Department of Commerce Rules on Foothill/Eastern Transportation Corridor Agency Consistency Appeal
The Department of Commerce today upheld the California Coastal Commission’s objection to a proposal to construct a 16-mile toll road connecting California state Route 241 to Interstate 5 in southern Orange and northern San Diego counties.
The commission objected to the proposed project under the federal Coastal Zone Management Act on the grounds that the toll road was not consistent with the state’s coastal zone management program. Under the CZMA, federal agencies may not issue any permits required for a project if a state has objected, unless the Department of Commerce, on appeal, overrides the objection.
The Foothill/Eastern Transportation Corridor Agency appealed the commission’s objection to the Department of Commerce in February, triggering an administrative review process that involved written briefs and arguments by the parties, input from interested federal agencies, tens of thousands of written comments from the public, and a 10-hour public hearing in San Diego County.
Under the CZMA, the department may override an objection only if no reasonable alternative to the project exists and the proposal is consistent with the objectives of the CZMA, or if the project is necessary in the interest of national security. The department determined that there is at least one reasonable alternative to the project. The department also found that the project is not necessary in the interest of national security.
TCA may pursue another route for its proposed toll road that the commission determines is consistent with California’s coastal zone management program, and TCA is not limited to the alternative proposal described in the department’s decision.
Since the enactment of the CZMA in 1972, the department has acted on 43 appeals, upholding 29 objections by state agencies and overriding 14.
From NOAA understands and predicts changes in the Earth's environment, from the depths of the ocean to the surface of the sun, and conserves and manages our coastal and marine resources.
California's native salmon, steelhead and trout species face extinction this century without quick action to provide proper habitats. 20 of 31 species of prized fish are in sharp decline, including the Sacramento River winter run of Chinook salmon, coastal Coho salmon and the Sierra Nevada golden trout.
A U.S. Department of Commerce decision is expected soon regarding a controversial toll road extension that would slice through a portion of San Onofre State Beach, jeopardizing a pristine watershed that is home to 11 endangered species, Panhe a Native American Site, San Mateo A top 5 State Park, and also jeopardizing the world famous Trestles surf breaks.
In case you missed it, the L.A. Times devoted nearly a page in Monday's California edition outlining issues that have made the proposed project so contentious. (HOW MUCH DID THAT COST?)
Personally, I despise the idea as much as I despise heavy traffic.
What the story glossed over were the pros and cons of developing state parks.
Outdoors enthusiasts ought to oppose any project that sacrifices even a portion of any state park. Parks ought to be considered sacred ground and protected against all infringements of civilization. And Sacred ground needs to be thought of as Sacred Ground.
Isn't that the purpose behind them?
San Onofre receives 2.8 million visitors a year and is the fourth-most visited park in California. Reasons: proximity to ocean and wilderness, and aesthetics.
Those visitors would not likely welcome such an unsightly intrusion, which would run for about five miles and consume 320 acres of their beloved park.
San Onofre State Beach is bisected by San Mateo Creek, the last pristine public watersheds in Southern California and home 11 endangered species..
Groups such as the Sierra Club, Surfrider Foundation, Wildcoast, Save San Onofre Coalition and California State Parks Foundation vehemently oppose the project for good reasons.
Even proponents of the toll road project concede this habitat will be damaged.
As for waves at Lower Trestles, one of the world's premier point breaks and home to the only World Tour surfing event in the continental United States, they may not be ruined by the alteration of flow from the creek caused by construction.
Or they could be.
As for traffic, there are no assurances that travelers on Interstate 5 in south Orange County will even detect the slightest difference after completion of an alternative route that would dump motorists onto I-5 at Basilone Road south of San Clemente.
Commerce Secretary Carlos Gutierrez has until Jan. 7 to decide whether to override the California Coastal Commission's rejection of the project last February.
When I arrived at the Del Mar Fairgrounds last month for Del Mar II -- the second massive public hearing on the fate of the Transportation Corridor Agencies (TCA) proposed 241-toll road that would permanently disfigure San Onofre Beach State Park -- I was hopeful. According to Joel Reynolds, Senior Attorney and Southern California Director for the Natural Resources Defense Council (NRDC), the hearing was,
"Only the latest chapter in a long-term war against the toll road -- one of the most destructive projects in the recent history of the California coast."
Little did I know that not only might the private toll be approved by the feds but that U.S. taxpayers might help pay for the project.
