Re: Marina del Rey (UNCLASSIFIED)

Jon, I'm not 'getting it' What does the info on Morongo you sent, have to do with Mindanao? And how come as John Davis of the local Sierra Club, just described to me as, the illegal bait and switch change [from a Congressionally approved project consisting of a 3/4 mile diameter water recreation lagoon surrounded by marinas and a park, to a main channel with branching basins, and narrow moles covered with loads of residential development and no public acess, done secretly, with no approval from any elected body, certainly, not the U.S. Congress who footed the bill], relate to this? As they say, please, if you can, keep it simple for non geniuses...this seems to be subterfuge. And, a huge, huge thanks to my sailing friends in the Cal boat owners group who seem to be taking a bigger interest [giving me thoughtful feed back and suggestions] in what's going on here than most of my fellow sailors in Marina del Rey, who are the ones getting ripped off. Jerry Sobel From: Jon Nahhas <jn… [at] gmail.com> To: 'Gerald Sobel' <so… [at] msn.com>; 'Gerald Sobel' <so… [at] yahoo.com> Sent: Tuesday, March 20, 2012 3:42 PM Subject: FW: Marina del Rey (UNCLASSIFIED) Jerry, Mr. Campbell is correct. The dock redevelopment projects are now going through the Army Corps of Engineers regulatory division for permits (compliance). Read the email chain below and feel free to ask questions. Jon From: Swenson, Daniel P SPL [mailto:Da… [at] usace.army.mil] Sent: Thursday, February 09, 2012 3:02 PM To: Jon Nahhas Subject: RE: Marina del Rey (UNCLASSIFIED) Classification: UNCLASSIFIED Caveats: NONE Jon, In the NEPA Regulations, see 1508.25 (Scope) for a discussion of the factors that are considered for single and complete projects. The link to these regulations is: http://edocket.access.gpo.gov/cfr_2010/julqtr/pdf/40cfr1508.25.pdf Also, here is some information from the Wetland Action Network case [222 F.3d 1105 (9th Cir. 2000)]: b. Segmentation of Project  The Council on Environmental Quality's (CEQ) regulations implementing NEPA require that an agency consider “connected actions” and “cumulative actions” within a single EA or EIS. 40 C.F.R. § 1508.25. Although federal agencies are assigned the primary task of defining the scope of NEPA review and their determination is given “considerable discretion,” connected or cumulative actions must be considered together to prevent an agency from “dividing a project into multiple ‘actions,’ each of which individually has an insignificant environmental impact, but which collectively have a substantial impact.”  Thomas, 753 F.2d at 758. The CEQ regulation provides that actions are “connected” if they: (i) Automatically trigger other actions which may require environmental impact statements. (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously. (iii) Are interdependent parts of a large action and depend on the larger action for their justification. 40 C.F.R. § 1508.25(a)(1).   Cumulative actions are those “which when viewed with other proposed actions have cumulatively significant impacts.”   40 C.F.R. § 1508.25(a)(2).  We use an “independent utility” test to determine whether an agency is required to consider multiple actions in a single NEPA review pursuant to the CEQ regulations.   In Thomas, we addressed the issue of whether NEPA required the Forest Service to consider in a single review process the environmental impacts of the building of a road in a forest to facilitate logging and the timber sales that would result from that logging.   We found that the logging operations and the construction of the road were “connected actions” because “the timber sales [could not] proceed without the road, and the road would not be built but for the contemplated timber sales.”  753 F.2d at 759.   See also, Save the Yaak Comm. v. Block, 840 F.2d 714, 720 (9th Cir.1988). Applying this same analysis, we have rejected claims “that actions were connected when each of two projects would have taken place with or without the other and thus had ‘independent utility.’ ”  Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 580 (9th Cir.1998);  see also Northwest Resource Information Center, Inc. v. National Marine Fisheries Service, 56 F.3d 1060 (9th Cir.1995);  Sylvester, 884 F.2d at 400.   In Morongo Band, we found that the FAA did not improperly segment NEPA review of an airport's arrival enhancement project (AEP) from review of a larger airport expansion project, for which the FAA was preparing an EIS, because each project had independent utility.  161 F.3d at 580.   