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Fate of O.C. toll road to be decided by Bush appointee

Commerce secretary is asked to overturn the Coastal Commission's rejection of project.

October 03, 2008|Susannah Rosenblatt | Times Staff Writer

Thousands showed up to voice their opinions on a proposed toll road through a state park in north San Diego County; tens of thousands more have written to federal officials about the hotly debated project.

Now that the time for public comment has ended, the turnpike's future rests not with Southern California residents or lawmakers, but with a member of President Bush's cabinet.

U.S. Commerce Secretary Carlos M. Gutierrez -- who oversees international trade operations, economic development work, patents and the census -- will have sole discretion over the 16 miles of California 241 intended to link Orange and San Diego counties and ease traffic on Interstate 5.

A jumble of state and federal coastal regulations has bounced the decades-long toll road battle from state to federal hands as the clock runs out on the current administration. The decision seems to have little precedent.

"There's certainly nothing the least bit comparable to this case that one could took to for how the secretary might rule," said Mark Delaplaine, a California Coastal Commission manager who specializes in energy, ocean resources and federal matters. "There's really no case like it."

Unlike private developments on the shore that require only state approval, the toll road would need authorization from the Federal Highway Administration -- and several other agencies -- to connect to I-5. That places the project under the , which is meant to ensure that federal activities comply with state plans.

A quarter-mile of the road would cut through the California coastal zone, with more of it running inland through San Mateo Creek watershed. Thirty-two states participate in the management act voluntarily, giving them a powerful say in the use of their coastlines and making them eligible for federal money to run coastal programs, said Jeff Dillen of the Commerce Department.

The act was designed to help balance environmental and development concerns. When an organization disagrees with a state decision -- as the toll road agency did when the Coastal Commission rejected plans for the road in February -- it can appeal the decision to the federal government. And that decision can be appealed in federal court.

The National Oceanic and Atmospheric Administration, part of the Commerce Department, oversees this appeal process.

In the 38 years the act has existed, there have been just 42 appeal decisions -- an indication that the act balances federal and state plans for waterside development pretty well, experts say. Of the 13 appeals in California, the majority of which involved offshore oil drilling, five were overturned, two were sustained and six were withdrawn or dismissed.

In weighing the appeal, the Commerce secretary would consider whether the project furthers the national interest, whether there any reasonable alternatives and whether the benefits outweigh the negatives. The secretary can also override a state decision if he deems the project necessary for national security.

Federal officials "take the test very seriously and they try to do a really objective analysis on . . . how do you weigh transportation needs versus environmental needs," Delaplaine said. "They are aware that regardless of what happens, they'll be sued by either side, so they have to have a compelling rationale."

With the absolute deadline for a decision being Jan. 7, just a couple of weeks before a new president is sworn in, there is some fear that the Commerce secretary might make a partisan statement with his ruling.

"When an administration changes hands . . . there is definitely a sense of urgency . . . to put their stamp on decisions," said Robert Poole, director of transportation studies at the Reason Foundation.

Poole also noted that the Bush administration has embraced toll roads as national transportation policy has shifted away from gas-tax funding of infrastructure to market-driven congestion pricing borne by drivers.



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