USA: The fight against Marina sand mining operation

Published by MAC on 2016-03-22
Source: Monterey Herald, Montereycountyweekly.com

Cemex accused of causing “continuing resource damage” along the Monterey Bay shoreline

Coastal Commission notifies Cemex it will seek to shut down Marina sand mining operation, force site restoration

After a lengthy investigation, the Coastal Commission has notified Cemex it will seek to shut down the Marina sand mining plant operation if the company doesn’t agree to close the plant itself.

Jim Johnson

Monterey Herald

21 March 2016

In a letter sent on Thursday, acting Coastal Commission executive director John Ainsworth notified Cemex of the commission’s intent and plan to levy penalties in an attempt to “remedy the Coastal Act violations that Commission staff believes exist on the property” as a result of unpermitted development that has occurred and continues on the Lapis Road mining site.

Ainsworth alleged in the letter that the company’s sand mining operation is causing “continuing resource damage” along the Monterey Bay shoreline.

Ainsworth made a point of praising Cemex representatives for being willing to discuss the issue with commission staff and expresses the hope the matter can be resolved cooperatively through “consent orders” rather than unilateral enforcement. Cemex, however, indicated in a statement that it disagrees with the commission’s assessment and insisted its operation complies with the law.

“Cemex operates the Lapis Sand Mine in an environmentally responsible manner and in accordance with applicable laws and regulations,” the statement said. “We will continue our long-running discussion with the Commission regarding any concerns it has.”

According to the commission’s letter, the “unpermitted development” on the Cemex sand mining site includes the creation of ponds, placement of floating dredges, installation of anchors and mooring cables, pipes, a pump station and other facilities. It also pointed out changes in the intensity of use on the site including a “significant increase in the volume of sand extraction.”

Cemex’s sand mining activity, according to the letter, includes the “removal of sand from the littoral system and its transport inland for commercial sale.” That has resulted in “associated impacts” on the sand supply of the area including the continuing alteration of the shoreline such as the accretion of sand on “beaches, dunes, or offshore areas along the Monterey Bay” that affect the width of beaches, sensitive species, and public access, as well as existing development along the shoreline.

Southern Monterey Bay has the state’s highest rate of shoreline erosion, and a Middlebury Institute of International Studies professor testified on Friday that more than $1 billion in coastline property and more than $776 million in annual beach-related economic activity and 14,000 jobs are potentially affected by shoreline erosion from Moss Landing to Carmel.

According to the letter, Cemex should have sought a coastal development permit from the commission, and permits from Monterey County and the city of Marina, both before and after the sand mining operation commenced in the 1960s. While the Cemex operation predates both the commission and the city of Marina, Ainsworth indicated Cemex likely wouldn’t qualify for a vested rights claim, noting that the company has also not indicated an interest in pursuing one.

In the letter, Ainsworth lays out the commission’s plan for seeking the issuance of the cease and desist and restoration orders aimed at shutting down the operation, removing unpermitted development and restoring the areas affected by the development, and charging tens of thousands of dollars in penalties per alleged violation per day through an enforcement hearing as part of a formal administrative process, if the matter can’t be resolved otherwise.

Cemex now has until April 6 to respond to the commission’s letter by submitting a Statement of Defense form.

According to the letter, the commission has been investigating the sand mining operation since 2010. In 2014 there was a series of discussions with Cemex representatives, including a mid-December meeting between commission staff and Cemex agents Geoff Etnire and Bonnie Neely — a former coastal commissioner. The commission’s position and intent to begin administrative proceedings were apparently discussed shortly after the commission held a monthly session in Monterey that included a request by the Surfrider Foundation for the commission to conclude its investigation.

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Marina to team up with Coastal Commission in fight against Cemex

David Schmalz

Montereycountyweekly.com

15 March 2016

In 2009, the California Coastal Commission initiated an enforcement investigation into the Cemex sand mine in Marina in response to public concerns about its impact on coastal erosion.

Seven years later, it appears that investigation is finally wrapping up: At a March 15 Marina City Council meeting, the council vote unanimously to approve a resolution that would allow the Coastal Commission to "to assist the city with and/or assume responsibility for" an impending enforcement action against Cemex.

