CA Coastal Commission Rules Against San Onofre Toll Road

The Coastal Commission recently ruled, 8-2, to reject the Foothill South Tollway through the San Onofre State Beach. What policies and legal issues influenced the commission's decision-making process?

As I said during the case's hearing, this project is the most significant project to come before the Coastal Commission since the San Onofre nuclear power plant in 1974. I have never seen a project come this far in the regulatory process that is so clearly inconsistent with the Coastal Act. The project simply could not be approved consistent with the law, and that explains the 2-8 vote on the project. It clearly violated Coastal Act policies that prohibit development in environmentally sensitive habitat areas-development that is not dependent on the resource. That's the strongest policy in the Coastal Act protective of habitat. The reason nearly 50 acres of this project that we looked at were ESHA is because the habitat supports six endangered and threatened species: the Arroyo toad, the Pacific pocket mouse, Least Bell's Vireo, the gnat catcher, the Tidewater Gobi, and Steelhead.

So, right from the beginning, that portion of the project that adversely impacted environmentally sensitive habitat was clearly inconsistent with the habitat protection policies of the Coastal Act. In addition, the project would destroy a state park, San Onofre State Beach, and the campgrounds, specifically. That campground was developed as mitigation for lost public access in front of the San Onofre nuclear power plant and was required by the Coastal Commission back in the ‘80s. It's the sixth-most heavily used campground in the state. The commission clearly felt that that was a reason for denial, because of its adverse impacts on a state park.

This project is one of an increasing number of proposals we see for infrastructure improvements through state parks and public lands. The State Park Foundation said that there were 72 or 73 proposals to build in public parkland in California, because it's cheaper and there's less opposition to go through public parkland.

The impact on the public park, on a campground that was mitigation for lost access at the San Onofre plant and the impact on Native American sacred sites, were concerns. Water quality impacts were a concern. The potential adverse impact on the surfbreak at Trestles was a concern. You don't need to have many grounds; you just need to have one reason, one inconsistency with the law, to object to a project under the Coastal Act. Here there were multiple inconsistencies.

The argument by the toll road authority, TCA, was that the $100 million they're giving to the state (which they added after the staff recommendation of objection came out) would warrant commission approval of the project. That simply didn't meet the straight-face test. It was clearly an attempt to buy compliance with the law, and that simply is not the way the law is applied nor the way the law works. It's nice if they want to contribute $100 million to improve state parks, but that doesn't have anything to do with the application of the Coastal Act policies relative to protecting coastal resources.

The other argument that they tried to float was that the project would resolve a conflict among Coastal Act policies by pointing to existing background conditions in the state such as inadequate financial support for state parks which their $100 million contribution would offset.

They also argued that because our highways are overcrowded, especially I-5, that is somehow a violation of a Coastal Act policy and therefore, building this toll road, which would improve, in their view, public access and reduce congestion, would be an offsetting benefit under the Coastal Act. These results, they argued, would allow resolution of a conflict between policies in the Coastal Act in a manner allowing project approval.

Again, that was a totally inappropriate misapplication of Coastal Act policies, which allow conflicts between Coastal Act policies to be resolved through what's called a balancing approach. Even if you find a conflict here, which we did not, you have to resolve the conflict in a manner that is most protective of significant coastal resources. Even if you could find a conflict where there wasn't one, you have to meet that second test. This project certainly didn't meet that test, because it would not have been most protective of significant coastal resources.

In fact, relative to the issue about reducing traffic on I-5 or somehow improving public access-we found there was no evidence to support that argument. Looking at this alignment, we just didn't see how this toll road would reduce traffic on I-5 and therefore improve public access. The commission saw that and agreed with the staff that this project simply couldn't be approved. I think that's how you got to the 2-8 vote.

Is the Coastal Commission, a single-purpose agency, the best place to resolve issues of the balancing of these concerns? Who should decide the balancing act of the challenges facing transportation agencies, local governments, utilities, and other interests dealing with the demographic growth in California? Do we need an agency to do that?

Relative to the protection of coastal resources, that is precisely what the people of California intended when they passed the Coastal Initiative in 1972. This is exactly the kind of project that the Coastal Act was intended to prevent. I've said that publicly in other settings and at the hearing.

I remember it distinctly, because there were a number of major highway projects being proposed along the coast at the time that the initiative passed, and it was passed, in large measure, to prevent that. This project, yes, they've spent $20 million, they said, since 1982, but they should have had better advice as to what the law requires. They just didn't want to hear it; they didn't like it when we told them, 15 years ago, that this project could not be approved consistent with the law. Their argument about accommodating new development that has been approved but hasn't been built, in part because there isn't a convenient highway access system is not a basis to allow destruction of coastal resources.

