upon receipt of the above information.
Thank you for participating in our Regulatory Program. If you have any questions,
please contact me at (805) 585-2148 or via e-mail at Aaron.O.Allen@usace.army.mil .
Please help me to evaluate and improve the regulatory experience for others by
completing the customer survey form at
http://corpsmapu.usace.army.mil/cm_apex/f?p=regulatory_survey .
Sincerely,
Aaron O. Allen, Ph.D.
Chief, North Coast Branch
Regulatory Division