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South Orange County Toll road may have life yet (??)

Orange County agency may appeal Coastal Commission's rejection

By Paul Sisson
North County Times
February 8, 2008

SAN ONOFRE ---- The battle over extending the Highway 241 toll road through San Onofre State Beach may not be over yet.

At 11:20 p.m. Wednesday, after 10 hours of passionate testimony, a crowd of more than 1,000 activists cheered victory as the California Coastal Commission voted 8-2 against the toll road, which they insisted would kill the Trestles surf break and blight a popular state park.

But the next morning, toll road officials said that they may exercise their right to appeal the commission's decision to U.S. Secretary of Commerce Carlos Gutierrez. The Cabinet official could overturn the commission's decision if he finds that the $875 million project is consistent with coastal development law.

However, toll road opponents said they were confident state law would still trump whatever the White House appointee decides.

Jennifer Seaton, a spokeswoman for the Foothill/Eastern Transportation Corridor Agency, which is trying to build the new toll road to relieve congestion on Interstate 5 in Orange County, said Thursday that federal law allows an appeal within 30 days of the commission's decision, and that the agency's board would probably make a decision at its meeting next Thursday.

"No decision on an appeal has been made yet, but it is definitely something we're considering," Seaton said.

If the agency appeals, its opponents who prevailed Wednesday night vowed Thursday to rejoin the battle.

"We are going to be fighting for this park to keep it safe in perpetuity for the people of California," said James Birkelund, senior project attorney for the National Resources Defense Council, on behalf of the coalition of environmental agencies that opposed the toll road.

About four miles of the 16-mile toll road passes through the portion of San Onofre State Beach that runs inland from Interstate 5. Because the park is so close to the ocean, the Coastal Commission must find that the project is consistent with state and federal coastal development guidelines before the toll road agency can apply for a series of permits necessary for construction.

At Wednesday's meeting, held in Wyland Hall Pavilion at the Del Mar Fairgrounds, commissioners found that the project could harm various native plants and animals and could also stop pebbles from entering nearby San Mateo Creek. It's the pebbles, surfers said, that make the Trestles surf break one of the best in the state.

Seaton said the transportation agency disagrees with the Coastal Commission's ruling that the toll road is not consistent with the Coastal Zone Management Act, a federal law passed in 1972.

"We feel that the Coastal Commission has not considered the evidence," Seaton said. "If we appealed, we would probably be arguing that the project is consistent."

Anson Franklin, a spokesman for the National Oceanic and Atmospheric Administration, confirmed Thursday that Foothill/Eastern has the right to appeal the commission's decision.

Franklin said that the Coastal Zone Management Act gives the commerce secretary the ability, in certain circumstances, to override the Coastal Commission's decision that the toll road is inconsistent with coastal building requirements.

Those circumstances, Franklin said, include situations where the commerce secretary determines a project:

- "furthers the national interest in a significant and substantial manner;"

- "outweighs any adverse coastal effects;"

- has "no reasonable alternative available that would allow the activity to proceed consistent with the state program;" or

- is "necessary in the interest of national security."

And Franklin said that Gutierrez would look at the project on its own merits, rather than examining the Coastal Commission's decision.

"The secretary would evaluate the project that's appealed, rather than passing judgment on the objections of the state," Franklin said.

The "consistency determination" that the Coastal Commission voted against Wednesday was only the first round of approval for the toll road.

Seaton, the spokeswoman for the toll road agency, said that the project would still need a coastal development permit from the Coastal Commission even if an appeal is successful.

"We would definitely have to go to them again for a permit," she said.

Environmentalists who opposed the project said the toll road's progress would continue to be stopped by the Coastal Commission.

Birkelund said, "We believe that the Coastal Commission sent a clear message that running a toll road through a state park is inappropriate."

Despite the specter of an appeal, the grass-roots coalition of surfers, environmentalists and beach lovers that swarmed into the Wyland Hall Pavilion all day Wednesday was euphoric Thursday.

Marty Benson of Oceanside, a member of the Save San Onofre Coalition, which mobilized the opposition effort, said Thursday morning that he is still stoked about the victory.

"I still get shivers today when I think about it," Benson said. "I got choked up about 50 times yesterday."

He said the coalition plans to oppose any appeal.

"I will be there in opposition every step of the way," Benson said.

The Coastal Commission held the second day of its three-day meeting schedule at Oceanside City Hall on Thursday. Just after the commission broke for lunch, Chairman Patrick Kruer of Rancho Santa Fe said the overflow crowd at Wednesday's marathon meeting didn't sway the commissioners.

"It was not the numbers, not at all," Kruer said. "It was the facts that were presented."