PROCEDURAL GUIDANCE FOR THE REVIEW OF WETLAND PROJECTS IN CALIFORNIA'S COASTAL ZONE
Throughout the existence of the California Coastal Commission (CCC) much has been learned regarding California's coastal wetland resources. Over twenty years of agency-wide experience has shown that effective regulation and protection of wetland resources involves numerous components and considerable time and resources. In 1981, the CCC adopted its Statewide Interpretive Guidelines for Wetlands and Other Wet Environmentally Sensitive Habitat Areas (hereafter referred to as the Statewide Interpretive Guidelines). These Statewide Interpretive Guidelines (Appendix A) were written to "integrate ecological concepts and policies found in many sections of the Coastal Act into a consistent whole, explain policies for protecting natural resources, define technical terms, and facilitate application of the policies by the State and regional Commission" (CCC, 1981). Many of the objectives for this Wetlands Procedural Guidance Document are the same as those for the Statewide Interpretive Guidelines. The overall goal of this document, however, is to provide a consistent process for the review of proposed wetland development projects in the California coastal zone. Additionally, this document includes information not available until after 1981, thereby serving to update information contained in the Statewide Interpretive Guidelines.
There are several ways in which the CCC is notified of potential wetland development projects in the coastal zone, including:
1) The Environmental Review Process: The California Environmental Quality Act (CEQA) and the National Environmental Protection Act (NEPA). Many wetland development projects will trigger the State and/or Federal environmental review process. As a regulatory agency the CCC is required to review projects within its jurisdiction.
2) Coastal Development Permit Application. Permit application review requires CCC staff to analyze the complete permit application and prepare a staff report including recommendations for Commission action. In addition, the CCC receives notice of all pending local coastal development permits.
3) US Army Corps of Engineers Section 404 Permits. The CCC reviews all Section 404 permits for activities affecting the coastal zone to ensure consistency with California's Coastal Management Program.
4) Local Coastal Program (LCP) Certification and Amendments. The Coastal Act directs each of the 73 cities and counties lying wholly or partly within the coastal zone to prepare an LCP. Local jurisdictions containing wetlands must include regulatory policies in their LCP's to ensure consistency with the Coastal Act. This process is especially important in southern California where many land use decisions regarding wetlands are made through the LCP certification or amendment process. (See the local government regulatory programs and agencies section in chapter three for more information on this topic.)
5) Other Regulatory Activities. Several regulatory processes require documentation of existing or proposed project impacts. These include biological assessments for impacts to special status species, streambed alteration agreements, and violations of the Coastal Act or other regulations.
Presently, CCC staff efforts in southern California are devoted mainly to the review of coastal development permit applications (item two above). In northern California, CCC staff efforts focus on review of Section 404 permits and LCP certification and amendments (items three and four above). However, most effective regulation of wetland development, is achieved through CCC staff devoting adequate time to follow all types of wetland development project notifications. A major objective of these procedures is to promote early and effective participation in the review of wetland development projects. Early and effective participation will often require CCC staff input prior to receipt of an application for a coastal development permit.
The remainder of this chapter is devoted to a description of various procedures for reviewing wetland development projects. The first section deals with the environmental review process, because it is during this process that CCC staff have the greatest opportunity to begin early and effective participation in the review of wetland development projects. The second section describes the CCC's coastal development permit review process for proposed wetland development projects. The third, fourth, and fifth sections describe topics of special importance in the review of all proposed wetland development projects: identifying and delineating wetlands, establishing buffer areas, and determining functional capacity.
Early and effective participation in the environmental review process is one of the best ways to ensure consistent regulation of California's coastal wetlands. Active participation in the environmental review process provides the following benefits:
The environmental review process either follows guidelines of the California Environmental Quality Act (CEQA) or the National Environmental Protection Act (NEPA) depending on the lead agency, and the location and type of project. The following description is for CEQA, but the NEPA process is very similar. CEQA review involves three main steps:
1) A lead agency is identified, which is responsible for examining the project to determine if it is subject to CEQA (CEQA Guidelines, Section 15061). If the project is exempt, a notice of exemption (CEQA Guidelines, Section 15062) is prepared.
2) For non-exempt projects, the lead agency conducts an initial study to determine if the project has any potential significant impacts (CEQA Guidelines, Sections 15063 and 15065). If it is determined the project will have no significant impacts, then a negative declaration is prepared (CEQA Guidelines, Sections 15070–15075).
3) If the initial study shows the project may have a significant impact, the lead agency then prepares either a mitigated negative declaration or a notice of preparation of an environmental impact report (EIR).
Figure 1 provides an overview of the CEQA environmental review process in the form of a flow chart, while each of the three main steps are discussed further below.
Figure 1. EIR Procedures Flow Chart
CEQA Section 21067 defines the lead agency to mean:
The public agency which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment.