We recognized that the expansion project would exacerbate the problems being addressed by the AEP, but found that the AEP was an independent action because it was designed primarily to deal with existing problems and therefore was not connected to any future expansion project.   Id.  In this case, the Corps asserts that the three phases of the project are not connected actions because each have independent utility and that it therefore was not required to consider the environmental impacts attributable to the three different phases in a single NEPA analysis.   The record supports the Corps' conclusion.   Phase I of the development includes the development of approximately 600 acres that comprise 5 million square feet of office space, 13,000 dwelling units and hotel and retail space.   The utility of this part of the project does not depend upon the completion of the later phases of the project.   It would not be unwise or irrational to undertake the building of Phase I even if it was determined that the later phases could not be constructed.  Trout Unlimited v. Morton, 509 F.2d 1276, 1285 (9th Cir.1974) (finding that an EIS must cover a whole project when “[t]he dependency is such that it would be irrational, or at least unwise, to undertake the first phase if subsequent phases were not also undertaken”). Relying on Blue Mountains, WAN avers that, under the applicable regulations, the Corps should have considered the three phases of the project together as “cumulative actions.”  Blue Mountains involved a challenge to the Forest Service's determination that a single timber salvage sale would not have a significant environmental impact.  161 F.3d 1208 (9th Cir.1998).   We found that the CEQ regulations required the Forest Service to consider five related timber sales in a single NEPA analysis.  Id. at 1214-16.   Acknowledging that “NEPA does not require the government to do the impractical” and that the agency's determination of the scope of an EIS is entitled to deference, we nevertheless overturned the Forest Service's decision to analyze the sales separately.  Id. at 1215 (internal quotation marks omitted).   We found that the five sales were cumulative actions because they were part of a single project, were announced simultaneously to a coalition of logging companies, and were reasonably foreseeable.  Id. The instant case is distinguishable from Blue Mountains.   Finding that the Corps was required in 1991-92 to have analyzed the environmental impacts of the three phases in a single EA or EIS would require the government to do the impractical.   When MTP-PV applied for a permit for Phase I, many of the details and planning decisions regarding Phases II and III had not yet been completed.   In fact, Phases II and III have still not received the required authorizations to begin development from various state and federal agencies and the local government.   Additionally, unlike the situation in Blue Mountains, the Corps did include in the EA an evaluation of the environmental impacts of the whole project.   Neither the CEQ regulations nor our precedent support the conclusion that the Corps was required to consider the three phases together as cumulative actions. Dan From: Jon Nahhas [mailto:jn… [at] gmail.com] Sent: Thursday, February 09, 2012 2:09 PM To: Swenson, Daniel P SPL Cc: Salas, Gerardo SPL; ml… [at] waterboards.ca.gov; Cole, Jeffrey C SPL; da… [at] yahoo.com Subject: RE: Marina del Rey (UNCLASSIFIED) Dan, Here is the evidence of a single and complete project of which the current applications are part of (full document linked below). Would you please provide more information on "independent utility"? CompleteProject.JPG Link to Project Document: http://documents.coastal.ca.gov/reports/2011/11/Th12a-11-2011.pdf Jon From: Swenson, Daniel P SPL [mailto:Da… [at] usace.army.mil] Sent: Thursday, February 09, 2012 12:54 PM To: 'jn… [at] gmail.com' Cc: Salas, Gerardo SPL; 'ml… [at] waterboards.ca.gov'; Cole, Jeffrey C SPL Subject: Re: Marina del Rey (UNCLASSIFIED) Jon, When we receive a permit application, it must be for a single and complete project with independent utility (per our regulations). As long as it meets those criteria, we would continue to process the application. Dan From: Jon Nahhas [mailto:jn… [at] gmail.com] Sent: Thursday, February 09, 2012 02:45 PM To: Swenson, Daniel P SPL Cc: Cole, Jeffrey C SPL; da… [at] yahoo.com <da… [at] yahoo.com>; Salas, Gerardo SPL; Lyons, Michael J SAJ Subject: RE: Marina del Rey (UNCLASSIFIED) Dan, Thanks for that response. If NEPA does come into play, how would this not be considered hiding of a piece