HomeMy WebLinkAbout18 - An Order by the California Coastal Commission to Reinstall Fences to Protect the Western Snowy Plover ShorebirdsQ �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
September 12, 2023
Agenda Item No. 18
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
PREPARED BY: Chelsea Crager, Senior Planner, ccrager@newportbeachca.gov
PHONE: 949-644-3227
TITLE: An Order by the California Coastal Commission to Reinstall Fences
to Protect the Western Snowy Plover Shorebirds
ABSTRACT:
For the City Council's consideration is a cease and desist order issued by the California
Coastal Commission (CCC) Executive Director to address a violation of the Coastal Act
primarily by reinstalling and maintaining fenced enclosures to protect the Western Snowy
Plover shorebirds. If authorized, the City of Newport Beach (City) will work with the CCC
and begin installing four -foot -high fencing on the beach between D and F streets.
RECOMMENDATIONS:
a) Find this project exempt from the California Environmental Quality Act (CEQA)
pursuant to Section 15333, Class 33 (Small Habitat Restoration Projects) of the CEQA
Guidelines, because this project has no potential to have a significant effect on the
environment; and
b) Authorize the City Manager to sign the Consent Executive Director Cease and Desist
Order No. ED-23-CD-01.
DISCUSSION:
Community Development Department (CDD) staff has been working with the CCC and
U.S. Fish and Wildlife staff to address the management of a federally designated critical
habitat for the Western Snowy Plover for several years.
The Western Snowy Plover (WSP) is a small shorebird that can be found along the Pacific
Coast from Baja California to Washington. Since 1993, the WSP has been listed as a
"threatened" species and is federally protected under the Endangered Species Act (ESA).
A population of WSP seasonally use a portion of the Balboa Peninsula between B Street
and the Wedge (a distance of over one mile). Under the ESA, the area between B Street
to G Street is designated a critical habitat by the United States Fish and Wildlife Service
(USFWS). Management and protection of the critical habitat area is an important part of
the USFWS's recovery plan that aims to increase the WSP population and meet specific
criteria to one day remove them from the threatened species list.
18-1
An Order by the California Coastal Commission to Reinstall Fences to
Protect the Western Snowy Plover Shorebirds
September 12, 2023
Page 2
Figure 1: Critical Habitat Area
The City initiated monitoring of the area between B Street and the Wedge in 2009. The
City installed an approximately 42-inch-tall, wood -slat fence around some of the coastal
dunes between D and E Streets in 2011, with the intent to protect the threatened species.
Temporary signs informing the public of the habitat area were also placed in the area.
Additional fencing was installed between E and F Streets in 2017. The fencing helped
delineate and recognize the critical habitat area to help protect the area from pets, human
activities, and vehicles. The fencing was installed without the benefit of a Coastal
Development Permit (CDP).
i
Figure 2: Original Fence Location
18-2
An Order by the California Coastal Commission to Reinstall Fences to
Protect the Western Snowy Plover Shorebirds
September 12, 2023
Page 3
Complaints to the CCC initiated a dialog about the fencing, potentially removal of the
fencing, and steps the City could take to protect the WSP. Staff submitted a CDP
application to remove the fence, indicating the City would prepare and submit a WSP
management plan addressing the federal critical habitat and dune habitat. Staff, with
qualified consultant assistance, prepared and submitted a management plan. The plan
area was later expanded to cover the beaches extending from the eastern edge of the
federally designated critical habitat further east to the Wedge, as plovers were found in
that area. The plan included education programs, temporary seasonal fencing,
interpretive educational signage, permanent low fencing, dune restoration, beach
operations management, adaptive management strategies, and regular reporting to the
CCC.
The original wood slat fences that were put in place suffered damage from both human
activity and weather. The fences were not maintained because the City had asked for
their removal due to concerns about their appearance and uncertain legal status. They
were modified over time to be a stake and rope "fence." As the metal stakes eventually
rusted, they became a safety hazard and were removed. Today, the fences are no longer
in place.