The lead agency has primary responsibility for ensuring all CEQA requirements are fully met, and that agency ultimately decides whether an EIR or a negative declaration is required for the project. The lead agency is determined in one of two ways. If the project will be carried out by a public agency, then that agency is designated the lead agency (CEQA, Section 15051(a)). If a non-governmental person or entity carries out the project, then the lead agency is the public agency with the greatest responsibility for supervising or approving the project as a whole (CEQA, Section 15051(b)). Although it is rare for the CCC to act as the lead agency, there are instances when this might occur. For example, some projects proposed in the CCC's original permit jurisdiction where the CCC is the first agency to review the project under CEQA, or in the CCC's review of Local Coastal Programs. The CCC's responsibilities under CEQA are normally met through the coastal development permit process, so a full EIR is not necessarily required.
In contrast, CEQA Section 21069 defines the responsible agency to mean:
A pubic agency, other than the Lead Agency which has responsibility for carrying out or approving a project.
A responsible agency is required to review and comment on the lead agency's environmental determination. Having a lead agency and one or more responsible agencies results in a check and balance system intended to provide full protection of the State's natural resources.
The first step in obtaining approval for a development in or adjacent to a wetland is for the project sponsor to apply for a permit. Typically this permit is from a local government, special district, or in certain cases from the State or federal government. (Special districts include port, harbor, and flood control districts, as well as State colleges and universities.) Development within a wetland located in the coastal zone will also require a coastal development permit from the CCC1.
After receiving a permit application, the lead agency conducts a preliminary review to determine if the project is categorically exempt from the CEQA process. Although some minor projects are exempt from CEQA, it is unlikely that any project affecting a wetland would be exempt under normal conditions. If the project is not exempt, then an initial study is required. The initial study consists of a checklist of potential project impacts, a qualitative assessment of the degree of impact, and an explanation for any perceived significant impacts. The completed study is then sent to all responsible agencies for review and comment.
At this early stage in the CEQA process (step 3 in Figure 1), CCC staff have the opportunity to notify the potential applicant regarding information required to process a coastal development permit application. Form letter one in Appendix A and Appendix B list information that should be requested at the time comments are submitted on the initial study.
After completion of the initial study, the lead agency prepares either a negative declaration or a notice of preparation of an EIR. A negative declaration is the lead Agency's explanation of why the project will not significantly affect the environment, and therefore, does not require preparation of an EIR. In some cases, a project that may have deleterious environmental effects can include mitigation measures, which reduce the overall environmental impact to an insignificant level. Such an interpretation requires the lead agency to issue a mitigated negative declaration.
CCC staff will have an opportunity to comment on the negative declaration or the mitigated negative declaration during the review period (step 5 in Figure 1). Like the initial study, CCC staff can use this opportunity to identify Coastal Act issues and information necessary to file and analyze a permit application for a wetland development project (see Form Letter One, Appendix A and Appendix B).
An environmental impact report (EIR) must be prepared if the lead agency determines that the proposed activity will have a significant environmental impact, which cannot be reduced to insignificant levels through the actions of a mitigated negative declaration. As previously mentioned, this determination is made through completion of the initial study. The lead agency will publish a notice of preparation (NOP) if an EIR is required (step 9 in Figure 1). The purpose of the NOP is to elicit input on the scope of issues and the kinds of analyses the EIR should include. Responding to the NOP provides CCC staff with the best opportunity to request all of the necessary information, data, studies, and analyses required for filing a complete coastal development permit application (see Form Letter One, Appendix B and Appendix C). It is essential for CCC staff to identify all information needs at this stage, because it is often more difficult to obtain additional information after the EIR is completed2.
The draft EIR is the first version of an EIR released by the lead agency for public comment (step 13 in Figure 1). Examination of the draft EIR is another opportunity for CCC staff to review and comment on proposed wetland development projects (see Form Letter Two, Appendix B and Appendix C). However, comments for new information or analyses, or other significant changes are not as effective as when they are presented at the NOP stage. Comments on the draft EIR should focus on pointing out errors in data and analyses, and on establishing an administrative record by which the commenting party may pursue other options under CEQA. However, any information requested by CCC staff in earlier comments, should be requested again if it is not included in the EIR .
Throughout the CEQA process CCC staff have multiple opportunities to submit comments regarding the proposed development project. Each of these opportunities (but particularly comments on the negative declaration or NOP) can serve as early notice to the applicant of the CCC's requirements for information necessary to file and evaluate a coastal development permit application.