In the city's staff report, Marina City Attorney Robert Wellington writes that "it is clear that the lengthy investigation by the Commission of the Cemex mining operations is wrapped up or is wrapping up, and that some plans for appropriate enforcement actions by the Commission will commence in the near future."

If the resolution is approved, it will give the Coastal Commission latitude not only to pursue Coastal Act violations, but also violations of Marina's Local Coastal Plan.

The erosion impacts of the mining operation, which draws sand from a lagoon on the beach, have long been decried by Ed Thornton, a retired coastal engineer from the Naval Postgraduate School who has studied local coastal erosion extensively.

According to the U.S. Geological Service, southern Monterey Bay has the highest erosion rate in California, an average rate that Thornton pegs at 4.2 feet annually. Additionally, Thornton says, if the mine were to shut down, the local beaches would grow by an average of about 3 feet annually.

Over the past several months, criticism of the mine has reached a fever pitch, and aside from Thornton, was led by the local chapter of the Surfrider Foundation, among others.

Recently, the Monterey Bay National Marine Sanctuary indicated it was getting involved, and that a regulatory change that could shut the mine down was being investigated.

Just two weeks ago, erosion got so bad that the outfall pipe for Cal Am's test desalination well became exposed on the beach. The well was shut down March 4, and on March 7, the outfall pipe became severed, presumably by crashing waves.

Also on March 7, State Assemblyman Mark Stone, D-Scotts Valley, announced he would be holding a March 18 oversight hearing at Moss Landing Marine Laboratories on the subject of beach erosion.

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Cemex mine reflects human hunger for sand

David Schmalz

Montereycountyweekly.com

14 January 2016

It’s about 8:20am on Christmas Eve morning, during one of the highest tides of the year, and the beach in northern Marina disappears under every breaking wave. And not just part of the beach – the entire thing.

The bubbling waters climb up the sloping sand, all the way to the dunes on the east, nibbling at their foundations.

Further north, the breaking waves don’t even encounter any dunes: For a good 100 yards or more, the beach is about 3 feet below sea level, and the ocean has become one with a lagoon to the east.

Near the center of that lagoon is a sand dredging boat, which is part of a sand mining operation that has extracted sand from the lagoon since 1959. To protect it from being swept out to sea, the boat is anchored to the surrounding dunes by two industrial-strength ropes that are tied, on both the north and south, to rusted dredging scoops once used to drag sand from the surf.

By 8:37am, the peak of the high tide, small waves curl all the way to the lagoon’s edge, about 100 feet east of where the beach should be.

The disappearance of the beach reflects an alarming reality: Southern Monterey Bay, Marina in particular, has the highest coastal erosion rate in the state.

For more than 20 years, scientists have speculated about the sand mine’s contribution to that erosion rate, and a 2008 study concluded it was the primary cause.

Now a recent paper brings more data. Any questions about what is causing local beaches to erode have been answered.

It is because of the Cemex mine in Marina, the only remaining coastal sand mine in the entire United States.

Which leads to new questions.

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Nearly all of our country’s infrastructure – roads, bridges, building foundations, etc. – are partially built out of sand. After air and water, it’s the most widely consumed natural resource in the world.

Cemex is a Monterrey, Mexico-based company and one of the world’s largest manufacturers of cement and concrete. Its property has changed hands a few times over the last several decades, and was acquired by Cemex when it bought fellow concrete giant, England-based RMC Group, for just over $4 billion in 2005.

Cemex, whose operation in Marina pumps thousands of truckloads of sand from the lagoon every year, does not have a coastal development permit from the California Coastal Commission, or a permit from the city of Marina.

Until the last few years, no one considered the operation might need either.

Because the mine has been in continual operation since well before the Coastal Act went into effect on Jan. 1, 1977, the mine has remained exempt from the Coastal Commission’s purview, and the city of Marina has paid it only scant attention over the past decades, save for granting it a business license. And because the mining operation extracts sand above the “mean higher high tide” line – the average of the highest daily tides over an 18-year period – it falls outside the jurisdiction of the Monterey Bay National Marine Sanctuary, the State Lands Commission and the U.S. Army Corps of Engineers, which shut down the rest of the region’s sand mines by 1990.

