HomeMy WebLinkAbout00 - Closed Session Item IV.AAugust 22, 2023
Closed Session Item IV.A
STATE OF CALIFORNIA- NATURAL RESOURCES AGENCY GAVIN NEWSOM, Governor
CALIFORNIA COASTAL COMMISSION
South Coast Area Office a
301 E. Ocean Blvd., Suite 300
Long Beach, CA 90802-4302
(562)590-5071
April 11, 2023
Jim Campbell, Deputy Community Development Director
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Subject: Protection of Western Snowy Plovers in the City of Newport Beach
Dear Mr. Campbell:
On March 21, 2023, Commission staff received the City's notification of its decision to withdraw
CDP application No. 5-21-0460, and a follow-up letter on April 10 2023. As you know, the
application requested after the fact authorization of removal of the wood -slat fences that
previously existed at Balboa Beach to protect Western Snowy Plovers, and their habitat, and
replacement of the protective fencing with symbolic fencing, as well as other measures intended
to protect snowy plovers. As you know, CCC staff had worked hard with City staff to try and
find measures that would address legal issues here and provide a mutual path forward to address
concerns by both the City and with regard to Coastal Act issues and protections for the
endangered snowy plovers.
We are disappointed that the City chose to withdraw the application and leave snowy plovers and
their habitat without the valuable protection from disturbance, whether from human or dog
activity, that the wood -slat fencing previously in place provided. CDP application No. 5-21-0460
was intended to address the City's unpermitted removal of the protective wood -slat fence, and,
thus, with the City's withdrawal of the application, enforcement staff will be forced to consider
its options to address this matter as a violation of the Coastal Act. However, we wanted to
provide some context for such a potential action and request that the City discuss immediate re-
installation of the wood -slat fence with enforcement staff in order to avoid the need for formal
enforcement action that would direct the City to reinstall the fencing. In either instance, our
intent would be to work with the City to protect an endangered species in the midst of urban
southern California, where remaining open space and habitat areas are especially significant
because of their rarity and, consequently, importance to wildlife. We remain interested in
discussing options with you and reinstituting some means to provide protections that existed
prior to the removal of the fence.
As you are no doubt aware, Western Snowy Plovers use Balboa Beach, as well as other areas in
the City, for foraging and roosting, and the United States Fish and Wildlife Service has identified
an area of Balboa Beach as Critical Habitat for snowy plovers because the area is essential to the
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April 11, 2023
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conservation of the species - Balboa Beach is one of seven primary wintering sites' for snowy
plovers in Orange County and has been described as the largest in Orange County2. In addition,
in previous years, the Critical Habitat area of Balboa Beach has supported nesting plovers.3
The wood -slat fencing that the City removed provided important protection for plovers within
the Critical Habitat area. Plovers have been documented within the previously fenced areas4, and
plovers also have previously nested in close proximity, if not in, the area that the fences
protected.s The USFWS has stressed the importance of fencing at Balboa Beach to protect
snowy plovers. In its April 10, 2018, letter to the City, the USFWS supported fencing to protect
plovers that is capable of excluding dogs, such as the wood -slat fencing, if the City persisted
with allowing dogs within the Critical Habitat area. The USFWS stated that "Consistent with the
conservation needs of the snowy plover, a more conservative approach for the ACAs [avian
conservation areas] that includes exclusion of dogs would provide better protection for snowy
plovers. If the City cannot accomplish this level of protection, we recommend that these areas be
protected with fencing to prevent dog entry. A variety of fencing options are available that could
be effective and less visible to the nearby residents than standard chain link fencing."
The City's removal of the wood -slat fencing and failure to replace it with any type of barrier to
protect snowy plovers has exposed them to significant threat of disturbance from human and dog
activity within the areas that were previously fenced, as evidenced by the long-time documenting
of these threats by the USFWS. For instance, the USFWS's Recovery Plan for the Pacific Coast
Population of the Western Snowy Plover describes the impacts of dog activity on plovers as
such: "Dogs on beaches can pose a serious threat to western snowy plovers during both the
breeding and nonbreeding seasons. Unleashed pets, primarily dogs, sometimes chase western
snowy plovers and destroy nests. Repeated disturbances by dogs can interrupt brooding,
' The USFWS describes, at least in one instance, the importance of wintering areas as such: "These areas are
necessary to provide sufficient habitat for the survival of Pacific Coast WSPs during the nonbreeding season as these
areas allow for dispersal of adults or juveniles to nonbreeding sites and provide roosting and foraging opportunities
and shelter during inclement weather." Federal Register Volume 77, No. 118. Endangered and Threatened Wildlife
and Plants; Revised Designation of Critical Habitat for the Pacific Coast Population of the Western Snowy Plover;
Final Rule.
z The Western Snowy Plover in Los Angeles and Orange Counties, California: September 2014 to February 2017.