In late March 2023, CCC staff shared a draft set of conditions for the pending CDP
application. City staff found the draft conditions unacceptable based on known resident
concerns and City Council direction. Staff withdrew the application to allow for additional
dialog with all stakeholders to arrive at a more appropriate solution, possibly without
fencing or a ban on dogs.
California Coastal Commission Enforcement and Cease and Desist Order
Due to the removal of the unpermitted fencing, CCC enforcement staff sent the City a
letter dated April 11, 2023 (Attachment B), requesting the City reinstall the wood slat
fencing or face further code enforcement proceedings and fines. They allege the removal
of the fence, along with the construction or reconstruction of the E Street walkway, has
damaged the critical habitat evidenced by lower recent plover sightings.
On July 20, 2023, the CCC sent the City a draft Consent Executive Director Cease and
Desist Order (Order) (Attachment A). The purpose of the Order is to abate the violation
of the Coastal Act by the City's unpermitted removal of unauthorized fencing. The Order
requires reinstalling and maintaining the fencing for the protection of WSP. Should the
City Council approve the Order, it will then be forwarded and signed by the CCC Executive
Director. Once fully executed, the Order will become official and the City will adhere to
the terms outlined in the Order. The key terms of the Order are as follows:
1. Within 15 days of the issuance of the Order, the City shall submit a fencing plan and
educational signage for the review and approval by CCC staff;
2. Within 15 days of the approval of the fencing plan, the City shall complete the
installation of the fencing and then submit a report with evidence of the completion of
the work within seven days.
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An Order by the California Coastal Commission to Reinstall Fences to
Protect the Western Snowy Plover Shorebirds
September 12, 2023
Page 4
3. The City would agree to maintain the new fencing until issuance of a follow-up CDP
by the Coastal Commission that authorizes replacement fencing;
4. Within 15 days of issuance of the Order, the City shall prepare a Western Snowy
Plover monitoring plan for review and approval by CCC staff. The monitoring plan will
require twice monthly surveys during the months of July through March of the fenced
enclosures by a qualified biologist;
5. If the City is unable to complete the required actions within the specified timelines, it
may request extensions of time showing good cause; and
6. Violation of the Order shall result in the City being liable for stipulated penalties in the
amount of $1,000 per day per violation.
After the Order is issued, City staff will begin with step 1 listed on the previous page and
develop a fencing and signage plan to be forwarded to the CCC for review and approval.
City staff will then proceed with the installation of the fencing and signage according to
the CCC approved plan. The replacement fencing would be located in the same location
as the original. Instead of the original red fencing material, the new fencing would be a
natural color. Figure 3 below provides a general representation of what the fencing would
look like, while Figure 4 on the next page is an example of the educational signage. City
staff anticipates installing the fence in October 2023.
M
Santa Monica Beach Restoration P46
Figure 3: New Fence Material
18-4
An Order by the California Coastal Commission to Reinstall Fences to
Protect the Western Snowy Plover Shorebirds
September 12, 2023
Page 5
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FISCAL IMPACT:
The adopted budget includes sufficient funding for the installation of the fencing and
signage as well as the required monitoring. The cost of the signs, estimated at $2,600,
will be expensed to the Recreation and Senior Services Department, account #01070005-
851016. The cost of the fencing, estimated to be approximately $30,000, will be expensed
to the Community Development Department, account #01050503-811008, and the cost
for the first year of monitoring, estimated to be approximately $20,000, will be expensed
to the Community Development Department, account #01050501-811008. Estimates for
maintenance are not known, but costs are not expected to be significant and will be
budgeted in future years.
Staff will be submitting a grant application to the California Coastal Conservancy for all
expenses, as well as future expenses when estimated. The Conservancy received slightly
over $1,500,000 in violation funds from 29 Newport Beach property owners related to the
Peninsula Point beach encroachment removals and the funds are allocated to the
protection of the Western Snowy Plover in Newport Beach.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this project exempt from the California
Environmental Quality Act (CEQA) pursuant to Section 15333, Class 33 (Small Habitat
Restoration Projects) of the CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, because it has no potential to have a significant effect on the environment.
