PROCEDURAL GUIDANCE FOR EVALUATING WETLAND MITIGATION PROJECTS IN CALIFORNIA'S COASTAL ZONE
Numerous federal, State, and local agencies administer and enforce a myriad of federal, State, and local regulations that pertain to the development and alteration of wetlands in the California coastal zone. In this section some of the more important laws and regulations affecting the development and alteration of coastal wetlands are described.2
Various State agencies regulate, manage, or otherwise control natural resources within California through a wide variety of general and specific laws, and directives, which are carried out by resource departments, commissions, and boards (Dennis and Marcus, 1984). Analyses completed in the early 1980's reviewed the effectiveness of 59 California State statutes in protecting wetlands and other aquatic habitats, and concluded that State statutes provide limited direct authority over wetlands except in three geographic areas: the coastal zone, San Francisco Bay, and Suisun Marsh (Jones, 1981; Shute and Mihaly, 1982). Thus, wetlands in coastal California receive a greater degree of protection compared to many other parts of the State.
The California Environmental Quality Act (CEQA) sets the State's basic charter for environmental protection. CEQA aims to minimize or eliminate the environmental impacts of development projects, and provides a process for full public disclosure of any project that has the potential to result in significant environmental impacts. Specific areas containing wetlands are listed as having regional or statewide significance (e.g., Suisun Marsh, Humboldt Bay, and wild and scenic rivers), and the resource in general (i.e., wetlands and riparian lands) is defined as significant habitat.
The California Coastal Commission (CCC) is charged with the regulation of development in California's coastal zone as stipulated in the California Coastal Act. Sections 30230, 30231, 30233, 30236, and 30240 of the Coastal Act are all applicable to the preservation and protection of wetlands and other environmentally sensitive areas. Coastal Act Section 30231 defines a wetland as:
lands within the coastal zone which may be covered periodically or permanently with shallow water and include saltwater marshes, freshwater marshes, open or closed brackish water marshes, swamps, mudflats, and fens.
Development or alteration of California's coastal wetlands is primarily regulated by Section 30233 of the Coastal Act. Among other things, Section 30233(a) regulates development that results in the diking, filling, or dredging of open coastal waters, wetlands, estuaries, and lakes occurring in the coastal zone. This section also stipulates the criteria under which development is permitted (i.e., the development must be the least environmentally damaging feasible alternative, and appropriate mitigation measures must be completed where required).
More recent State government activities have focused on the development and implementation of a State-wide comprehensive policy for wetland management and protection. In 1993 the Wilson administration released the California Wetlands Conservation Policy (Executive Order W-59-93). The Executive Order declared that all agencies of the State are to conduct their activities in accordance with three comprehensive objectives:
1) to ensure no overall net loss and a long-term net gain in the quantity, quality, and permanence of wetland acreage and values in California in a manner that fosters creativity, stewardship, and respect for private property;
2) to reduce procedural complexity in the administration of State and Federal wetland conservation programs; and
3) to encourage partnerships to make restoration, landowner incentive programs, and cooperative planning efforts the primary focus of wetlands conservation.
Implementation of the Governor's wetland conservation policy is underway. It is important to note, however, that the first objective, to ensure no overall net loss of wetlands, is both a State and national goal.
Many of the State's statutes regarding environmental resources are designed to ensure State and local government actions are consistent with existing federal statutes. Two federal statutes provide the primary regulatory authority over wetlands in the United States: 1) the Clean Water Act (Section 404(b)) regulates disposal of dredge and fill materials into waters of the United States, including all streams to their headwaters, lakes over 10 acres, and contiguous wetlands, including those above the ordinary high water mark in non-tidal waters and mean high tide in tidal waters; and 2) the River and Harbors Act of 1899 (Section 10) regulates the diking, filling, and placement of structures in navigable waterways. The Army Corps of Engineers (COE) is primarily responsible for the implementation and enforcement of rules and regulations pertaining to both sections of these statutes. Thus, in the coastal zone, both the COE and the CCC have authority over many activities affecting wetlands.
Both the San Francisco and Los Angeles Districts of the COE have Habitat Mitigation and Monitoring Proposal Guidelines. These guidelines are given to permit applicants to ensure awareness of mitigation and monitoring components that may be required for successful completion of the COE's permitting process. Copies of these guidelines are included in Appendix C.
Although the Clean Water Act and the Rivers and Harbor Act empower the COE with primary responsibility for implementation of federal statutes regulating development and alteration in wetlands, other federal agencies are also involved. The Environmental Protection Agency, the Natural Resources Conservation Service, the National Marine Fisheries Service (NMFS), and the Fish and Wildlife Service (FWS) review applications for Section 404 permits and can provide the COE with comments and recommendations reflecting agency concerns. In fact, under the Fish and Wildlife Coordination Act, the COE is required to consult with the NMFS and the FWS and give full consideration to their recommendations in reaching a permit decision. The NMFS and FWS are also responsible for implementing the federal Endangered Species Act, which must be considered when wetland development or alteration is proposed. In California, the FWS is very involved in the preservation and management of wetlands throughout the State. As a federal resource agency, the FWS is able to provide important ecological information relevant to the development and evaluation of compensatory wetland mitigation projects.
In 1981, the FWS published the U.S. Fish and Wildlife Service Mitigation Policy. This policy was produced to: 1) ensure consistent and effective FWS recommendations; 2) allow Federal and private developers to anticipate FWS recommendations and plan for mitigation needs early; and 3) reduce project delays and conflicts between the FWS and developers. A copy of this policy statement in included in Appendix C.
Section 401 of the Clean Water Act provides the State Water Resources Control Board and the Regional Water Quality Control Boards with the regulatory authority to waive, certify, or deny any proposed federally permitted activity, which could result in a discharge to surface waters of the State. To waive or certify an activity, these agencies must find that the proposed discharge will comply with State Water quality standards. If these agencies deny the proposed activity, the federal permit cannot be issued. Decisions under Section 401 are subject to the requirements of CEQA.
2This section is not a complete review of all laws and regulations pertaining to wetlands. For more information the reader is encouraged to review the following references: 1) Muir, T.A., C. Rhodes, and J.G. Gosselink. 1990. Federal statutes and programs relating to cumulative impacts in wetlands. Pages 223–236 in J.G. Gosselink, L.C. Lee, and T.A. Muir [Eds.]. Ecological Processes and Cumulative Impacts: Illustrated by Bottomland Hardwood Wetland Ecosystems. Lewis Publishers, Inc., Chelsea, MI.; and 2) Dennis, N.B. and M.L. Marcus. 1984. Status and trends of California wetlands. Final report prepared for the California Assembly, Resources Subcommittee.
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