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Coastal watershed wetlands compensatory mitigation policy: Moving from loss to no-net-loss of water quality functions

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Coastal watershed wetlands compensatory mitigation policy: Moving from loss to no-net-loss of water quality functions

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Content COASTAL WATERSHED WETLANDS COMPENSATORY MITIGATION POLICY: MOVING FROM LOSS TO NO-NET-LOSS OF WATER QUALITY FUNCTIONS by Stephanie M. Gasca A Thesis Presented to the FACULTY OF THE GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA In Partial Fulfillment of the Requirements for the Degree MASTER OF ARTS (ENVIRONMENTAL STUDIES) May 2004 Copyright 2004 Stephanie M Gasca Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. UMI Number: 1421768 Copyright 2004 by Gasca, Stephanie M. All rights reserved. INFORMATION TO USERS The quality of this reproduction is dependent upon the quality of the copy submitted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleed-through, substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. UMI UMI Microform 1421768 Copyright 2004 by ProQuest Information and Learning Company. All rights reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code. ProQuest Information and Learning Company 300 North Zeeb Road P.O. Box 1346 Ann Arbor, Ml 48106-1346 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Acknowledgements I would like to thank my family who provided me with unending encouragement and support while I ventured upon the journey to create this document. I am also greatful to Dr. Vos who provided me with the proper guidance to successfully finalize this aspect of my academic career. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Table of Contents Acknowledgements List of Tables 11 IV Abstract Chapter I: Introduction Chapter II: Literature Review 2.1 Baekground 2.2 California Environmental Quality Act 2.3 Wetlands Goveming Bodies 2.3a United States Army Corps of Engineers 2.3b United States Army Corps of Engineers and the United States Environmental Protection Agency 2.3c State Water Resources Control Board & Regional Water Quality Control Board 2.3d Califomia Coastal Commission 2.3 e Califomia Department of Fish and Game 2.4 Additional Wetland Poliey Statements 2.5 Water Quality Functions of Wetlands Chapter III: Theory 3.1 Why Wetland Mitigation Does Not Work 3.2 Possible Steps Toward Successful Compensatory Mitigated Wetlands Chapter IV: 4.1 4.2 4.3 Case Studies Projects Requiring Wetland Mitigation 4.1 (a) Bison MacArthur Retail Center 4.1(b) Crystal Cove Phases IY-3 & IV-4 4.1 (c) Amerige Heights Proj ect 4.1(d) Overview Mitigation Monitoring and/or Reporting Programs 4.2(a) County of Orange 4.2(b) County of Monterey 4.2(c) County of Santa Barbara Overview of Case Studies 1 8 8 11 15 16 22 25 35 40 41 44 50 50 58 67 71 71 75 78 80 81 81 83 84 85 Chapter V: Referenees Conclusion 87 96 111 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. List of Tables Table 2.1 Beneficial Uses 32 Table 2.2 Wetland Water Quality Narratives 33 IV Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Abstract The question of whether the water quality functions of a wetland are exactly replicated, or even possibly enhanced, under programs of compensatory mitigation is key to meeting the “no-net-loss” goal mandated in major state and federal laws. Preventing loss of water quality functions is crucial where costly technology may be the only alternative for treating polluted runoff. This study begins with an evaluation of the current laws and science that protects wetlands and requires compensatory wetland mitigation in the coastal watersheds of Califomia. A series of case studies illustrates how inconsistencies in policy, insufficient fiscal resources, inadequate communication, and a lack of historical (i.e., baseline) data on wetland performance fhistrate efforts at compensatory mitigation. This study ends with a series of recommendations to improve compensatory mitigation programs in the state of Califomia. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter I: Introduction Wetlands across the nation have been decreasing at an alarming rate. In Califomia, wetlands have decreased about 91% since the 1850’s (Southem Califomia Wetland Recovery Project [SCWRP], 2000). More specifically, 80% - 90% of coastal wetlands in southem Califomia have been lost (SCWRP, 2000). Loss of wetlands is primarily due to the expansion of industry and residences along the coast. Although there is a strong desire to occupy coastal property, there are state and federal laws in existence that prohibit and/or regulate the conversion and alteration of wetlands. Regulations addressing the filling of wetlands may require a “compensatory mitigated wetland” to replace losses from development. However, it has long been debated whether the functions and values of natural wetlands can be replicated accurately. There is still much too discover and understand about attempting to replicate this naturally occurring system (Dennison & Berry, 1993). Only recently have wetland scientists, along with hydrogeomorphologists, soil scientists, and a number of other watershed practitioners, been gaining a better understanding of a wetlands’ entire ecosystem (Dennison & Berry, 1993). Isolated and seasonal wetlands are just as vital as large wetland systems. They allow percolation of nuisance and storm water ranoff, which prevents the pollutants from entering downstream waterbodies. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The Importance of Wetland Water Quality Functions Wetlands, naturally located in the landscape, serve an important purpose. One of the many functions a wetland provides is water quality. A wetland has the capability to naturally cleanse water of pollutants contained in the receiving water. Acting as a buffer between land and sea, wetlands have the ability to intercept runoff before it can reach downstream waterbodies, preventing the degradation of water quality (National Resources Defense Council [NRDC], 2000). The vegetation specific to coastal wetlands allows for the trapping of pollutants, generating better water quality when it reaches the coast. Pollutant Removal Processes Wetlands act as a natural water filtering system. They have the potential to remove sediments, organic and inorganic pollutants, nutrients (nitrates and phosphates), pathogens, metals, and turbidity (Califomia Coastal Commission [CCC], 1994). Wetlands are critical in maintaining the quality and quantity of both surface and groundwater. They play a vital role in trapping harmful pollutants by intercepting sediments, nutrients, and various organic and inorganic chemicals and heavy metals (Council on Environmental Quality [CEQ], 1993; Dennison & Berry, 1993). In conjunction with the natural biological and chemical processes, removal of these constituents yield a quality of water that is purer than when it originally entered the wetland. Dennison and Berry (1993) state that aquatic plants, fungi, and bacteria are vital components for effectively removing organic contaminants and inorganic materials, specifically nitrogen, phosphoras, and sulfur containing molecules from the water. The ability for wetlands to naturally intercept nutrients, sediments, organic and inorganic Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. chemicals, and heavy metals allows for them to maintain a high quality of surface water and provide clean water to percolate into the ground (Dennison & Berry, 1993). However, this is not possible without the aquatic plants, fungi, and bacteria that remove the pollutants (Dennison & Berry, 1993). When natural wetlands are left unaltered, especially in areas where they comprise a vast area of the landscape, they can provide many water quality functions without the need for constant human administration (Mitsch & Gosselink, 2000). Briefly touched upon below, hydrologic, chemical, and biogeochemical processes are responsible for the transformation and/or removal of pollutants that enter a wetland system. An essential hydrologic function wetlands provide is long-term surface water storage. This function allows a wetland to temporarily retain standing surface water. As a result, sediments, nutrients, and contaminants can be removed, chemical transformations occur, wetland soil characteristics are influenced, and water quality is improved (PCR, 2003). Nutrient cycling and transformation of compounds are biogeochemical functions wetlands provide. These processes import, transform, and remove nutrients, contaminants, and other elements and compounds, in addition to converting nutrients from one form to another through biotic or abiotic processes. Cycling of nutrients is a necessary and fundamental feature of wetland ecosystems that support the diverse plant populations associated with wetland ecosystems (PCR, 2003). Nutrient uptake in wetlands is accomplished largely through adsorption by living plants, and released back into the atmosphere by means of decomposition, generally. In order for organic matter to 3 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. properly establish itself in a wetland, it needs proportional sources of nutrients, abundance of living plants and decaying organic matter. Wetlands must have an adequate supply of phosphorous, nitrogen, and carbon and be saturated for sufficient duration to support plant growth and microbial decomposition (PCR, 2003). Collectively these processes increases downstream water quality Detrital biomass, the process of producing, accumulating, and dispersing dead plant biomass of all sizes, plays an important role in nutrient cycling and detention of compounds and particulates (Brinson et al., 1995). Detention of imported elements and compounds is another process wetlands remove and sequester imported nutrients, contaminants, and other elements and compounds through biotic or abiotic processes. Lee (1997) states that the detention of particulates allows for the deposition and detention of inorganic and organic particulates from the water column, primarily through physical processes (PCR, 2003). Brinson (1995) suggests the elements, including nitrogen, phosphorus, and potassium, as well as heavy metals, such as zinc and chromium and compounds including herbicides, pesticides, and other imported materials are common in nuisance flows from urbanized areas. These potential contaminants enter a wetland from the landscape through biogenic (natural cycling of resources) or anthropogenic (human induced changes) sources (PCR, 2003). Retention of elements and compounds within wetlands occur by adsorption, biological uptake, and microbial transformations. The function acts to accumulate sediment, which contributes to the nutrient load present for recycling. Organic matter may also be retained for decomposition, and nutrient recycling (PCR, 2003). Detaining and importing these elements and compounds in a wetland Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. eliminates or significantly reduces their migration downstream (PCR, 2003). Brinson (1995) points out that in contrast to nutrient cycling, this function evaluates the ability of a wetland to act as a sink for compounds or elements (compared to a source of converted elements) within a span of one year or less (PCR, 2003). A wetland becoming an operative nutrient sink depends on the organic matter within the sediment, permanent adsorption and immobilization by the clay, and rate of denitrification (Novotny, 1994). Yet, nitrate removal may vary between the growing and dormant stages of wetland vegetation. Removal of nitrogen can be high if it is in oxidized form (Novotny, 1994). Sedimentation, filtration, and absorption are the primary means for removing organic matter (Novotny, 1994). Aerobic degradation, occurring in the water column and the top portions of the sediment, and anaerobic degradation, within the sediments, contribute to the breakdown of organics. Biological oxygen demand (BOD) is a measure of the oxygen needed for decomposition of organic matter and oxidation of inorganics (Watersheds 2003). When BOD is high, wetlands can effectively remove BOD by the decomposition of organic matter or oxidation of inorganics (Watersheds 2003). However, the elimination of organic matter is contingent on a number of factors including a wetlands hydrology, the type of wetland, and location of the wetland (Novotny, 1994). However, the production of organic matter in a wetland can assist in “disposing of low quantities of toxic compounds” (Novotny, 1994). Whether absorbed or filtered out, the function of a wetland on these toxic compounds (including some metals) is not completely known (Novotny, 1994). Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Wetlands also assist in the removal of pathogens. Pathogens that enter a wetland bind to suspended sediments and wetland plants (Watersheds 2003). The processes that facilitate in the removal of the pathogens include degradation by sunlight, a wetlands low pH, protozoan consumption, and from toxins excreted from the roots of certain wetland vegetation (Watersheds 2003). Ultimately, the manner and degree that a specific wetland performs each process is dependent on the type and location of the wetland. Pollutant Removal & Economics Furthermore, nature’s capacity to cleanse water may be more economical than engineering diversions or constructing treatment plants. One extreme estimate of the fiscal impact this would have was made by assuming complete reliance on technology to treat storm water in Los Angeles County. A study conducted at the University of Southem Califomia projected a cost of about $154 billion to constmct 460 small storm drain treatment plants for Los Angeles County (Los Angeles & San Gabriel Rivers Watershed Council, 2003). This is another strong justification why natural wetlands, isolated or large systems, are essential and why their water quality functions must be preserved. The Studv As illustrated in the above text, wetlands provide an enormous number of water quality functions naturally. Thus, it is essential for them to remain unimpacted or have their functions effectively replaced. But the question remains whether the water quality Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. functions of a wetland are exactly replicated (or even possibly enhanced) in a mitigated wetland compared to the wetland it is replacing. This paper will address the question of whether the “no-net-loss” of wetlands water quality function is being upheld in practice when mitigated wetlands are used as compensation for altering a naturally occurring wetland. This study addresses the issue by starting with the Califomia Environmental Quality Act (CEQA), the first line of defense when an alteration of a wetland is being proposed. Several provisions of the CEQA must be followed whenever an alteration of the environment will occur. Thus, the filling of a wetland invokes specific requirements under the CEQA. This study will explore the degree to which wetlands are protected under the CEQA. Since the CEQA lacks the regulatory “teeth” to ensure wetland protection, additional state and federal laws and policies will be explored to see if an adequate framework of regulations exists to provide for the no-net-loss in wetlands’ water quality functions. If such guidelines exist, are they being implemented and enforced regularly? This question will be examined by looking at three case studies that involve filling wetlands in exchange for mitigated wetlands. A second set of case studies will examine three counties’ Mitigation Monitoring and Reporting Programs (MMRP) and how they can apply to wetlands. The major objective of the study is to understand whether the mitigation options under the CEQA and additional state and federal policies are helping or hindering the protection of wetlands’ water quality functions in Califomia. The concluding chapter of the study highlights a number of findings and recommendations in regards to meeting the legal mandate for “no-net-loss” of water quality functions in Califomia’s wetlands. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter II: Literature Review 2.1 Background It is well understood that wetlands can be designed and constructed to treat polluted nuisance and storm water runoff. But the question at hand is whether compensatory wetlands can be designed and implemented to mitigate the loss of the water quality functions due to development of naturally existing wetlands. There is less understanding that mitigated wetlands must be monitored to determine if the water quality functions that were disrupted have been replaced. Many mitigation wetlands are monitored for habitat success, but Mitsch and Gosselink (2000) indicate that this is a poor indicator of water quality functions. Additionally, without baseline data of the filled wetland, replacement of water quality functions is not really known. Much literature suggests that compensatory wetland mitigation be used only after all alternatives have been examined and when disturbance of wetlands is unavoidable (Josselyn, Zedler, & Griswold, 1989; Schmoker, 2003; Zedler, 1996;). Furthermore, researchers have illustrated that habitat replacement is a critical part of replicating a permitted wetland fill. This is to ensure that habitat for wildlife, especially endangered species, is replaced and the biodiversity of the ecosystem is not decreased (Zedler, 1996). Research also points to many functions of a wetland besides habitat, including water quality, flood protection, education and research (Committee on Environment and Public Works [CEPW], 1999). There is very little literature addressing the water quality functions of a mitigated wetland to determine if its water quality functions have been replicated at a level equal to Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. or greater than the filled wetland. Most research on compensatory mitigated wetlands focuses on the success of the habitat replacement, which is interrelated to water quality function. Unfortunately, habitat function alone does not measure water quality function effectively (Mitsch & Gosselink, 2000). The purpose of this study is to investigate the possibility of maintaining or improving coastal water quality in Califomia, with replacement wetlands designed to mitigate development of existing wetlands in coastal watersheds. Theoretically, the concept is feasible; however, it is rarely implemented. Wetlands serve a variety of functions, however for the purpose of this study, the focus will be only on replicating the water quality functions. There are a number of agencies that address wetlands, each with an interest in, but not limited to, protecting water quality. The agencies include the United States Army Corps of Engineers (USACOE), United States Environmental Protection Agency (USE?A), Regional Water Quality Control Boards (RWQCB), Califomia Coastal Commission (CCC), and the Califomia Department o ffish and Game (CDFG). These agencies have the ability to exercise some form of regulation over wetland activities either through federal, state, or local laws and policies. Moreover, these agencies have varying requirements for wetland mitigation. These key players also have significant involvement in determining the type of compensatory mitigation required for projects that impact wetlands within the coastal watersheds of Califomia. The key agencies that will be studied in this paper, USACOE, USE?A, CCC, RWQCB, and CDFG, will be reviewed in terms of the principal legal documents they primarily operate under to regulate wetlands and mitigation. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. This chapter will focus first on the laws and policies that necessitate wetland mitigation. The Califomia Environmental Quality Act, federal and state agencies, Memorandums of Understandings and/or Agreements, and policies will be examined to see how they operate to minimize the loss of a wetland’s water quality function once disturbance of a natural wetland has been permitted. The main documents that the above agencies regulate through are the Rivers and Harbors Act, Clean Water Act, Califomia Coastal Act, and Porter Cologne. There are also a few key Memorandums of Agreement/Understanding and policies that are essential in regulating wetlands and requiring mitigation. Taken together, the major laws mandate no-net-loss of water quality functions in mitigated wetlands. This study will review the authority provided by these laws to the key agencies, and assess the implementation of the legal mandate. The study will primarily investigate the Califomia Environmental Quality Act (CEQA) to establish how it addresses wetland development and mitigation. CEQA is a prominent environmental law, which developers must comply prior to disturbing the environment. The examination of CEQA will be utilized as a benchmark to comprehend what CEQA requires of applicants, with respect to wetland mitigation, when in the process of formulating a project proposal and requesting permits from affected agencies. The remainder of the chapter then draws on scientific literature to briefly review how wetlands provide water quality functions. As a result of the literature review, the study shows that key laws are in place to require wetland mitigation and that wetlands serve an important water quality function but that the two are not explicitly connected from a legal and scientific standpoint. 10 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 2.2 California Environmental Qnality Act The main purpose of the Califomia Environmental Quality Act (CEQA) is to ensure that project decisions are made with full environmental disclosure, allowing for public awareness of proposed projects (Blum, Cobb, Stevens, 2000). Section 15002(a) identifies the main purposes behind CEQA, including informing the govemment and the public about proposed aetivities with potential significant impacts to the environment; identifying means to avoid impacts to the environment; and preventing significant, avoidable damage to the environment by mandating the implementation of altematives or mitigation measures (Bass, 1992). CEQA is a detailed process that agencies and private landowners must follow when taking actions that significantly impact the environment. Interested and affected agencies have the opportunity to comment on the proposed project addressing specific project impacts that an agency is geared toward protecting, even if no permits are required from the commenting agency. For example, the Regional Water Quality Control Boards (RWQCB) can comment on projects that may have indirect or direct adverse impacts on water quality, or on the habitat that supports the beneficial uses for a particular water body. Essentially, project proponents may not be required to seek a permit from the RWQCB, but the RWQCB has the right to comment on the natural resources they have authority over protecting. The CEQA process begins with the project proponent completing an Initial Study. The outcome of the Initial Study will trigger the project falling into one of three categories (1) exemption, (2) Mitigated/Negative Declaration, or (3) an Environmental Impact Report (EIR). Specific projects that are categorized as exemptions typically have 11 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. nominal impacts on the environment. A list of exempt projects under CEQA can be found in Article 19, Sections 15300 - 15329 of CEQA. A Mitigated Negative Declaration is a document that identifies potentially significant impacts induced by the proposed project, but has recognized unavoidable impacts and outlines plans to implement mitigation measures that will reduce impacts to insignificant levels. When the lead agency has adopted recommended mitigation measures. Sections 15091(d) and 15097(a) of CEQA require a mitigation monitoring or reporting program from the lead agency responsible for the proposed project (Blum, et al, 2000). This same requirement applies to projects that require an EIR to be completed. EIRs are detailed documents mandatory for projects that will yield significant adverse impacts (Blum, et al, 2000). Section 15002 (f) (1) defines an EIR as being necessary when “the public agency finds substantial evidence that the project may have a significant effect on the environment,” including direct and indirect impacts (Bass, 1992). The determination of a significant effect is identified in CEQA Section 15064(a) (1); Wetland disturbances are considered significant impacts. In addition to disclosing all impacts, an EIR must also include an altematives analysis. Although Section 15064(a)(1) of CEQA indicates that altering a wetland is a “significant impact,” it does not have a section specifically dictating the protection of wetlands. Wetlands just fall into the general category of “significant impacts” and thus must be addressed in a manner in which all “significant impacts” are addressed. As a result, CEQA does not provide direct protection over wetland resources. In a round-about way, CEQA Section 15097, which dictates that all projects that require mitigation “shall agree to and implement a reporting or monitoring program” for the mitigation measures imposed upon the project, functions 12 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. as a basis for obtaining the protection of wetland resources through mitigation. However, once again, these guidelines are pertinent to all projects that require mitigation; the guidelines are not specifically prescribed for the oversight of wetland mitigation. CEQA Monitoring Requirements: Section 15097 To keep in line with the purpose of this study, CEQA will be reviewed as it pertains to mitigation required of projects that cause impacts, which includes wetlands. Thus, what follows is an explanation of the requirement of a mitigation monitoring or reporting program pursuant to CEQA Section 15097 and Public Resources Code 21081.6. Assembly Bill 3180 (AB 3180) was signed into law January 1, 1989 but not adopted into the CEQA guidelines until October 1998 (Association of Environmental Professionals Mitigation Practices Task Force [AEPMPTF], 2000). AB 3180 was the driving force that updated the Public Resources Code 21081.6, later amended into CEQA as Section 15097. Its requirements for lead agencies state, “.. .