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HomeMy WebLinkAbout18 - An Order by the California Coastal Commission to Reinstall Fences to Protect the Western Snowy Plover Shorebirds - Signed OrderSTATE OF CALIFORNIA - NATURAL RESOURCES AGENCY CALIFORNIA COASTAL COMMISSION 455 MARKET STREET, SUITE 228 SAN FRANCISCO, CA 94105 FAX (415) 904-5400 TDD (415) 597-5885 VIA REGULAR, CERTIFIED, AND ELECTRONIC MAIL September 14, 2023 City of Newport Beach Attn: Grace K. Leung, City Manager 100 Civic Center Drive Newport Beach, CA 92660 GAVIN NEWSOM, GOVERNOR Subject: Consent Executive Director Cease and Desist Order No. ED-23- CD-01 Date Issued: September 15, 2023 Expiration Date: December 14, 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. 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. Consent EDCDO No. ED-23-CD-01 (Newport Beach) September 14, 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 Consent EDCDO No. ED-23-CD-01 (Newport Beach) September 14, 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 And rew.Willis(a)-coastal.ca.gov. Consent EDCDO No. ED-23-CD-01 (Newport Beach) September 14, 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 EDCD02 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. Consent EDCDO No. ED-23-CD-01 (Newport Beach) September 14, 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 Consent EDCDO No. ED-23-CD-01 (Newport Beach) September 14, 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. Vill. 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 December 14, 20233. Should you have any questions regarding this matter, please contact Andrew Willis at And rew.Willis(a-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: , 2023 Signed, race K. Leung City Manager City of Newport Beach Date: %C'r , I ') , 2023 Enclosure: 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.