Appellants have submitted no substantial evidence or factual foundation that supports their grounds for appeal that the Project would have a significant effect on the environment beyond the significant unavoidable air quality impact, which has been fully analyzed and disclosed. The EIR, prepared in conjunction with the USACE’s IFR and EIS, is comprehensive and provides substantial evidence necessary to support the Harbor Commission’s findings and certification of the EIR in full compliance with CEQA.
As discussed in the Harbor Department’s following detailed responses to the grounds for appeal, no new impacts or substantial increase in previously identified impacts would result from the Project. Appellants fail to raise any meritorious grounds for appeal. As such, the appeal should be denied.
II. Harbor Department General Responses
The following are the Harbor Department’s general responses to Appellants’ overarching issues related to vessel activity and Port cargo capacity and throughput. a) Harbor Department General R esponse to Grounds for Appeal – Vessel Activity
Chapter 12 of the USACE’s IFR-EIS/EIR for the Project, entitled “Environmental Impact Report,” serves as the functional equivalent of an EIR pursuant to CEQA. The Project evaluated in the EIR consists of construction activities to deepen and widen various channels in the Port to increase vessel transportation efficiencies and improve safety for container and liquid bulk vessels. Vessel operations are not a part of the scope of the environmental evaluation. Projecting the numbers and types of vessels in the future would require pure speculation, and any analysis would not provide reliable or meaningful information to the public or decisionmakers. Furthermore, any hypothetical change in the vessel fleet would not alter the capacities of the marine terminals.
Generally, the deployment of large container vessels filled to their capacities allows for more efficient transport of cargo and goods, requiring fewer trips to and from the Port, which would result in fewer emissions from ocean-going vessels, as demonstrated in the Port’s air emissions inventories as early as 2010 (available online at www.polb.com/emissions and incorporated herein by reference).
Section 12.1.2 of the EIR, at page 240 of the Final IFR-EIS/EIR, identifies the following as objectives of the Project:
Reduce transportation costs by allowing a more efficient future fleet mix (e.g., displace Panamax and smaller-scale Post-Panamax vessels with larger-scale Post-Panamax vessels, which have increased cargo capacity); Reduce vessel congestion in the Port;
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Increase channel depth to encourage shippers to replace smaller, less efficient vessels with larger, more efficient vessels on Long Beach route services. Remove channel restrictions to increase vessels’ maximum loading capacity, thereby resulting in fewer vessel trips to transport the forecasted cargo. Reduce vessel wait times within the harbor to reduce loading and unloading delays for deeper drafting liquid bulk vessels and to provide a safe area to anchor adjacent to the Main Channel during equipment failures.
Existing channel restrictions limit a ship’s capacity by limiting its draft. Deepening the channel’s depth reduces this constraint, and the ship’s maximum practical capacity increases towards its design capacity, which in turn results in fewer vessel trips to transport the forecasted cargo. With larger ships able to transport goods, smaller, older, and less efficient ships can be displaced, decreasing the number of vessel trips. The efficiencies afforded by the Project to accommodate additional large, fully-loaded vessels with no navigational restrictions would in turn increase transportation efficiencies and safety, thereby reducing the total number of vessels calling at the Port over time, shortening vessel wait times in the harbor, and decreasing the need for light- loading and lightering.
The same predicted volume of cargo is estimated to move through the Port with or without the Project. Port operations following implementation of the Project are not a “consequence” of the Project, as there are no physical improvements or modifications to Port marine terminals that are a part of, or dependent on, the Project, no changes to how the marine terminals operate, and no impact on the marine terminals’ capacity.
Furthermore, Port operations would not change the scope or nature of the Project or its environmental effects because the infrastructure, operational capabilities, and capacities at the marine terminals would remain the same. Regardless of whether the Project proceeds or not, the impacts Appellants allege are not foreseeable outcomes of this Project.
If the Project were not completed and implemented, container and liquid bulk vessels that call at the Port would continue to arrive and depart the Port as they currently do.
However, the inefficiencies and safety concerns associated with perpetuation of the existing conditions involving the use of smaller ships having to make more trips to transport goods, and larger vessels having to light-load, lighter, and wait for high tide in order to maneuver into and out of the Port, and anchor in the Harbor, rather than berth at a dock, would continue, and potentially worsen over time with the industry trend toward expanded use of large vessels.
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b) Harbor Department General R esponse to Grounds for Appeal – Port Capacity and Cargo Throughput
Appellants mischaracterize the Project as an “expansion project” that will enable the growth of cargo into the Port of Long Beach and lead to impacts of shipping traffic and other environmental effects. To the contrary, the Project is not an expansion project, as it will merely consist of dredging of various areas of the Port to improve channel depths and widths to accommodate the global fleet of large vessels to enter and depart the Port safely and more efficiently. Currently, large container vessels calling at the Port must ride the tides and enter and leave the Port’s West Basin and Pier J Basin only during high tides or “light-load” (not fill the vessel to capacity with cargo) to ensure a shallower draft to safely enter and leave these areas of the Port. Liquid bulk vessels must currently enter and exit the two-mile long Approach Channel one at a time due to existing channel width limitations, which results in increased delays.
