CERF WANTS TO SUE THE IBWC!

CERF Executive Director Marco Gonzalez spent nearly ten years working on a solution to problems associated with border sewage and its impacts on South San Diego County coastal communities.  For much of that time, he advocated for a public-private partnership (called “Bajagua”) that would have ensured:

(a) US water quality standards would be met;
(b) significantly more sewage than the 25 mgd capacity of the International  Wastewater Treatment Plant (“IWTP”) would be treated; and,
(c) a significant portion of the treated wastewater would be reclaimed.

The Bajagua project was not successful, and the federal government (with the support of some environmental groups) instead chose to move forward with an upgrade to the then-noncompliant IWTP. Here’s a story on that decision.

Well, call it the worst kind of vindication, but the Feds have failed us once again. Below is a copy of the most recent status update being offered to the Judge in the years-old litigation between the State of California and the U.S. International Boundary Water Commission.

The plant upgrade, argued by so many to be a better plan than Bajagua, is a HUGE BOONDOGGLE! Here at CERF, we’re committed to using the most aggressive tools available to fight for clean water, and that means litigation when its available. Next week, we plan to ask the Court to allow CERF to intervene in the ongoing case.

The Feds clearly aren’t doing enough, and the State of California seems content to give them extension after extension. We need accountability, financial penalties, and the ability for the public to be heard. That’s why we’re here. You should be as upset as we are about this.

March status conference update – IBWC (pdf)

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CERF Appeals ‘Emergency’ Blue Curl, LLC Seawall to Encinitas City Council

Today the Coastal Environmental Rights Foundation appealed the Encinitas Planning Commission’s January 5, 2012 approval of the Blue Curl, LLC seawall and stairway project. Located in Leucadia (just north of Beacons), this 18 ft tall, 50-foot long two-tiered concrete wall was constructed after the upper portion of the bluff failed in 2008. However, the approvals were given without consideration of feasible alternatives, cumulative impacts assessment, or required mitigation for loss of beach resources.

The appeal comes on the heels of a January 9, 2012 notice-of-intent-to-sue letter to the City of Encinitas. That correspondence identified a significant flaw in the City’s municipal code that results in a “pattern and practice” of forcing seawall projects to be proposed and approved only when they would qualify for “emergency exemptions” under the California Environmental Quality Act (CEQA). As such, these emergency approvals allow coastal armoring applicants to avoid substantive environmental review and mitigation requirements, ultimately leading to the loss of public beaches while private property owners get publicly subsidized protection for their bad investments.

CERF is seeking to work collaboratively with the City to create a comprehensive coastal management plan similar to that being developed in the City of Solana Beach. Such a plan will not only ensure the cumulative impacts of coastal armoring likely to occur over time (due to lack of sand from inland sources and global sea level rise) will be mitigated, it will also create a framework to make certain those who benefit from the coastal armoring also shoulder the burden of mitigating the resource losses.

Exhibits to the appeal include:

CERF August 5, 2011 Blue Curl, LLC Comment Letter

SANDAG Shoreline Preservation Working Group Regional San Project II Information, April 1, 2010

Ecological Responses to Coastal Armoring on Exposed Sandy Beaches

Staff Report on Sea Level Rise Preparedness to the California State Lands Commission Dec. 2009

Draft National Ocean Policy Implementation Plan, National Ocean Council

Surfrider Foundation, San Diego Chapter: February 18, 2010 Comments on Geotz Seawall Negative Declaration, Carlsbad

Surfrider Foundation, San Diego Chapter: May 24, 2010 Comments Opposing Goetz Seawall, Carlsbad

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CERF Notice of CEQA Violations: Encinitas Coastal Armoring

January 9, 2012

Mr. Gus Vina, City Manager
City of Encinitas
505 S. Vulcan Ave
Encinitas, CA 92024

Re: Notice of CEQA Violations: Pattern and Practice
        Failure to Mitigate Impacts of Coastal Armoring

Dear Mr. Vina:

Please accept this letter on behalf of the Coastal Environmental Rights Foundation (CERF).

CERF is a nonprofit environmental organization founded by surfers in North San Diego  County and active throughout California’s coastal communities. CERF was established to aggressively advocate, including through litigation, for the protection and enhancement of coastal natural resources and the quality of life for coastal residents.

This correspondence serves two purposes. First, it is to put the City on notice that the Municipal Code, as drafted and implemented, constitutes a “pattern and practice” violation of the California Environmental Quality Act (CEQA). Second, CERF hereby requests a meeting with you, the City Attorney, the Planning and Building Director, and a representative of the City’s Risk Management Division to discuss CERF’s claim and possible avenues for resolution. CERF’s goal is to provide the City an opportunity to work collaboratively with us and the community without the need for litigation.

