Surfrider is committed to protecting coastal access and the bluffs and beaches in Del Mar. We have followed issues related to the North County Transit District’s (NCTD) request to override environmental review for activities in Del Mar since NCTD filed its petition for a declaratory order with the federal Surface Transportation Board in August 2020.
We object to environmental review waivers in general and to the petition that NCTD filed in particular because it would allow major construction projects in Del Mar to avoid review for consistency with the Coastal Act. Massive projects in the area, such as the approved fencing project, ongoing and planned bluff stabilization, and eventual rail relocation in Del Mar, must be in compliance with the Coastal Act so as to avoid, limit, and mitigate impacts to public resources.
NCTD’s request to override environmental review concerns the proposed fencing and potentially bluff stabilization projects along the Del Mar bluffs. The fencing project’s goal is to reduce train collision deaths along the tracks, but it will have a certain impact on coastal access in Del Mar. Surfrider has not taken a position on this issue because the work for this project is being conducted within NCTD’s right-of-way.
Surfrider is involved in the issue because the ongoing and proposed bluff stabilization projects will take place on city, state, state parks, and possible public tidelands that are all outside of NCTD’s right of way. Bluff stabilization work will potentially drastically alter Del Mar’s bluffs and beaches and take place on land that belongs to the public within the jurisdiction of the City of Del Mar and the State of California. This work must be subject to the relevant laws and policies applied to those jurisdictions — primarily the Coastal Act and the City of Del Mar’s Local Coastal Program.
SANDAG — not NCTD — is the lead agency for the bluff stabilization projects. SANDAG has already sought environmental review for the next stage of its bluff stabilization project by submitting a federal consistency permit application to the Coastal Commission. This is the appropriate way to seek environmental review and Surfrider plans to participate in this process. Review under the Coastal Act will ensure that SANDAG agrees to a certain level of mitigation for any loss of beach and/or beach access resulting from the bluff stabilization project. NCTD and SANDAG however have historically worked together on bluff stabilization efforts (NCTD is the owner of the rail corridor), NCTD has also repeatedly mentioned bluff stabilization as a reason for seeking the STB declaratory petition in the petition language itself.
If the Surface Transportation Board grants NCTD such a broad exemption from environmental review for the fencing project, this precedent would have unknown negative impacts on the bluff stabilization project, in addition to setting a terrible precedent that endangers other coastal areas near railways in California..
The below timeline serves as a record of NCTD, City of Del Mar, Coastal Commission and Surfrider documentation related to NCTD’s petition. For current updates, join our upcoming beach preservation committee meetings. You can sign up for monthly meeting reminders at the bottom of our webpage.
August 28: NCTD filed petition for declaratory order
September 17: Del Mar requests time extension, NCTD opposes time extension
September 18: Association of American Railroads supports NCTD’s petition, Coastal Commission requests time extension, NCTD again opposes time extension
September 22: San Diego Chapter, Surfrider Foundation requests time extension, NCTD again opposes time extension
September 23: STB grants time extension to October 5
October 5: Del Mar files protest/opposition statement to NCTD’s petition, Coastal Commission replies to NCTD petition (in opposition), residents of Del Mar replies to NCTD petition (in opposition). Surfrider files protest to NCTD's petition as well.
October 19: Amtrak files support statement for NCTD’s petition
October 22: residents of Del Mar oppose Amtrak’s support statement as it was filed after the deadline to submit
October 26: NCTD requests to rebut other letters, and NCTD files rebuttal to letters of opposition
October 29: Coastal Commission objects to NCTD rebuttal
November 2: residents of Del Mar object to NCTD rebuttal
November 5: Del Mar objects to NCTD rebuttal
November 6: NCTD files motion to hold proceeding in abeyance for 120 days
November 30: STB agrees to hold proceedings in abeyance
March 29: NCTD files status report and requests holding proceeding in abeyance until December 31, 2021
April 7: STB agrees to hold proceedings in abeyance until December 31, 2021
December 30: NCTD files status report and requests that the STB expedite the proceedings
January 14: Del Mar requests STB sponsored mediation to resolve the issue and also replies to NCTD’s December 30 status report
January 19: NCTD opposes Del Mar’s request for mediation and Coastal Commission also requests STB sponsored mediation. Surfrider submits letter to NCTD in support of STB sponsored mediation and opposed to their petition for a declaratory order.
*Below updates added April 4 ,2022*
February 25 - NCTD proposes a licensing agreement with Del Mar re: fencing on upper bluffs.
February 28 - Coastal sends letter to Del Mar & NCTD reiterating that regardless of agreement, the project must be reviewed and approved pursuant to a Coastal Development Permit or concurrence in a Federal Consistency Certification. Coastal provides a licensing agreement Q&A sheet to Del Mar.
Licensing agreement fails at City Council in a 2-3 vote.