Contrary to Appellants’ assertions, the Project does not include any changes to Port marine terminals that will increase the marine terminals’ capacity or operations. To increase capacity or alter operations, marine terminal infrastructure would require improvements, which would require project-specific environmental review, during which the potential environmental impacts associated with the operation of vessels, as well as other goods movement-related sources such as trucks, rail locomotives, harbor craft, and cargo-handling equipment, would be evaluated as appropriate in accordance with CEQA. Therefore, the efficiencies afforded by the Project would not influence or alter marine terminal capacities or operations.
III. Harbor Department Responses to Appellants’ Specific Grounds for Appeal
The Harbor Department’s responses to each of Appellants’ specific grounds for appeal are provided herein.
Ground for Appeal No. 1 – Scope of Project
Appellants contend that the scope of the Project and its impacts are improperly narrow.
According to Appellants, the EIR erroneously limits the Project to dredging and construction activities, and therefore does not analyze operational and cumulative environmental and public health impacts and fails to disclose all environmental impacts that might result from all phases of project planning, implementation, and operation, including any growth-inducing impacts and trends. Appellants assert the Project will expand the Port’s capacity to bring in larger ships and process more cargo than it currently handles, and thereby lead to increased impacts of shipping traffic and other environmental effects.
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Harbor Department Response to Ground for Appeal No. 1 – Scope of Project This ground for appeal has no merit and should be denied. Long Beach Municipal Code (LBMC) section 21.21.507, subsection E.2, requires appellants to specify in detail why the appellant contends that the environmental determination does not comply with CEQA. Appellants have submitted no evidence that supports their conclusion that the Project or introduction of additional large ships will expand the Port’s capacity to process more cargo than it currently handles leading to increased impacts of shipping traffic and other environmental effects. The IFR-EIS/EIR provides extensive detail to the contrary—the Project would not result in increased terminal capacity or more vessel trips required to transport forecasted cargo.
The Project description in the IFR-EIS/EIR is accurate and allows for an intelligent evaluation of the potential environmental impacts; the EIR analyzes and discloses each of the potentially significant environmental effects that could result from the implementation of the Project. USACE and Port responses to the Appellants’ previous comments on this issue are provided in Appendix O (Comments and Responses to Comments) to the Final IFR-EIS/EIR as General Response No. 1, Response to Comment 9-1 through 9-6, 9-9, 9-12 through 9-15, and 9-19.
The scope of the Project and analysis of potential impacts in the EIR and channel- deepening activities is prepared in accordance with Section 15126.2 of the State CEQA Guidelines, which states, in relevant part: “In assessing the impact of a proposed project on the environment, the lead agency should normally limit its examination to changes in the existing physical conditions in the affected area as they exist at the time the notice of preparation is published, or where no notice of preparation is published, at the time the environmental analysis is commenced.” Similarly, State CEQA Guidelines Section 15125(a) states that the existing physical environmental conditions at the time of the Notice of Preparation will normally constitute the baseline for determining whether impacts are significant. A Notice of Preparation was published in November 2016 and an amended Notice of Preparation of the Draft IFR-EIS/EIR was issued in January 2019. The EIR appropriately focuses on the changes to the existing physical conditions as of 2016 (the CEQA baseline) and does not speculate about potential future changes to Port operations.
While CEQA mandates consideration of “reasonably foreseeable indirect physical changes in the environment,” a change that is “speculative or unlikely to occur” is not reasonably foreseeable (State CEQA Guidelines Section 15064(d)). The California Supreme Court, in Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 47 Cal. 3d 376, 396, stated that “an EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.”
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Under this test, the scope of the Project and the analysis in the EIR comply with CEQA because: (1) Project implementation does not result in changes to how the marine terminals operate or their cargo capacities and therefore, marine terminal operations following implementation of the Project are not a “consequence” of the Project; and (2) marine terminal operations would not change the scope or nature of the Project or its environmental effects.
Under CEQA, growth inducement is defined by ways in which a project could foster economic or population growth in the surrounding environment, either directly or indirectly. Included in this definition are projects which would remove obstacles to growth or trigger the construction of new community services facilities that could cause significant effects (State CEQA Guidelines Section 15126.2). Growth inducement is discussed in Section 12.8 of the Final IFR-EIS/EIR. Page 335 of the Final IFR-EIS/EIR states that the Project would (1) not involve the development of new housing; (2) not significantly affect the economy of the region; and (3) not influence throughput of containerized or liquid bulk cargo. While the Project would result in the ability of large vessels to navigate more efficiently and safely at the Port, the efficiencies afforded by accommodating these vessels would in turn reduce the number of smaller vessels calling at the Port over time. Furthermore, while larger vessels could accommodate larger container and liquid bulk cargo loads, the overall throughput and capacities of marine terminals or landside cargo-handling equipment at the Port would not be influenced by the Project.
Therefore, the Project would not generate significant direct or indirect growth-inducing impacts; the Project would not trigger the construction of new community service facilities that could increase the capacity of infrastructure in an area that currently meet the demands (e.g., an increase in the capacity of a sewer treatment plant or the construction or widening of a roadway beyond that which is needed to meet existing demand). The EIR adequately analyzes the potential impacts from the Project and does not fail to analyze direct or indirect impacts, as Appellants assert.