18-5
An Order by the California Coastal Commission to Reinstall Fences to
Protect the Western Snowy Plover Shorebirds
September 12, 2023
Page 6
Class 33 exempts projects not to exceed five acres in size to assure the maintenance,
restoration, enhancement, or protection of habitat for fish, plants, or wildlife including
projects to restore or enhance habitat that are carried out principally with hand labor and
not mechanized equipment. The proposed project includes the installation of wood -slat
fencing around coastal dune habitat with the intent to enhance the habitat for the Western
Snowy Plover. The installation of fencing and signage will be done with hand labor and
the fenced area will not exceed five acres.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Consent Executive Director Cease and Desist Order
Attachment B — California Coastal Commission Letter, Dated April 11, 2023
18-6
ATTACHMENT A
STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY GAVIN NEWSOM, GOVERNOR
CALIFORNIA COASTAL COMMISSION
455 MARKET STREET, SUITE 228 0
SAN FRANCISCO, CA 94105
FAX (415) 904-5400
TDD (415) 597-5885
DRAFT
VIA REGULAR, CERTIFIED, AND ELECTRONIC MAIL
August XX, 2023
City of Newport Beach
Subject: Consent Executive Director Cease and Desist Order No. ED-23-
CD-01
Date Issued: August XX, 2023
Expiration Date: November XX, 20231
Property Location: Area known as Balboa Beach, Newport Beach, Orange County,
APNs 048-170-24,38 and 048-320-03.
Violations: Unpermitted removal of protective fencing for federally listed as
threatened Western Snowy Plover.
I. CONSENT EXECUTIVE DIRECTOR CEASE AND DESIST ORDER
This Consent Executive Director Cease and Desist Order ("Consent EDCDO")
represents a mutual agreement between the City of Newport Beach ("City") and the
Executive Director of the California Coastal Commission ("Commission"). In light of the
desire of both the City and the Executive Director of the Commission to address the
need to protect the Western Snowy Plover and its habitat at Balboa Beach, the City
agrees to enter into Consent Executive Director Cease and Desist Order No. ED-23-
CD-01 and agrees to abide by the terms and conditions set forth herein, which generally
require the City to reinstall and maintain two fenced enclosures for the Western Snowy
Plover that it had previously removed.
The Pacific Coast population of the Western Snowy Plover was listed as "threatened"
in 1993 pursuant to the federal Endangered Species Act of 1973 by the U.S. Fish and
Wildlife Service ("USFWS"). Balboa Peninsula is one of seven primary wintering sites
for snowy plovers in Orange County and occasionally has supported nesting,
including within the dune area that is the site of the fenced enclosures at issue. In
June 2012, the USFWS declared approximately 25.04 acres of beach as critical
habitat for the Western Snowy Plover in an area southeast of Balboa Pier from B-
Street to G-Street between the paved Oceanfront Boardwalk and the mean high tide
line, which encompasses the areas of the fenced enclosures.
1 With the exception of pursuant to the agreement of the parties under Section 13188 (a) of the
Commission's regulations (which are codified in Title 14, Division 5.5, of the California Code of
Regulations (CCR)), as described in Section 1.5 herein.
18-7
Consent EDCDO No. ED-23-CD-01 (Newport Beach)
August X, 2023
Page 2 of 6
Thus, pursuant to my authority under California Public Resources Code ("PRU) Section
30809, 1 hereby order and authorize the City to take the following actions: cease and
desist from conducting, and to ensure that all of the City's employees, agents, and
subcontractors cease and desist from conducting, any further unpermitted development
on the property defined in Section III, below, including but not limited to removal of
protective fencing for the Western Snowy Plover, and reinstall said fenced enclosures
as outlined below. More specifically, I hereby order and authorize the City to comply
with the following terms in order to ensure that the unpermitted development is
corrected and that further unpermitted development does not occur.
