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 published a stand-alone EIR in December of that year. CDFW then certified that Final EIR in December of 2020. 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.