Morro Bay's Relationship with the California Coastal Commission
by Linda Stedjee
Synopsis: Morro Bay city officials and staff have long demonstrated what many residents consider a dismissive and disrespectful attitude toward the California Coastal Commission (CCC), the Coastal Act, associated state laws, and even its the city's own Local Coastal Plan. At the February 23, 2011 meeting of the County's city Selection Committee, Morro Bay Mayor Bill Yates said, "We need to go to work in repairing relationships with locals and the Coastal Commission—and its staff, too. We know it is broken." Some residents believe that the only way the city can mend its relationship with the CCC is to start showing respect for the agency, and to demonstrate a willingness to work cooperatively with CCC staff and commissioners. The hiring of a lobbyist to argue the city's case with the CCC—as opposed to demonstrated willingness to accept and implement the agency's recommendations, is just one city action that has residents worried.
At the February 23, 2011 meeting of the San Luis Obispo County City Selection Committee, Governor Brown's pending appointment of a new commissioner to serve on the California Coastal Commission (CCC) was discussed. The committee, composed of mayors of cities within the county, is responsible for making recommendations for appointments to the CCC. Candidates for the appointment addressed the committee regarding various issues, including the deteriorated relationship between local cities and the CCC. At one point, Morro Bay Mayor Bill Yates said, "We need to go to work in repairing relationships with locals and the Coastal Commission—and its staff, too. We know it is broken."
Some Morro Bay residents have stated the belief that no matter whom the governor appoints, it will take a lot more than diplomatic efforts by the new commissioner to fix the relationship between the Morro Bay and the CCC. Residents allege that city government has historically demonstrated a "less-than-respectful" attitude toward the CCC and toward the Coastal Act, which the CCC is charged with enforcing. They have expressed the opinion that unless Morro Bay officials and staff are willing to make a major change in the way they deal with that agency, there is no hope of improving the relationship.
Proposed Local Coastal Plan Changes Violate the California Coastal Act and Associated Law
As early as 2003, concerned Morro Bay residents pointed out what were described as serious problems with proposed changes to the city's General Plan (GP) and Local Coastal Plan (LCP). Among the reported problems were failures to adhere to the California Coastal Act and associated law, such as the California Code of Regulations. Residents' concerns were documented and submitted to city staff and officials, but were apparently ignored. In 2005, the combined plans, referred to as the "GP/ LCP" were submitted to the CCC without resident-recommended changes and enhancements. Among the many concerns identified in one resident's comprehensive analysis are these:
1. The California Code of Regulations requires that "The policies of Chapter 3 of the California Coastal Act of 1976 concerning specific coastal resources, hazard areas, coastal access concerns, and use priorities, including consideration of public access and recommended uses of more than local importance and relating to the area governed by the LCP . . . shall be applied to determine the kind, location, and intensity of land and water uses that would be in conformity with the Act." Under this provision, it is inadequate that an LCP simply mirror or paraphrase the policies of the Coastal Act." The proposed GP/LCP endorses the policies of the California Coastal Act, but fails to demonstrate any relationship between the Coastal Act and adopted zoning or land use policy.
The California Code of Regulations states that. "The land use plan component of a local coastal program shall incorporate a statement of applicable development and resource protection policies . . . that are capable of carrying out the policies of Chapter 3 of the California Coastal Act." The policies of the proposed GP/LCP are so vague and are so often unsupported by Objectives, Programs, Guidelines, or Implementation Measures as to be incapable of "carrying out" the policies of Chapter 3.
2. The California Code of Regulations specifies that a proposed LCP amendment must include "an analysis of the potential significant adverse cumulative impacts on coastal resources of existing and potentially allowable development proposed in the LCP." The draft GP/LCP which has been proposed for the City of Morro Bay does not meet this requirement, because it fails to include:
i. Any analysis of the potential significant adverse cumulative impacts of existing development.
ii. Any meaningful or quantitative analysis of the amount of additional development which
can reasonably be anticipated under the provisions of the proposed plan.
iii. Any analysis of the potential adverse environmental consequences which could arise
from such development.
Failure to Provide CCC Staff with Requested Information
As reported in the July 2010 Journal story, Delay for Coastal Commission Plan Review , for several years after the 2005 submission of the city's proposed GP/LCP to the CCC, the City Council received no word regarding the agency's review of the document. City officials "repeatedly expressed frustration with the delay and wondered aloud, in the course of public meetings, what is taking so long." There is no record of any staff member present at the meetings offering any possible reason for the unusually long wait.