[agencies must] adopt a reporting or monitoring program for the changes to the project which it has adopted or made a condition of approval in order to mitigate or avoid significant effects on the environment” (AEPMPTF, 2000). CEQA Section 15097(a) dictates that when a lead agency has agreed that its project requires circulation of either a Mitigated Negative Declaration or an EIR, it shall design a mitigation monitoring or reporting program that will address the proposed mitigation or the steps toward avoiding impacts that will be adopted into the overall project design as conditions to project approval (Remy, 1993). It further mandates that 13 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the program guarantee project compliance. When a lead agency accepts recommended mitigation measures, the agency prescribing the suggestions must provide a monitoring or reporting program for the recommended mitigation measures or guide the lead agency to suitable references to develop such a program (AEPMPTF, 2000). Conditions of approval not only apply to development projects but also apply to general projects described under an EIR, such as general plan updates (GPU) promulgated by local governments. In these instances, a commenting agency may propose policy to act as a mitigation measure until individual permits for the smaller projects within the general plan are applied for and issued. For example, a “no-net-loss of wetlands” policy may be applied as a mitigation measure to a GPU. At the time individual permits are applied for, the permitting or responsible agencies will dictate specific mitigation measures (Remy, 1993). Section 15097(c) gives the lead agency responsible for the proposed project the option to have either or both a mitigation monitoring program and a mitigation reporting program (Bass, 1992). A monitoring program would include periodic review of the adopted mitigation, and a reporting program would include written review at specific intervals of project implementation and completion addressing the adopted mitigation (Bass, 1992). There is not much difference between a monitoring or reporting program. However, a thorough program would include both. CEQA provides examples where a mitigation monitoring or reporting program (MMRP) would be most appropriate. CEQA identifies a monitoring program as one with mitigation measures that are expected to last a long time and necessitate meticulous execution to ensure proper follow through procedures (AEPMPTF, 2000). On the other 14 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. hand, a reporting program would best be utilized for projects that have measurable or quantifiable mitigation measures (AEPMPTF, 2000). Section 15091(d) further states that the monitoring and reporting programs shall be “fully enforced through permit conditions, agreements, or other measures” (AEPMPTF 2000). Although CEQA specifies the requirement for a mitigation monitoring or reporting program, the law does not require the program to be incorporated into the EIR (Remy, 1993). Additionally, CEQA does not provide direction on how mitigation monitoring or reporting shall be accounted for or tracked (AEPMPTF, 2000). The vague direction on enforcement under CEQA is a well known problem with the law. Although the letter of the CEQA law is often met, the intent is sometimes lost. The Association of Environmental Professionals Mitigation Practices Task Force (2000) clearly sums up the problem: The CEQA process typically ends with an adequately prepared document, but the manner in which the mitigation requirements of the document are implemented determine the extent to which the environment will be protected. Since CEQA does not consider the effectiveness of mitigation measures, nor does it have a procedure for assessing and correcting mitigation measures that do not work, a CEQA document that was adequately prepared from a legal standpoint does not guarantee that mitigation measures will or can be implemented during project implementation. 2.3 Wetlands Governing Bodies When following the various requirements of CEQA (which are not part of this study) and adhering to the mitigation requirements of CEQA, projects that entail wetland alterations also must abide by a number of laws implemented by specific agencies. The following describe the agencies that typically govern wetland projects, the laws they 15 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. utilize as vehicles to protect the wetland resources, and the language in those laws that authorize them to require mitigation. 2.3a United States Army Corps of Engineers The United States Army of Corps of Engineers (USACOE) has oversight over wetlands, particularly dredging and filling activities. It must be pointed out that various agencies define wetlands differently. Wetlands as defined by the ACOE and EPA are, ”[T]hose areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions” (Army Corps of Engineers [ACOE], p. 9). The two principal vehicles that the USACOE operate through to address wetlands are Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act. There is also a prominent Memorandum of Agreement (MOA) between the United States Environmental Protection Agency (USEPA) and the USACOE that addresses wetland mitigation. Additionally, since the USACOE is a federal agency, their activities are often subject to the requirements of the National Environmental Policy Act (NEPA). National Environmental Policv Act Under the National Environmental Policy Act (NEPA) and prior to making a permit decision, federal agencies must consider mitigation measures on projects that may adversely affect the environment (National Research Council, 2001). Mitigation, as defined under NEPA in the Council on Environmental Quality (CEQ) regulations, includes: (1) avoiding the impact entirely; (2) minimizing the impact by reducing the 16 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. magnitude of the project; (3) repairing the impact by means of rehabilitating or restoring the impacted area; (4) reducing project impacts over time with maintenance through the life of the project; and (5) initiating compensatory mitigation to replace affected environments (National Research Council, 2001). Although NEPA requires mitigation to be considered, it does not give the USEPA the authority to demand mitigation (National Research Council, 2001). Rivers and Harbors Act The Rivers and Harbors Act of 1899 is enforced by the USACOE. Section 10 of the Rivers and Harbors Act requires a permit from the USACOE for projects involving the excavating and filling of navigable waters\ In the past, the USACOE based their permit action on the extent of navigation impacts only. Environmental factors were not a priority and therefore rarely taken into consideration (National Research Council, 2001). It was not until 1968 that the USACOE expanded their criteria for permit decisions. In addition to determining permit action on navigation impacts, “all relevant factors, including.. .fish and wildlife, conservation, pollution, aesthetics, ecology, and the general public interest” were added for consideration (National Research Council, 2001). This broad checklist now gives the USACOE authority to deny a permit based on adverse environmental impacts or place conditions within a permit. Furthermore, in 1982, the USACOE broadened their authority, allowing them to place additional conditions on a ' Navigable waters o f the United States are defines as “waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity” (33 CFR part 329). 17 Reproduced with permission ofthe copyright owner. Further reproduction prohibited without permission. permit to address legal obligations, or to satisfy public-interest intentions. All ecological impacts must now be considered prior to permit action (National Research Council, 2001). As of 1986, the USACOE had the authority to deny any permit applications where the applicant would not provide compensatory mitigation to guarantee the project would not undermine the public interest (National Research Council, 2001). Thus, Section 10 of the Rivers and Harbors Act provides the authority necessary to mandate mitigation when it comes to altering wetlands. Clean Water Act The Clean Water Act (CWA) also gives authority to the USACOE and other agencies to regulate the dredging and filling of wetlands. The primary goal of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” (United States Army Corps of Engineers [USACOE], 2003). The essence of the law is to have measurable water quality that will provide for designated beneficial uses. A step toward achieving this goal is through the prohibitions of discharge of dredged or fill material into waters of the United States^. Pursuant to CWA Section 404, USACOE can authorize dredge and fill activities through issuance of a permit. Although Section 404 of the CWA provides directives on dredge and fill activities, it does not address or require mitigation. Section 404 (b)(1) only allows for permitting projects that are the least environmentally damaging practicable alternative. No dredge or fill activities are ^ Waters of the Unites States are defined as those classified as navigable waters in addition to “all interstate waters including interstate wetlands; All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce; tributaries; wetlands adjacent to waters” (33 CFR part 328). 18 Reproduced with permission ofthe copyright owner. Further reproduction prohibited without permission. permitted if another alternative will be less damaging to the aquatic ecosystem, or if it will cause additional adverse impacts (USACOE, 2003). All projects that require a Section 404 permit are “supposed to be” water dependent. If the project is not water dependent, an alternative that does not impact waterways is presumed feasible. Additionally, the text of Section 404(b)(1) of the CWA directly links itself to Section 403(c) of the CWA which provides authority for the USACOE to demand that applicants avoid and minimize wetland impacts (National Research Council, 2001). A section 404(b)(1) guideline was promulgated in 1980 to further specify the avoidance and minimization requirements. Specific language addresses compensatory mitigation stating, “Habitat development and restoration techniques can be used to minimize adverse impacts and to compensate for destroyed habitat” (National Research Council, 2001, p. 65). The guidelines further support compensatory mitigation necessitating that permitted projects shall not impact or contribute to substantial degradation to waters of the United States. Activities that will significantly degrade waters will have compensatory mitigation required as a condition of the permit. The USACOE will determine the type of mitigation based on the extent of the impacts (National Research Council, 2001). Thus, language is present in the CWA defining what compensatory mitigation is required of projects that impact waters of the state. Naturally existing wetlands fall into such a category. There are some permits that the USACOE issue that may neglect to require mitigation even when it should be necessary. When issuing a permit under Section 404 of the CWA, the USACOE issues one of two categories of permits, either a general or an 19 Reproduced with permission ofthe copyright owner. Further reproduction prohibited without permission. individual permit. General permits account for specific projects that will only result in minimal impacts upon the environment, often allowing projects to take place in wetlands with little or no USACOE supervision. On the other hand, individual permits are issued on a case-by-case basis and are more closely scrutinized, requiring compensatory mitigation suitable for each individual project. Overall, the USACOE has the necessary legal requirements in place to require mitigation upon disturbing natural wetlands. Mitigation and Monitoring Requirements The USACOE aims at avoiding or minimizing adverse impacts to wetlands and to achieve no-net-loss of functions or values. In the past the USACOE has required a 1 tol ratio for compensatory mitigation of wetland impacts. Moreover, the USACOE would allow acreage as the main driver in the mitigation determination because it was an easy parameter with which to measure compliance (USACOE, 2003). However, USACOE mitigation requirements are no longer based on acreage alone. For example, the Los Angles District, covering the state of Arizona and portions of California, developed Mitigation Guidelines and Monitoring Requirements (hereafter, ^^Guidelines’ ’' ’ ) for required compensatory mitigation through a Special Public Notice in January 2003 (USACOE, 2003). Regulations state that the USACOE has the right to require compensatory mitigation for unavoidable impacts to wetlands (USACOE, 2003). The Guidelines attempt to ensure successful compensatory mitigation replacing all lost functions and values. Compensatory mitigation will come into play once avoidance and minimization of wetland impacts have been thoroughly demonstrated. In addition to the number of 20 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. compensatory mitigation opportunities, the USACOE also encourages exploration of the approved mitigation banks and in-lieu fee programs they support within the area of the proposed project (USACOE, 2003). These off-site opportunities for mitigation may provide greater replacements of functions and values. The USACOE has been working at a watershed level investigating, classifying, and assessing a watershed’s resources. As a result, the USACOE has been moving slowly from solely a project-by-project mitigation requirement to a more holistic approach, with mitigation options replacing functions and values at a watershed level. Thus, the USACOE now regularly approves specific mitigation banks and in-lieu fee programs (USACOE, 2003). The UASCOE chooses to use these programs over case-by-case mitigation when the mitigation will be more beneficial to the watershed at large rather than a small individual on-site mitigation project (USACOE, 2003). In cases where the compensatory mitigation will result in an individual project, there are a series of steps that must be followed to ensure success of the proposed mitigation and replacement of all lost functions and values. The compensatory mitigation will include specific, detailed information addressing: project site impact assessment, compensatory mitigation site selection, compensatory mitigation site design, compensatory mitigation site construction, and long-term compensatory mitigation site maintenance and monitoring (USACOE, 2003). The USACOE has and will continue to require protection of the mitigation site in-perpetuity (USACOE, 2003). Additionally, the USACOE requires monitoring reports form all individual compensatory mitigation sites. The monitoring report requirement is enforceable under the permit that the project applicant receives. Failure to produce the reports will result in 21 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. suspension of the permit or additional compensatory mitigation (USACOE, 2003). The USACOE has made changes to the reporting requirements in order allow the applicant more time to spend on maintaining and monitoring the compensatory mitigated site^. During monitoring of the mitigation site, if the success criteria are not met, an analysis is prepared addressing the cause of failure. The USACOE will then direct the applicant on its next steps of action, which may be to the proposal of remedial actions and continuance of monitoring until approved by the USACOE (USACOE, 2003). Moreover, the applicant must have identified contingency measures. The measures should include alternative locations for the compensatory mitigation, funding mechanisms, and responsible parties (USACOE, 2003). Overall, the Guidelines provide an attempt to comprehensively regulate so that lost wetland functions will be replaced fully. 