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DON’T FENCE ME OUT
Don Mosier | Rimini Road

On August 28th, 2020 the North County Transit District (NCTD) filed a petition with the federal Surface Transportation Board (STB) requesting a declaratory order to preempt any attempts by the City of Del Mar and the California Coastal Commission (CCC) “to regulate NCTD’s rail line maintenance and any other upgrading in its rail right-of-way pursuant to the state and local permitting regime in California.” The essence of NCTD’s argument is that regulatory review by Del Mar and the Coastal Commission interferes with essential rail services.

What triggered NCTD to take this action? Del Mar sent a letter to the Coastal Commission on April 21, 2020 requesting that the emergency bluff repairs conducted last winter be covered with dirt and foliage to blend into the existing bluff face instead of leaving the concrete patch exposed. This request was denied by the Commission on August 22nd, so that issue is now moot. The Del Mar City Council also opposed a planned NCTD project to erect 6-foot high fencing on both sides of the track through Del Mar. This appears to be the real issue triggering the petition to the federal Transportation Board.

Responses to the August 28th petition were due by October 5th. The City of Del Mar, the Coastal Commission, and Surfrider (among others) submitted detailed (e.g., 107 pages for Del Mar) arguments opposing the NCTD petition. There are several pertinent points in these responses.

First, the emergency repair project was conducted by the San Diego County Association of Governments (SANDAG), not NCTD and SANDAG did not join the petition.

Second, STB actions are intended to resolve ongoing conflicts. With the Coastal Commission’s decision on bluff repair mitigation, there are no current conflicts.

Third, no action by the federal Transportation Board can conflict with the Coastal Commission’s authority under the federal Coastal Zone Management Act.

Fourth, the ongoing bluff repairs are taking place outside of the rail right-of-way, and Del Mar has cooperated in allowing these repairs.

And fifth, STB actions are limited to current activities, not uncertain future events. Has Del Mar interfered with rail transport? No, but coastal erosion has, and that is why Del Mar and SANDAG agree that the train tracks must be moved off the bluffs. NCTD’s petition cited at the beginning of this article is a blatant attempt to avoid environmental review, particularly with regard to the proposed fencing, and should be rejected by the STB.

 

 

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