Prepared for the California Department of Fish and Wildlife by Los Angeles Audubon, Santa Monica Bay Audubon
Society, and Sea and Sage Audubon.
s Federal Register Volume 77, No. 118. Endangered and Threatened Wildlife and Plants; Revised Designation of
Critical Habitat for the Pacific Coast Population of the Western Snowy Plover; Final Rule, page 36771.
a The occurrence of plovers in the previously fenced areas likely would have been greater than observed over the
past several years if not for the unpermitted extension of a walkway at E Street, the effect of which is described in
The Western Snowy Plover in Los Angeles and Orange Counties, California: September 2014 to February 2017 as
follows: "In the fall of 2014, the City of Newport Beach constructed a 300 foot long sidewalk adjacent to the fence
at the Balboa Beach Snowy Plover roost, extending from E Street (Ryan et al. 2015). This ran immediately adjacent
to a fenced Snowy Plover area and directly into one of the main Snowy Plover roosting areas from 2014 (Ryan et al.
2014). This disturbance likely flushed the plovers from this roosting area in 2015 and likely contributed to the
reduced numbers here in 2014-15. It appears that this effect has continued into 2015-16." Commission staff will
address this additional significant violation under separate cover, which will request removal of the unpermitted
walkway.
s The Western Snowy Plover in Los Angeles and Orange Counties, California: September 2014 to February 2017,
page 27.
City of Newport Beach
April 11, 2023
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incubating, and foraging behavior of adult western snowy plovers and cause chicks to become
separated from their parents." In designating an area of Balboa Beach as Critical Habitat, the
USFWS identified the main threats to plovers specifically at Balboa Beach, stating that "The
physical or biological features essential to the conservation of the species may require special
management considerations or protection to address the main threats from human recreational
disturbance, predation of chicks and eggs, and beach raking."
Thus, Commission staff is deeply concerned that the City has removed even the limited area of
protection that the wood -slat fence provided to protect an area of the Critical Habitat and failed
to replace it with any adequate protective measures, and we have expressed our concern with the
deleterious impacts that could result from removal of the fencing for some time. For instance, in
a June 26, 2017, letter to the City, Commission staff noted that we must consider the immediate
impacts to sensitive biological resources that are protected by the existing fencing [which was
extant to some degree at that time] that may occur if the fencing is removed. As you know, the
CDP application was intended to address unpermitted removal of the protection provided to
snowy plovers by the wood -slat fencing. We are especially disappointed that the City has
withdrawn the application after years of effort by both City and Commission staff to try to reach
a consensual resolution of this matter. As you probably know, the City first submitted
predecessor applications, which the City also withdrew, to CDP No. 5-21-0460 in 2017. Many
meetings and much correspondence between staff followed. Now that the City has withdrawn the
application, Commission staff unfortunately must consider its options to address this unpermitted
development as a Coastal Act violation until such time as an adequate barrier to protect the
plovers from human and dog activity is installed.
The Commission has a range of enforcement tools at its disposal, for instance Section 30809 of
the Coastal Act states that if the Executive Director of the Commission determines that any
person has undertaken, or is threatening to undertake, any activity that requires a permit from the
Coastal Commission without first securing a permit, the Executive Director may issue an order
directing that person to cease and desist. In this situation, the City has undertaken removal of a
structure, which constitutes development under the Coastal Act, without the necessary coastal
development permit. City staff has suggested that no permit was required for removal of the
fencing since, as the City has represented, the fencing was installed without a permit. However,
for the purpose of identifying what activities require a coastal development permit under the
Coastal Act, `development' is defined in Section 30106 to include both placement and removal
of development: "the placement or erection of aM solid material or structure... construction,
reconstruction, demolition, or alteration of the size of aM structure...." [underlining added for
emphasis] Therefore, the criterion for the Executive Director's issuance of a cease and desist
order has been met. Pursuant to Coastal Act Section 30809(c), the order may be subject to terms
and conditions, such as immediate re -installation of the fencing, to avoid irreparable injury to
resources. Said order could be issued to the City unilaterally or with the City's consent.
In order to resolve this matter cooperatively, we are requesting that the City work with
Commission staff to immediately reinstall the wood -slat fence to avoid the need for formal
enforcement action. We have options to streamline authorization of re -installation of the
protective fencing, whether through the permit process or consent order process, and we are
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April 11, 2023
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happy to discuss those options with you. Please contact me when you receive this letter to
discuss a consensual resolution of this matter.
Sincerely,
Andrew Willis
Enforcement Staff Counsel
cc: Dr. Kate Huckelbridge, Executive Director, CCC
Lisa Haage, Chief of Enforcement, CCC
Karl Schwing, Deputy Director, CCC
Mandy Revell, Coastal Program Analyst, CCC