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Coastal Comm'n Staff Alleges City-Enabled Peninsula Palm Tree Trimming Rousted Great Blue Heron Nests, Begat Baby Bird Death, Violated Coastal Act, Seeks These Remedies;


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(May 13, 2020, 5:55 a.m.) --- LBREPORT.com has learned that CA Coastal Commission staff has concluded and alleges that violations of the Coastal Act occurred as a result of a work order issued by the City of Long Beach that led to trimming roughly 86 palm trees along Ocean Blvd. between Glendora Ave. and 72nd Place during bird nesting season that resulted in the removal of several great blue heron nests and the death of at least one heron fledgling during the week of May 4th.

In a letter dated May 11 obtained by LBREPORT.com, Coastal Commission Enforcement Officer Jordan Sanchez informed Long Beach Public Works Director Craig Beck (cc'd to City Manager Tom Modica) in pertinent part:

  • [May 11 CCC letter text]...Commission staff has confirmed that approximately 86 palm trees were trimmed during the bird nesting season, resulting in the removal of several great blue heron (“heron”) nests and the death of at least one heron fledgling, during the week of May 4th. The unpermitted tree trimming activities at issue were undertaken pursuant to a Work Order issued by the Long Beach Department of Public Works to West Coast Arborists. On May 7th, 2020 our staff spoke with the City’s biologist and it is our understanding that all tree trimming activities have stopped. It is also our understanding that the City is preparing a comprehensive resource damage assessment to share with the Commission and other resource agencies to document exactly how many trees were trimmed, how many nests were removed, and how many great blue herons were killed during the Coastal Act violations at issue.

  • A comprehensive resolution to these violations must include restoration of all impacted coastal resources, mitigation for the impacts to coastal resources that have occurred as a result of the violations, and resolution of the Coastal Act penalties for the violations in a written agreement through either a formal enforcement action or a coastal development permit.

  • More specifically, a comprehensive resolution of these violations must include the City of Long Beach’s commitment to 1) mitigate for habitat impacts that have occurred as a result of the nest removal; 2) developing and implementing a plan to ensure that all arborists and their contractors undergo an education program regarding avoidance of impacts to nesting habitat (i.e. maintaining certain foliage cover and nests intact) and a process and steps to ensure that requirements are complied with, including the requirements of the Coastal Act, the permit, and any resolution reached regarding this situation; 3) protect the trees where the tree trimming and nest removal occurred in perpetuity; 4) some formal means to ensure that the City and all divisions and departments and contractors working on their behalf abide by tree trimming policies that fully protect wading bird nesting and wading bird nesting habitat; and 5) resolve the Commission’s claims for monetary penalties for these Coastal Act violations. Staff believes that there is an opportunity to comprehensively satisfy the requirements to mitigate for the habitat impacts resulting from the violations and address the Coastal Act monetary penalties by undertaking mitigation projects, such as installation of nesting platforms for great blue herons adjacent to the water in Alamitos Bay, the planting of more mature Mexican fan palms around Alamitos Bay, restricting trimming for at least 7 years1 and payment of funds to local groups that are committed to protecting wading bird nesting habitat, such as the El Dorado Audubon Society ("Audubon"), to fund monitoring of wading bird nesting activities in Alamitos Bay. We are willing and available to discuss with the City the mechanism, be it an enforcement action or permit, to formalize the components of the resolution described above but we want to work with the City to find ways to ensure that this doesn't happen again in the future.

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LBREPORT.com has separately reported that the May 2020 tree trimming occurred under a City tree trimming contract extended through Sept. 30, 2020 (for $500,000) in a no-discussion City Council "consent calendar" voted action (Feb. 18, 2020, 7-0, Councilmembers Price and Richardson absent.) An examination of the underlying 2016 contract by LBREPORT.com indicates it doesn't prohibit tree trimming during nesting season and instead relies on various procedures to be followed by the tree trimmers regarding wildlife and bird nests .)

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As previoously detailed by LBREPORT.com, almost exactly four years ago, the underlying contract came to the May 10, 2016 City Council meeting for approval. In testimony at that Council meeting, veteran LB wildlife protection advocate Ann Cantrell recommended that future contracts specify that tree trimming not take place during nesting season. Her recommendation wasn't followed by city staff or by the City Council as amendments to the contract increasing its total cost to over $7 million came and went.