Appellants misconstrue a statement from the Final IFR-EIS/EIR (Section 4.4, Planning Objectives, page 68), which states that the Project “...would induce changes in the operations and composition of the future fleet mix at the Port of Long Beach.” Such changes would include: (1) an increase in a vessel’s maximum practicable loading capacity; (2) an increase in the reliability of water depth, encouraging the deployment of larger vessels to the Port; and (3) an increase in larger vessels, which will displace less economically efficient smaller vessels.
Appellants, however, gloss over the third change, which is environmentally beneficial, and argue that the planning objectives contradict the assumption that the channel deepening will not facilitate the Port’s growth. Contrary to Appellants argument, the statement above referenced by Appellants refers specifically to potential future vessel fleet mixes that are influenced by many factors. It would be speculative to predict and
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assign future fleet mixes resulting from the Project. As previously discussed in the Harbor Department’s Response to Ground for Appeal No. 1, operational activities are not a component of the Project, and the Project would not change or expand operations or capacities at the marine terminals. The statement reiterates the objectives that the Project would help achieve — improved tr ansportation efficiencies and safety for vessels arriving at and departing from the Port.
Ground for Appeal No. 2 – Air Quality and Health Risk Assessment Appellants assert the Air Quality and Health Risk Assessment in the Final EIR is insufficient; the EIR arbitrarily concludes that the Project will only result in short-term emissions and significant air quality impacts in certain years during construction, neglecting to consider the growth-inducing effects of the Project and emissions resulting from expanded Port operations which will require more cargo-handling equipment, rail, and truck visits at any given time to handle the influx of larger cargo loads. Appellants also assert the Final EIR fails to examine emissions from the Project in accordance with the most recent federal and state air quality standards.
Harbor Department Response to Ground for Appeal No. 2 – Air Quality and Health Risk Assessment
This issue was previously raised by Appellants during the Draft EIR review and are addressed by the USACE and Port with responses to Appellants’ comments provided in Appendix O (Comments and Responses to Comments) to the Final IFR-EIS/EIR starting at page 23.
The Final IFR-EIS/EIR adequately discloses the potential air emissions associated with the Project in full compliance with CEQA. This ground for appeal should be denied because Appellants’ claims are conclusory and do not provide any details as to how the environmental determination does not comply with CEQA, as required by LBMC Section
21.21.507, subsection E.2.
The Final EIR, starting at Section 12.2.3 at page 245 provides a detailed discussion of the Air Quality and Health Risk Assessment for purposes of the CEQA analysis.
Section 3.5 of the IFR-EIS/EIR further discusses air quality conditions in the study area.
As previously discussed in the Harbor Department’s Response to Ground for Appeal No. 1, operational activities are not a component of the Project, and the Project would not change or “expand” operations at the marine terminals to require more cargo- handling equipment, rail, and/or truck visits. Therefore, the EIR appropriately does not analyze emissions from speculative potential changes in future operations or expansion of Port operations.
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Contrary to Appellants’ claim, the EIR does, in fact, examine Project-related emissions in accordance with the most recent federal and state air quality standards. Tables 12-4 and 12-5 and the associated text, starting on page 254 of the IFR EIS/EIR, discuss the air quality impacts evaluated and present the South Coast Air Quality Management District (AQMD) Daily Emissions Thresholds and Ambient Air Pollutant Concentration Thresholds. Table 12-6 (page 257, Peak Daily Construction Emissions without mitigation) and Table 12-7 (page 259, Peak Daily Emissions with Mitigation) show the air emissions associated with construction activities. As shown in Table 12-7 on page 259 of the IFR-EIS/EIR, with the implementation of mitigation measures, construction of the Project would produce emissions that exceed the South Coast AQMD daily thresholds of significance for nitrogen oxides (NO
x) in years 2024, 2025, 2026, and
2027, and particulate matter 2.5 microns or less (PM2.5), carbon monoxide (CO), and volatile organic compounds in 2025. With implementation of mitigation measures, the Project would generate offsite ambient air pollutant concentrations that would exceed the 1-hour federal NO2 as shown on Table 12-10 at page 261 of the Final IFR-EIS/EIR.
The proposed Project would produce toxic air contaminant (TAC) emissions only temporarily during construction activities and emissions would occur at a considerable distance from the nearest residential and sensitive receptors; therefore, a detailed health risk assessment was not performed. Instead, the maximum results of the particulate matter less than ten microns (PM10) dispersion modeling, detailed in Appendix H2 of the Final IFR-EIS/EIR, and CARB’s Hotspots Analysis and Reporting Program (HARP) were used to estimate potential maximum cancer risks and chronic non-cancer hazard indices.