As soon as I entered the cavernous hall the hearing took place in on the morning of Sept. 22, a space suitable for livestock exhibitions that felt like the inside of a steam bath, I realized that the fix was in. The hearing was a Bush administration show-trial, presided over by Jane Luxton, general counsel for the National Oceanic and Atmospheric Administration (NOAA) (whose role as judge and jury involved calling up speakers, enforcing an arcane list of invented rules, and maintaining a waxy smile for more than 10 hours of public testimony). Red-shirted private security guards enforced Luxton's ad-hoc rules. They even threatened to eject my two sons ages 10 and 12 for carrying a homemade sign that was apparently a few inches too large.
The two anonymous aides that shared the dais with Luxton could have been transferees from the Minerals Management Service or just lottery-picks from the offices of NOAA ("free trip to San Diego -- see Jane"). Or they might have been interns fresh out of Bob Jones University. This almost surreal atmosphere caused Surfrider CEO Jim Moriarty to tell me as we took a mid-day fresh air break, "I just hope they don’t put the testimony into a report somewhere and make the decision they already planned on making."
My own doubts about the validity of the hearing and the entire process were reinforced by my own experience presenting to Luxton et al. I had asked seven young surfers or groms from Imperial Beach to accompany me to the speaker podium to demonstrate the importance of preserving San Onofre State Beach Park as healthy open space for children.
While gathering together in the speaker "staging area" to the right of the podium, an agitated bouncer informed me that the groms were verboten. I informed him that NOAA officials had approved their presence (none of the hearing rules made any mention of a prohibition on kids). The guard ignored me and ordered the children to stand down.
After I politely declined his request, the agitated guard rushed over to the NOAA officials and argued that I was in violation of rules he had invented at that very moment. After the NOAA staff calmed the guard down, I was able to speak while the young activists stood silently behind me.
In theory, Luxton and her aides will review the testimony from the hearing, sort through the 35,000 public comments that have already been sent to Washington D.C. and then advise Commerce Secretary Carlo Gutierrez (the former CEO of Kellogg), on the most appropriate course of action. Since the hearing, anti toll road activists have learned that the TCA has decided to up the ante on its "private-sector" project and request the same type of federal bailout that the financial sector has recently received. In June, the TCA requested a $1.1 billion loan from the U.S. Department of Transportation to consolidate $4.6 billion in debt.
On Oct. 7, Senator Barbara Boxer wrote a letter to Secretary of Transportation Mary Peter expressing her concern about the loan application. In the letter, she argued that the program that would finance the loan, the Transportation Infrastructure Finance and Innovation Act, was not meant to "stabilize the finances of... existing toll roads.”
If Gutierrez approves the toll road and the Secretary of Transportation issues a loan to the TCA, environmental groups are ready to continue their "Save San Onofre" campaign. According to Reynolds of NRDC,
"If the Bush Administration overrules the California Coastal Commission, we will take them to court -- and we will win.”
Given the groundswell of public opinion against the new road to nowhere and the thousands of activists against the toll road who showed up for Del Mar II, it would be hard for the U.S. Department of Commerce to overturn the California Coastal Commission’s decisive February rejection of the toll road plan. I can only hope that the tattered blueprints for the toll road to nowhere will end up abandoned in a desk drawer in an empty office in Washington D.C. after President Bush and his cronies, who have devastated our nation’s economy and our natural environment depart for Texas.
The Transportation Corridor Agency and the Coalition to "Save Trestles" both agree that the California Coastal Commission Hearing on Sept. 22, went well; it's most likely the only thing the opposing sides on the debate to extend the 241 Toll Road will ever agree on.
Surfrider Foundation Assistant Environmental Director Mark Rauscher and TCA spokesperson Jennefer (YEACH) Seaton both commented that they were pleased by their respective supporters. Both cited mass support from ordinary citizens as well as various elected officials and noted citizens as validation of their respective positions. Each felt strongly that the public's involvement will eventually lead Commerce Secretary Carlos M.Gutierrez to make the final decision in their favor.
The San Clemente chapter of the Foundation has been the spearhead of the movement to Save Trestles. According to Rauscher, the local volunteers have been the backbone of the anti-extension campaign. Rauscher is nothing less than effusive in his admiration of local citizens for making a difference, and critical critical of certain local elected officials.
"San Clemente City Councilmember Jim Dahl is out of touch with his constituents; the vast majority of residents in San Clemente do not want the toll road in their back yard" Raucher said and continued to say "County Supervisor Pat Bates is not living up to the expectations of the voters; the people in Orange County feel that planning for open space and parks, maintains the quality of life they are interested in."
Multiple attempts to reach Councilman Dahl and County Supervisor Bates were unsuccessful, their spokespersons stating that Dahl was at a conference and Bates was on vacation.
Rauscher relates that a recent bi-partisan phone poll showed that the "Save Trestles" campaign had a 2:1 favorable rating after participants were informed that the toll road would bisect San Onofre State Park. The survey was commissioned by the California State Parks Foundation and was conducted in mid-August.