The City has agreed to and shall immediately and completely cease and desist
from conducting any further unpermitted fence removal, any development which
requires a coastal development permit ("CDP") pursuant to California Public
Resources Code Section 30600 and Newport Beach Municipal Code Section
21.52.015 (Coastal Development Permit) without obtaining a permit, and
development that is inconsistent with any approved CDP on the properties
identified in Section III, below, but the City shall conduct any remedial measures
authorized and required by this Consent EDCDO.
2. Within fifteen (15) days of issuance of this Consent EDCDO, the City agrees to
and shall submit a fencing plan ("Fencing Plan"), for the review and approval of
the Executive Director, that will provide for reinstallation of fencing of similar
material and in a similar location as the fencing that was removed (see Exhibit A
for photographs that identify previous fencing locations and material). To help
ensure the successful functioning of the fenced enclosures to protect plovers and
educate the public regarding the need for such measures, the Fencing Plan shall
include installation of educational signage on each side of the fenced enclosures.
The signs shall include, at a minimum, a photograph or drawing of a Western
Snowy Plover; information on the status and life history of the plover; and an
explanation of the purpose of the fencing to protect snowy plover areas.
3. The City has agreed to and shall implement and complete the approved version
of the Fencing Plan within fifteen (15) days of its approval by the Executive
Director, or within such additional time as the Executive Director may grant for
good cause in accordance with the requirements of Section 1.7 herein.
4. The City has agreed to and shall submit, within seven (7) days from completion
of the work required under the Fencing Plan, a report, including photographic
evidence, documenting the completion of the work authorized by this EDCDO. If
after reviewing the report required by this EDCDO, the Executive Director
determines that the work required by this EDCDO was not implemented or not
implemented in compliance with the terms of this EDCDO, the City shall
undertake any work that is required by the Executive Director to ensure
compliance with the approved plans or the requirements of this EDCDO.
5. The City has agreed to and shall maintain the fenced enclosures at a minimum
until issuance of a Commission CDP that authorizes replacement fencing. In
order to ensure preservation of the fencing on site until such time as the
18-8
Consent EDCDO No. ED-23-CD-01 (Newport Beach)
August X, 2023
Page 3 of 6
Commission issues a CDP for replacement fencing, the City stipulates to the
Executive Director's extensions of the effective term of the Consent EDCDO
pursuant to CCR Section 13188(a).
6. Within fifteen (15) days of issuance of this Consent EDCDO, the City agrees to
and shall submit a monitoring plan for the review and approval of the Executive
Director that provides for twice monthly surveys during the months of July
through March of the fenced enclosures by a qualified biologist. For the purpose
of this Consent EDCDO, a qualified biologist is a biologist, or similar professional,
with experience conducting protocol surveys for the Western Snowy Plover in
southern California. The number of all adult and juvenile plovers observed during
the surveys, whether in or adjacent to the fenced enclosures, and the number of
each age type, shall be recorded, and locations mapped. Any potential breeding
behavior shall be noted on the survey. Surveys shall occur during daylight
morning hours. The City shall submit the surveys to Commission staff on a
monthly basis pursuant to the procedure described in Section 1.9, below.
7. Prior to the expiration of any given deadline established by this Consent EDCDO,
the City may request from the Executive Director an extension of the unexpired
deadline. Such a request shall be made in writing at least ten (10) days in
advance of the deadline and directed to the Executive Director in the Long Beach
office of the Commission, in the manner indicated in Section 1.9, below. The
Executive Director may grant an extension, after being contacted by the City and
discussing the circumstances with the City, of any deadline upon a showing of
good cause, if the Executive Director determines the City has diligently worked to
comply with its obligations under this Consent EDCDO but cannot meet
deadlines due to unforeseen circumstances beyond the City's control, and if
extension of such deadline will not lead to additional coastal resource impacts.