Air quality emissions analysis details and assumptions are presented in Appendix H4 of the Final IFR-EIS/EIR. Potential impacts related to acute non-cancer hazard indices and population cancer burden are discussed qualitatively in Section 12.2.3 (Air Quality and Health Risk Assessment) and Impact AQ-4 of the Final IFR-EIS/EIR. As discussed on page 42 of the Final IFR-EIS/EIR, the nearest residential receptors to the Project site are live-aboards, located approximately 1 mile to the north of the West Basin, in the Yacht Marina and Island Yacht Anchorage. The nearest school is Cesar Chavez Elementary School, on W. 3
rd Street, approximately 1.3 miles northeast of the Project site. The nearest hospital is St. Mary Medical Center, on Linden Ave., approximately 2.7 miles north of the Project site. The nearest convalescent home is Bay Breeze Care on Santa Fe Ave, approximately 2.4 miles north of the Project site. As shown in Table 12- 12 (Maximum Cancer Risk and Non-Cancer Chronic Impacts), Project activities would not expose the public to significant levels of toxic air contaminants. Therefore, impacts would be less than significant and mitigation is not required.
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Ground for Appeal No. 3 – Greenhouse Gas Emissions
Appellants argue that in limiting the assessment of greenhouse gas emissions to only the construction activities of the Project, the EIR fails to analyze how the channel deepening may facilitate more GHG emissions due to expanded operations and the impacts on the region to meet state and local greenhouse gas targets. Appellants contend the Project is, in part, intended to increase the Port’s capacity to import crude oil, and argue that the Project therefore will lead to more oil production, refinement, coal exports, and freight transportation, and increased emissions of criteria pollutants.
Appellants assert the Final EIR wrongly concludes that the global climate change impacts from the Project will be less than significant and mitigation measures are not required.
Harbor Department Response to Ground for Appeal No. 3 – Greenhouse Gas Emissions
This ground for appeal has no merit and should be denied because Appellants have provided no evidence that supports their conclusion that the Project would increase the Port’s capacity for import of crude oil resulting in more oil production, refining, coal exports, and freight transportation thereby increasing greenhouse gas emissions above CEQA levels of significance.
Appellants err in their claim on page 6 of their appeal letter and do not provide reference or citation to the statement they claim is in the Final-IFR EIS/EIR of the Port’s “acknowledgement” that “the Project is, in part, intended to increase the Port’s capacity to import crude oil, leading to more oil production, refinement, coal exports, and freight transportation, and increased emissions of criteria pollutants.” In fact, the Responses to Comments received on the Draft IFR-EIS/EIR provided in Appendix O of Final IFR- EIS/EIR, starting at page 9, states:
“The [proposed] Project will facilitate the safe and efficient transportation of all types of cargo into and out of the POLB because larger vessels are calling at the POLB that need deeper and wider channels to safely operate...The quantity of oil and gas deliver ies will not materially change due to this project, it will simply be handled in a safer and more cost- effective manner.”
The Project does not include any modifications to existing liquid bulk terminals, storage, transmission, or refinery capacities, all of which are beyond the scope of the Project.
Supply of and demand for oil, gas, and other energy resources fluctuates over time, and those factors are not significantly impacted or influenced by the Project. Further, the analysis Appellants suggest would require pure speculation as to future market considerations, and as such would not be meaningful to the public or decisionmakers.
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Section 12.3.2 (Impact Analysis of Mitigation), starting at page 317 of the Final IFR- EIS/EIR, discusses the annual greenhouse gas emissions associated with the Project after implementation of mitigation measures. Mitigation measures include the use of electric dredge equipment. As shown in Table 12-16 of the Final IFR-EIS/EIR, the Project’s greenhouse gas emissions in carbon monoxide equivalent (CO2e), amortized over 30 years in accordance with South Coast AQMD guidance, would be 614 metric tons, well below the South Coast AQMD significance threshold for industrial projects of 10,000 metric tons of CO2e. Therefore, the greenhouse gas emissions associated with the Project would be less than significant.
Furthermore, Section 12.2.17 (Global Climate Change) discusses the Project’s potential to conflict with an applicable plan, policy, or regulations adopted for the purpose of reducing greenhouse gas emissions (Impact GCC-2). Table 12-15 evaluates all relevant greenhouse gas plans, policies, and regulations, including Assembly Bill (AB) 32 (California Global Warming Solutions Act (2006)), CARB’s AB 32 Scoping Plan, the Port’s Green Port Policy and Clean Air Action Plan, and the City of Long Beach’s Sustainable City Action Plan. The Project would not conflict with greenhouse gas emissions targets or any applicable federal, state, regional, or local greenhouse gas emissions reduction plans, policies, or regulations.
Ground for Appeal No. 4 – Endangered Species
Appellants assert the Final EIR’s analysis of impacts on endangered species is insufficient. Appellants argue the Project is likely to facilitate increased vessel traffic and growth at the Port, which will increase oil spills and other water pollution, anchor scouring, biological invasions, container loss, chronic noise, and collisions with large whales and sea turtles.
Harbor Department Response to Ground for Appeal No. 4 – Endangered Species As discussed in the Harbor Department’s Response to Ground No. 1 – Scope of Project, the EIR appropriately focuses on the changes to the existing physical conditions associated with the Project as of 2016 (the CEQA baseline), and does not speculate about potential future changes to vessel fleet mixes, vessel activities or marine terminal operations and capacities. The Final IFR-EIS/EIR demonstrates that the potential environmental impacts to endangered species associated with construction of the Project have been fully analyzed, while Appellants’ claims are conclusory and devoid of specific evidence that the Project will contribute to increased risks to endangered species.