As such, the Cemex mine remains in a legal gray area, a vested interest that no agency has been able – or perhaps willing – to curtail.

Yet over the past few months, there has been a growing chorus among activists to shut the mine down, one bolstered by a recent scientific conclusion: In a time where other parts of the world are dumping sand on their beaches to combat sea level rise, the Cemex mine, in and of itself, is eroding the local coastline, from Sand City to the Salinas River, at an average rate of about 4 feet annually. Furthermore, if the mine were to shut down, that coastline would instead be growing approximately 3 feet annually, for a net difference of about 7 feet.

That conclusion was reached in a recent paper by retired Naval Postgraduate School Professor Edward Thornton, one of the world’s leading experts in coastal erosion.

“They’re taking property from the whole coast,” he says, “which I calculate to be more than 8 acres a year.”

Thornton has been a vocal critic of sand mining’s impact on the coastline for more than 30 years. A letter he wrote to the Coastal Commission about the Cemex mine in 2009 led the agency to open an investigation into the mine later that year.

But that investigation, along with hundreds of other backlogged cases, hasn’t been at the top of the pile – until recently.

With the Coastal Commission’s own staff noting the high erosion rates, coupled with increasingly vocal cries from the public and the recent data provided by Thornton, the Coastal Commission announced at its December meeting in Monterey that the investigation is being actively pursued. Chief of Enforcement Lisa Haage says it’s at the “top of the pile” of open investigations.

A battle for the coastline has begun.

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The history of sand mining in Monterey County starts as early as 1867, when sand dunes near Monterey Harbor were mined for the manufacturing of lighthouse glass and wine bottles.

In the century that followed, several major sand mines cropped up along the local coast, some of them in places that might seem unbelievable to residents today.

As early as 1903, the Pacific Improvement Company – which would go on to become Del Monte Properties Company and later, Pebble Beach Company – was mining the dunes at what is now Asilomar State Beach, then known as Moss Beach.

According to a 1953 article in the Monterey Peninsula Herald, which was featuring Del Monte Properties’ upgraded sand processing plant near Asilomar, “some of the dunes are more than 300 feet above level, although the sea is only a relatively few yards away.”

The mining at Asilomar ceased in 1955, when the dunes were more or less depleted of valuable sand.

For much of the last century, most of the sand mining in the region was done on the beaches of Sand City and Marina by “draglines” – giant mechanical scrapers that dredged sand directly from the surf. And despite increasing concerns about local erosion as early as the 1960s, these mines operated with relative impunity for decades.

That began to change in 1974 when the U.S. Army Corps of Engineers, exercising its authority under the 1899 Rivers and Harbors Act, claimed jurisdiction over waters seaward of the mean higher high tide line, and required the dragline operations obtain a federal permit.

Over the next 18 years, as scientists and environmentalists expressed growing concern about sand mining’s effects on coastal erosion, the agency stopped issuing new permits to mine in the waves, despite industry contentions that the primary cause of the erosion remained unclear.

The State Lands Commission, which had been leasing rights to mine the beaches seaward of the mean higher high tide line, also ramped up its enforcement in later years.

In a 1988 article in the Herald, Monterey Sand Co. executives were arguing against a requirement by the State Lands Commission to conduct an environmental impact review of their dragline operations in Sand City. Company president George Robinette was quoted as saying: “I just don’t know how you quantify the sand mining contribution to beach erosion.”

Robinette might not have known, but Thornton does.

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Thornton became a professor at Monterey’s Naval Postgraduate School in 1969, and with a class of his graduate students, first began studying local coastal erosion in 1983.

In the years that followed, Thornton, a coastal engineer­ – one who studies the effects of things like currents and waves on shorelines – rose to the top of his field: In 2007, the same year he retired, he was named the recipient of the annual International Coastal Engineering Award, the profession’s highest honor.

From the mid-’80s on, the more Thornton learned about the impacts of local sand mining, the more critical he became. In a 1988 letter to the Herald, he called for public support in opposing the prospect of the U.S. Army Corps of Engineers issuing another permit to Monterey Sand Co., which had dragline operations in Sand City and Marina.