The overall goal in reviewing a coastal development permit application is to determine if the proposed project is consistent with the Coastal Act. To ensure the review considers all appropriate sections of the Coastal Act, one of the first steps is to determine the type of project and the potential impacts. Such determinations are initially made from information provided in the permit application. In the case of a coastal development project affecting a wetland, relevant information might include: 1) A wetland delineation report; 2) identification of environmentally sensitive areas; or 3) notification that the project includes dredging, diking, or filling. However, Coastal Act Section 30121 broadly defines a wetland in the following way:
Wetland means 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, or fens.
Thus, the applicant may be unaware that a wetland (as defined in the Coastal Act) exists in the proposed development area. To ultimately determine if a wetland exists, CCC staff may need to consult other agency staff (e.g., the Department of Fish and Game, or the U.S. Fish and Wildlife Service), other information sources (e.g., aerial photographs, or national wetland inventory maps), or personally visit the site. If it is determined that the proposed project could affect a wetland then the following procedures are applicable.
Successful and complete review of an application for a coastal development project affecting a wetland is a relatively complex process. Procedural problems facing CCC staff can include incomplete applications, missing environmental documentation, inadequate studies, uncooperative applicants, and limited staff time for internal analysis. A complete permit application for a wetlands development project will include administrative and technical information, an analysis of alternatives, and if necessary, plans for mitigation and monitoring.
In addition to the procedural requirements, review of a wetland development project application is made more difficult by the complex nature of wetlands (see chapter four). Wetlands must be viewed as a complete ecosystem that require a full complement of critical components in order to function. Some of these components are proper soil and hydrology, an unpolluted water source, and adequate buffer areas. Additionally, the wetland may contain one or more habitat types (e.g., upland, vegetated marsh, mudflat, and open water) within its boundaries. These components and habitats interact to form a complex ecosystem that supports a diverse and abundant assemblage of plants and animals, and performs numerous beneficial functions. Thus, analysis of a proposed wetland development project must examine the impacts to the entire ecosystem, not just localized site-specific impacts.
The following sections present a description of the steps necessary in the review of a coastal development permit application for a wetland development project.
A coastal development permit application should not be filed until after an initial review is completed to determine the presence of all required information. In addition to the items required by Section 13053.5 of the CCC Administrative Regulations, all of the relevant information listed in the ecological study checklist (Appendix B) must be present. If, after the initial review, the application is found to be incomplete, a letter identifying the missing items should be sent to the applicant (see Form Letter Three, Appendix A).
This initial review is an integral part of the overall CCC staff analysis, since many of the application items must be examined in detail to determine if they are complete. Thus, it is important to use the time spent on the initial analysis not only to determine application completeness, but to gain an overall sense of the project and formulate initial reactions as well. This latter information may also help in clarifying or augmenting requests for additional information.
A coastal development permit application is considered "filed" after CCC staff determine the application is complete. Under normal circumstances, the CCC must act on a filed application within a limited time frame. The first step in this process is for CCC staff to complete an analysis of the application for consistency with the Coastal Act. The results of this analysis are described in the form of a staff report to the Commissioners, which includes suggested findings, recommendations, and any special conditions. In analyzing a wetlands development project for consistency with the Coastal Act, CCC staff analysis should consider Sections 30230, 30231, 30233, and 30240; however, Section 30233 is the most specific policy regulating development in wetlands3. That section establishes three tests for CCC evaluation of a wetlands development project: 1) whether the project is one of eight allowable uses; 2) whether the project is the least environmentally damaging feasible alternative; and 3) where adverse impacts will occur, whether the project includes a feasible mitigation plan.
Figure 2 contains a flow chart that shows the order in which these tests are completed and the essential parts of each test. Additionally, each of these tests is discussed below in further detail.
Figure 2. CCC Permit Procedures
1) Allowable Use Analysis4:
The first test requires analysis of the proposed project to determine if it is consistent with one of the eight allowable uses cited in Coastal Act Section 30233. Interpretation of certain allowable uses has generated some uncertainty in the past, so further elaboration is provided here.
i. Allowable use Number One:
This allowable use includes "new or expanded port, energy, and coastal-dependent industrial facilities, including commercial fishing facilities". Past controversy has centralized on the definition of a "coastal-dependent industrial facility". Coastal Act Section 30101 defines a coastal-dependent facility to mean:
any development or use which requires a site on, or adjacent to the sea to be able to function at all.
Determining if the facility must be located on or adjacent to the sea to function is the key to deciding whether an industrial facility is coastal-dependent. Examples of this type of development may include, but are not limited to, fish processing plants, seawater desalinization plants, and kelp processing plants.
ii. Allowable Use Number Three:
This allowable use describes the conditions under which the development of boating facilities is permitted in wetlands. Much of the controversy involving this allowable use centralizes around development in degraded wetlands. Development of boating facilities in degraded wetlands is an allowable use provided that the total development does not exceed 25 percent of the degraded wetland and that a substantial portion (but no less than 75 percent) of the degraded area is restored and maintained as highly productive wetland.