The Final IFR-EIS/EIR provides detailed evaluation of the potential environmental impacts to endangered species in Section 5.4 (Biological Resource) and Section 12.2.4 (Biota and Habitats). Starting at page 119 of the Final IFR-EIS/EIR, detailed discussion of threatened and endangered species, as defined by the federal Endangered Species
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Act and the California Endangered Species Act, is provided, including the California Least Tern, Green Sea Turtle, and Marine Mammals (blue whale, fin whale, humpback whale, and grey whale). Special-status species and their habitats known to exist in the harbor area are protected under numerous laws and regulations, including the federal Endangered Species Act, the California Endangered Species Act, the Marine Mammal Protection Act, administered by the United States Fish and Wildlife Service, National Ocean and Atmospheric Association Fisheries, and California Department of Fish and Wildlife. Further, any analysis of impacts of large ship traffic on such species would require speculation, and would not provide meaningful information to the public or decisionmakers. In addition, the Project objectives to increase transportation efficiencies and navigational safety would potentially reduce the total number of vessels calling at the Port over time, which would inherently reduce the risk impacts to endangered and/or special status species.
Oil Spills
Appellants assert that the Project will increase oil spills. As discussed in Appendix O of the Final IFR-EIS/EIR at page 31, currently, liquid bulk vessels must engage in lightering, an activity where petroleum material is transferred from one ship to a second ship offshore, which allows each ship to lighten their load and reduce their draft (lessen the ship’s depth) when entering the Port. Reducing the number of lightering events inherently will reduce the risk of oil spills from the transfer of liquid bulk cargo from one vessel to another. The Project would also increase safety by widening the channels to facilitate safer maneuvering for liquid bulk vessels. Because of constraints on liquid bulk storage areas, improvements to terminal facilities that handle liquid bulk would require project-specific environmental review, including the potential for heightened risk of oil spill in accordance with CEQA. Furthermore, marine oil terminals in California are required to comply with Marine Oil Terminal Engineering Maintenance Standards (MOTEMS). MOTEMS establish the minimum engineering, inspection, and maintenance criteria for marine oil terminals to protect public health, safety and the environment by governing the upgrade and design of oil terminals to ensure better resistance to earthquakes and reduce the potential of oil spills. Therefore, Appellants’ claim that the Project will result in increased risk to endangered species from oil spills is speculative. Further, compliance with all applicable regulatory standards also serves to address any potential issues.
Water Pollution
As previously discussed, the Project would not facilitate increased vessel traffic and growth and, therefore, only construction activities were evaluated in the EIR. Section
12.2.8 of the Final IFR-EIS/EIR discusses the Project’s potential impacts to hydrology and water quality associated with construction. The IFR-EIS/EIR acknowledges that construction activities could temporarily increase turbidity, thereby degrading water quality that could affect fish and other marine life movement in the area. Motile species
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are expected to relocate out of the immediate area until dredging activities are completed. Some benthic populations would be removed by dredging, but would recolonize the area following completion of dredging. Any effects to essential fish habitat would be temporary and limited to the dredging or disposal area. Fish would be able to avoid the construction area during construction, physical disturbances would rapidly dissipate, and disturbed sediment and rock dike areas would return to their pre- construction state.
As discussed in Section 3.3 (Water and Sediment Quality) and Section 12.2.8 (Hydrology and Water Quality), the implementation of a water quality monitoring program at the dredge and placement sites will be implemented by the USACE, which would include weekly monitoring of salinity, pH, dissolved oxygen, temperature, total suspended solids, and percent light transmissivity. Monthly water samples would be taken downcurrent of dredge areas for analysis of total suspended solids, total petroleum hydrocarbons, and other contaminants of concern identified during sediment sampling and analysis during the design phase of the Project. With the implementation of water quality monitoring and management strategies as part of Project design, the Project impacts would be less than significant.
Anchor Scouring and Biological Invasions
Appellants also contend that the Project would increase anchor scouring and biological invasions. Anchor scouring refers to the process by which oceangoing vessels, particularly cruise ships, may drag their anchors and chain mechanically along the sea floor as the tide ebbs and flows, thus potentially disturbing marine organisms in the uppermost sedimentary layers, often in circular scars, of the seabed. Ships utilizing Long Beach Harbor are restricted to only dropping anchor in established anchorage areas. The Project will not change the location or layout of these established anchorage areas; accordingly, the Project will not increase the risk of anchor scouring.
Furthermore, the Project would not introduce new uses or activities that are incompatible with existing Port operations. Dredging activities are common within Port environments for channel deepening and maintenance of existing channels. All vessels calling at the Port are required to comply with all applicable ballast water discharge and hull maintenance standards in accordance with the performance standards set forth by the California State Lands Commission, thus negating further concern for new/future biological invasions.
Container Loss
Appellants do not provide any factual context or evidence that the CEQA analysis is lacking with regard to their statement that the Project will increase container loss, nor do Appellants discuss how container loss might occur. As discussed in the Harbor Department’s Response to the Ground for Appeal No. 1, while the Project will facilitate the more efficient and safer maneuvering of container vessels in and out of the Port, the
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Project does not include an analysis of container vessels’ operational activity because this is outside the scope of the Project and would require undue speculation. Therefore, it is not possible to respond further at this juncture.