“Scientists who have examined the problem point to sand mining as the primary cause of beach erosion in southern Monterey Bay,” he wrote. “It is time for the Peninsula cities to ask if they can afford to have sand mining of the beaches continue, or watch their beaches go the way of sardines.”

Thornton was later joined in his opposition by the local chapter of the Sierra Club, as well the California Native Plant Society, and the renewal of the permits was ultimately denied.

(Monterey Sand Co. appears to have seen the writing on the wall: In the late ’80s, the company built the Sand City Shopping Center, and Costco, its anchor tenant, opened in November 1989.)

By 1990, all dragline operations that mined sand in the surf had ceased, but one sand mine remained: the Lapis mine in Marina, where Cemex currently extracts sand from the lagoon.

Despite only one mine operating on the local coast, Thornton observed in the following years that net erosion didn’t decrease along local coasts – in fact, it increased, skewing north toward Marina. That erosion spelled the doom of Stilwell Hall, a social club the Army built on Fort Ord dunes in 1943 that had been endangered by erosion for decades.

In 2001, runoff from a storm caused a dune bluff to collapse and undermine one of the corners of the building’s foundation, which was left hanging in the air. The Army, after mulling what to do with the historic hall, ultimately tore it down by the end of 2003.

After Thornton retired in 2007, he continued to throw himself into researching the topic: He was a contributing author of the Coastal Regional Sediment Management Plan for Southern Monterey Bay, which was commissioned by the Association of Monterey Bay Area Governments and published in 2008.

That study shows an increase of the erosion rate at Marina State Beach since the mid-’80s, one believed to be caused from extraction of sand at the lagoon now owned by the Cemex. “The mining acts as a sink,” the plan reads, “effectively drawing in sand.”

But that study didn’t lead to any action, so Thornton got to work on a paper that utilized even more data, and which he submitted for peer review to the academic journal Marine Geology in October 2015.

“I’ve done lots of papers,” Thornton says, “but this is one of my best.”

For the layperson, much of the 57-page paper is hard to fully comprehend, as it’s coded with calculus and scientific jargon. But when he takes the time to explain it point by point, his discoveries soon become clear.

They are also surprising: In 1910, a channel was cut on the coast that shifted the Salinas River outfall south from the Elkhorn Slough, to the present site just north of Marina.

That action was taken as a flood control measure, but it also created an impact never proven until Thornton’s paper: If left to their own devices, in the absence of mining, southern Monterey Bay’s beaches will grow wider.

This occurs, Thornton explains, because far less of the sand flowing out of the Salinas River is lost down the Monterey Submarine Canyon.

This is but one tidbit laid out in Thornton’s paper, which utilizes coastal erosion data from 1852-2011, and which, broadly speaking, measures and compares erosion rates during four different time periods.

He also includes other factors, like the amount of sand runoff lost from the Salinas River since dams were built upstream.

By comparing all the data, Thornton is able to isolate a natural erosion rate, the amount of sand contributed by the river and the impact of sea level rise. The numerous calculations reveal a simple conclusion: The Cemex mine in Marina is the primary cause of erosion in southern Monterey Bay, and without it, the shoreline from Monterey to the Salinas River would be growing an average of 3 feet annually.

Another eye-opener he reveals is surprising shift in erosion rates. From 1945-1984, the average erosion rate in southern Monterey Bay was 3.2 feet annually with six sand plants.

Between 1985-2011, when for the most part only the Lapis mine was operating, that rate actually increased to 4.2 feet.

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Cemex is not required by any government agency to report how much sand is being mined at its Marina operation.

The last annual tonnage numbers given to a government agency with respect to the mine was when the State Lands Commission, in a 1969 audit, reported the operation mined 98,266 cubic yards – enough to cover 18 football fields in 3 feet of sand – in 1968, well above the 80,000 cubic yards maximum allowed for in the SLC lease at the time.

SLC authorized a lease extension for the site’s operations in 1969, but because dragline mining had completely ceased at the location by that time, it was later determined the commission no longer had jurisdiction because the mining was above the mean higher high tide line.