Determining whether a wetland is degraded or not is often a central issue to application of this allowable use. A framework for determining the status of a wetland is incorporated into this allowable use by reference to the provisions under Section 30411 of Coastal Act. Specifically, through the process outlined in Coastal Act Section 30411(b), the Department of Fish and Game (DFG) in consultation with the CCC, and the Department of Boating and Waterways may study degraded wetlands and verify those most feasibly restored in conjunction with the development of a boating facility (see Chapter three for more information). In particular, Coastal Act Section 30411(b)(3) states that the DFG shall in the study of degraded wetlands include consideration of the following:
Whether restoration of the wetland's natural values, including its biological productivity and wildlife habitat features, can most feasibly be achieved and maintained in conjunction with a boating facility or whether there are other feasible ways to achieve such values.
In determining the status of a wetland, the DFG must decide if anthropogenic activities have altered the wetland system to such an extent that what remains exists in a degraded condition when compared to other unaltered areas or historic information5. Such an assessment must consider the overall condition of the subject area including an investigation of the physical, chemical, and biological properties, the habitats present, and the functions. The DFG has completed several such studies in the past (e.g., DFG, 1981).
The Statewide Interpretive Guidelines provide an expanded interpretation of Section 304116. This interpretation encourages development types other than boating facilities, so long as restoration of the degraded wetland is a primary objective. This interpretation has been used to support other types of projects (e.g., flood-control facilities) in degraded wetlands.
Determining a degraded wetland's boundaries is also a potential source of controversy. In general, the wetland boundaries should be based on the area the entire wetland occupied prior to degradation. This determination is most readily made from a review of historic information including aerial photographs.
iii. Allowable Use Number Five:
This allowable use relates to incidental public service purposes that temporarily impact the resources of an area, such as burying cables and pipes, or inspection and maintenance of existing structures such as piers and outfall lines. One potential area of controversy involving this allowable use focuses on what constitutes a temporary project and whether mitigation is required for temporary impacts to a wetland. Coastal Act Section 30607.1 provides some direction on the issue of mitigation for temporary projects and states in part:
The mitigation measures shall not be required for temporary or short-term fill or diking if a bond or other evidence of financial responsibility is provided to assure that restoration will be accomplished in the shortest feasible time.
However, past decisions by the CCC have been fairly restrictive as to what constitutes a temporary project. Additionally, the CCC has in certain instances required mitigation measures for temporary impacts. Thus, CCC staff must use caution in their review of projects qualifying under this allowable use.
Another question arising under this allowable use is whether roads qualify as an incidental public service. Although the Statewide Interpretive Guidelines (CCC, 1981) states that roads do not qualify as an incidental public service, footnote three of this document states that:
When no other alternative exists, and when consistent with the other provisions of this section [i.e., Coastal Act Section 30233], limited expansion of roadbeds and bridges necessary to maintain existing traffic capacity may be permitted. Activities described in the Commission's Guidelines on Exclusions from Permit Requirements applicable to roads also should be consulted.
As written, however, this interpretation only applies to the limited expansion of existing roadbeds and bridges where necessary to maintain existing traffic capacity.
iv. Allowable Use Number Seven:
Restoration is another use allowed under Section 30233, which has been subject to varying interpretations. In the strictest sense, projects undertaken solely for restoration purposes are beneficial, since the project should result in an increase in wetland acreage and function. Thus, in reviewing projects proposing strictly wetlands restoration, staff should focus on the net benefit or gain in wetland functions and habitat.
In contrast, Section IV(C) of the Statewide Interpretive Guidelines (CCC, 1981) makes a case for allowing "some fill for non-permitted uses if the wetlands are small, extremely isolated and incapable of being restored", if the applicant "provides funds sufficient to accomplish an approved restoration program in the same general region7". The main point of this section, however, is that filling wetlands for non-permitted uses is allowed only where restoration is the main purpose of the project. Nevertheless, this approach should be used with caution. Recommending a coastal development permit for an unallowable use as part of a wetland restoration project should be avoided even if the restoration component appears adequate. Wetlands are hard to restore and even harder to create, and CCC staff are encouraged to work with what they have. To allow even partial filling of any wetland in exchange for restoration can result in a net loss of both wetland acreage and function.
v. Allowable Use Number Eight:
This allowable use permits wetland development for nature study, aquaculture, or similar resource dependent activities. Most of the discussion surrounding this allowable use is related to determining what constitutes an aquaculture activity. Coastal Act Section 30100.2 defines aquaculture to mean:
A form of agriculture that is devoted to the controlled growing and harvesting of fish, shellfish, and plants in the marine, brackish, and fresh water. Aquaculture products are agricultural products, and aquaculture facilities and land uses shall be treated as agricultural facilities and land uses in all planning and permit issuing decisions governed by this division.