2.3b United States Army Corps of Engineers and the United States Environmental Protection Agency In February 1990, a Memorandum of Agreement (MO A) was put into action between the United States Environmental Protection Agency (USEPA) and the Department of the Army addressing how mitigation shall be determined in order to remain in compliance with the CWA (USACOE, 2003). The MOA combines the mitigation as defined by the Council on Environmental Quality (CEQ) under NEPA and 3 The monitoring report should include the following detailed information: project information; compensatory mitigation site information; summary o f remedial actions and maintenance of the compensatory mitigation site; list o f USACOE approved success criteria; table comparing monitoring results and performance standards; photographic record; smnmary of field data illustrating compliance with performance standards and success criteria; and a summary of any significant events occurring at the mitigation site (USACOE, 2003). 22 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the Section 404(b)(1) guidelines into three categories: avoidance, minimization, and compensatory mitigation (National Research Council, 2001). The MOA states that mitigation must be approached in a specific sequential order. First, avoidance of all wetland destruction must be attempted; second, minimization of any unavoidable impacts; and third, compensatory mitigation must be implemented to offset all unavoidable impacts (National Research Council, 2001). The compensatory mitigation may come in the form of restoration, enhancement, creation, or preservation, with the MOA supporting on-site, in-kind mitigation as the preferred alternative (National Research Council, 2001). Flaws with the MOA lie with the fact that the MOA only applies to individual permits and not general permits, which account for 85% of approved projects (National Research Council, 2001). Moreover, the MOA is lax when projects impact degraded wetlands and tends to bend in favor of small landowner applicants. So, although the mitigation requirements are in place to address wetlands, there are evident loopholes in the process. Mitigation Banking The MOA between the USEPA and the USACOE also allows for the use of a mitigation bank. The mitigation bank is defined as “a site where wetlands and/or other aquatic resources are restored, created, enhanced, or in exceptional circumstances, preserved expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources” (National Research Council, 2001, p. 67). Mitigation hanking as compensatory mitigation will only be accepted upon following explicit conditions. Mitigation banks do offer environmental advantages, such as the 23 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. compensatory mitigation being completed prior to the project being implemented. Cumulative compensatory mitigation projects may prove to be ecologically superior to individual, isolated mitigation areas. Mitigation banking may be more ecologically beneficial in some cases, but with water quality as a factor, constantly buying into a mitigation bank can really allow the degradation of a watershed with all the banking going to a neighboring watershed. Thus, it is essential that if a mitigation bank is going to be utilized, it should be placed in the same watershed as the proposed project ensuring that the mitigation bank is replacing the lost functions. In 1995, an interagency Guidance was published addressing the use of mitigation banks, bringing to the forefront additional benefits of mitigation banking. Compliance monitoring would be more effective with fewer locations to monitor. Also, compensatory mitigation could become available to projects that had not previously been required to do so, such as general permits (National Research Council, 2001). By being able to implement mitigation banking as compensatory mitigation for general permits, regulators may move closer to actually achieving the “no-net-loss” goal. However, mitigation banking does not necessarily replace the exact functions lost and does not typically mitigate on-site and in-kind. Thus, mitigation banks may provide an overall general environmental benefit, but it may not compensate for functions lost from a naturally occurring wetland. In-Lieu Fees The USACOE and the USEPA have also agreed to utilize in-lieu fees as an option for compensatory mitigation. In-lieu fees are defined as, “payment to a natural resource 24 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. management entity for implementation of either specific or general wetland or other aquatic resource development projects, [which].. .do not typically provide compensatory mitigation in advance of project impacts” (National Research Council, 2001). However, when off-site compensatory mitigation becomes an option, the agencies prefer mitigation banking to in-lieu fees. Again, this option does not effectively capture the functions lost. The “no-net-loss” of wetlands functions and values is a policy statement that was established in the 1990 mitigation MOA (National Research Council, 2001). Although this “no-net-loss” goal does not appear in either of the USEPA or USACOE regulatory programs, the 1990 MOA establishes that the policy will become a goal of the CWA Section 404 program or the National Research Council (2001) writes, “to contribute to the national goal of no overall net loss of the nation’s remaining wetland base.” Both the USEPA and USACOE point out that the CWA cannot achieve the “no-net-loss” goal of wetland functions and values in and of itself. Additionally, the CWA does not address historical wetland loses; the Section 404 program only pertains to existing wetlands (National Research Council, 2001). Moreover, the CWA does not regulate all detrimental wetland activities. 2.3c State Water Resources Control Board & Regional Water Quality Control Board The State Water Resources Control Board (SWRCB) oversees water quality issues in California. The SWRCB manages water rights and directs water pollution 25 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. control programs. The SWRCB has nine autonomous regional boards within Califomia. The SWRCB and each Regional Water Quality Control Board (Regional Board) are responsible for regulating under the federal Clean Water Act (CWA) and the state Porter- Cologne Water Quality Control Act (Porter-Cologne). In addition to these federal and state acts, each Regional Board has developed its own Water Quality Control Plans (Basin Plan) which identifies plans and policies, beneficial uses, water quality objectives, implementation, monitoring and assessment, and water resources and water quality management. Basin Plans include regulation over wetlands (as defined by the USACOE). Clean Water Act Section 401 of the federal Clean Water Act gives authority to the SWRCB and the Regional Boards to require permits of dischargers who plan projects that will result in discharge into navigable waters. The 401 Water Quality Control Program allows states to have control over federal projects, such as those requiring Section 404 certification by the USACOE that may alter state water quality (Stevens, 1992). The SWRCB and Regional Boards work in conjunction with the USACOE when issuing a Section 401 CWA certification. A Section 401 certification is required when a Section 404 certification is being issued by the USACOE. A Seetion 401 eertification may be granted by the SWRQB and Regional Boards if the discharge will not violate effluent limitations, numeric and narrative water quality standards, and does not contribute to degradation (Clean Water Act, 1994). The State and Regional Boards are certifying that the federal permits (either CWA Section 404 permit or Section 10 permit of the Rivers and Harbor 26 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Act) will not impact the quality of the waters of the state. This applies to wetlands when a project proposes to fill a wetland. Furthermore, the permitted discharge can not violate Sections 301, 302, 303, 306, and 307 of the CWA (Califomia Coastal Commission, 2002). Califomia Water Code (Porter-Cologne) The state has additional authority over waters of the state by means of the Califomia Water Code (Porter-Cologne) Under Porter-Cologne, the state has authority to require monitoring, issues permits, and to halt activities that may impact water quality (Stevens 1992). Chapter 3, Article 4, Waste Discharge Requirements, lays out directives for any person discharging waste into waters of the state other than a sewer system. Section 13263 of this Article indicates that the Regional Boards can place specific conditions on discharges in relation to the proposed disposal site or receiving waters into which the discharge will he disposed into (State Water Resources Control Board [SWRCB], 2001). This section allows the conditions to include 1) any applicable adopted water quality control plans that help protect the beneficial uses and water quality standards assigned to the particular receiving water and, 2) prevention of additional nuisance. It is possible for the discharge to slightly change the degree of the water quality. Section 13241 of this Act points out that this is acceptable provided that the beneficial uses are not jeopardized (Porter-Cologne, 2001). Porter-Cologne allows the issuance of Waste Discharge Requirements (WDR) where projects or discharges of wastes from a project will impact or threaten the water quality standards of waters of the 27 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. state (Adelson, 2002). These WDRs are not contingent on issuance of a USACOE permit, as are Section 401 CWA certifications. Wetlands, as defined by federal administrative regulations (i.e., under the CWA), are defined as a subset of waters of the United States. However, the Califomia Water Code, Porter-Cologne, defines waters of the state in a broader sense, including wetlands entirely, though it does not specifically mention them. (The protection of these wetland resources becomes more defined in the Water Quality Control Plans created by each of the Regional Boards, addressed below.) This point is especially vital since the Solid Waste Agency of Northem Cook County (SWANCC) v. Army Corps of Engineers decision of January 9, 2001, which limits the jurisdiction of the USACOE. The limitation includes specific non-navigahle, isolated, intrastate waterbodies. It also ultimately includes some wetlands, which do not require a Section 404 permit (ACOE, 2000). However, although the USACOE regulation over wetlands has become limited, this limitation does not apply to state law and thus wetland regulation that falls out of USACOE jurisdiction is still covered under Porter-Cologne by the SWRCB and Regional Boards. Regional Board Water Oualitv Control Plans Each of the nine Regional Boards has a Water Quality Control Plan (Basin Plan) stating the water quality objectives of the waterbodies within their jurisdiction and an implementation plan specifying how to achieve or maintain a specific level of water quality. Every Regional Board designates specific beneficial uses and water quality * California Water Code Section 13050(e) defines waters of the state 28 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. objectives for the waterbodies within their jurisdiction. For example, the Santa Ana Regional Water Quality Control Board (SARWQCB), one of the nine regional boards, has the authority to regulate the water quality of all the waterbodies within its jurisdiction. The SARWQCB has a Basin Plan that identifies the waterbodies within their jurisdictional area. These identified waterbodies then have beneficial uses^ and water quality objectives assigned to them. Chapter 3 of the SARWQB Basin Plan specifies each beneficial use that applies to the waterbodies, including wetlands. In an attempt to protect the nation’s remaining wetland resources, the USEPA has required Regional Boards to assign beneficial uses and water quality objectives to each jurisdiction’s wetlands. The listing of wetlands in a Regional Board's Basin Plan, with assigned water quality standards, allows the state (each Regional Board) to regulate activity on wetlands and to ensure that the designated beneficial uses are being attained and not compromised. [See Table 2.1 for clarification and definition of beneficial uses.] Stringent water quality objectives are established and must be met to proteet the most demanding beneficial use assigned to each waterbody (SA Basin Plan, 1995). The SARWQCB, for example, does not have specific numeric water quality objectives assigned to wetlands in their Basin Plan. In cases such as this, narrative water quality objectives must be attained. An example of the narrative objectives that must be met for wetland beneficial uses to be protected (specific to enclosed bays and estuaries) are outlined in Table 2.2 (Califomia Regional Water Quality Control Board [SARWQCB], 1995). The water quality objectives for inland wetlands are slightly different since they as “any surface water or groundwater, including saline waters, within the boundaries of the state” ^ Beneficial uses are defined as one if the various ways water can be used for the benefit of people and/or wildlife. 