In seeking the Feb. 2020 contract extension, city staff indicated it's planning a new procurement process for a new tree trimming contact. [LBREPORT.com has opined that the new procurement process offers an opportunity to include contract terms that could prevent or reduce the likelihood of similar incidents in the future by specifying that tree trimming not occur during nesting season except for exigent or other extenuating circumstances.)

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Coastal Commission staff's May 11, 2020 letter notes that "within the last three years, several instances of unpermitted tree trimming and tree removal activities have occurred within the City..." and cites with displeasure an issue that arose over actions regarding nesting Great Blue Herons in palm trees adjacent to the Seaport Marina Hotel development [that resulted in stalling work related tot he development.]

[T]he [May 2020] tree trimming and nest removal are inconsistent with a coastal development permit (CDP No. 5-08-187) that the Commission issued to the City to ensure that tree trimming in the State Tidelands area of the City, nearby to where the activities at issue occurred, is carried out by the City in a manner that is most protective of wading birds and their habitat. For instance, CDP 5-08-187 requires that tree trimming or tree removal shall be prohibited during the breeding and nesting season of the bird species referenced above (January through September) unless the City of Long Beach Department of Parks, Recreation and Marine, in consultation with a qualified arborist, determines that a tree causes danger to public health and safety...But in this situation, to the contrary, the City issued a Work Order to conduct tree trimming during the bird breeding season of what appears to be all trees in the median of Ocean Blvd., regardless of whether or not a public health and safety danger exists.

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In the Peninsula street median May 2020 tree trimming, the Coastal Commission letter describes the City's "unpermitted development," recites enforcement remedies and seeks written commitment by the City "to resolve these violations in the manner described herein, by no later than May 15, 2020..."

The Coastal Commission staff letter states in pertinent part:

Our staff has confirmed that development, including the removal of heron nests and major vegetation, consisting of trimming of at least 86 palm trees that support heron nesting, has occurred in the median of Ocean Blvd. between Glendora Avenue and 72nd St., which is located within the Coastal Zone. Commission staff has researched our permit files and concluded that no coastal development permit has been issued for the development described above. Pursuant to Section 30600 (a) of the Coastal Act, any person wishing to perform or undertake development in the Coastal Zone must obtain a coastal development permit, in addition to any other permit required by law.

"Development" is defined by Section 30106 of the Coastal Act and Section 21.15.790 of the City’s certified Local Coastal Program, in relevant part, as:

"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 or any gaseous, liquid, solid, or thermal waste; grading, removing, dredging, mining, or extraction of any materials; change in the density or intensity of the 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; and the removal or harvest of major vegetation other than for agricultural purposes, kelp harvesting, and timber operations....

Due to the scarcity of suitable great blue heron nesting sites in southern California and the important role that nesting trees play in the breeding of great blue herons, the Commission has found heron nesting trees to be major vegetation. In southern California, many natural wetlands have been replaced by marinas, with concurrent loss of native trees suitable for heron nesting. Herons have adapted by relocating their nesting colonies to stands of tall non-native trees, often within highly developed areas. This relocation to non-native trees near marinas is due to the virtual absence of suitable nesting areas in remaining local wetlands. As you know, the colony in Alamitos Bay is one of the few established heron nesting colonies in southern California and thus provides necessary ecological support for local southern California heron populations, which in turn, are critical to the health functioning of nearby wetlands.

Based on the biological significance of the Alamitos Bay heron colony, the trees that make up the colony are "major vegetation." During the tree trimming activities, members of the public observed, and documented through photographs, the removal of active heron nests that resulted in the death of at least one heron fledgling. The tree trimming activities during the bird nesting season and associated nest removal at issue constitute development under the Coastal Act, and therefore, require a coastal development permit.