Although the Coastal Act interprets aquaculture and agriculture as similar activities and is generally supportive of these activities, the Act does not intend for agricultural activities to be considered an allowable use in wetlands. For example, aquaculture does not mean the culture and production of commercially utilized inland crops, including but not limited to, rice, watercress, or bean sprouts. Additionally, aquaculture activities can only be located in a wetland if they are dependent upon the resources of the wetland to function. Support facilities, such as parking lots and buildings for maintenance or processing activities are not permitted in the wetland under this allowable use.
2) Alternatives Analysis:
An alternatives analysis is required if the proposed wetland development project is determined to qualify as one of the eight allowable uses (Coastal Act, Section 30233). Completion of an alternatives analysis is extremely valuable, as it requires the analyst and the applicant to view the project from a different perspective, which can result in the synthesis of creative designs that significantly reduce or minimize project impacts.
If the alternatives analysis cannot yield a definitive finding because of insufficient information, the applicant should be contacted for additional information (see Form Letter Four, Appendix A), which if not provided will result in a recommendation for denial of the project. This situation is avoided by carefully reviewing the permit application before filing, in order to determine the adequacy and completeness of the alternatives analysis.
Section 30233 allows for the filling, dredging, or diking of wetlands, provided the project is an allowable use and that there are no less environmentally damaging feasible8 alternatives. The alternatives analysis framework presented here is based on Section 30233 of the Coastal Act and CEQA9 (Public Resources Code Section 21000 et. seq.). In addition to the discussion below, an alternatives analysis flow chart is presented in Figure 3.
Figure 3. Alternatives Analysis Decision Making Matrix
In an alternatives analysis CCC staff examine the primary alternative (i.e., the proposed project), and compare it to other possible alternatives to determine which is the least environmentally damaging feasible alternative. All alternatives are proposed by the applicant. Each alternative is analyzed under two resource impact criteria: 1) loss of wetland acreage; and 2) loss of wetland functional capacity. The most straightforward way to complete this analysis is to determine the level of impact for each criterion separately and then compare the results among alternatives. The alternative with the lowest overall resource impacts is deemed the least environmentally damaging feasible alternative. Unfortunately, most alternative analyses are not this straightforward and require comparisons between criteria as well as alternatives. Additionally, while evaluating the loss of wetland acreage is a relatively straightforward process, evaluating the loss of functional capacity is often complex (see determining functional capacity section below). Moreover, the weight given each criterion is not necessarily fixed or equal: in some cases it may be determined that preservation of wetland acreage is more important than preservation of functional capacity, although in other cases it may be determined that preservation of functional capacity is more important than preservation of wetland acreage. Above all, the analysis should focus on an objective assessment of the alternatives, and result in a clear, concise description with defensible findings.
Obviously, the least environmentally damaging alternative is total avoidance. That is, relocation or discontinuation (no project alternative) of the project so that any damage to the wetland is completely avoided. Other alternatives generally assume the project will be located in or adjacent to the wetland, but consider various types of reconfigurations such as changes in scale and density, or changes in project size — particularly building footprint — or shape. Presumably, any of these alternatives will impact the wetland and would therefore require a mitigation plan. However, the alternatives analysis should be confined to determining the least environmentally damaging feasible alternative and should not include an evaluation of any mitigation plans. If the least environmentally damaging feasible alternative is expected to adversely impact the wetland then the next phase of application review, evaluation of the mitigation plan must be completed.
As this discussion suggests, alternatives analysis is a complex process. The key to a good alternatives analysis, however, is a thorough objective review of all potential alternatives. Although the methods described here are fairly general, they do provide a consistent framework for the analysis, which will vary with the specifics of the project and the potential alternatives.
3) Mitigation:
The final test identified in Section 30233 requires an evaluation of the applicant's mitigation plan to determine if it is feasible and appropriate relative to the environmental impacts arising from the proposed project. All wetland development projects should include a mitigation plan, which if enacted will result in no net loss of wetland acreage or function.
Compensatory mitigation is the most common type of mitigation proposed in applications for coastal development permits. Although mitigation through compensation can take several forms, restoration projects are most often encountered by CCC staff10. If restoration is proposed, then a restoration plan must be developed prior to final permit review. The plan must answer specific questions regarding the adequacy of the proposed mitigation, and the overall consistency of the proposed mitigation with the policies of the Coastal Act. The following information applies only to the review of restoration plans for dredging, diking, and filling of wetlands. Chapter two of this document provides a more thorough discussion of available mitigation alternatives including other types of compensatory mitigation, in-lieu fees, mitigation banking, as well as more detailed information on restoration plans.