As the Journal reported, "An explanation recently provided by the CCC indicates that the key reason for the delay was a failure by city staff to provide requested information and to work with the CCC on a new update." According to a CCC staff member, "the LCP update submittal was never filed for commission action because the city did not provide supporting information that was needed for our review and requested of the local government. Several years ago we met with city staff and agreed to a process to work together on a new update but that effort stalled . . . "
Action taken in Defiance of CCC Ruling
As reported in a May, 2010 Journal story, Morro Bay Residents Call for More Oversight of City Staff, "In March, 2006, the CCC approved a permit with special conditions for the harbor walk project. Conditions included restriction of the Embarcadero Road extension to a maximum width of 22 feet." The CCC staff report included these comments regarding the roadway: "Several problems are raised by this proposal. First, it will increase impacts to adjacent dune habitats beyond that which is necessary to accommodate the currently proposed project. Second, the proposed future improvements were previously considered by the Commission and recommended for deletion in the Commission's comments to the California Energy Commission regarding proposed upgrades to the Duke Energy Facility. Third, it is premature to assume that the Commission will approve the future roadway expansion, particularly in light of its ESHA impacts and prior reviews. Therefore, the Commission is not in support of the city's request to allow the Embarcadero extension to be constructed to a width of 32 feet."
The commissioners' decision upheld the staff's recommendation, and the approved permit included the width restriction for the Embarcadero Road extension. However, three months later, the city proceeded to widen the roadway in direct violation of the permit condition. In June, 2006, the roadway was widened to a final width of approximately 42 feet. In addition, the city established a Harbor Department storage yard at the end of the newly-widened road without securing the required Coastal Development Permit.
Failure to Proactively Consult with CCC Staff on Projects
In 2007 and later in 2009, boatyard projects initiated by the city had to be scrapped when staff failed to proactively consult the CCC before the design process began. In 2007, after about two years and $40,000 had been spent designing a new boat yard, city staff members finally discussed the project with the CCC, and were then told that their target location was in environmentally sensitive habitat (ESH) and could not be used. A memo from the Harbor Director to the Harbor Advisory Board noted that, "The city disputes this designation . . . "
The next attempt to establish the boat yard had similar results. After work on the new project was well underway, the staff learned from the CCC that the new location was also in ESH.
Issuance of a Coastal Development Permit in Violation of the LCP
In 2010, the city issued a permit to Morro Bay Mutual Water for a new well to be drilled on Morro Bay power plant property. As discussed in an August, 2010 Journal story, Morro Bay Mutual Water is a PG&E affiliate that supplies water to the PG&E substation and the Dynegy power plant.
Morro Bay's LCP forbids private water wells within city limits. Recognizing the violation, CCC Commissioner Sara Wan appealed the Coastal Development permit granted by the city, and the application was withdrawn by the water company.
Ignoring CCC Advice and Recommendations
Morro Bay staff and officials have apparently ignored CCC staff recommendations regarding the Environmental Impact Report (EIR) for the wastewater treatment plant (WWTP) project. In 2008, a CCC Coastal Planner sent then-Public Services Director Bruce Ambo a letter with recommendations for information to be included in the EIR. The letter, dated December 8, 2008, recommended that the city address concerns regarding plant capacity, the condition of the wastewater collection system (sewer lines), water reclamation, and aesthetic issues. With regard to reclamation of treated water, the letter stated that the Environmental Impact Report "should identify a suite of potential beneficial uses for this treated water along with any additional infrastructure and processes that would be needed to reclaim this potential source of water relative to various alternative beneficial uses." The DEIR (Draft Environmental Impact Report), issued by the city in late 2010, did not contain provisions required to satisfactorily address any of the CCC recommendations, as evidenced by subsequent CCC review.
The DEIR was reviewed by CCC Coastal Planner Madeleine Cavalieri, who wrote a twelve-page report (pdf file) identifying many serious weaknesses in the report and in the project itself, including numerous violations of the city's own LCP. As reported by Jack McCurdy in November, 2010, "The Commission, which has direct jurisdiction over such projects in the coastal zone, has required a completely-revised draft environmental impact report (DEIR) to include possible alternative sites for the new plant and with much greater operational capabilities. An important possibility would enable a new plant to produce huge amounts of processed purified water for use in reviving city ground wells that "would help the city meet its water supply needs and ensure water . . . is available. . . if/when state water is restricted or unavailable.""
McCurdy further reported that, "One of the fundamental areas of inconsistency, the report said, is that the JPA's 'proposed preferred site location' appears to be inappropriate for the development. . . The concept of locating a major public works infrastructure in an area that is subject to multiple significant hazards is not consistent with the hazards policies of the LCP. Further, the location is directly adjacent to the shoreline in a visually sensitive area where such a development could frustrate LCP and Coastal Act public recreational access and visitor-serving objectives and lead to adverse public view shed impacts."