29 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. do not have a direct ocean water fresh water interface influence^. However, the beneficial uses apply to both inland and those wetlands defined as enclosed hays and estuaries by the SARWQCB. It must be noted that the SARWQCB does not have all of the wetlands listed in their Basin Plan. Although not listed, all wetlands are still subject to the same protection under both federal and state laws. It is important to note that the specific regulatory strategies for protecting wetlands differ among the regional water quality control boards. For example, the Lahontan Regional Board has assigned beneficial uses to wetlands slightly differently in their Basin Plan. The Lahontan Regional Board has added the “Water Quality Enhancement” beneficial use to their Basin Plan to identify wetlands under their jurisdiction (Califomia Regional Water Quality Control Board [LRWQCB], 1994). Aside from the other beneficial uses allocated to wetlands in the Lahontan Region, this use is applied to wetlands to recognize the “value wetlands provide in improving the water quality of other surface waters” (LRWQCB 1994). The interrelated functions that the wetlands provide also support the beneficial uses of the waterbody. Thus, the beneficial uses assigned to wetlands’ functions can be multiple, especially upon when a specific function of a wetland is focused. For example, if the function of sediment and nutrient retention and cycling (a water quality function) is evaluated, the value it provides is sediment and pollutant removal, thus addressing that the beneficial uses FRSH, WRM, REC-I, and REC-2 yield being protected (see Table 2.2) (Schmoker, 2003). The value in having a beneficial use or water quality objective assigned to a waterbody provides justification for protecting the resource through the ’ Both inland and coastal wetlands are being addressed in this study as a means to protect impacts in coastal 30 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CWA and Porter-Cologne. In addition to beneficial uses, Porter-Cologne states that when addressing water quality economic development must be taken into consideration (Stevens, 1992). Thus, as wetlands have beneficial uses, water quality objectives, and functions assigned to them, the SWRCB and Regional Boards have the authority to ensure that the designated uses and objectives are not being compromised. Where such values will be compromised, then those values should be captured and replaced in the compensatory mitigated wetland. However, prior to getting to a state of requiring compensatory mitigation, the SWRCB and Regional Boards prefer, like the federal agencies, to first avoid impacting the resource entirely and if not feasible, to minimize the impact (Schmoker, 2003). Although the above avoidance steps are “preferred”, they are not official policy of the water quality control board Overall, the goal of both the CWA 401 Water Quality Control Program and Porter-Cologne Waste Discharge Requirements under the SWRCB and Regional Boards is to protect beneficial uses and water quality objectives assigned to the state’s waters (Schmoker 2003). waters. 31 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Table 2.1 BeneficialUses Beneficial Use Abbreviations Description Water Contact Recreation REC 1 Waters used for recreational activities involving body contact with water where ingestion of water is reasonably possible. Non-contact Water Recreation REC2 Waters used for recreational activities involving proximity to water, but not normally involving body contact with water where ingestion o f water would be reasonably possible. Commercial and Sport-fishing COMM Waters used for commercial or recreational collection of fish or other organisms, including those collected for bait. Preservation of Biological Habitats o f Special Significance BIOL Waters supporting designated areas or habitats where the preservation and enhancement o f natural resources requires special protection. Wildlife Habitat WILD Waters supporting wildlife habitats. Rare, Threatened, or Endangered Species RARE Waters supporting habitats necessary for the survival and successful maintenance o f plant or animal species designated under state or federal law as rare, threatened, or endangered. Spawning, Reproduction, and Development SPWN Waters supporting high quality aquatic habitats necessary for reproduction and early development o f fish and wildlife. Marine Habitat MAR Waters supporting marine ecosystems. Shellfish Harvesting SHEL Waters supporting habitats necessary for shellfish collected for human consumption, commercial, or sports purposes. Estuarine Habitat E S I Waters supporting estuarine habitat ecosystems. 32 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Table 2.2 Wetland Water Quality Narratives Wetland Water Quality Narratives for Enclosed Bays and Estuaries W ater Quality Ob.jective N arrative Standard Bacteria, coliform: • REC 1 Fecal coliform: log mean < 200 organisms/lOOmL based on five or more samples/30 day period, and not > 10% of the samples exceed 400 organisms/lOOmL for any 30-day period • SHEL Fecal coliform: median concentration < 14 MPN (most probable number)/! OOmL and not more than 10% of samples exceed 43 MPN/lOOmL Color Waste discharges can not result in coloration of receiving waters that adversely affect beneficial uses. The natural color of fish, shellfish, and all water resources used for human consumption can not be impaired. Dissolved Oxygen Can not be depressed to levels that negatively affect beneficial uses resulting from controllable water quality factors pH 7.0 < pH < 8.6 resulting from controllable water quality factors; ambient pH levels can not be changed more than 0.2 units Suspended & settleable solids Can not contain suspended or settleable solids in amounts that could negatively affect beneficial uses resulting from controllable water quality factors Temperature [meet objectives in Thermal Plan] Turbidity Increase in turbidity resulting from controllable water quality factors must adhere to the following: Natural Turbiditv Maximum Increases 0-50 MTU 20% 50-100 MTU 10 NTU >100 NTU 10% Enclosed bays and estuaries must be free of changes to turbidity that negatively affects beneficial uses. 33 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. In conjunction with the CWA, Porter-Cologne, and each regional board’s Basin Plans, the water quality functions of a wetland have important legal proteetion. Thus it is up to eaeh Regional Board to enforce the letter of the law and ensure that wetland functions are being replaced as they permit the fill and/or alteration of a naturally occurring wetland. SWRCB and RB Mitigation and Monitoring Requirements In 1991 the State Board received a grant funded by the USEPA to address the beneficial uses and water quality standards for wetlands (Stevens, 2002). The grant was intended to develop wetland language to better identify and protect the uses of wetlands. The proposed products of the grant were: a water quality related definition of wetlands to be used by the state and regional boards; development of language for a wetlands beneficial use eategory to be used in the Basin Plans; and narrative wetlands water quality objectives (Stevens, 2002). Although some of these deliverables were produced, they were not adopted by the SWRCB due to the sensitivity of the “wetlands issue” (Stevens, 2002). As a result, there is no standard language addressing wetlands with the State and Regional Boards. However, some Regional Boards have taken it upon themselves to create wetlands beneficial uses resulting in greater protection over these resourees. The SWRCB and Regional Boards do not have one defined and specified set of mitigation and monitoring guidelines addressing wetlands. With each of the nine Regional Boards being autonomous, each individual board has the authority to choose and require compensatory wetland mitigation, as they see fit, or not at all. Some 34 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Regional Boards are still in the habit of concentrating on acreage as effective compensatory mitigation, without taking into consideration the loss of wetland function and values. With such practices still occurring, guidelines, acting as a uniform template, addressing mitigation and monitoring may be beneficial to the State and Regional Boards (Stevens, 2002). 2.3d California Coastal Commission The Califomia Coastal Commission (CCC) is another key player in the regulation of coastal wetlands. The CCC defines wetlands according to the Coastal Act as: “[LJands 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” (Califomia Coastal Act, 2002). The CCC is responsible for implementing the Califomia Coastal Act (Coastal Act) which fulfills the state obligations under the Federal Coastal Zone Amendment Reauthorization Act. The Coastal Act is the primary regulatory tool that is utilized to prevent the degradation and disturbance of wetland ecosystems. The CCC also has a prominent voice in activities that occur within the coastal zone. The CCC has developed a document, “Procedural Guidance for the Review of Wetland Projects in Califomia’s Coastal Zone,” (hereafter referred to as "'Guidance"). It will be examined in the following paragraphs to show how the CCC regulates wetland activities in the coastal zone and addresses wetland compensatory mitigation. The Guidance document serves to update the 1981 “Statewide Interpretive Guidelines for Wetlands and Other Wet Environmentally Sensitive Habitat Areas” produced by the CCC. The primary objective of the Guidance is to “provide a 35 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. consistent process for the review of proposed wetland development projects in the Califomia coastal zone (Califomia Coastal Commission, 2002). The Guidance is broken up into four chapters; discussing the permit review process, the review of mitigation plans, a review of agencies involved in the protection and management of Califomia’s coastal wetlands, and review of scientific information necessary to comprehend the values of the wetland resource (Califomia Coastal Commission, 2002). When reviewing coastal development applications, the primary goal is to make sure that the project is in line with the Califomia Coastal Act (Coastal Act) (Califomia Coastal Commission, 2002). The Guidance states that not only are the procedural and technical components of the application important, but the complexity of the wetland, either directly involved with a development project or adjacent to it, plays a vital role in the permit review process. It is essential that wetlands be scmtinized as an entire ecosystem, not just for site-specific impacts, taking into consideration all vital components that allow the wetlands to function naturally (Califomia Coastal Commission, 2002). Califomia Coastal Act (Coastal Act) In order to abide by the letter and spirit of the Coastal Act, the CCC allows the development or alteration of wetlands within the coastal zone only and in a limited set of circumstances. Chapter 3, Article 4, Sections 30230, 30231, 30233, and Article 5, Section 30240 of the Coastal Act contain the essence of the regulations pertaining to wetlands. It is in Article 4, Section 30233, that the more detailed language regulating wetland development resides (Califomia Coastal Commission, 2002). 