Commission staff would not be able to recommend approval of a coastal development permit to authorize the tree trimming and nest removal at issue. In fact, the tree trimming and nest removal are inconsistent with a coastal development permit (CDP No. 5-08-187) that the Commission issued to the City to ensure that tree trimming in the State Tidelands area of the City, nearby to where the activities at issue occurred, is carried out by the City in a manner that is most protective of wading birds and their habitat. For instance, CDP 5-08-187 requires that tree trimming or tree removal shall be prohibited during the breeding and nesting season of the bird species referenced above (January through September) unless the City of Long Beach Department of Parks, Recreation and Marine, in consultation with a qualified arborist, determines that a tree causes danger to public health and safety. A health and safety danger exists if a tree or branch is dead, diseased, dying, or injured and said tree or branch is in imminent danger of collapse or breaking away. The City shall be proactive in identifying and addressing diseased, dying or injured trees as soon as possible in order to avoid habitat disturbances during the nesting season. Trees or branches with a nest that has been active anytime within the last five years shall not be removed or disturbed unless a health and safety danger exists. Furthermore, if a public health and safety danger does exist, CDP No. 5-08-187 requires that a qualified biologist or ornithologist shall conduct surveys and submit a report at least one week prior to the trimming or removal of a tree to detect any breeding or nesting behavior in or within 300 feet of the work area. A tree trimming and/or removal plan shall be prepared by an arborist in consultation with the qualified biologist or ornithologist and a representative of the Audubon Society. The survey report and tree trimming and/or removal plan shall be submitted for the review and approval of the Executive Director of the Coastal Commission, the Department of Fish and Game, the U.S. Fish and Wildlife Service, and the Director of the Parks, Recreation and Marine. The Department of Parks, Recreation and Marine shall maintain the plans on file as public information and to be used for future tree trimming and removal decisions. But in this situation, to the contrary, the City issued a Work Order to conduct tree trimming during the bird breeding season of what appears to be all trees in the median of Ocean Blvd., regardless of whether or not a public health and safety danger exists.

Enforcement Remedies

In certain circumstances, the Commission may assume primary responsibility for enforcement of Coastal Act violations in LCP-certified areas pursuant to Section 30810(a) of the Act. As is relevant here, Section 30810(a) provides that the Commission may issue an order to enforce the requirements of a certified local coastal program in the event that the local government is a party to the violation. Additionally, Coastal Act Section 30809 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. Section 30811 also provides the Coastal Commission the authority to issue a restoration order to address violations at a site. Section 30820(a)(1) provides that any person who undertakes development in violation of the Coastal Act may be subject to a penalty amount that shall not exceed $30,000 and shall not be less than $500 per violation.

Section 30820(b) states that, in addition to any other penalties, any person who "knowingly and intentionally" performs or undertakes any development in violation of the Coastal Act can be subject to a civil penalty of not less than $1,000 nor more than $15,000 per violation for each day in which the violation persists.

Resolution

We would like to thank you for stopping the trimming of the remaining palm trees, and would like to work with the City to resolve these violations and mitigate for effects of the nest removal and tree trimming as quickly as possible. In order to ensure that the City is moving with alacrity to a resolution of this matter, please provide Commission staff with written commitment to resolve these violations in the manner described herein, by no later than May 15, 2020...

Public Works Director Craig Beck tells LBREPORT.com (May 11 morning email) that the tree trimming firm is preparing a report on the matter for delivery to city staff and the City is conducting its own review and working with a biologist to ensure proper notification is provided to CA Fish and Wildlife and the Coastal Commission. Mr. Beck indicated a City report on its findings is currently expected to be completed by the end of this week.

Developing.


Support really independent news in Long Beach. No one in LBREPORT.com's ownership, reporting or editorial decision-making has ties to development interests, advocacy groups or other special interests; or is seeking or receiving benefits of City development-related decisions; or holds a City Hall appointive position; or has contributed sums to political campaigns for Long Beach incumbents or challengers. LBREPORT.com isn't part of an out of town corporate cluster and no one its ownership, editorial or publishing decisionmaking has been part of the governing board of any City government body or other entity on whose policies we report. LBREPORT.com is reader and advertiser supported. You can help keep really independent news in LB similar to the way people support NPR and PBS stations. We're not non-profit so it's not tax deductible but $49.95 (less than an annual dollar a week) helps keep us online.


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