Various sections of the Coastal Act (e.g., 30411(b) and 30607.1), identify wetland restoration as a mitigation alternative for allowable wetland development projects. However, attempts at wetland restoration have generally met with limited success. The restoration of natural wetlands is not a short-term project. Many natural wetlands have taken thousands of years to reach their present form and function. Thus, it can be many years after a wetland is lost through development, before a wetland with similar form and function is completely re-established via restoration. One should proceed cautiously in recommending wetland restoration as mitigation for the loss of existing wetlands. Again, CCC staff should emphasize impact avoidance and protection of existing wetlands. The use of restoration projects should be reserved for those cases where there is no less environmentally damaging feasible alternative for an allowable use, and where there is no other feasible mitigation alternative.
The enhancement of degraded wetlands has also been considered a form of compensatory mitigation. Although this process can improve wetland functions (and therefore enhance the value), there is rarely a net increase in wetland acreage especially when the loss from the proposed development project is taken into account. Thus, considering the enhancement of degraded wetlands as acceptable mitigation for wetlands lost through development can lead to a net loss of wetland area.
Restoration projects involve the re-establishment of key wetland characteristics in former wetland areas, with the eventual goal of re-establishing a functionally productive and self-sustaining wetland. For example, breaching dikes to restore tidal action, removing fill material to restore proper elevations, and restoring the natural course of streams and rivers are all restoration processes that can result in the recreation of former wetlands. Section IV D(b)(2) of the Statewide Interpretive Guidelines offers the following guidelines in the use of restoration:
The applicant may, in some cases, be permitted to open equivalent areas to tidal action11 or provide other sources of surface water. This method of mitigation would be appropriate if the applicant already owned filled, or diked areas which themselves were not environmentally sensitive habitat areas but would become so, if such areas were opened to tidal action or provided with other sources of surface water.
Restoration plans will vary depending on the type and extent of the impacts arising from the proposed development, and the available alternatives. The information presented here is only intended to provide general guidance in the review of such plans. Normally, the restoration plan should include provisions for starting restoration prior to project implementation; this approach gives the applicant an incentive to successfully implement the restoration plan. In addition, every restoration plan must include a detailed construction and management plan that:
In contrast, a proposed restoration area should not be used as a mitigation site if it contains any of the following characteristics:
In addition to the general guidelines for restoration plans, there are also specific considerations for wetland dredging that can reduce the project impacts, and potentially the mitigation requirements. Where a dredging operation is proposed, Section 30233(b) of the Coastal Act provides that:
Dredging and spoils disposal shall be planned and carried out to avoid significant disruption of marine and wildlife habitats and water circulation. Dredge spoils suitable for beach replenishment should be transported for such purposes to appropriate beaches or into suitable long shore current systems.
Furthermore, Statewide Interpretive Guidelines Section IV D(2)(a)(2) reinforces Section 30233(b) through the following statement:
Limitations may be imposed on the timing of the [dredging] operation, the type of operation, the quantity of dredged material removed, and the location of the spoil site.
These special considerations for dredging focus on the logistics and methods of the operation. All mitigation plans for dredging impacts should take these logistical and methodological constraints into account.
All of the previously described processes for evaluating proposed wetland development projects assume staff are made aware of a project through normal notification or application procedures. However, these processes may also apply in the examination and evaluation of illegal activities. Once a violation (for example constructing a building in a coastal wetland without a coastal development permit) is discovered the property owner is in most cases required to apply for an after-the-fact permit. Analysis of this application would follow the same steps outlined above for a normal coastal development permit, and may or may not result in permit approval. Further enforcement and penalties in connection with the violation are determined separately.
All coastal development permit applications proposing development in a wetland must include a map delineating the wetland area12. A wetland delineation map identifies the wetland's location and pinpoints the boundary line between the wetland and adjacent upland area by determining the extent of one or more key wetland characteristics: hydrology, hydric soils, and hydrophytic vegetation. Other resources such as aerial photographs, national wetland inventory maps, and soil conservation maps may also prove useful in determining the location and size of a wetland. CCC staff must review the resulting delineation map and supporting information carefully, because the delineation results can vary depending on the wetland definition and delineation procedure used (see chapter three for more information).
In the coastal zone, the CCC, with assistance from the DFG, is responsible for determining the presence and size of wetlands subject to regulation under the Coastal Act. The local government also has a direct role in the identification and delineation process in areas with a certified local coastal program. Although the exact procedure has varied somewhat in the past, the DFG wetland definition and classification system (described in chapter three) is the delineation methodology generally followed by the CCC. For wetland development projects requiring Army Corps of Engineers (ACOE) review, the applicant may, in some cases, need to obtain two delineations, one for the coastal development permit, and another for the ACOE Section 404 permit.