or pieces of a much larger project. The Coastal Commission unanimously passed the legal adequacy of the LCPA (attached) and the Master Waterside CDP was approved on November 3, 2011. In other words, there is a lot of documentation to show that these two permit applications are part of a much bigger project. If I am incorrect in my logic, would you please explain? Jon From: Swenson, Daniel P SPL [mailto:Da… [at] usace.army.mil] Sent: Thursday, February 09, 2012 12:19 PM To: Jon Nahhas Cc: Cole, Jeffrey C SPL; da… [at] yahoo.com; Salas, Gerardo SPL; Lyons, Michael J SAJ Subject: RE: Marina del Rey (UNCLASSIFIED) Classification: UNCLASSIFIED Caveats: NONE Jon, We (Corps Regulatory Division) regulate under, in this case, Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act which are federal statutes. I cannot speak to state statutes like CEQA other than to say we have no CEQA-related requirements (in general, we are not constrained by state law). In general, the RWQCB regulates under both federal (CWA Section 401) and state (Porter-Cologne, etc.) laws (the law pertaining to a specific project may vary). For its 401 certifications, I would expect RWQCB would need to compliant with NEPA; however, I'm not sure how that is accomplished. It may be the Corps NEPA documents which do address water quality may meet that requirement and that the RWQCB does not then need to complete a separate NEPA document; however, I would need to verify that with others more knowledgeable on the topic (you might also want to consult with RWQCB staff who I've cc'd). And yes, all Corps permit actions must comply with NEPA. Dan From: Jon Nahhas [mailto:jn… [at] gmail.com] Sent: Thursday, February 09, 2012 12:01 PM To: Swenson, Daniel P SPL Cc: Cole, Jeffrey C SPL; da… [at] yahoo.com; Salas, Gerardo SPL Subject: RE: Marina del Rey (UNCLASSIFIED) Dan, Thanks for your response. In our discussion over the phone you had suggested that this was going to be a project that the public could speak on the cumulative impacts. This is looking like it is going to be a piece-meal process to where even if a public hearing was scheduled on just one of these, the cumulative impacts of the changes brought about in the LCP and the Master Waterside CDP would not be known. Does the Corps permitting process (and the Water Board) have to be consistent with NEPA and CEQA? Jon From: Swenson, Daniel P SPL [mailto:Da… [at] usace.army.mil] Sent: Tuesday, February 07, 2012 1:33 PM To: Jon Nahhas Cc: Cole, Jeffrey C SPL; da… [at] yahoo.com; Salas, Gerardo SPL Subject: RE: Marina del Rey (UNCLASSIFIED) Classification: UNCLASSIFIED Caveats: NONE Jon, We currently have two large marina refurbishment projects in Marina del Rey, SPL-2012-00047-GS: Marina City Club Parcel 125 Dock Rehabilitation Project SPL-2012-00058-GS: Demolition and replacement of boat docks surrounding Burton Chace Park, Marina del Rey For both of these, please contact Gerry Salas (213-452-3417), the project manager who is processing these applications. My understanding is additional marina refurbishment projects will be coming during this year and next; however, we have only the two applications above right now (for large projects, not including small projects focused on one or a few docks). Regarding the EIS you mention below (I believe you are referring to the Ballona Wetlands restoration project), my understanding is the local sponsor (Santa Monica Bay Restoration Commission) plans to withdraw from the federal feasibility process (i.e., the project would no longer be a federally-funded project) and will submit an application to complete the restoration on their own which would require 404 and 408 permits from the Corps. Although we have not yet received a new application, once we do, we estimate the time to a final permit decision would be a minimum of 2-3 years, possibly longer. sincerely, Dan Swenson, D.Env. Chief, Los Angeles & San Bernardino Section North Coast Branch Regulatory Division U.S. Army Corps of Engineers 915 Wilshire Blvd. Los Angeles, CA 90017 213-452-3414 213-452-4196 fax http://www.spl.usace.army.mil/regulatory Assist us in better serving you! You are invited to complete our customer survey, located at the following link: http://per2.nwp.usace.army.mil/survey.html Note: If the link is not active, copy and paste it into your internet browser. From: Jon Nahhas [mailto:jn… [at] gmail.com] Sent: Tuesday, February 07, 2012 12:11 PM To: Swenson, Daniel P SPL Cc: Cole, Jeffrey C SPL; da… [at] yahoo.com Subject: RE: Marina del Rey (UNCLASSIFIED) Dear Mr. Swenson and Mr. Cole, Tomorrow the California Coastal Commission will be finalizing their actions on the Major Local Coastal Program Amendment for the Marina del Rey area. Attached is a copy of the Staff Report. 