Chronic Noise
The Project objectives to increase transportation efficiencies and navigational safety, thereby reducing the total number of vessels calling at the Port over time, will inherently reduce the risk of noise impacts. As discussed in the Harbor Department’s Response to Ground No. 1 – Scope of Project, the EIR appropriately focuses on the changes to the existing physical conditions as of 2016 (the CEQA baseline) associated with the Project and does not speculate about potential future changes to vessel activities or marine terminal operations. Nevertheless, noise impacts associated with construction of the Project were fully and adequately evaluated for the scope of the Project {See Sections
3.9 (Noise) and 12.2.10 (Noise) of the Final IFR-EIS/EIR}.
As stated at page 268 of the Final IFR-EIS/EIR, due to the temporary nature of increases in noise, vibration, or turbidity and the “soft start” used for pile-driving at the Pier J breakwaters, all of the special-status species, being highly mobile, would be readily available to avoid the construction areas. “Soft start” means that pile driving would be initiated at reduced energy to give marine wildlife the opportunity to vacate the vicinity of the pile-driving activity. Therefore, the temporary noise effects of the Project are not expected to pose a significant impact on any endangered or special-status species.
Collisions with Large Whales and Sea Turtles
In Section 5.4 (Biological Resources) of the Final IFR-EIS/EIR, the USACE would conduct monitoring for sea turtles, as well as marine mammals, including the presence of whales and dolphins. Monitors will note marine mammal presence and any behaviors indicative of potential harassment under the Marine Mammal Protection Act. These behaviors could include startled response, irregular diving, or flushing from haul-out positions in the vicinity of the Project area. Monitors will carefully record the behavior of any marine mammals that do occur within the proposed Project area. Implementation of the proposed monitoring and avoidance measures for marine mammals is anticipated to minimize the potential for marine mammal harassment or injury resulting from this proposed activity. If the proposed Project results in disturbance to marine mammals, activities will be ceased, and the Port and the National Marine Fisheries Service will be contacted before any construction activities proceed further. As the total number of vessels calling at the Port over time is expected to decline as a result of the proposed Project post-construction, increased risk for chronic underwater noise and/or collisions with marine mammals is also expected to be reduced with fewer vessel trips to and from the Port.
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Section 12.2.4 (Biota and Habitats) at page 268 of the IFR EIS-EIR states that the primary threat to listed whale species in the study area is strikes by fast-moving, large vessels. Within the harbor operating dredges are either stationary (clamshell dredges) or moving at a speed of 1-3 knots (hopper dredges). Neither type of dredge equipment poses a threat to any listed whale species because whales rarely occur inside the harbor and can readily avoid such slow-moving objects. Further, the EIR acknowledges at page 268, that outside the harbor, while dredge equipment and tugboat/barge combinations transporting dredged material to disposal sites could encounter whales, particularly during migrations, there would be “little to no threat” to listed whale species because the dredge equipment and tugboats/barges would move relatively slowly (5-10 knots, depending on sea conditions).
As discussed on page 268 of the IFR-EIS/EIR, the Project is not likely to adversely affect Eastern Pacific green sea turtles, one of the four species of sea turtles that are federally listed as threatened or endangered. Only the Eastern Pacific green sea turtle has a low probability of occurring in the study area based on the low likelihood of the species being in the proposed dredge and construction areas and avoidance and minimization measures included in the environmental commitments. In consultation with the National Marine and Fisheries Service, a suite of measures was established for the Project to protect Eastern Pacific green sea turtles. The monitoring and avoidance measures will ensure that construction or placement activities will not adversely affect green sea turtles. Measures include monitoring of dredging and disposal activities, along with mandatory avoidance procedures to be employed if any green sea turtles are present during dredging and sediment disposal to limit the potential for activities resulting in adverse effects. The probability that turtles will be present within the Port areas for extended periods of time is expected to be negligible due to the lack of important foraging habitat features near Project areas, and the harbor overall, where dredging and disposal will occur. This minimizes the risk of adverse effects or disturbance resulting from exposure to Project activities.
Section 5.4 (Biological Resources) of the Final IFR-EIS/EIR provides analysis and discussion of threatened and endangered species, as defined by the federal Endangered Species Act and the California Endangered Species Act. Discussion regarding specific listed species, including the California Least Tern, Green Sea Turtle, and Marine Mammals (blue whale, fin whale, humpback whale, and grey whale), is also included in Section 5.4 (Biological Resources), starting at page 119. Section 12.2.4 (Biota and Habitats) provides detailed discussion of potential impacts to Biota and Habitats in accordance with CEQA. Special-status species and their habitats known to exist in the harbor area are protected under numerous laws and regulations, including the federal Endangered Species Act, the California Endangered Species Act, and the Marine Mammal Protection Act, administered by the United States Fish and Wildlife Service, National Oceanic and Atmospheric Association Fisheries, and California Department of Fish and Wildlife.
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In light of the reasons discussed, Appellants’ Ground for Appeal No. 4 has no merit and should be denied. The IFR-EIS/EIR demonstrates that the potential environmental impacts to endangered species associated with construction of the Project have been fully analyzed, while Appellants’ claims are conclusory and devoid of specific evidence that the Project will contribute to increased risks to endangered species associated with oil spills, anchor scouring, water pollution, noise, container loss, or collisions with sea turtles or whales.