Specifically, Encinitas Municipal Code section 30.34.020 (Coastal Bluff Overlay Zone), subsection (B)(9) contemplates the City development and adoption of a:

“comprehensive plan, based on the Beach Bluff Erosion Technical Report
… to address the coastal bluff recession and shoreline erosion problems in the City. If a comprehensive plan is not submitted to, reviewed and
approved by the Coastal Commission as an amendment to the City’s Local Coastal Program by November 17, 1996, then ….the City shall not permit the construction of seawalls, revetments, breakwater, cribbing, or similar structures for coastal erosion except under circumstance where an existing principal structure is imminently threatened…” (Emphasis added).

Because the comprehensive coastal erosion plan contemplated by the Municipal Code has not been produced, the City’s pattern and practice has been to mandate applicants wait for emergency conditions to arise, then require them to obtain emergency permits from the California Coastal Commission. After the “emergency” coastal armoring is fully built (often substantially larger and more permanent than the failed structure), the City processes a Major Use Permit and Coastal Development Permit for the as-built seawall or other coastal armoring. Because there is no proactive planning for such coastal armoring – despite its unquestionable inevitability – every single permit that comes forward evades CEQA review and is instead deemed exempt from CEQA pursuant to California Public Resources Code section 15269 (Emergency Projects).

The Encinitas Planning Commission approval on January 5, 2012 of Case #09-035 MUP/CDP (Blue Curl LLC, 1084 & 1086 Neptune Avenue, APN: 254-291-02&18) provides a very recent example of this problem. Both CERF and the Surfrider Foundation provided multiple written comments detailing the illegalities of approving the follow-up permits without requiring substantive CEQA compliance – including consideration of alternatives, cumulative impacts, and mitigation. By “tiering” off of the emergency exemption applied for the new structure’s original construction, the City effectively fails to require: (i) a full assessment of alternatives; (ii) consideration of cumulative impacts; or, (iii) imposition of appropriate mitigation. Statements by staff and Commissioners at that hearing validate the critical points of this correspondence and CERF’s claim, namely: (a) this pattern and practice of approving after-the-fact permits without substantive CEQA compliance is “the way the City’s always done it”; and (b) if an applicant came forward and sought to obtain approval for a seawall before an emergency condition arose, there would be no process for them to do so.

Please do not misinterpret CERF’s goals. We are not advocating for additional, proactive seawalls throughout Encinitas. Rather, the City must recognize that its current practice fails to provide the requisite analysis of impacts and mitigation requirements – in particular on a citywide cumulative basis – and therefore either the comprehensive plan contemplated by the Code must be completed or the City must require such analysis with the after-the-fact permits. The situation currently facing the City of Encinitas is analogous to that in the City of Solana Beach over the last 15+ years. As a result of significant community involvement and numerous lawsuits, Solana Beach is now seeking approval of a Local Coastal Program that would include, in conjunction with the rights of bluff top homeowners to construct limited duration (80 years) emergency coastal armoring, the ability for the City to recover “Land Lease/Recreation Fees” to mitigate for the inevitable loss of public beach access due to the various types of coastal armoring impacts. (See attached).

This is what CERF seeks for Encinitas. At the meeting we are requesting with City Staff, CERF would like the opportunity to provide additional detail regarding the evolution of coastal armoring policies in Solana Beach and how Encinitas can benefit from its neighboring city’s experiences. In light of evolving regulatory policies to deal with the very real likelihood of sea level rise due to global climate change, it will benefit the City of Encinitas to be proactive on coastal protection issues. The alternative, resolution through litigation, has been both expensive and ineffective in other cities that have opted to do so only after having been ordered by the courts.

CERF is based in, and has numerous members from, the City of Encinitas. Hence, we would greatly appreciate the opportunity to collaborate rather than litigate. I look forward to your consideration and meaningful response.

Sincerely,

Marco A. Gonzalez
Attorneys for CERF

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Port of San Diego ~ CERF Fireworks Comments

January 4, 2012 Comment Letter to the Port Commissioners re: January 10, 2012 Meeting.

Attachments:

July 4, 2011, San Diego Armed Services YMCA Post Fireworks Report

Wildlife Impacts of Fireworks: Summary and Exhibits (except #4)

Wildlife Impacts Exhibit #4

Water and Air Quality Impacts of Fireworks – Summary and Exhibits

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RELEASE: CERF Sues City of San Diego over Illegal Favoritism in Park Use Permitting Process

Legal Battle Continues following November 14th Council Approval of Special Treatment for Fireworks Shows
________________________________________________________

CONTACT:          Marco Gonzalez
                                Coast Law Group LLP
                                (760) 942-8505
                                marco@coastlawgroup.com

ENCINITAS, CA – Friday, December 16, 2011

The Coastal Environmental Rights Foundation (CERF) today filed suit against the City of San Diego challenging its November 14th approval of Municipal Code amendments that provide certain events, including fireworks shows, with special exemptions in its process for permitting events in public parks.

This is the fourth lawsuit in response to the City’s continued efforts to avoid responsible and appropriate environmental requirements pursuant to the California Environmental Quality Act (CEQA).

