2. MLPA Closures 2. “Children’s Pool Beach is not the only beach located in La Jolla. There are several beaches located adjacent to or in close proximity to the subject site including La Jolla Shores, Marine Street Beach, La Jolla Cove, Whispering Sands Beach, Shell Beach, South Casa Beach, and Windansea. Many of these beaches are within walking distance of or a short drive from Children’s Pool Beach and offer public amenities such as permanent restrooms, showers, additional parking, and lifeguard facilities. 1. Over 70% of the La Jolla Community coastline is currently closed to fishing. NOT TRUE!!!

3. Access is Important! 1. Access at the Children’s Pool is not only historic and critical due to the recent marine closures but is a legal requirement 2. State law provides (SB 428), “The absolute right to fish in the waters of the Pacific Ocean over said tidelands or submerged lands (Children’s Pool), with the right of convenient access to said waters over said lands for said purpose is hereby reserved to the people of the State of California” (emphasis added). 3. The Coastal Act (Section 30005.5) states, “Nothing in this division shall be construed to authorize any local government, or to authorize the commission to require any local government, to exercise any power it does not already have under the Constitution and laws of this state or that is not specifically delegated pursuant to Section 30519”. 4. The State Constitution guarantees access to trust lands for fishing (Article 1, Section 25): “no land owned by the State shall ever be sold or transferred without reserving in the people the absolute right to fish thereupon”. 5. The State Constitution also preserves access (Article 10, Section 4): “the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable by the people thereof”. CONCLUSION: SB 428 guarantees the public convenient access to the Children’s Pool for the purpose of fishing consistent with two separate articles of the State Constitution. The Coastal Act explicitly prohibits the Commission from issuing permits which conflict with the Constitution and State laws.

4. CEQA 1. The Staff report to the Commission mentions CEQA in two paragraphs on page 25. This is the limit of CEQA review which the Commission has conducted. 2. The Staff report states, “the Commission finds that the proposed project, as conditioned to mitigate the identified impacts, is consistent with the requirements of the Coastal Act to conform to CEQA. 3. The Commission is asked to make findings which explicitly identify environmental impacts yet not CEQA document or formal review has been completed. 4. What happened to the CEQA review? As noted in comment letters, according to the CEQA Guidelines (14 CCR 15002), “An agency will normally take up to three separate steps in deciding which document to prepare for a project subject to CEQA…… If the project is not exempt, the lead agency takes the second step and conducts an initial study (Section 15063)…. If the initial study shows that the project may have a significant effect, the lead agency takes the third step and prepares an EIR”. 5. The Commission is asked to make findings that acknowledge impacts yet none of the required CEQA documents (i.e. Neg Dec/ Mit. Neg Dec/ EIR) have been completed and no initial study is part of the file. CONCLUSION: CEQA states, “If there is substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment, an environmental impact report shall be prepared.” Since the Commission has identified impacts, the Commission must deny the application pursuant to Section 21080 (b) which states, “This division does not apply to any of the following activities: (5) Projects which a public agency rejects or disapproves.”

5. Deny the permit or request additional conditions 1. The Children’s Pool situation has been subject to numerous lawsuits. One is currently ongoing which the State is a party and which is suing to restore public access for fishermen. 2. The City of San Diego has admitted that the rope barrier limits access to fishermen due to the presence of the seal colony. Any citizen passing the barrier and seeking access runs the risk of violating the MMPA due to the presence of seals. As acknowledged in the staff report, “NMFS Enforcement Agent Michelle Zetwo has recommended that people maintain a minimum distance of 20 feet… efforts by the public to closely approach or otherwise interact with seals have lead to harassment of the hauled out seals, which is illegal under the MMPA”. Where is the convenient access promised to fishermen by the State Constitution and State law? Where else can we go? 3. Although the Commission Staff have wisely shifted costs and liability to the City of San Diego in the event of a lawsuit, why would the Commission wish to knowingly join the parties currently being sued by denying access? Please deny the permit request. 4. Please consider alternatives which are part of the file and which provide access to fishermen but which were ignored by Staff. The Harris proposal should be explored as the only proposal that maintains access and allows the seals to remain. 5. In the event the Commission does approve the permit, please add to the special conditions a requirement to report not only seal harassment but human harassment by seal activists. That way, when the permit comes back in three years, the Commission has a full picture. 6. Please also add to the special conditions a requirement for City Staff to monitor and record when access is not available due to the lack of a 20 foot corridor all the way to the ocean which would be required to comply with the NMFS recommended distance.