Ground for Appeal No. 5 – Environmental Justice
Appellants assert that the Final EIR fails to analyze and mitigate environmental justice impacts. The Project, and port operations generally, will occur in close proximity to the communities of West Long Beach, Wilmington, and Carson.
Harbor Department Response to Ground for Appeal No. 5 – Environmental Justice
This ground for appeal should be denied because CEQA does not explicitly require the evaluation of Environmental Justice, and there are no specific thresholds of significance for environmental justice. Rather, CEQA requires a lead agency to exercise its own best judgment to, “balance a variety of public objectives, including economic, environmental, and social factors and in particular the goal of providing a decent home and satisfying living environment for every Californian.” State CEQA Guidelines Section 15021(d). The Board of Harbor Commissioners recognizes that significant and unavoidable environmental impacts will result from implementation of the Project. In accordance with CEQA, the Statement of Overriding Considerations for the Project details the balance of specific economic, legal, social, technological, or other benefits, including region-wide and statewide environmental benefits of the Project against its unavoidable environmental risks. The overriding considerations include (1) improved transportation efficiencies; (2) improved navigational safety; (3) reduced delay and wait times; (4) reduced transportation and product costs; (5) fewer vessel trips; and (6) contribution to the Community Grants Program.
As discussed in Section 12.2.3 (Air Quality and Health Risk Assessment), the EIR includes all applicable and feasible mitigation measures to reduce air quality and greenhouse gas emissions associated with construction activities associated with the Project. The EIR also acknowledges that the greatest cumulative impact on the air quality of the regional air basin would be the incremental addition of pollution associated with the use of construction-related heavy-duty equipment and trucks.
The Port’s Community Grants Program was established to address cumulative air and health impacts from the new development projects at the Port. Since 2009, the Port has set aside nearly $65 million for grants to improve the health of children, seniors and other vulnerable populations, reduce GHG emissions, and enhance the environment.
HONORABLE MAYOR AND CITY COUNCIL
November 15, 2022
Projects funded under the program have included development of public parks, water quality improvements, light-emitting diode (LED) lighting, healthcare programs, facility- based energy efficiency projects, trees and landscaping, solar panels, electric vehicles, air filtration, and noise abatement measures. The Community Grants Program, approved by the Board of Harbor Commissioners in 2016, identifies areas that have experienced the highest impact from Port-related operations. In addition to the City of Long Beach (including West Long Beach), the communities of Wilmington, Carson, Compton, and Paramount are encompassed within the geographic area identified by the Community Grants Program to apply for grant funding. A Community Grants Advisory Committee appointed by the Mayor of Long Beach assists in selecting projects for funding. Before any funding is awarded, the Port conducts a thorough review of all applications prior to presenting them to the Board of Harbor Commissioners for approval in accordance with the public trust doctrine and guidance from the California State Lands Commission.
CEQA does not require an analysis of Environmental Justice. However, in recognition of the potential effects construction of the Project would have on surrounding communities, the Port will make a contribution of $146,753 to the Community Grants Program to address the cumulative impacts to air quality associated with construction of the Project.
The Program funds projects to improve the health of communities surrounding the Port, including West Long Beach, Wilmington, and Carson. The EIR was prepared in full accordance with CEQA. Therefore, this Ground for Appeal should be denied.
Ground for Appeal No. 6 – Cumulative Impacts
Appellants argue the Final EIR ignores the growth-inducing effects of the Project and its environmental impacts. Looking to the Port’s record-breaking cargo numbers, Appellants assert the Project is one of the several expansion projects that the Port is undertaking to increase capacity and overall throughput. Appellants further contend that the Final EIR disregards interrelated expansion projects at the ports of Long Beach and Los Angeles, as well as other channel deepening projects at ports throughout the coastal U.S. and does not consider the indirect and cumulative air quality and greenhouse gas impacts, as well as the impacts to several whale species.
Harbor Department Response to Ground for Appeal No. 6 – Cumulative Impacts This ground for appeal should be denied. Appellants err in their assertion that the Project is an “expansion project”. The Project is not an expansion project, nor would it enable the growth of cargo into the Port or lead to impacts on shipping traffic or other environmental effects, as discussed in the Harbor Department’s General Response – Port Capacity and Throughput and Response to Ground for Appeal No. 1 – Scope of Project. LBMC Section 21.21.507, subsection E.2, requires appellants to, “specify in detail why the appellant contends that the environmental determination does not comply
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November 15, 2022
with CEQA.” Appellants do not point to or reference any specific projects to support their claim.
Nonetheless, Section 2-2 (Terminal Expansions) of the Final IFR-EIS/EIR includes discussion of existing container facilities and infrastructure at the Port, as well as the Port’s capital improvement projects that have been approved pursuant to CEQA and/or NEPA. These projects, including the Middle Harbor Redevelopment Project, Gerald Desmond Bridge Replacement Project, Pier B On-Dock Rail Support Facility Project, the Pier G & J Terminal Development Project are not dependent on, or a consequence of the Channel Deepening Project.