If there is to be such a comprehensive entity, I don't know what it would be. One of the things we talked about relative to this project was, why are we not talking public transit? Why are we talking about more concrete and more roadways? Especially a toll road, when we have experience that the existing toll roads are not heavily used.

I don't disagree with you that single-purpose agencies are not well-positioned to do that overarching balancing act. That was exactly why the Coastal Commission was created. You had multiple single-purpose entities that didn't have the kind of comprehensive land use planning and resource protection overview that the Coastal Act provided.

But when you look at transportation issues, just like water quality, you need a broader-based and authorized entity to look at those questions. When you think about transportation, you can't just think about roads and rails. You have to think about land use practices, and land use practices are driving so much of the train here. Land use decisions are made primarily at the local government level. Local government isn't asking, "If we approve this subdivision out here, who's going to pay for the roads? What's going to happen to the existing roads? Who's going to provide for the infrastructure needs that will be generated by this development in outlying areas, like fire protection?" The approval of residential developments in areas of high fire hazard is easy for local government, but then they don't have to pay for the fire suppression and state costs that are incurred to protect the lands when fires occur.

When you talk about a comprehensive entity, there just isn't the ability, the political will, or the understanding of what it takes to protect all the public interests implicated by new freeways, new roadways, new transportation corridors-whether it's land use planning, air quality, water quality, habitat protection, or protecting communities and agricultural lands. That was one reason why people argued when the Coast Act was first being proposed that it couldn't work, because there were simply too many complex issues that would have to be taken into account.

We've made it work, but that's on the coast. But even there, it's lacking the kind of geographic jurisdiction to be fully effective, for example, in terms of polluted run-off. The fact that the Coastal Commission's jurisdiction cuts across watersheds means we only have a very small area that we can look at when the polluted run-off comes from a watershed, the interior of which is not being protected relative to polluted run-off by the entities that have land use controls.

The TCA has the ability to appeal to the U.S. Secretary of Commerce within 30 days of the decision. What's likely to happen with that appeal?

They have already appealed to the Secretary of Commerce. That appeal, I understand, was rejected because they can't appeal until they get a notice of the decision from the Coastal Commission. That hasn't been written and received yet.

Once it is, I think the Secretary of Commerce has 325 days. They have to present certain findings to overrule the Coastal Commission. There are no subjective, vague, or ambiguous criteria. It must be found that this project is the best alternative in terms of protecting coastal resources. The decision has to be accompanied by an analysis of the issues by NOAA. They have to have a public hearing on the subject. They have to come up with a report. If the secretary does override the decision, that's subject to challenge in court. I can't imagine that a decision like that wouldn't be challenged in court, because I don't see any way that the Secretary can make the findings federal law requires to warrant an override.

Even if that were to happen successfully, they still need a coastal development permit from the Coastal Commission. This hearing was regarding their application for a federal consistency certification. They did not apply for a coastal development permit, even though we had suggested, many times, long ago, that they do both at the same time.

If they had applied for a coastal permit, that coastal permit, had it been approved, would have also dealt with the federal consistency review, which is what the commission had before it this month. The two actions could have been combined. Instead, now we have two separate proceedings. So they can proceed with the appeal, get a decision that may be favorable to the project, and still have to come back to the Coastal Commission for a coastal permit, which the Secretary of Commerce has no jurisdiction over at all. I don't quite understand it. They're relying on legal advice, I'm sure, but they're doing what they're doing for reasons that are beyond me to understand.

Will our interview next year address this project?

I think so. From my perspective, there is no way this project can be found consistent with the Coastal Act. What they need to do is go back to the drawing board and look at other alternatives. The other thing that was troubling here was, as one of the commissioners pointed out, their look at alternatives was really suspect, because the toll road authority has to come up with a project for which they can sell bonds. That's how they operate. And who's going to sell bonds to them for a project that they're not going to make money off of? Certainly, widening I-5 is not going to be a money-maker for the toll road authority. So, how can the evaluation of that as an alternative be considered legitimate or credible? That alternative is not one they can pursue because they can't sell bonds on it.

The other thing that's odd is that they got this special legislation through several years ago that provides compensation for competition by Caltrans. So, if Caltrans were to improve I-5 or any of their roads within seven miles of the toll road, they would have to pay the toll road authority for lost revenues if those improvements improve capacity on existing Caltrans roadways. That just boggles my mind, and I think it boggled the minds of commissioners, too, saying, "Not only did they look at alternatives that wouldn't be money-maker for them and considered them legitimate reviews of alternatives, but if Caltrans were to make these improvements in terms of alternatives, they would have to compensate the toll road authority." It was strange.

Please see the March Issue of The Planning Report for more from California Coastal Commission Executive Director Peter Douglas.