36 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Section 30233 lists the only eight allowable instances in which a wetland may be disturbed and by which means the impacts must be mitigated. Section 30233(a) states the situations in which diking, filling, or dredging are allowed in wetlands, provided there are no other “feasible less environmentally damaging alternative, and where feasible mitigation measures have been provided to minimize adverse environmental effects” (Califomia Coastal Act, 2002). Some of the allowable uses are (Califomia Coastal Act, 2002): • New or expanded port, energy, and coast-dependent industrial facilities; • Maintenance of existing or restoring degraded depths in existing navigational channels, tuming basins, vessel berthing and mooring areas, and launching ramps; • Entrance channels for new or expanded boating facilities; if developed in a degraded wetlands, the entire project can not exceed 25 percent of the degraded wetlands and must restore and maintain no less than 75 percent of the degraded wetlands to a productive wetlands (Califomia Coastal Commission, 1-6); • Inspection of public services (i.e. burying cables and pipes; pier inspections; maintenance of intake and outfall lines); • Mineral and sand extraction (except in environmentally sensitive habitat areas); and • restoration purposes Furthermore Section 30233(c) states that where diking, filling, and dredging are allowed, the activities must sustain or improve the functions of the wetland (Califomia 37 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Coastal Act, 2002). Additionally, the Section requires that any alterations of wetlands shall be limited to minor incidental public facilities, restoration, nature studies, and additional specific activities in designated specified areas (Califomia Coastal Act, 2002). The CCC can permit an activity in a wetland if it is one of the permitted uses pursuant to Section 30233 of the Coastal Act. However, if the project is permitted and in accordance with the Coastal Act, the CCC requires an alternatives analysis. The CCC evaluates the altematives based on the loss of wetland acreage and the loss of wetland functional capacity (Califomia Coastal Commission, 2002). Comparisons of altematives measured against total acreage impacted and functions lost will decipher which altemative would be least damaging to the wetland ecosystem. However, there are some difficulties in evaluating a wetland’s functions. This short-coming is addressed later in Chapter 3. Additional parts of the Coastal Act that have relevance to the regulation of wetlands are Sections 30231 and 30240, which address the protection of biological productivity and water quality of wetlands and waters. Section 30240 speaks to the protection of environmentally sensitive habitat areas (ESHA) (of which wetlands can be a subset) including all habitat values and resources the ESHA is dependent upon for its functionality (Califomia Coastal Act, 2002). Wetland Mitigation under the Coastal Act The Guidance further points out that permitted wetland projects are subject to mitigation to compensate for the imposed impacts. The Coastal Act Chapter 5, Article 2, Section 30411(b) and Chapter 7, Article 30607.1 are some portions that address wetland 38 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. mitigation (Califomia Coastal Commission, 2002). In conjunction with Section 30233, Section 30607.1 details the mitigation that will be required of permitted wetland activities. The Section states: .. .mitigation measures shall include, at a minimum, either acquisition of equivalent areas of equal or greater biological productivity.. .provided, however, that if no appropriate restoration site is available, an in-lieu fee sufficient to provide an area of equivalent productive value or surface areas shall be dedicated to an appropriate public agency or the replacement site shall be purchased before the dike or fill development may proceed. [Mjitigation 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 aecomplished in the shortest feasible time (Califomia Coastal Act, 2002). Chapter 6 of the Coastal Act also helps support the protection of wetlands. Article 1, Sections 30500 and 30502 states that each local government lying in a coastal zone, partially or entirely, must submit a local coastal program (LCP) for the portion of their jurisdiction which lies in the eoastal zone. Within the LCP, sensitive coastal resources areas must be identified. In addition. Section 30522 states that the CCC can not approve LCPs that “provides for a lesser degree of environmental protection than that provided by the plans and policies of any state regulatory agency that are formally adopted by such agency, are used in the regulatory program of such agency, and are legally enforceable” (Califomia Coastal Act, 2002). Although wetland mitigation is required by the CCC, the question still is whether CCC regulation fully replaees lost wetland functions in practice. 39 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 2.3e California Department of Fish and Game The Califomia Department of Fish and Game’s (CDFG) mission is to “manage Califomia’s diverse fish, wildlife, and plant resources and the habitat upon which they depend for their ecological values and for their use and enjoyment of the public” (CDFG, 2003). Pursuant to Sections 1601 and 1603 of the Fish and Game Code, the CDFG has the authority to regulate alterations to wetlands, stream flow, and suction dredging (CCC/Statewide, 2000). Moreover, Senate Concurrent Resolution No. 28 allows for CDFG to “propose plans to protect, preserve, restore, acquire, and manage wetlands” (CCC/Statewide, 2000). Thus CDFG has the authority to regulate and prevent the destmction of a wetland in order to protect biodiversity (plant and animal). Since their mission is the protection of fish, wildlife, plant resources, and their essential habitats, CDFGs primary goal may also help to preserve wetlands by achieving the “no-net-loss” goal for habitat function and value, which includes wetland water quality functions. However, wetlands under the jurisdiction of CDFG are not typically protected primarily in terms of water quality. CDFG are key partners with the CCC, primarily when determining the consistency of wetland impacts to the Coastal Act. CDFG assists the CCC with determining a projects potential impacts, reliability of supporting documents, and deciphering whether the proposed mitigation is sufficient to off-set and compensate for the imposed impacts on a wetland (CCC/Statewide, 2000). In addition to working closely with the CCC, CDFG also collaborates with the USACOE. The Fish and Wildlife Coordination Act require that the USACOE give significant consideration to comments that the CDFG have on ecological impacts (which includes wetlands) (CCC/Statewide, 2000). CDFGs comments 40 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. weigh heavily on USACOE permit decisions since they adhere to the policy provided under the Coastal Act, Califomia Endangered Species Act, CEQ A, and the Resources Agency Wetland Policy (CCC/Statewide, 2000). 2.4 Additional Wetland Policy Statements Wetlands Conservation Policv The August 1993 Califomia Wetlands Conservation Policy (hereafter. Policy), designed a framework for the management and protection of wetlands. The Policy statements were designed to fulfill three primary objectives: (1) ensure no-net-loss of wetlands; (2) reduce the complexity in overlaps among federal and state wetland conservation programs; and (3) encourage wetland conservation and protection through the fostering of partnerships between public and private entities (Califomia Wetlands Conservation Policy, 1993). The policy is implemented through three key strategies: statewide policy initiatives, implementation of three geographically based wetlands programs, and creation of a wetlands interagency task force (Califomia Wetlands Conservation Policy, 1993). The statewide initiatives strategy will focus on a number of parameters. To start, a statewide wetlands inventory and wetlands accounting system will be established. In addition, regional and statewide restoration and enhancement goals will be identified. Another focal point will be to support the development of wetland plans. This strategy will also support an attempt to improve the administration of wetlands regulatory programs. This can be accomplished through adopting a consistent wetlands definition among regulatory agencies, developing a state policy regarding the USACOE nationwide 41 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. permits, and developing and adopting consistent wetland standards and guidelines (Califomia Wetlands Conservation Policy, 1993). The regionally based wetlands program strategy will center on implementing the actions initiated by the statewide initiatives. The Central Valley, San Francisco Bay Area, and Southem Califomia have been designated as pilot project areas where the State government will tailor statewide policies to determine what practices and policies work prior to implementing strategies throughout the state (Califomia Wetlands Conservation Policy, 1993). The last strategy outlined to implement the Policy is the formation of a wetlands interagency task force to oversee and coordinate administration and implementation of the policy (Califomia Wetlands Conservation Policy, 1993). The Resources Agencv Wetland Policv The Resources Agency Wetland Policy (Resources Agency Policy) is another state policy addressing wetlands. The Resources Agency Policy states that the Resources Agency, its Departments, and the CCC will not give permission or consent to projects that fill, alter, or destroy coastal, estuarine, or inland wetlands (CCC/Statewide, 2000). The Resources Agency Policy allows exceptions provided the following eriteria are met: (1) the project is water dependent or an essential transportation, water conveyance, or utility project; (2) there is no feasible or less damaging altemative; (3) the public tmst is not adversely affected; and (4) compensation for the imposed losses become part of the project design (CCC/Statewide, 2000). With respect to the compensatory mitigation, the “wetlands habitat value” shall not be less than what exists under pre-project conditions. Furthermore, the compensatory mitigation shall be written into a permit or as a formal 42 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. agreement between the project proponent and the CDFG or the Resources Agency (CCC/Statewide, 2000). Conclusion: Wetlands Regulations Overview CEQA, a major Califomia state environmental law, provides very few requirements specifically addressing wetlands. Under CEQA, indirect and cumulative impacts to wetlands can be classified as significant, and as a result, warrant mitigation (Cylinder 1995). CEQA does not address the protection of wetlands more than merely stating that alterations to them are considered a “significant impact” and must be addressed appropriately. However, the definition of a “significant impact” is broadly defined and left up to the lead agency and often times to the project applicant to determine. The requirements for compensatory wetland mitigation are also lacking in CEQA. As a result, the way that CEQA “protects” wetlands and requires that mitigation be satisfied is through Section 15097. Section 15097 of CEQA calls for the development of monitoring or reporting programs when mitigation becomes part of project approval. Again, this monitoring or reporting requirement is not prescribed to address compensatory mitigation specifically, but rather to address any mitigation that follows as a result of project approval. Although there is a monitoring and/or reporting requirement under CEQA, it is loosely written, not spelling out how the mitigation shall be tracked, funded, or enforced. Thus, CEQA does not have strong guidelines necessitating strict adherence to compensatory wetland mitigation dictating that functions lost must be replaced. 43 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Despite problems with CEQA, the key agencies, USACOE, USEPA, SWRCB, CCC, and CDFG, involved in overseeing wetland alterations, operate under a panalopy of federal and state laws, NEPA, CWA, RHA, Porter-Cologne, Coastal Act, that address wetlands. Through these laws, the legal language is in place to protect wetlands and require compensatory mitigation when altering or disturbing wetlands become unavoidable. Taken together, these laws give the agencies the authority to make compensatory mitigation policies possible, as well as making up for the deficiencies under CEQA with respect to wetland mitigation. The final sections of this chapter address why there is a need to protect wetlands for their water quality functions and the need to monitor the compensatory mitigated wetlands to ensure that the function is being maintained. 