The Project will merely provide for dredging of various areas of the Port to allow for the improvement to channel depths to accommodate large vessels, the mix of which the Port has no control or influence over, entering and departing the Port safely and more efficiently. The Project itself will not influence cargo throughput or capacity. In order to expand capacity and throughput beyond the capabilities of the existing marine terminals and their operations, the marine terminal infrastructure would need to be redesigned and updated. This would require project-specific environmental review, during which time the potential environmental impacts associated with the operation of vessels, as well as other goods movement-related sources such as trucks, rail locomotives, harbor craft, and cargo-handling equipment, would be evaluated as appropriate. Potential environmental impacts associated with those vessels would be evaluated to the extent feasible—including the potential direct, indire ct, and cumulative impacts related to air quality, greenhouse gas emissions, noise, and impacts to marine mammals.
The Final IFR-EIS/EIR, starting at page 319, provides a discussion of the cumulative projects considered in the cumulative impact analyses. As discussed previously, Appellants misconstrue the Project as an “expansion project.” Because the predicted impacts from the Project are only construction impacts, Table 6-1 of the Final IFR- EIS/EIR includes a listing of related Port of Long Beach and Port of Los Angeles projects that could overlap with the Project’s construction period of 2025 through 2027.
The Region of Influence for cumulative impacts is defined in Section 6.1 of the Final IFR-EIS/EIR as “from the Inner Harbor Channels of the Ports of Los Angeles and Long Beach in the north to the outer breakwater in the south.” Appellants contend that “proposals to deepen and widen navigation channels to accommodate larger ships at other ports on the western coast of the United States from California to Washington State, are within the same region, intersecting the migratory path of several whale species....Many of the marine species affected by the Port of Long Beach project will therefore be affected by the vessel traffic and other navigational channel deepening and widening projects along the entire west coast because of the migratory nature of these animals.”
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November 15, 2022
Section 15130(b) of the State CEQA Guidelines states, in part: “The discussion [of cumulative impacts] should be guided by the standards of practicality and reasonableness, and should focus on the cumulative impact to which the identified other projects contribute rather than the attributes of other projects which do not contribute to the cumulative impact.” It would be unreasonable and unwarranted to consider other “deepening projects at ports throughout the coastal U.S.” beyond the neighboring Port of Los Angeles as part of the geographical scope of the cumulative analysis. As an example, it would be extremely speculative to assess the impacts associated with a project occurring at the Port of Coos Bay, located more than 885 miles away. Per CEQA Guidelines Section 15124, “The description of the project shall contain…information but should not supply extensive detail beyond that needed for evaluation and review of the environmental impact.” The IFR-EIS/EIR does just this. Therefore, this ground for appeal should be denied.
Ground for Appeal No. 7 – Mitigation Measures
Appellants assert that instead of identifying appropriately tailored, updated mitigation measures that address the harmful externalities of expanded freight activities resulting from the Project, the Final EIR only identifies mitigation measures for environmental impacts stemming from construction that will do little to reduce the impacts from the Project and concomitant growth of freight activities at the Port and ignores commercially available zero-emission equipment, such as trucks, cargo-handling equipment, and harbor craft that could be deployed at the Port to reduce the air quality impacts from both construction and operations, in addition to failing to consider mandating the usage of shoreside power for all vessels, not only construction-related harbor craft.
Harbor Department Response to Ground for Appeal No. 7 – Mitigation Measures This ground for appeal is without merit and should be denied. CEQA requires public lead agencies to impose feasible mitigation measures as part of the approval of a project in order to substantially lessen or avoid the significant adverse effects of the project on the physical environment. As previously discussed in the prior responses to the Appellants’ grounds for appeals, the EIR did not evaluate the potential impacts associated with future vessel activities and marine terminal operations, which would be speculative. Furthermore, there are no land-side improvements or modifications associated with the Project that would facilitate increased capacity. The Project’s environmental impacts and discussion of all applicable and feasible mitigation measures are detailed in the Final IFR-EIS/EIR, the Findings of Fact/Statement of Overriding Considerations, and Mitigation Monitoring Reporting Plan, all prepared in accordance with CEQA.
Section 15126.4(a)(4)(A) of the State CEQA Guidelines states that, “[t]here must be an essential nexus (i.e. connection) between the mitigation measure and a legitimate governmental interest.” There is no nexus between the marine terminals’ activities for
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goods movement such as the operation of trucks, cargo-handling equipment, harbor craft, and ocean-going vessels at berth and the construction activities occurring as part of the Project.
Mitigation measures to reduce impacts to air quality associated with the Project would require use of an electric dredge; use of construction-related harbor craft that meet at least United States Environmental Protection Agency (USEPA) Tier 3 marine engine standards; use of off-road construction equipment that meet USEPA Tier 4 Final engine emission standards; and application of best management practices by maintaining construction equipment according to the manufacturer’s specifications and limiting idling to 5 minutes.
The Port has demonstrated in the Final IFR-EIS/EIR that all feasible mitigation measures associated with the construction activities defined in the scope of the Project have been applied, in full compliance with CEQA. Appellants’ Ground for Appeal that the Project “will result in harmful externalities of expanded freight activities” is conclusory and devoid of evidence and should be denied because they provide no factual support to their claim that “concomitant growth of freight activities at the Port” and significant impacts would result from the Project.