The preferred site is in "a high hazard area," the report said, "because it is located within the 100-year flood plain of Morro Creek, in a tsunami-inundation area, approximately 800 feet from the current shoreline, and in an area that is susceptible to liquefaction due to underlying soil types.""
Morro Bay City government's visible reaction to the unfavorable DEIR review was to discuss hiring a lobbyist to argue the city's case with the Coastal Commissioners. City officials appeared to ignore CCC staff concerns and recommendations entirely, and granted a Coastal Development Permit (CDP) for the project without making any of the CCC-recommended enhancements and modifications. Concerned residents and two CCC commissioners appealed the permit.
In their report to the commissioners (pdf file) regarding the appeal, CCC staff said, "Staff recommends that the commission find that the city's approval of a CDP for this project raises a substantial LCP conformance issue related to core LCP and applicable Coastal Act coastal resource protection requirements, and staff recommends that the commission take jurisdiction over the CDP application." At the March 11, 2011 CCC meeting, the commissioners voted unanimously to accept their staff's recommendation. The CCC is now in charge of the permitting process.
Problems with Other State Agencies and Laws
The City of Morro Bay has run afoul of other State agencies and the regulations they are charged with enforcing. As in the case of its dealings with the CCC, the city's failure to work cooperatively with these agencies has had negative consequences and has cost taxpayers a considerable amount of money.
As reported in the Journal story, "Morro Bay's Precarious Water Supply", in late 2008 it was discovered that the city had been delivering potentially-contaminated water from the city's Ashurst wells to a group of city water customers. "Some of the customers contacted the California Department of Public Health for assistance. The department immediately ordered Morro Bay to shut down the well field. A CDPH letter, dated December 2, 2008, stated, "Unfortunately, the Department was unaware the city was potentially delivering non-potable water to approximately eleven connections . . . " The letter also included the statement that, "The Department is requiring the city to cease the use of the Ashurt wells 9, 9A, 10, 10a and 16." One of the conditions specified for well re-activation was a chlorination plan for the Ashurst wells.
In August, 2009, a consultant hired by the city was in the process of performing a "stream interference study" on the city's Chorro Basin wells when residents complained to the City Council. The residents reported that there was no stream to be interfered with; the stream in the vicinity of the "test" was completely dry. The consultant's actions violated California State Water Resources Control Board decision 1633, which does not allow any use of the Chorro Valley wells when the downstream surface stream flow is less than 1.4 cubic feet per second. A second attempt at the test ran afoul of the Department of Fish and Game because the city and the consultant had failed to obtain the required permits.
As a result of these incidents, the city faces potential fines for the violations. The city has also paid a substantial amount for legal representation to help deal with these issues.
Will the City Make a Serious Attempt to Mend Fences With the CCC?
City officials and staff have long demonstrated what many residents consider a dismissive and disrespectful attitude toward the CCC, the Coastal Act, associated state laws, and even the city's own Local Coastal Plan. The resulting waste of hundreds of thousands of dollars of taxpayer dollars has been documented. Just the WWTP DEIR, which must be completely redone, cost Morro Bay residents about $300,000.
The CCC's takeover of the WWTP permitting process may be a wake up call for city officials and staff who may have thought that they could ignore the agency and get away with it. Mr. Yates' statement at the Selections Committee meeting appears to indicate a realization that something needs to change. However, there is still concern among Morro Bay residents.
Some residents believe that the city's hiring of a lobbyist is a clear sign of unwillingness to accept the CCC's findings and authority. A few days after the Coastal Commissioners' March 11 vote, one high-ranking city official told a resident that the WWTP project was going to cost a lot more "because of the CCC" – a statement that some have interpreted as an unwillingness to take responsibility for the city's own actions. Also of concern is the possibility that some officials and staff may believe that the choice of their favored candidate for an open Coastal Commissioner position will turn the tide and allow them to proceed with a project that violates both state law and the LCP. By a 4-1 vote, the City Council endorsed Mary Ann Reiss, a member of the Pismo Beach City Council member and a Republican, whom few believe stands a chance of being named to the Commission by Democratic Governor Jerry Brown.)
Past events have shown Morro Bay officials and staff that state agencies have the authority to stop unlawful actions, to impose financial penalties, and even to take jurisdiction over city projects. Whether awareness of those facts will result in a change in attitude and in behavior is not yet known. What has been clearly demonstrated is the fact that in contests of wills, the state agencies will win—and that those contests have, and could in the future, cost Morro Bay taxpayers a great deal of money.
