Volume 8, Issue 77  |  September 26, 2023SubscribeAdvertise

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State agency issues cease-and-desist, orders city to reinstall fencing on certain Peninsula beaches to protect threatened shorebirds


Prompted by a cease-and-desist order issued by a state agency, Newport Beach City Council this week authorized reinstalling fencing in certain areas on the beach on the Balboa Peninsula to protect a threatened species of shorebird.

Councilmembers voted 6-0 (Joe Stapleton was absent) on Tuesday (Sept. 12) to follow a directive issued through a cease-and-desist order by the California Coastal Commission to address a violation of the Coastal Act, primarily by reinstalling and maintaining fenced enclosures to protect the western snowy plover shorebirds. The item was included on the council’s consent calendar (considered routine and usually voted in one motion) and approved without further discussion.

The city will immediately start developing a plan for fencing and educational signage, which will be installed (likely next month) between D and F streets within 15 days after the CCC approves the plan.

State agency snowy plover

Click on photo for a larger image

Photo by USFWS

Western Snowy Plover is considered a “threatened” species and is protected under the Endangered Species Act

The small shorebird is found along the coast of the Pacific Ocean from Baja California to Washington. A population of WSP live on the Balboa Peninsula between B Street and the Wedge (a distance of more than one mile), for most of the year.

Since 1993, the WSP has been listed as a “threatened” species and is federally protected under the Endangered Species Act. Under the ESA, the Balboa Peninsula area is designated a critical habitat by the United States Fish and Wildlife Service. Management and protection of the habitat is an important part of the USFWS’ recovery plan that aims to increase the WSP population and meet specific criteria to one day remove them from the threatened species list.

Newport Beach started monitoring the area between B Street and the Wedge in 2009. USFWS suggested the city install fencing, which was placed without a Coastal Development Permit in 2011 and 2017. The fencing was intended to help delineate and recognize the critical habitat area and to help minimize and protect the area from pets, human activities, and vehicles, according to staff.

Although some residents reported a loss of ocean views and negative visual impacts, which prompted the city to discuss removing the fencing. The original wood slat fences that were put in place suffered damage from both human activity and weather. The fences were not maintained and were modified over time to be a stake and rope “fence.” As the metal stakes eventually rusted, they became a safety hazard and were removed.

When the city initially began to remove the fencing, a complaint was filed with the Coastal Commission that a coastal development permit was not obtained for the removal of the fence. The city submitted a CDP application to the CCC to remove the fencing in June 2017, but it was deemed incomplete pending the submittal of a management plan for the entire area.

To help develop the plan, the city hired a biologist and held community outreach meetings. There have been several iterations of the plan as city staff worked to address the comments provided by CCC staff, including adding a dune restoration plan.

At council’s February 28 study session, city staff shared a presentation outlining the draft Western Snowy Plover Management Plan for eastern Balboa Peninsula beaches and the status of the city’s Coastal Development Permit application. The discussion focused on fencing and a paved walkway, how to maintain the balance of habitat restoration, protection of the endangered birds, and public access.

At the February meeting, staff had some concerns include the CCC-suggested seasonal dog prohibition, the popular recreational area between B and C streets within the critical habitat area, and the beach area between G Street and the Wedge where the city uses heavy equipment.

At the same time, city staff was working on the third version of the CDP application.

In March of this year, the CCC shared a draft set of conditions for the pending permit, but city staff found them to be unacceptable based on known resident concerns and previous council direction. The latest version of the CDP application was scheduled to be heard at the CCC’s April 12 meeting, but the city withdrew on March 23. The action was meant to allow for additional dialog with all stakeholders to arrive at a more appropriate solution, possibly without fencing or a ban on dogs.

At the April 25 meeting, council discussed potential litigation against the city due to the removal of the fencing as described in an April 11 letter from Andrew Willis, enforcement staff counsel for the California Coastal Commission.

In the April letter, Willis noted that the CDP application requested after-the-fact authorization of removal of the wood-slat fences that previously existed at Balboa Beach to protect Western Snowy Plovers, and their habitat, and replacement of the protective fencing with symbolic fencing, as well as other measures intended to protect snowy plovers.

“As you know, CCC staff had worked hard with city staff to try and find measures that would address legal issues here and provide a mutual path forward to address concerns by both the city and with regard to Coastal Act issues and protections for the endangered snowy plovers,” Willis wrote. “We are disappointed that the city chose to withdraw the application and leave Snowy Plovers and their habitat without the valuable protection from disturbance, whether from human or dog activity, that the wood-slat fencing previously in place provided.”

“With the city’s withdrawal of the application, enforcement staff will be forced to consider its options to address this matter as a violation of the Coastal Act,” the letter reads.

They alleged that removal of the fence, along with the construction or reconstruction of the E Street walkway, has damaged the critical habitat, evidenced by lower recent plover sightings.

CCC staff requested that the city immediately re-install the wood-slat fence in order to avoid the need for formal enforcement action. They want to work with the city, Willis noted at the time, in order to protect the endangered bird.

State agency fencing

Click on photo for a larger image

Courtesy of CCC/City of Newport Beach

A general representation of what the fencing would look like

On July 20, the CCC sent the city a draft cease-and-desist order with the purpose of abating the violation of the Coastal Act by the city’s unpermitted removal of unauthorized fencing. The order requires reinstalling and maintaining the fencing for the protection of WSP.

The key terms of the order include:

–Within 15 days of the issuance of the order, the city shall submit a fencing plan and educational signage for the review and approval by CCC staff.

–Within 15 days of the approval of the fencing plan, the city shall complete the installation of the fencing and then submit a report with evidence of the completion of the work within seven days.

–The city would agree to maintain the new fencing until issuance of a follow-up CDP by the Coastal Commission that authorizes replacement fencing.

–Within 15 days of issuance of the order, the city shall prepare a Western Snowy Plover monitoring plan for review and approval by CCC staff. The monitoring plan will require twice monthly surveys during the months of July through March of the fenced enclosures by a qualified biologist.

–If the city is unable to complete the required actions within the specified timelines, it may request extensions of time showing good cause.

–Violation of the order shall result in the city being liable for stipulated penalties in the amount of $1,000 per day per violation.

After the order is issued, city staff will begin developing a fencing and signage plan to be forwarded to the CCC for review and approval. City staff will then proceed with the installation of the fencing and signage according to the CCC approved plan. The replacement fencing will be located in the same area as the original. Instead of the original red fencing material, the new fencing would be a natural color. City staff anticipates installing the fence in October.

State agency location

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Courtesy of CCC/City of Newport Beach

The replacement fencing will be located in the same area as the original

The adopted budget includes sufficient funding for the installation of the fencing and signage as well as the required monitoring. Estimates for maintenance are not known, but costs are not expected to be significant and will be budgeted in future years.

The cost of the signs, estimated at $2,600, will be expensed to the Recreation & Senior Services Department. The cost of the fencing, estimated to be approximately $30,000, and the cost for the first year of monitoring, estimated to be approximately $20,000, will be expensed to the Community Development Department.

Staff will be submitting a grant application to the California Coastal Conservancy for all expenses, as well as future expenses when estimated. The Conservancy received slightly more than $1,500,000 in violation funds from 29 Newport Beach property owners related to the Peninsula Point beach encroachment removals and the funds are allocated to the protection of the Western Snowy Plover in Newport Beach.


Sara Hall covers City Hall and is a regular contributor to Stu News Newport.

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