In its latest action, the City carves out an exemption to CEQA for fireworks events, and in doing so, unfairly elevates these special events above the numerous other events in public parks that will require CEQA review. The City’s action raises environmental and constitutional concerns about whether all events are being treated equally in the permitting process. A companion constitutional challenge to the recent Municipal Code amendments will soon be brought in Federal Court.

“CERF has repeatedly offered to work with the City to develop a fair permitting practice – one that is not overly burdensome to event organizers, while at the same time does not abandon basic environmental protections” said Marco Gonzalez, lead attorney for CERF. “Unfortunately, the City has instead chosen to vilify environmentalists, delay and avoid dealing with the issues head-on, and side-step the law. All of this is being done for the right to play favorites with certain annual events.”

Earlier this year in a related case, the City was found to have violated CEQA by failing to review and mitigate the potential environmental impacts from the annual La Jolla Cove Fourth of July fireworks event. Rather than comply with CEQA as directed by the Judge, the City has twice amended its municipal code to give some favored events, including the La Jolla fireworks show, a “free pass” from environmental review, while subjecting subject other events, such as the Balboa Park Earth Day Fair, to a higher level of scrutiny and CEQA review.

The City’s unwillingness to comply with CEQA in approving the latest amendments will simply result in even greater uncertainty for all event organizers. “With these amendments, the City clearly indicated it wants to retain the ability to place conditions on a variety of events,” explained CERF’s legal advisor Livia Borak. “The City admits this triggers CEQA review, but is unwilling to follow the law.”

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Coastal Environmental Rights Foundation (CERF) is a nonprofit environmental organization founded by surfers at Coast Law Group LLP in North San Diego County and active throughout California’s coastal communities.

CERF was established to aggressively advocate, including through litigation, for the protection and enhancement of coastal natural resources and the quality of life for coastal residents.

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CERF Fireworks Fee Motion Ruling Delayed

San Diego, CA – The Coastal Environmental Rights Foundation (CERF), in highly publicized litigation involving the City of San Diego’s compliance with the California Environmental Quality Act (CEQA), today sought an award of attorneys’ fees for the successful prosecution of its case as decided by the Court on May 26, 2011.

Judge Linda B. Quinn today indicated she was unwilling to grant an award at this time, instead finding the request premature in light of multiple additional lawsuits currently pending on issues relevant to her original order. Calling her decision “without prejudice,” Judge Quinn admonished the City that when the request becomes ripe in the future, it will likely be for significantly  more fees than CERF is currently asking. In essence, the Judge was telling the parties to reach a settlement.

Regarding the fees sought, lead attorney Marco Gonzalez of Coast Law Group said: “CERF has repeatedly offered to settle this case for a fraction of the fees we were seeking, while promising a portion of them back to the City for use in conducting environmental review. CERF remains committed to its ultimate goal – a better City process to ensure environmental protections when the City approves qualifying special events in the future.”

In the past months, San Diego City Council has attempted to remove future liabilities under CEQA by amending its municipal code sections pertaining to park use permits and special events permits. These efforts have been haphazard, and CERF does not believe they will withstand judicial scrutiny. In light of today’s court decision and related statements, CERF believes it’s time for the City to finally work on a comprehensive solution.

“While this litigation has been first and foremost about clean water protections, we hope the increased awareness of the City’s unwillingness to follow CEQA in all of it Special Events permitting will eventually lead to an appropriate fix,” said Coast Law Group associate Livia Borak, who has collaborated extensively on the case.

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MEDIA RELEASE

ENVIRONMENTAL PROTECTIONS ABANDONED DESPITE RULING

JUDGE GRANTS MOTION FOR STAY

____________________________________________________________________________________________________________________________________

CONTACT:    Marco Gonzalez

                        Coast Law Group LLP

                        (760) 942-8505

ENCINITAS, CA – Friday, June 3

This afternoon San Diego Superior Court Judge Linda Quinn issued her ruling granting the City ofSan Diego’s and La Jolla Community Fireworks Foundation’s requests to allow the La Jolla Cove 4th of July fireworks show to go on this year (see attached). This decision came on the heels of Judge Quinn’s ruling last week that the City has been in violation of the California Environmental Quality Act by failing to review and mitigate the potential environmental impacts from this event.

At the beginning of yesterday’s hearing where the City and event organizers requested the stay, the court indicated it was inclined to deny the request. CERF finds the court’s ruling somewhat troubling, primarily because the order fails to identify any rationale whatsoever for the court’s change in position. CERF will take the weekend to consider its options to respond to the ruling.

CERF’s attorney Marco Gonzalez responds, “While we’re of course not happy with the court’s ruling, we understand the immense pressure the City and fireworks organizers have created by delaying these proceedings so long and by dragging in all of the other events that could be possibly impacted by the ruling. But in the end, what’s most important is that regardless of whether the La Jolla fireworks happen this year, there will be significant changes in the way the City handles these events going forward, and that has been our goal all along. We remain committed to working with the City on a solution, and will consider our appeal and other options in the days ahead.”

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