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Judge’s order stirs water over dredging Children’s Pool

A Superior Court judge has given the city six months to dredge La Jolla’s Children’s Pool to reduce pollution from seal waste and return it to use as a wading pool.

But many public officials doubt six months is a realistic timeline, given that the court-imposed deadline falls in the middle of the harbor seal pupping season, and because a number of environmental review hurdles must be cleared by the

project.

“In my opinion, it’s not a do-able timeline,” said Joe Cordaro, wildlife biologist with National Marine Fisheries Service, pointing out any such dredging project will require the city to apply for and receive an incidental harassment authorization from his agency before work could begin.

Monica de Angeles, who handles incidental harassment authorizations for marine fisheries, doesn’t believe six months is adequate for the city to negotiate that approval process.

“Once it’s submitted to our office and all the permits are issued through, all the different levels takes some time,” she said. “I’m guestimating it would take four to six months. Then there’s a 30-day public review comment period. I would say it would take at least eight months to a year.”

Cordaro said there is one condition likely to be attached to the granting of any environmental approval for a sand-dredging project: “They will probably stipulate that the city will not be able to do anything during the seal’s pupping season in January through May.”

The City Council is on legislative recess until Sept. 6. Deputy City Attorney Debbie Smith said councilmembers will be briefed on the status of Children’s Pool when they return. As to whether six months is a realistic timeline for administrative groundwork, Smith said, “The city will be doing everything within its power to comply with the court’s order.”

The City Council voted 5-3 in September 2004 to approve a resolution to study a dredging project for Children’s Pool.

“Part of that resolution did involve environmental review under the California Environmental Quality Act,” said Smith. “That is a procedure the city will have to go through.”

In his ruling, Judge William Pate held that the 1931 statutory grant turning the concrete breakwater built and donated by Ellen Browning Scripps to the city was done for the express purpose of creating a bathing pool, and that the city has the responsibility as trustee to ensure public recreational uses of the pool. The buildup of seal waste has rendered the pool unsafe for human contact and that violates the terms of the trust, according to Pate.

The pool has been closed to human contact since Sept. 4, 1997, due to continuously high fecal coliform counts.

The lawsuit alleging violation by the city of the 1931 public trust for Children’s Pool was brought by Valerie O’Sullivan. Her attorney, Paul Kennerson, hailed Judge Pate’s decision as a proper one.

“The city’s got to get rid of the seals and got to dredge the beach to remove the sand and return the beach to the condition it was in in 1941,” said Kennerson. “This is a trust property to be used as a children’s swimming pool. To the extent that use is inhibited or abridged or interfered with, it violates the trust.”

City Councilman Scott Peters has advocated returning Children’s Pool to joint use by seals and humans. He was equally pleased by the court decision.

“The judge made the same point that many of us have been trying to make about the Children’s Pool the past two years,” Peters said, “which is that the donor’s intent is that it be available for swimming as a bathing pool for children, and that’s a legal requirement.”

The city has contended that the trust deed to Children’s Pool should be read broadly, because the state had vested the city with discretion as fee owner and trustee to determine uses for the pool most compatible with changing conditions and public needs.

“The city provides no evidence in support of its contention,” said Pate in a 31-page ruling issued Aug. 26. “The trust is specific. The trust is to be used exclusively for a public park and children’s pool. The presence or absence of marine mammals ... does not change the use of the beach and tidelands specified by the trust grant. The use by the city of the Children’s Pool as a habitat, animal sanctuary, zoo or seal-watching facility that precludes its being used as a bathing pool for children would be outside the scope of the trust.”

Several environmental agencies will be required to sign off on the Children’s Pool dredging project, said Sherilyn Sarb, district manager of the San Diego Office of the Coastal Commission.

“It will require a coastal development permit from the Coastal Commission reviewing it for consistency with the Coastal Act,” Sarb said. “The Coastal Commission will look at all the issues including impacts to marine life, habitat, water-quality effects and impacts to public access and recreation.”

Cordaro questioned the judge’s familiarity with the approval process involved in granting a sand-dredging project.

“The judge probably doesn’t understand what he’s telling the city they have to do,” Cordaro said. “He didn’t mention anything about the seals, period. If it wasn’t for the seals, there would be no pollution. It’s sort of a catch-22.”

Cordaro said dredging of Children’s Pool is not a new proposal, nor is it a proposal with any guarantee of success.

“The feeling is that the dredging project might reduce the amount of land the seals can haul out on,” he said, “but it won’t eliminate them completely.”

There are a number of other improvements Kennerson’s client would like to see performed at Children’s Pool.

“We want the lifeguard station put back in shape. It’s starting to fall down,” he said. “The cliffs on the east side are starting to fall down from all the squirrels and need a lot of work. As trustee, the city has to keep the property in good condition. Having gotten that property in trust, they have to maintain it. It’s a serious obligation.”