March 3 - Coastal submits notice of cease and desist to NCTD, gives deadline of March 7 to confirm they will seek a Coastal Development Permit or a waiver prior to constructing any fencing in Del Mar.
March 4 - NCTD files Supplemental Status Update at the STB, arguing they’re exempt and effectively renewing their petition for declaratory relief from federal consistency review for fencing along their right of way in Del Mar.
March 7 - Coastal hands NCTD a cease & desist letter.
March 8 - Coastal responds to STB with status update confirming its continued opposition to NCTD’s petition before the STB, including cease & desist order.
March 11 - Del Mar replies to STB re: NCTD’s petition renewal, opposing petition and again requesting STB-sponsored mediation.
March 14 - NCTD replies to STB in opposition of Coastal’s request for additional briefing.
March 21 - "Friends of Del Mar Bluffs" takes legal action against NCTD for failing to comply with state law, seeks injunction to prevent NCTD from erecting any fencing on Del Mar's upper bluffs.
March 23 - Del Mar residents submit reply to NCTD's Supplemental Status Update, also requesting that STB stay its decision or offer mediation. They argue that "NCTD's emergency for which it urges a quick STB decision is manufactured."
April 13 - NCTD issues Second Supplemental Status Update, again urging STB to grant them declaratory relief to erect fencing on the bluffs without environmental review.
April 19 - Coastal Commission takes legal action against NCTD for failing to comply with state law.
April 26 - Coastal Commission issues motion to NCTD to to hold matter in abeyance (i.e. do nothing) until their litigation against NCTD is complete.
*The saga continues... below updates added July 7 ,2022*
April 29 - NCTD replies to STB in opposition of Coastal Commission's request to hold matter in abeyance.
May 19 - NCTD sends letter to SANDAG opposing SANDAG'S participation in the Coastal Commission's federal consistency review process for the Del Mar Bluffs Project 5. They especially oppose any coastal access improvement projects included within the project.
June 8 - Coastal Commission approves conditional federal concurrence for SANDAG's bluff stabilization project. NCTD fencing is not discussed as it is a separate issue.
June 14 - NCTD issues another Second Supplemental Status Update to STB, detailing their opposition to SANDAG's engagement with Coastal Commission and most notably the coastal access improvement projects.
June 23 - Coastal responds to NCTD's June 14 update letter, calling it "incomplete, misleading."
June 29 - Coastal issues second response to NCTD's June 14 update letter, adding that NCTD and SANDAG reached an agreement that would allow the proposed bluffs stabilization project (DMB5) to proceed.
July 1 - Del Mar issues response to NCTD's third Supplemental Status Update with the STB, arguing that NCTD is mistaken and that STB should decline to intervene. Letter also states that SANDAG and NCTD have come to agreement re: the terms of the Coastal Commission's conditional concurrence with the bluff stabilization project.
July 6 - The Northern Indiana Commuter Transportation District issues letter to STB in support of NCTD's petition for declaratory relief.
July 6 - NCTD issues reply to STB in opposition to both Coastal Commission and the City of Del Mar's recent updates, and asking the STB to rule in its favor again re: the declaratory petition.
July 7 - A joint letter is issued to STB from 16 members of the Commuter Rail Coalition in support of NCTD's petition for a declaratory order. (they refiled the same letter on July 19 after it did not appear on STB's website)
July 21 - Surfrider provides verbal public comment at the NCTD Board of Directors meeting, explains the far-reaching negative implications that a successful STB petition would have not only in Del Mar, but at beaches nationwide by setting the dangerous precedent that railroad operators could bypass local and state environmental review for projects in the coastal zone. The U.S. Army weighs in at the STB with a letter as well; rather than take a position on NCTD's petition, the letter aims to remind all parties that the LOSSAN rail corridor is important to national defense. The Coastal Commission promptly replies with a letter recognizing the rail corridor's importance to national defense.
July 25 - The City of Del Mar replies to NCTD's most recent letter to STB (July 6), calling it an "improper, unwarranted, and repetitive filing that misstates facts and law" among other things. They also call out NCTD for rallying the Commuter Rail Coalition and other rail organizations to their side as desperate and dishonest, since they are based on a misunderstanding of the facts.
July 26 - Surfrider submits followup letter to STB, reiterating our opposition to the NCTD's petition and also arguing that it's completely unnecessary now that the DMB5 project has underwent federal consistency review at the Coastal Commission. We specifically take issue with NCTD's contempt towards the Coastal Commission's conditional concurrence.
July 27 - Del Mar residents Laura Schaeffer and Shirli Weiss issue reply to NCTD's latest status updates letters to the STB, arguing that the STB should reject the petition on various legal and practical grounds.
Aug 2 - NCTD submits reply, addresses our letter (Surfrider) + the recent letters from the City of Del Mar and its residents. The letter cherrypicks legal examples of preemption to justify their request.