8. The Executive Director may require revisions to deliverables required under this
Consent EDCDO, and the City agrees to revise any such deliverables consistent
with the Executive Director's specifications and resubmit them for further review
and approval by the Executive Director, by the deadline provided in the
modification request from the Executive Director. Notwithstanding the foregoing,
the Commission understands and agrees that the deadlines required by the
Executive Director for the revision to deliverables are subject to the limitations set
forth in state and local laws including, but not limited to, the California
Constitution, California Environmental Quality Act, Newport Beach Charter, and
Council Policy F-7.
9. Any submittal to the Executive Director pursuant to the provisions above, shall be
sent by mail to the attention of Andrew Willis at 301 E. Ocean Blvd., Ste 300,
Long Beach, CA 90802 with a copy sent via email to Andrew Willis, at
Andrew.Willis(ab-coastal.ca.gov.
18-9
Consent EDCDO No. ED-23-CD-01 (Newport Beach)
August X, 2023
Page 4 of 6
II. ENTITY SUBJECT TO THE CONSENT EDCDO
The entity subject to this Consent EDCDO is the City of Newport Beach and anyone
acting on its behalf, including its employees, agents, contractors, subcontractors, and
anyone acting in concert with the foregoing.
III. IDENTIFICATION OF THE PROPERTY
The properties that are the subject of this Consent EDCDO are known collectively as
Balboa Beach, located at APNs 048-170-24,-38 and 048-320-03, in Orange County.
IV. DESCRIPTION OF UNPERMITTED DEVELOPMENT
The unpermitted development and Coastal Act violations being remedied by this
Consent EDCDOI consists of removal of protective fencing for the Western Snowy
Plover.
V. COMMISSION AUTHORITY TO ACT
The Executive Director of the Commission is issuing this Consent EDCDO pursuant to
her authority under PRC Section 30809(a).
VI. FINDINGS
The City and the Executive Director have worked together to come to an agreement on
this Consent EDCDO, which provides a resolution of this matter by requiring the
reinstallation of protective fencing for the Western Snowy Plover that was previously
removed.
The City agrees that the jurisdictional requirements for issuance and enforcement of this
Consent EDCDO under PRC Section 30809 and the relevant Commission regulations
have been met and agrees to not contest the issuance or enforcement of this Consent
EDCDO. As Commission staff explained in a letter sent to the City on April 11, 2023, as
well as in other communications, violations of the Coastal Act have occurred at Balboa
Beach consisting of unpermitted removal of protective fencing for the Western Snowy
Plover.
With limited exceptions not applicable here, PRC Section 30600(a) states that, in
addition to obtaining any other permit required by law, any person wishing to perform or
undertake any development in the coastal zone must obtain a CDP. "Development" is
defined by Section 30106 of the Coastal Act as follows:
"Development" means, on land, in or under water, the placement or erection of
any solid material or structure; discharge or disposal of any dredged material
2 Although this Consent EDCDO applies only to certain activities, as described herein, nothing in this
Consent EDCDO should be construed to suggest that those are the only activities at Balboa Beach that
are in violation of the Coastal Act.
18-10
Consent EDCDO No. ED-23-CD-01 (Newport Beach)
August X, 2023
Page 5 of 6
or of any gaseous, liquid, solid, or thermal waste; grading, removing,
dredging, mining, or extraction of any materials; change in the density or
intensity of use of land, including, but not limited to, subdivision pursuant to
the Subdivision Map Act (commencing with Section 66410 of the Government
Code), and any other division of land, including lot splits, except where the
land division is brought about in connection with the purchase of such land by
a public agency for public recreational use; change in the intensity of use of
water, or of access thereto; construction, reconstruction, demolition, or
alteration of the size of any structure, including any facility of any private,
public, or municipal utility..."
The unpermitted development described herein clearly constitutes "development" within
the meaning of the above -quoted definition and therefore requires a CDP. The activity
listed in Section IV, above, is unpermitted, and no CDP has been obtained for these
activities. In addition, since the City withdrew its application to implement protective
measures for the snowy plover on April 10, 2023, the parties recognize that there is not
sufficient time to bring a CDP application to the Commission before the next snowy
plover wintering season for measures designed to avoid irreparable injury to coastal
resources, including further damage to the snowy plovers and their habitat in and
adjacent to the areas where the violations occurred, and therefore this Consent EDCDO
is necessary to address this matter more quickly.
