Seeking to build a road inside a state park, agency has won highway and environmental exemptions, special legislation in Congress.

Source of this article – Los Angeles Times, December 18, 2005.

By Dan Weikel and Janet Wilson, Times Staff Writers

A Southern California toll road agency has relied on high-ranking Bush administration appointees and members of Congress to advance construction of a controversial tollway through a state park.

Over the last six years, the Irvine-based Transportation Corridor Agencies has gained special legislation in Congress, as well as exemptions from the Endangered Species Act and federal highway regulations in its effort to build the Foothill South across San Onofre State Beach Park in north San Diego County.

TCA officials also have tried — but failed — to win congressional exemptions from future or current state laws that might interfere with the project’s construction.

The agency’s efforts are part of a protracted battle between tollway advocates seeking traffic relief and park supporters who want to protect campsites, wild lands, panoramic views and world-famous surf locales.

So far, the government agency that plans, finances, constructs and operates Orange County’s tollways has prevailed, winning a series of federal actions crafted for the Foothill South and successfully lobbying in Sacramento to block proposed protections for state parks.

“They are trying to eviscerate every law standing in their way … for a toll road that should not be built,” said James M. Birkelund, an attorney for the Natural Resources Defense Council, a national environmental group opposed to the highway.

But Robert D. Thornton, TCA’s general counsel, said the agency’s tactics are no different than what its opponents could do. “We aren’t doing anything improper,” he said. “It is their right to go to Congress, as it is our right to go to Congress.”

He said the exemptions and other legislation favoring the tollway are needed to improve mobility in Orange County, where the Foothill South is being called a way to reduce congestion on Interstate 5.

“People say, ‘Well geez, it’s just the evil developers doing this,’ ” Thornton said. “But … the demographers are telling us we’ve got the equivalent of two populations of Chicago coming in.”

Southern California is projected to add 8 million residents by 2025, according to Census Bureau projections.

Earlier this month, a $17-million environmental impact study by the TCA recommended that the Foothill South go through the park instead of developed areas of San Clemente where homes and businesses would need to be condemned.

The 16-mile tollway would link Oso Parkway in Rancho Santa Margarita with Interstate 5 south of the city. It would bisect the northern half of the coastal park, which attracted 2.7 million visitors last year.

Last spring, the U.S. Department of the Interior and the U.S. Fish and Wildlife Service cleared a major roadblock for the TCA by eliminating a key protection in the Endangered Species Act.

The protection is known as critical habitat — lands identified as essential to the survival of a species. Critical habitat designations can lead to costly, lengthy project delays to assess and protect the areas.

Seven endangered and threatened species might live in the toll road’s proposed path. TCA officials say the road would affect three of the species, while environmentalists say all seven would be harmed.

The first species to be impacted by that decision was the arroyo toad. Overruling their own biologists last April, top Interior officials slashed 97% of critical habitat recommended for the tiny amphibian in eight California counties.

Among the areas cut were free-flowing San Mateo Creek and its banks, part of which could be affected by the toll road. Federal field biologists have repeatedly said that the creek and adjoining shrubby hillsides contained “indispensable” habitat for a “vital” population of the toad.

But citing an amendment to the Endangered Species Act, Assistant Interior Secretary Craig Manson excluded the creek and adjoining lands, saying the cost of protecting an endangered species there outweighed any benefit. The amendment Manson cited was crafted in 1978 by Thornton when he was an attorney for the House of Representatives’ subcommittee on fisheries, wildlife conservation and the environment.

Thornton had used the same amendment in 2003 to win TCA and two national homebuilders groups a lawsuit voiding the original, nearly half-million-acre critical habitat designation for the toad. But federal biologists insisted on including San Mateo Creek again in a new critical habitat proposal last January.

Documents obtained under the Freedom of Information Act show that Manson’s deputy assistant, Julie A. MacDonald, helped ensure that the TCA won a permanent exemption.

In an interview, MacDonald said that on critical habitat issues, the job of wildlife officials was to “get the developers what they want at the least cost to species.” She said alternate management plans, such as one employed by the Marine Corps, were in place to help the toad. The park is on Camp Pendleton, which California leases for a nominal sum from the U.S. Navy.

But biologist Dan Holland, a leading authority on arroyo toads, said the decision by the Interior Department was “clearly not based on science” and could lead to extinction of the species.

Last May, Holland hiked the shallows of San Mateo Creek at the edge of Camp Pendleton, searching for the tiny amphibians. “Right around the bend is where they want to put the toll road,” he said. “How can they say giant concrete pillars in the middle of one of the last free-flowing creeks in Southern California won’t have an impact?”

Thornton disagreed: “How is the project devastating this habitat if it’s going to stay out of the creek except for a couple of support structures?”

State park officials who have worked to preserve fragile species at the San Onofre park said they didn’t know the cuts had been made until notified by The Times. “We want critical habitat,” said Roy Stearns, a spokesman for California State Parks. “We’re in the business of preserving resources.”

Two weeks after the arroyo toad’s critical habitat was cut, all critical-habitat designations were permanently eliminated from San Onofre State Beach Park at the request of three Republican congressmen.

Reps. Duncan Hunter of El Cajon, Darrell Issa of Vista and Ken Calvert of Corona said they sought the exemptions to ensure environmental law would not hamper military readiness, and that the park was already covered under an alternate environmental management plan for Camp Pendleton.

Letters obtained by The Times show that Navy Secretary Gordon R. England disagreed that the military plan for imperiled species covered the state park. But when the Marine Corps commandant appealed to MacDonald, Manson and others, the blanket exemptions were granted.

It could be a windfall for the TCA, which wants to build the toll road on a federal easement from the Navy through the park. The agency has often used its relationship with Camp Pendleton and defense spending bills as mechanisms to win favorable decisions and legislation.

For instance, Congress placed a rider in the 1999 defense spending bill that gave the Navy the right to grant the TCA an easement on 340 acres within the park. The TCA won another exemption that was slipped into the 2001 defense authorization bill by then-Rep. Ron Packard (R-Carlsbad). No longer would the agency be subject to federal law requiring road builders to exhaust all “feasible and prudent” alternatives before parkland could be used for a highway.

Elizabeth Goldstein, director of the State Parks Foundation, said the TCA sought the exemption because it probably could not comply with the law. She said it also eliminated legal grounds for opponents to challenge the proposed tollway.

Thornton said the TCA went to Congress to eliminate an ambiguous law. He added that the TCA secured the same exemptions for the Foothill-Eastern and San Joaquin Hills toll roads — exemptions that withstood court challenges by the Natural Resources Defense Council.

The TCA also asked Congress in 2002 to nullify any state law that would restrict construction of a toll road through Camp Pendleton, including oversight by the California Coastal Commission, which must approve the highway. A defense bill rider by Calvert was designed to head off attempts by state Sen. Sheila Kuehl (D-Santa Monica) to pass legislation restricting roads in state parks, including the Foothill South.

After being contacted by environmentalists, Sen. Barbara Boxer (D-Calif.) stripped the TCA’s exemption from the pending defense bill. Kuehl’s measure, which was opposed by TCA as well as other development and business interests, died in committee in Sacramento.