1) In our phone conversation, you had stated that the County (and Coastal Commission) would need to go through the Federal permitting process for the changes to the project that are being suggested for the harbor. You had mentioned Title 10 by the ACE and other regulatory agencies like the Water Board would need to review the project changes. Would you please specify what that time frame may look like? 2) In an earlier correspondence, I submitted documents to you about the Federal EIS that was initiated in 2005 but has yet to be completed. Would you provide information as to the status of that process? Sincerely, Jon Nahhas The Boating Coalition From: Swenson, Daniel P SPL [mailto:Da… [at] usace.army.mil] Sent: Thursday, December 15, 2011 3:35 PM To: Jon Nahhas Cc: Cole, Jeffrey C SPL Subject: RE: Marina del Rey (UNCLASSIFIED) Classification: UNCLASSIFIED Caveats: NONE Jon, If you have any regulatory-related questions, feel free to call me. sincerely, Dan Swenson, D.Env. Chief, Los Angeles & San Bernardino Section North Coast Branch Regulatory Division U.S. Army Corps of Engineers 915 Wilshire Blvd. Los Angeles, CA 90017 213-452-3414 213-452-4196 fax http://www.spl.usace.army.mil/regulatory Assist us in better serving you! You are invited to complete our customer survey, located at the following link: http://per2.nwp.usace.army.mil/survey.html Note: If the link is not active, copy and paste it into your internet browser. From: Jon Nahhas [mailto:jn… [at] gmail.com] Sent: Thursday, December 15, 2011 3:34 PM To: Cole, Jeffrey C SPL Cc: Swenson, Daniel P SPL Subject: RE: Marina del Rey Mr. Cole, Thank you for your follow up. To confirm, you have passed on the documents submitted to you and given a brief to Mr. Swenson regarding our conversations/correspondence? Jon From: Cole, Jeffrey C SPL [mailto:Je… [at] usace.army.mil] Sent: Thursday, December 15, 2011 2:41 PM To: Jon Nahhas Cc: Swenson, Daniel P SPL Subject: RE: Marina del Rey Mr. Nahhas, I have followed up on your request, and for regulatory inquiries/issues, please contact Mr. Dan Swenson. Thank you, Jeffrey C. Cole Project Manager, Navigation Section 213.452.3401 Wk. je… [at] usace.army.mil From: Jon Nahhas [mailto:jn… [at] gmail.com] Sent: Tuesday, December 13, 2011 2:21 PM To: Cole, Jeffrey C SPL Subject: RE: Marina del Rey Mr. Cole, Thank you for forwarding my email to the Regulatory Division, Planning Division and Office of the Counsel for further review. It has been a couple of weeks and we have not heard back from anyone from the Corps. I know your office is very busy, but would you mind following up on the request or provide me with the contacts of each office? Sincerely, Jon Nahhas From: Cole, Jeffrey C SPL [mailto:Je… [at] usace.army.mil] Sent: Wednesday, November 30, 2011 12:52 PM To: Jon Nahhas Subject: RE: Marina del Rey Mr. Nahhas, Thank you for your discussion yesterday and follow-up email today. I plan to forward your email directly to Regulatory Division, Planning Division, and Office of Counsel for further review. I will reiterate that at present, your primary concern is the proposed "redevelopment of the marina" and the proposed increase in the number of berths that would accommodate large vessels/yachts (rather than smaller pleasure craft). If in the future you have any other questions that are related to the Navigation mission (i.e., dredging), please feel free to call me. Thank you again, Jeffrey C. Cole Project Manager, Navigation Section 213.452.3401 Wk. je… [at] usace.army.mil , From: Jon Nahhas [mailto:jn… [at] gmail.com] Sent: Wednesday, November 30, 2011 11:34 AM To: Cole, Jeffrey C SPL Cc: Kronick, Christopher J SPL Subject: Marina del Rey Jeff, Thanks for returning my call. Per our discussion I have attached a copy of the initiation of the EIS and an excerpt of the Rivers & Harbors Act about the Corps' responsibility for review if conditions change. While I still think you should have concerns about such a drastic increase in larger ships in this small craft harbor, as you have clearly stated, your focus is strictly on navigation and don't see any conflicts. Would you please find the appropriate person(s) that could address the issues of downsizing this federal project and the associated access? Thanks, Jon Nahhas Classification: UNCLASSIFIED Caveats: NONE Classification: UNCLASSIFIED Caveats: NONE Classification: UNCLASSIFIED Caveats: NONE Classification: UNCLASSIFIED Caveats: NONE