As a jurisdictional requirement to issue this Consent EDCDO, I have determined that
the City has undertaken development that requires a CDP, without first securing a CDP.
CCR Section 13180(c) allows for the issuance of an Executive Director Cease and
Desist Order when the party receiving the notice "otherwise agree[s] to the issuance of
the cease and desist order."
On May 18, 2023, Newport Beach Deputy Community Development Director James
Campbell confirmed oral receipt of the Commission's intent to issue an EDCDO
pursuant to PRC Section 30809. Additionally, Mr. Campbell agreed that the
jurisdictional requirements for issuance of an EDCDO have been met, and, pursuant to
CCR Section 13180(c), agreed to the issuance of a consent EDCDO subject to review
and approval by the Newport Beach City Council. Therefore, the jurisdictional
requirements of PRC Section 30809 and CCR Section 13180(c) have been met.
VII. COMPLIANCE OBLIGATION
The City's compliance with this Consent EDCDO is required. Failure to comply with any
term or condition of this Consent EDCDO, including any deadline contained herein,
unless the Executive Director grants an extension under Section 1.7, above, will
constitute a violation of this Consent EDCDO and shall result in the City being liable for
stipulated penalties in the amount of $1,000 per day per violation. If the City is unable to
timely meet the terms of this agreement, the City may exercise the provisions of Section
1.7, above. Commission staff agrees to discuss the issue(s) raised in the demand letter
with the City. The City shall pay stipulated penalties within thirty (30) days of receipt of
written demand by the Executive Director, regardless of whether the City subsequently
complies. If the City violates this Consent EDCDO, nothing in this agreement shall be
18-11
Consent EDCDO No. ED-23-CD-01 (Newport Beach)
August X, 2023
Page 6 of 6
construed as prohibiting, altering, or in any way limiting the ability of the Commission to
seek any other remedies available, including the imposition of civil penalties and other
remedies pursuant to PRC Sections 30820, 30821, 30821.6, and 30822, as a result of
the lack of compliance with this Consent EDCDO.
VIII. CHALLENGE
Pursuant to PRC Section 30803(b), any person or entity to whom this Consent EDCDO
is issued may file a petition with the Superior Court and seek a stay of this Consent
EDCDO. However, in light of the intent of the parties to agree on the terms of this
Consent EDCDO, the City hereby agrees not to seek a stay pursuant to PRC Section
30803(b) and not to challenge the issuance or enforceability of this Consent EDCDO in
a court of law or equity.
IX. EFFECTIVE DATE
This Consent EDCDO shall be effective upon its issuance and shall expire ninety (90)
days from the date issued, on October XX, 2023.3.
Should you have any questions regarding this matter, please contact Andrew Willis at
Andrew.Willis(aD-coastal.ca.gov.
The signatories below represent that they have the authority to sign on behalf of their
organizations.
Signed,
Dr. Kate Huckelbridge
Executive Director
California Coastal Commission
Date:
Enclosure
, 2023
Signed,
City Manager
City of Newport Beach
Date:
2023
Notice of Intent to Issue an Executive Director's Cease and Desist Order,
dated August 20, 2020.
Statement of Defense Form
cc: Lisa Haage, Chief of Enforcement (w/o Encl)
Aaron McLendon, Deputy Chief of Enforcement (w/o Encl)
Alex Helperin, Deputy Chief Counsel (w/o Encl)
Andrew Willis, Enforcement Staff Counsel (w/o Encl)
3 With the exception of agreement of the parties under CCR Section 13188 (a) as described in Section 1.5
herein.
18-12
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Exhibit A
Page 1 of 2
18-13
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Consent EDCDO No. ED-23-CD-01
Exhibit A
Page 2 of 2
18-14
ATTACHMENT B
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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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.
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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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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
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