2.5 Water Quality Functions of Wetlands The functions of wetlands range from flood control, supporting wildlife, endangered species, biodiversity, maintaining specific flora and fauna, naturally cleansing water, as well as having intrinsic value for education and research (CEQ, 1999; Zedler, 1996). This section will focus on the water quality functions that wetlands provide. However, it is important to note that the functions of wetlands are often intertwined (CCC, 1994). As mentioned in Chapter 1, wetlands naturally provide a number of critical water quality functions. This section first reviews the limited literature on protecting wetlands for their water quality functions. This ties into the question of whether compensatory mitigated wetlands are being monitored effectively for replacing water quality functions. Then the section will cover monitoring methods that determine 44 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. if the water quality functions of an altered wetland have been maintained or lost with the compensatory mitigated wetland. Protecting Wetlands for Water Quality Functions Wetlands provide key economic values for humans. Philosophers have stated that the environment has “intrinsic” value, which should justify its need to for preservation regardless of its benefit to people (Dennison & Berry, 1993). Ironically, it is the economic values of wetlands that trigger the laws and regulations for wetland protection from human induced destruction and degradation (Dennison & Berry, 1993). Wetlands affect the quantity and velocity of water flow, contributing to the overall chemical reactions executed by the wetland environment. Wetlands typically slow water movement, allowing for evapotranspiration and groundwater recharge transactions to occur. These flows underly biological and geochemical reactions (Hey & Phillipi, 1999). Under anaerobic conditions, bacteria strips the oxygen from nitrate and nitrite molecules, releasing nitrogen gas to the atmosphere (Hey & Phillipi, 1999). The carbon cycle is also activated in the wetland environment. Wetland plants remove carbon dioxide (CO2) from the atmosphere and temporarily retain it as living biomass (Hey & Phillipi, 1999). When the vegetation dies or decomposes, the carbon is either released back into the atmosphere or it is stored on a more permanent basis (Hey & Phillip, 1999). However, the wetlands do not act as a net sink for carbon. Whigham and Brinson (1999) further illustrate the nutrient retention and removal system. Nutrient retention is the storage of nutrients in the substrate either by sorption or 45 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. biomass accumulation of a wetland. Water quality analysis has identified the dominance of nitrogen and phosphorus within the water column. Wetlands are capable of handling chemical loads, consisting of nutrients, sediments, and even oils and salts, as long as there is assimilative capacity. These constituents can be beneficial to the biological processes that occur naturally within a wetland (Mitsch & Gosselink, 2000). Wetland biogeochemistry cycling, the transport and transformation of chemicals in ecosystems, is vital within a wetland and its surroundings, especially as it relates to the cleansing of water (Mitsch & Gosselink, 2000). Other processes that aid in water quality function of wetlands are nitrogen cycling, iron and manganese transformation, sulfur, carbon and phosphorus transformations (Mitsch & Gosselink, 2000). The vegetation specific to coastal wetlands allows for the trapping of sediments, generating water of better quality prior to it reaching the designated receiving waterbody. Microorganisms and plants are essential in the cycling and removal of the nutrients from water as excess nutrients are stored in cell tissue, eventually decomposed into organic matter or retum to the atmosphere as gas (NRDC 1/SR). Wetlands are also capable of utilizing microbes to filter pesticides and heavy metals and reducing the potential for water-borne bacteria (Reed and Brown 64/SR). The ability for wetlands to trap sediments prevents them from entering streams and reaching waterways downstream. Wetlands also play a critical role in reducing turbidity, especially during flood episodes. Satner, Smith, and Larsen also support the point that it is more economical to maintain natural wetlands to receive flood flows as opposed to building man-made structures (373). 46 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Little literature on wetlands focuses on preserving them for their water quality functions alone (i.e., their natural capability to cleanse water). Mitsch and Gosselink (2000) point out that there is a grey area when defining wetlands that are created or restored for habitat values and those created or restored for water quality purposes. They further state that many of the restoration programs provide benefits both for habitat value and for water quality functions. Left unaltered by the placement of fill, wetlands can be a feasible economic means to naturally address water quality. This differs from wetlands constructed as part of urban infrastructures to handle engineered flows of nuisance runoff. Monitoring wetlands for WO functions Few satisfactory methods exist to effectively determine the success of mitigated wetlands compensating for the loss of functions of the original wetland in handling natural flows (Mitsch & Gosselink, 2000). The Coastal commission reports that, “Wetland assessment based on functions and values are problematic due to the lack of rigorous and objective assessment criteria” (CCC, 1994). Monitoring is a critical role in the success of wetland mitigation projects (Zedler, 1996). The majority of wetlands are assessed based on area. Hydrology and water quality are rarely functions measuring success. Instead, monitoring vegetation is usually considered an easier way to track progress (Mitsch & Gosselink, 2000). However, Reihartz and Wame believe that although vegetation is easy to assess, it is a poor measurement of water quality function (Mitsch & Gosselink, 2000). 47 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Mitsch and Gosselink (2000) make a distinction between the legal success and ecological success of a mitigated wetland. Legal success of a mitigated wetland compares the functions and area of the mitigated wetland to that of the wetland it is replacing (Mitsch & Gosselink, 2000). Ecological success looks at the functions of the mitigated wetland compared to that of a reference natural wetland in a similar landscape setting demonstrating “acceptable standards of regional wetland functions” (Mitsch & Gosselink, 2000). A superb monitoring strategy for mitigated wetlands would incorporate both the legal and ecological standards of success, but it is rarely done in practice (Mitsch & Gosselink, 2000). Mitsch and Gosselink (2000) suggest there is much room for improving mitigated wetlands. Also, Brinson and Rheinhardt have noted that wetland mitigation projects in Southern California are generally less functional than reference systems (Zedler, 1996). A method to measure water quality is to utilize a model comparing retention against chemical loading. A number of studies can be compared to estimate chemical retention (Mitsch & Gosselink, 2000). Dermison and Berry (1993) state that for water quality, functions can be assessed by taking repeated samples of constituents of interest, nutrients, metals, suspended solids. The samples should be taken at both the inlets and outlets to get an estimate of the retention or transformation that the wetland has performed on the pollutants (Dennison & Berry, 1993). Another method for measuring wetland water quality functions are by utilizing indicator organisms. Benthic macroinvertabrates are prime indicators of water quality, and they are also relatively easy to collect. 48 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Dennison and Berry (1993) suggest that monitoring should be a component of permits. They suggest that a detailed plan should be developed that specifically identifies who will “collect the data, pay for the monitoring and evaluation, how data will be collected, when it will be collected, where it will be stored permanently, and who will be responsible for evaluating the results of the monitoring” (Dennison & Berry, 1993). In essence, they are calling for a “Quality Assurance Protection Plan.” Thus, there are a number of ways to effectively monitor the water quality functions of a wetland. Using any of the scientifically sound methods described in the literature will require developing baseline data. However, it is essential to know the baseline water quality function of the natural wetland, including pollutant removal efficiency, if regulators are to ensure that the compensatory mitigated wetland is either achieving the removal efficiency of the original wetland or doing better than the altered natural wetland. Requiring detailed site assessment prior to disturbing the site, or monitoring a reference site, may also be necessary in order to have baseline data to compare the water quality of the compensatory mitigation site. Inclusion of this needed data into a permit may help to ensure the water quality functions are in fact being replaced. 49 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter III: Theory 3.1 Why Wetland Mitigation Does Not Work Many critics point out that compensatory mitigation is not producing the promises enshrined in our environmental laws (Heilprin, 2001; Hopey, 1999; Kaiser, 2001). Many researchers have also pointed out that compensatory wetland mitigation is inadequate and flawed from a technical standpoint (Whigham, 1999; Zedler, 1996). However, much of the research relates to hahitat and protection of endangered species and wildlife and other key interrelated functions of wetlands. The monitoring of the replacement of water quality functions in compensatory wetlands has not been reviewed in terms of effective replacement. Coastal compensatory wetland mitigation has occurred under state and federal policies for nearly twenty years (Josselyn & Zedler, 1989). A large percentage of the proposed mitigation projects have failed. These failures are attributed to either the lack of compliance with permit requirements (the project not being implemented entirely, for example) and implementation of the mitigation project without paying attention to specific permit requirements (Josselyn & Zedler, 1989). Additionally, few wetland mitigation projects are developed with the necessary scrutiny to guarantee success. The projects are merely discussed between the project applicant and regulatory agencies, with minimal focus on replicating functions and guaranteeing success (Successful Watersheds, 2002). Functional assessment of completed compensatory mitigation is difficult to quantify due to the lack of historical information of wetlands. Thus, compensatory mitigation shall only he approached after avoidance measures have been addressed (Zedler, 1996; Josselyn & Zedler, 1989). There is not a straightforward, single approach 50 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to recreate wetlands. The idea that wetlands are easy to recreate must be rejected (Josselyn & Zedler, 1989; Schmoker, 2003). This chapter will demonstrate that enforcement, science, monitoring, and resources and economics are lacking, thus providing reasons why the water quality functions of compensatory wetlands may not be upheld at the mitigation site. The chapter will also point out the gaps in information and enforcement, specifically the need to consider the protection of the valuable water quality functions in compensatory mitigated wetlands. Compliance & Enforcement Surveys indicate that mitigation sites are not measuring up to permit requirements. This results from agreements that are inadequate in bringing water quality functions up to permit levels, wetlands that are not designed according to specifications under the permit, wetlands that function in unexpected ways, and regulatory monitoring that is inconsistent (Successful Watersheds, 2002). Enforcement is perhaps the key reason why compensatory wetland mitigation is rarely successful. To begin with, the California Environmental Quality Act (CEQA) allows projects causing significant impacts to the environment to move forward provided there is a statement of overriding consideration. Section 15093(a) of CEQA states “if the benefits of a proposed project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered ‘acceptable’” (Remy, 1993). Where a project will inflict adverse impacts on the environment, an agency can still approve the project even without plans to mitigate the effects. This is allowed provided that the agency issues a “statement 51 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. of overriding considerations,” including detailed reasons that balance competing policies and all relevant factors (Remy, 1993). However, the Court of Appeals (in the Sierra Club V. Contra Costa County case) held that statements of overriding consideration must provide significant evidence in the administrative record (Remy, 1993). Moreover, Section 15097 of CEQA calls for the development of a mitigation monitoring or reporting program for mitigation measures and project conditions to which a lead agency has agreed. However, there is no enforcement behind this requirement. CEQA does not provide directives as to how to track the monitoring and reporting of mitigation. Although Section 15091(d) requires the program to be “fully enforceable through permit conditions, agreements, or other measures”, it does not hold a lead agency accountable for readily submitting the monitoring reports, nor does it (CEQA) have penalties for not following through with the proper reporting or monitoring of the program. The submittal of reports and monitoring information is vital because it will disclose the nature of success or failure to the public and interested agencies. Furthermore, it will illustrate how closely and meticulously the lead agency is implementing the mitigation measures and conditions of the approved project. Not only will the reports hold the lead agency accountable for achieving the goals of their proposed and/or required mitigation, hut it will also provide a base of scientific information indicating what mitigation measures are or are not effective for specific