Since acquiring the property in 2005, Cemex has only acknowledged twice, publicly, how much they are mining at the site. In a 2006 email to the Weekly, a company spokesperson pegged the number at about 300,000 tons per year. In a 2013 Wall Street Journal article about the Coastal Commission’s ongoing investigation of the mine, a company spokesperson hedged that number to 159,000 tons.

Cemex has not responded to calls in recent weeks, but in a recent email, the company did respond to a number of questions.

As for the contention by Thornton that the Cemex mine is solely responsible for significant erosion in southern Monterey Bay, Sara Bouffard, communications director for Cemex USA, writes:

“Such a contention is scientifically unsubstantiated and ignores many factors that influence the erosion process.”

Bouffard was also asked how many tons are being mined at the site annually, and what it’s worth per ton.

She didn’t answer the first question, even after a follow-up email, and is vague on the second.

“The prices of Lapis products vary depending on a number of factors,” she writes. “At times, CEMEX also donates sand free of charge.”

Will Arcand, a geologist with the State Mining & Geology Board, estimates the value of Lapis sand at $20-$30 per ton. Even at the low end of the range, that’s $6 million per year.

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Make no mistake, sand mining is not a philanthropic pursuit. It is a multi-billion dollar industry that feeds our global civilization’s insatiable demand for ever more construction.

Cemex’s current market cap – an estimate of the company’s worth based on share price and outstanding shares – puts its value at just over $7 billion. The company’s property in Marina, according the Monterey County Assessor’s office, is worth around $15.5 million.

Our world is built on sand, and that fact is highlighted in the 2013 documentary Sand Wars, which was screened by the local chapter of Surfrider Foundation in March, and which portrays the various ways that certain sand mining operations are undermining – in some cases, literally – their surrounding communities.

“There were about 65 people in the room, and they were all blown away,” says Ximena Waissbluth, education coordinator of the Surfrider Foundation Monterey Chapter. “At that point, we decided we needed to get more people involved.”

Waissbluth helped organize another screening of the film Nov. 4 in Monterey, open to the public and which would include a panel of four experts talking about the impact of the Cemex mine. (She says that Cemex was invited to speak as well, but declined.)

One of those experts was Thornton, who had just completed his paper and was more than happy to get the word out.

“When you’re a lone ranger out there fighting a war, it’s difficult,” he says. In Surfrider – which sent a letter to the Coastal Commission in November requesting it pursue a cease-and-desist order against Cemex – Thornton found an important ally.

Another ally to emerge from that screening is Marina resident (and Planning Commissioner) Kathy Biala, who has been walking the beach by the Cemex lagoon almost daily since moving to Marina in 2014.

Biala has since prioritized spreading the word about the mine’s impact to Marina City Council and city staff. She and her husband Harvey, along with Thornton and Waissbluth, spoke to City Council Dec. 1 about the mine’s impact.

After their presentation, the council voted unanimously that City Manager Layne Long should write a letter to the Coastal Commission in advance of its December meeting, and urge the commission to complete its investigation of the Lapis mine.
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On Dec. 11, the seats are packed at the Coastal Commission meeting at the Monterey Conference Center, but it’s likely on account of Carmel beach fires, which the commission will vote on a few hours later.

Nonetheless, as Thornton, Biala and Waissbluth say their piece during public comment, both the audience and commissioners sit rapt.

“This is the only shoreline mining operation in all of the United States,” Thornton tells the commission. “Cemex mines approximately 200,000 cubic yards a year [in Marina]. This is the equivalent of loading a 14-yard dump truck on the beach every 40 minutes, 24/7.”

When Biala speaks, she shows pictures she’s taken on her walks, and describes the changes seen at the site.

“One parks employee told me it’s no longer a pond, it’s a cove,” she says.

Waissbluth speaks last, arguing the operation is in violation of the California Coastal Act.

“This is not just a use of a public resource, this is a take of a public resource,” she says, adding that when Surfrider screened Sand Wars in November to a crowd of 250 people, and the panel talked about the Cemex mine afterward, the public was baffled. “The questions asked over and over again were: How can this be happening here in a marine sanctuary?”

When public comment ends, Coastal Commission Chair Steve Kinsey asks Executive Director Charles Lester about the status of the Cemex investigation.