A number of ecologically distinct wetland types occur in California, and these ecological differences can also affect the identification and delineation of wetlands. The subject of wetland ecology is discussed further in other parts (particularly chapter four) of this document, but some points relevant to this section are introduced here. In addition to the more traditional fresh- and salt-water marshes, the California coastal zone also contains a number of riparian areas, most often occurring as corridors along streams and rivers. Resource and regulatory agencies have found it hard to strictly define riparian areas as wetlands because of the often transient hydrology, the absence of hydric soils, and the heterogeneous vegetation composition. Yet riparian areas do exhibit many of the functions and values found in other wetlands. In the past, CCC staff have recognized riparian areas as "environmentally sensitive areas" within the meaning of Coastal Act section 30107.5, and then regulated development through Section 30240. Additionally, Sections 30231 and 30236 provide for the protection of many riparian areas. The semi-arid climate of Southern California also presents problems for the identification and delineation of wetlands. Some wetlands in this part of California can remain dry for one or more seasons due to the Mediterranean climate. Many of the information sources listed above can assist CCC staff in identifying such seasonally wet wetlands. Additionally, Ferren and Fiedler (1993) have developed a technical description useful for identifying wetlands in Central and Southern California.
As evidenced by this brief discussion, accurate wetland identification and delineation can be challenging. CCC staff are encouraged to work with the DFG, the ACOE, local government and any other applicable agencies to minimize delays relating to wetland delineation. Early communication can go a long way to preventing problems later on.
Buffer areas are undeveloped lands surrounding wetlands. These areas act to protect the wetland from the direct effects of nearby disturbance (both acute and chronic), and provide necessary habitat for organisms that spend only a portion of their life in the wetland such as amphibians, reptiles, birds, and mammals. A buffer area should be an integral component of any proposed development project located within or adjacent to a wetland. Buffers should have all of the following characteristics:
1) Buffer width should be a minimum of 100 feet (CCC, 1981)13. In some cases, such as when a species requires habitat adjacent to a wetland for part of its life or when nearby development poses increased hazards to a wetland or wetland species, larger buffer areas should be considered.
2) Buffers should work to minimize the disturbance to a wetland from adjacent development. If the adjacent development includes residential areas, the buffer must include a fence and/or a natural (e.g., vegetation or water) barrier to control the entry of domestic animals and humans into the wetland. The buffer should also provide for visual screening in those cases where resident or migratory wetland species are particularly sensitive to human impacts. The use of walls, berms and other barriers should be considered where excessive artificial light or noise is a problem.
3) Buffers should be designed, where necessary, to help minimize the effects of erosion, sedimentation, and pollution arising from urban, industrial, and agricultural activities. However, to the extent possible, erosion, sedimentation, and pollution control problems should be dealt with at the source not in the wetland or buffer area. Sources of pollution include point and non-point source discharges into the watershed and air, domestic and industrial garbage and debris, and biological pollution arising from the introduction of exotic organisms. Regular maintenance must be provided for any devices (e.g., silt or grease traps) built in the buffer zone.
4) Buffers should provide habitat for species residing in the transitional zone between wetlands and uplands. All project designs should consider the movement of food and energy between habitats as well as the life cycles of organisms that feed or reproduce in the wetland but generally reside outside the wetland. Any revegetation work in the buffer area should use native species from local sources.
5) Buffers should allow for passive recreational uses within the area, only if it can be shown that these uses will not adversely impact the wetland ecosystem or the buffer's function as described in the above criteria. These uses should be limited to bird watching, walking, jogging, and bike riding, and may include the construction of paths and interpretive signs and displays. All paths should be constructed to minimize impact to plants and animals.
A functional capacity analysis must be included as part of the application for a coastal development permit. Since the determination of functional capacity is a scientific one, it must be made by a qualified ecologist. CCC staff review of the wetland functional capacity analysis is among the most important elements of the permit application review process. The functional capacity analysis assists CCC staff in determining whether a development project will diminish the overall capacity of a wetland to function as an integrated ecosystem. Maintaining the functional capacity means maintaining the same level and number of species, maintaining the same level of biological productivity, and maintaining the same relative size and number of habitats. Functional capacity analysis is also an important part of the alternatives analysis discussed above. Finally, functional capacity analysis is one method available for determining the appropriateness of any proposed mitigation; however, compensatory mitigation is not a substitute for maintaining the functional capacity of the impacted wetland.
California coastal wetlands have a number of important functions and values, which have increased in relative importance because of the enormous wetland losses that have occurred throughout California. In general, wetland functions are those processes that directly or indirectly result in values that benefit humans or other organisms, or values perceived by humans as desirable or worthy of protection. All of the known functions and values of coastal wetlands are a manifestation of one or more of the physical, chemical, or biological processes inherent to wetlands. Determinations of functional capacity must consider each of these components in the overall assessment. (See chapter four, for a further discussion of wetland functions and values.)