Seaton was equally effusive about the support in he pro-extension camp. "The TCA is encouraged by support from people like County Supervisor Pat Bates and the City of Tustin's Mayor and TCA Chairman Jerry Amante, in getting the Toll Road expansion finished" TCA's Seaton said.
Media outlets estimated that approximately 6000 people attended Monday's 10-hour hearing at the Del Mar fairgrounds, although Stefanie Sekich, Surfrider Foundation's "Save Trestles" Campaign Coordinator stated that no exact numbers were available. Surfrider gave away 3000 t-shirts to supporters. Sekich added that, of the approximate 25 people that spoke during the community feedback portion of the hearing, 23 were against the TCA plan and urged the CCC to reject it.
"It's a waiting game to see what the Secretary of Commerce will say on Jan. 7. Whatever the decision is, I am confident that there will be an appeal from the loosing side and potentially a lawsuit and litigation; from a legal point of view there is no justification for Gutierrez to override the Coastal Commission's decision made in February; this is an issue of states rights and the federal government should have no say in it" Rausher said.
Seaton, TCA's spokesperson, refutes the idea that the federal government should have no say in the process. Citing that the CCC hearing and vote in Feb. was for a Coastal Consistency Certification and based on the federal Coastal Zone Mandate Act. Approval on the certification is part of the CCC's decision process and therefore inherently includes the Federal Government. At that hearing, the vote was 8-2 against continuing with the extension.
Additionally, the US, Fish and Wildlife Agency submit a favorable Biological Opinion which the TCA received in April. Of the roughly 20 certifications, permits and approvals that must be issued for the TCA to continue with the expansion, the TCA has 10 of the needed approvals to date, according to Seaton.
This morning the Wretched Wetsuit got a very informative rundown of yesterday's Federal Hearing on the proposed Toll Road through San Onofre, from the Surfrider Foundation's Save Trestles Campaign Manager, Stefanie Sekich.
Approximately 3,000 supporters came out to the 12 hour hearing to protect Trestles. You may recall that back in March, the California Coastal Commission voted 8-2 against the proposed road. Well, the Transportation Corridor Agency asked the Federal Government to overturn the decision made by the people and government of California. Hence, at Mondays's hearing, 200 people testified to the US Secretary of Commerce. He will ultimately make the decision about the future of one of the most celebrated surf spots and natural resources we have.
Surfrider had supporters well organized. While this public hearing only allowed selected speakers to testify, surfers rallied outside with sign making, letter writing, live music, and our its speakers, including Shawn Thomson. Fellow opponents of the Toll Road joined with Surfrider, including Native Americans and the Sierra Club.If Shawn wasn't your hero before from his accomplishments alone, he should be now.
"We were basically saying, 'Please don't overturn the decision that we've made as Californians,' at yesterday's hearing," explained Sekich.
The first to speak were elected officials, an overwhelming number of whom also serve on the TCA Board of Directors. Why does that sound lopsided?
They were followed by representatives of organizations — cultural, environmental, and recreational. This is when Jim Moriarity, Surfrider's Executive Director, stepped up to the plate, as well as Bob Mignona, representing SIMA.
Mignona explained to Secretary of Commerce, Carlos Gutierrez, that Trestles brings an estimated $8 to $13 million to the city of San Clemente. There you go, Bob, speak his language! Good call to bring up the economic impact of this resource to a commerce guy.
The last group to testify was 25 selected members of the general public. Basically 23 people, of the 25 who spoke, were against the toll road. Even so, this 25 is a small number of everyday men and women who got a chance to voice his or her concerns, when you think that there were 200 speakers total.
"I've never seen the Federal Government make it as hard for the general public. It was so unprecedented to have thousands of people come out like that. They really went out of their way to make the forum very cumbersome," said Sekich.
As at the CCC Hearing in March, there were some laborers in support of the Toll Road. It was common knowledge that certain Union members were paid to come out to the last hearing. While it wasn't made public this time, there were an awful lot of toll road "supporters," who got up and left at 3 p.m. Very interesting. Perhaps they don't get overtime for filling a seat.
So now Gutierrez goes back to DC to ponder whether he should completely disregard the clear voice of the people of California, or support the CCC's decision. He has from October 24th to January 7th to make his decision. A period of public comment will be open until October 2nd.
SaveTrestles.org will have an Action Alert, where you can make your voice heard. I don't think I need to remind anyone that this is not simply a California issue. It is a landmark case where we have to demand that the government recognize surf spots (and recreational resources in general) and gives them the respect they deserve. I will link to them as they are developed.
A lot of people have worked very hard on this movement. This is the final battle. Spread the word and Save Trestles now.
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