Lester responds that it’s an “active enforcement investigation,” and asks Chief of Enforcement Lisa Haage to provide further detail.

“I can’t say too much about it,” Haage says, “but I want to assure the commission we are looking at it very carefully.”

In the hallway a few minutes later, Haage, who’s joined by Thornton and Waissbluth, says she has a staff member working the case, which she calls a “top priority.”

She also ties the question of erosion, and of removing sand from the beach, to an altogether different situation in Malibu, where a group of homeowners recently moved to replenish their beach at their own expense with sand mined from inland quarries, a plan the Coastal Commission approved in October.

“We’re the only ones taking it off the beach,” Thornton says. “Everyone else is shoveling it on.”

Waissbluth has more pointed words.

“It’s medieval.”

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On Dec. 30, Thornton, Biala and Marina City Councilman David Brown come to the Weekly to discuss recent developments, and for Thornton to further explain his October paper.

“How do I know all of this? Let’s start with that,” Thornton says.

Thornton points to graphs that reveal the shoreline over various years, as recorded by the U.S. Geological Survey.

“What happened in 1988?” Thornton asks. “You shut all those other mines down, so, in Sand City the erosion rate slowed way down. So what happened in Marina? They ramped it up.”

Thornton then slides some papers to Brown, an attorney in his day job. On them, Thornton excerpted parts of Marina’s Local Coastal Plan (LCP), which was certified by the Coastal Commission in 1982.

“Which brings me to your LCP,” Thornton says to Brown, “which says the city of Marina can permit any increase in mining since 1982.”

More specifically, the LCP states: “The city shall not approve or renew a mining permit and/or coastal permit for new surf zone or beach sand mining if it finds that such new sand mining, either individually or cumulatively, will have significant adverse impacts on shoreline erosion.”

Thornton continues, looking at Brown: “So you have jurisdiction. If you can show that mine has increased their mining, it would require a permit,” he says. “Your LCP also says if there’s something detrimental to the city, you can close it down.”

As the conversation swings back and forth about the implications or possibility of Marina acting, Thornton says, “Now, I know that a little city like Marina would be afraid of a lawsuit.”

“And also,” Biala interjects, “we don’t have the resources to do a full investigation of this issue.”

Thornton says that’s why Marina should wait for the outcome of the Coastal Commission’s investigation.

“For this reason, Marina’s last [to act],” he says with a smile. “But other people could sue the city of Marina to do it.”

Brown laughs, uneasily.

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The Coastal Commission has no estimate for when their investigation, which has been open since 2009, will be completed.

And Haage, the commission’s chief of enforcement, is reluctant to give any details, given that it’s an active enforcement investigation.

“It’s complicated,” she says. “We’re looking at it really hard, and we don’t want to do anything wrong.”

But she’s clear that it’s not going to collect dust, and that as staff members have looked more extensively at the case, “the seriousness of the environmental impacts became increasingly clear.”

The message from Haage, as well as other Coastal Commission staff, is that the case is unusually complex, with many overlapping jurisdictions.

Sheri Pemberton, chief of legislative affairs with the State Lands Commission, takes a similar tack, and says the agency is revisiting whether or not it might have jurisdiction.

“It’s a very complicated question,” she says.

And it gets more complicated: In a Jan. 6 conversation with Haage, she reveals that Cemex’s point person with the Coastal Commission about the Lapis mine is attorney Bonnie Neely.

Neely served on the Coastal Commission from 1998-2010, and in her last two years, she served as chair.

Cemex has recruited a ringer.

But, Haage leaves off by emphasizing this: “Any citizen can sue Cemex for failing to comply with the Coastal Act,” she says, indicating the public can take the mine’s fate into its own hands. “Most environmental statutes have citizen suit restrictions. The Coastal Act doesn’t have any of that. It’s an interesting quirk of the [law], but it has not been widely used.

“It’s not just us that could take action,” she says. “Anything is possible.”

Among the many possibilities, three potential outcomes seem the most probable. One is that the Coastal Commission or Marina forces Cemex to reduce their mining to pre-Coastal Act levels.

Another is that one of those agencies finds a way to shut the mine down altogether.

Or, business could go on as usual, and the region will continue trading its beaches for concrete.