Determining the functions and values of seasonally wet wetlands (often referred to as seasonal wetlands) can be a contentious issue for resource and regulatory agencies. Because of their transient nature, it is argued that seasonally wet wetlands are more limited in function, and therefore of lower value than perennially wet wetlands. While the transient hydrology of seasonally wetlands may reduce the time period of a function, the performance of that function and its overall value are not necessarily diminished relative to perennially wet wetlands. In fact, many of the same functions and values present in both types of wetlands. Additionally, seasonally wet wetlands can, during certain times of the year, provide greater value for certain functions (e.g., ground water recharge, floodwater storage, habitat for endangered species, or feeding and resting spots for migratory birds), relative to nearby perennially wet wetlands.
Functional capacity determinations of wetlands considered "marginal" can also be problematic. "Marginal wetland" is an arbitrary term that is generally applied without a technical basis. A marginal wetland may or may not qualify as a "degraded wetland" (Coastal Act Section 30411). Marginal wetlands may be seasonal or perennial, and are sometimes considered less important because of their location (e.g., small isolated areas), reduced species diversity, or reduced habitat complexity. Nevertheless, marginal wetlands do provide important functions and values, which may be of special significance on a local or regional level. For example, some marginal wetlands provide unique or rare habitat that may in turn be vitally important to a threatened or endangered species. Such a wetland would also have important educational and scientific value.
1Public Resources Code Section 13610a states: Until such time as the commission certifies a plan for an area identified as a wetland, estuary, or existing recreation area pursuant to Public Resources Code, Section 30710, any development proposed to be undertaken in such an area shall require a coastal development permit as provided in Chapter 7 of the California Coastal Act of 1976 and these regulations".
2This is particularly true in light of several changes made to the California Environmental Quality Act (CEQA) during the 1993 legislative session. The emphasis of these changes , as well as a general trend in the environmental review process, is to "front load" the review process. This could mean, for instance: 1) emphasizing master EIRs which are prepared at the land use plan stage, rather than the specific project review stage; 2) forcing or encouraging agencies to participate more fully in the initial project referral process conducted by the lead agency; or 3) other steps designed to avoid "late-hits" in the environmental review process.
3See Chapter Three, Section III(C) for a complete citation of Coastal Act Section 30233, including a listing of the eight allowable uses.
4Not all allowable uses are discussed here. See Chapter Three, Section III(C) for a complete citation of Coastal Act Section 30233, including a listing of the eight allowable uses.
5In the DFG's 1981 report, Determination Of The Status Of The Bolsa Chica Wetlands a degraded wetland was defined as "A wetland which has been altered by man through impairment of some physical property and in which the alteration has resulted in a reduction of biological complexity in terms of species diversity of wetland-associated species which previously existed in the wetland areas."
6The Statewide Interpretive Guidelines, Section VIII(D) state: "Section 30411 does not explicitly identify the other types of restoration projects. However, such projects are encouraged if they promote the restoration of degraded areas and if boating facilities are not feasible. An example would include flood control projects undertaken by a public agency. Such projects may be permitted under Section 30411 if they restore channel depths, are designed to enhance the functional capacity of the wetland area, and are the least environmentally damaging alternative to achieve restoration."
7Here region is used in the ecological context to mean a proximity that results in direct benefits to the same suite and/or populations of organisms.
8Feasible is defined in Section 30108 of the Coastal Act to mean "... capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors".
9In fact one of the best ways to achieve a thorough alternative analysis is through the CEQA/NEPA process.
10For this discussion, restoration refers to the replacement or provision of substitute resources or environments, such as the re-establishment of a former wetland. Another type of mitigation, however, is restoration of the impacted site. Undoubtedly, this would be required of the applicant in any event, but additional mitigation would also be required for the resources lost through development. The restoration plans discussed here relate to this additional required mitigation.
11A footnote for this section goes on to state " 'Opening up equivalent areas to tidal action' means to permanently open to tidal action former intertidal wetlands capable of providing equal or greater biological productivity. Mitigation measures should restore areas which are no longer functioning in a manner beneficial to wetland species. For example, returning a diked-off, formerly saltwater, but presently freshwater marsh to tidal action would not constitute mitigation. However, improving tidal flushing by removing tide gates, digging tidal channels and clearing culverts might qualify, if the Commission determines that such actions would restore an area to equal or greater habitat value than the area lost."
12In determining project related impacts the CCC considers the wetland as it currently exists and not as it may have existed historically. Thus, the accuracy of a wetland delineation is determined, in part, by how recently is was completed.
13In Southern California, the CCC has typically required 100 foot buffers for fresh- and salt-water wetlands and 50 foot buffers for riparian areas. Riparian areas (as defined in the glossary) are considered environmentally sensitive areas, but for a variety of reasons have not always received the same treatment as other types of wetlands.
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