projects. In 1992, BASELINE Environmental Consultants, a private firm in Emeryville, conducted a survey regarding mitigation monitoring programs. Of the responding agencies, the results indicated that few jurisdictions took enforcement actions when 52 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. mitigation requirements were not fulfilled. Moreover, some agencies were not requiring project applicants to implement the mitigation measures requested by responsible agencies (Association of Environmental Professionals Mitigation Practices Task Force [AEPMPTF], 2000). Zedler (1996) makes an important point by stating that regulatory agencies have problems denying permits on private lands or even on public lands where projects have been (are) deemed “good for the public.” However, a 1999 BASELINE follow-up survey illustrated that planning agencies are now taking enforcement action against project applicants who do not fulfill their mitigation obligations (AEPMPTF, 2000). Resources & Economics The BASELINE study showed that planners are not content with the legalities because of the required additional monitoring. The requirements place additional cost upon the planners. The 1999 follow-up survey indicated that planning departments tended to utilize consultants when resources were limited. Moreover, planning departments were beginning to put the burden of the monitoring cost on the project applicants (AEPMPTF, 2000). Gaddie and Regens (2000) say that although agencies and permittees are not satisfied with the U.S. Army Corps of Engineers (USACOE) implementation of the Clean Water Act (CWA) Section 404 program, the real fault may not be in the actual program components. Rather, the problem may lie with the lack of staffing at the USACOE level and insufficient resources at the U.S. Environmental Protection Agency (USEPA) level to check that the USACOE is doing its job effectively. Gaddie and Regens (2000) further 53 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. state that budget constraints hamper the effectiveness of implementing a program, especially when the delegation of federal funds lies in the hands of the legislatures. It is important to point out that the courts expanded the CWA Section 404 to include wetland protection (Gaddie & Regens, 2000). Thus, the implementation of wetland protection under the jurisdiction of the USAOCE made legal/bureaucratic sense, although the primary mission of the USACOE is resource management, with respect to water resources. Agencies that are responsible for overseeing wetland activities and permitting them also have the same staff responsible for tracking mitigation monitoring compliance (Successful Watersheds, 2002). Responding to and issuing permits follows a strict timeline. If it is overlooked, essentially a project could avoid having to obtain a permit because permits were not assigned per required timelines. On the other hand, mitigation monitoring has no timeframe. Due to fiscal constraints and resource limitations, agencies concentrate on addressing permitting issues in compliance with the timeline required to issue them. As a result, monitoring of mitigation sites is usually overlooked and thus not enforced (Successful Watersheds, 2002). Any monitoring performed would probably be general, ineluding visual inspections for hydrology, vegetation, grading, and acreage (Successful Watersheds, 2002). Detailed functional assessments may be too costly for the regulatory agencies and will either have to be performed by project applicant, or simply overlooked. But again, reliance on the project applicant does not ensure project compliance. Moreover, Mitsch and Gosselink (2000) point out that a 1994 study shows that wetland mitigation fails as a result of low bids for contracts in an effort to get a contract 54 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. awarded. The study shows that the cost for wetland mitigation is often under estimated, resulting in unsuccessful mitigation projects (Successful Watersheds, 2002). Many times those bidding for the contract lack expertise and are not qualified to create a successful mitigated wetland. Moreover, 50% of mitigation assessments performed in Florida, California, and the mid-Atlantic states failed due to “improper technical decisions, bad planning, poor execution, and lack of monitoring and maintenance after initial construction as a result of under-funding or cost-cutting because regulatory oversight is limited” (Successful Watersheds, 2002). Monitoring The BASELINE Environmental Consultants survey, regarding mitigation monitoring programs, illustrates that despite CEQA requiring certain projects to submit a monitoring or reporting program for their compensatory mitigation, the intent of the law is not being fulfilled (AEPMPTF, 2000). Based on response from the survey, agencies and agency staff, usually perform the monitoring program. However, they tend to rely on the project applicant to self-report. Sometimes consultants are used to doing the monitoring. In a subsequent BASELINE conducted survey in 1999, it was found that many of the planning departments now have mitigation monitoring programs in place and even provide a mitigation monitoring and reporting program as part of a project’s EIR (AEPMPTF, 2000). The 1999 BASELINE study also pointed out that when monitoring is performed, it is done at different levels, thus there is no consistency among assessing monitoring mitigation projects (AEPMPTF, 2000). The California Coastal Commission’s (CCC) 55 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Guidance for the Review o f Wetland Projects in the Coastal Zone (hereafter ‘ ‘ ‘ 'Guidance’'') points out that effective monitoring should assess biological, chemical, and physical properties, in addition to taking into consideration the overall mitigation site (CCC 1994). Furthermore the Guidance points out that when assessing various wetland functions, different values are placed on different functions. Thus, there is not an even playing field among functions with which to compare the effectiveness of the mitigation. Also, there is no baseline measurement against which to measure each function’s effectiveness. Moreover, few completed mitigation projects have been evaluated for functional success in comparison to the wetland it replaced (Successful Watersheds, 2002). Functional Effectiveness & Science Mitsch and Gosselink attribute the lack of successful mitigated wetlands to three factors. First, there is little understanding of wetland functions by those constructing the wetland. It is essential that those replacing or constructing a wetland be well trained and experienced in a multitude of disciplines including hydrogeomorphology, soil science, botany, wildlife, water quality, and engineering. Second, sufficient time must be “allowed” for the wetlands to develop. Freshwater wetlands require fifteen to twenty years to develop fully, rather than the five years they are expected to do so under permits. Coastal wetlands take even longer to mature. Dennison and Berry (1993) further agree state that a wetland may take anywhere from five to ten or more years to reach a point where its functional capacity can be measured. They recommend that the first three years of wetland development be utilized to ensure that the wetland was in fact constructed to rectify problems in a timely manner (Dennison & Berry, 1993). With the 56 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. amount of time it takes for a wetland to mature and function optimally, there will be significant temporal loss between the time the natural wetland is impacted and the mitigated wetland develops. Agencies do not tend to account for this loss when requiring mitigation (Successful Watersheds, 2002). Third, there is a lack of recognition or understanding of the self-design capacity of nature. Ecosystem development and maintenance must he factored into the overall success equation (Mitsch & Gosselink, 2000; Whigham, 1999). A further problem is that a great deal of wetland mitigation is being done “out-of- kind,” not replicating existing functions, but instead to provide for additional functions such as habitat replacement (Successful Watersheds, 2002). Overall, the habitat is beneficial, but the loss of naturally occurring functions can have negative effects on a watershed. When agencies allow out-of-kind mitigation, clear guidance and specific requirements should he placed on the mitigation to ensure wetland functional replacement (Successful Watersheds 2002). An additional problem contributing to unsuccessful wetland mitigation is the lack of quantitative information about the historical conditions of the wetlands (Successful Watersheds 2002; Zedler, 1996). This also ties into the lack of coastal upland available to create new wetlands. Much land is earmarked for private development, military purposes, or is considered critical habitat for endangered species (Zedler, 1996). Without the land to create mitigated wetlands, mitigation would have to occur with existing degraded wetlands. Improvement of water quality functions cannot be determined without historical information on existing wetlands. Zedler (1996) also states that there are slight chances to produce high quality compensatory wetlands in 57 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. urban areas due to the limited land available. To ensure ecological success and so the watershed maintains the advantages provided by the naturally occurring wetland It is essential to place the compensatory mitigated wetland in an area similar to that of the wetland being replaced. Without requiring detailed site assessments from the project applicant to characterize the impacted wetland and its ecosystem, success of a compensatory mitigated wetland is rare. Moreover, if the mitigation is out-of-kind, then the ultimate “no-net-loss” goal, which includes functions and values, is clearly not being attained. Mitigation of wetlands requires an immense amount of knowledge in the physical, ecological, biological, and hydrological processes of the original system. Thus, some agencies see compensatory mitigation as a least preferred method because it is extremely difficult to replace functions and there is a high failure rate (Schmoker, 2002). However, ultimately it is up to the permitting agency to determine whether the loss of functions in a wetland will be replicated successfully in the mitigated wetland. With the limited science on successfully replicating a wetlands’ functions, and the limited amount of data available, agencies are faced with making a determination on the mitigation at the same time they are receiving political pressure to permit the project (Successful Watersheds, 2002). 3.2 Possible Steps Toward Successful Compensatory Mitigated Wetlands The overall objective of compensatory wetland mitigation is to prevent the net loss of a wetland’s acreage, function, and value (Cylinder 1995). Cylinder (1995) points 58 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. out three keys toward successful wetland mitigation: (1) work with the entire ecosystem; (2) integrate wetland habitat; and (3) use a multidisciplinary approach. It is also essential to establish the objectives of the mitigation, for example, water quality. This section outlines a number of avenues for improving compensatory mitigation, as described in the literature. In the final chapter, the study will evaluate these recommendations in the context of the case studies. Many times mitigation is based on replacing the number of acres disturbed, not paying attention to the functions and values lost. In order to effectively capture the functions and values of a wetland, a complete in-depth evaluation of the wetland must be surveyed prior to its being disturbed. The Habitat Evaluation Procedure or the Wetland Evaluation technique could help in assessing the values and fimctions at both the project site and mitigation site (Cylinder, 1995). The hydrogeomorphic approach is another method accepted by the USACOE to evaluate wetlands (ACOE, 2003). Essentially, a comprehensive mitigation monitoring plan needs to be developed to address the functions of concern to ensure that they are being replaced at either the same or greater efficiency at the mitigation site. Creating Monitoring Plans Joy Zedler (1996) believes that monitoring, with its vital importance in wetland mitigation, should not only be a mere data gathering process but also related to accumulating needed information on wetlands and their ecosystems to better understand their complex processes. By doing so, this will help develop a history of the wetlands functions. Zedler also suggests that a regional wetland restoration plan should be 59 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. developed in order to have a place to implement mitigation projects. The program would include the entire 320km of coastline and the following components: 1) Characterize the existing resource base; 2) Set regional goals for sustaining biodiversity; 3) Identify and map all potential restoration and enhancement sites; 4) Indicate most appropriate restoration procedures for each site; 5) List existing mitigation needs; 6) Match needs with opportunities following in-kind mitigation; 7) Where no match is possible, establish out-of-kind compensatory mitigation (1996). Zedler (1996) suggests that throughout the entire project, research should be carried out to understand the success and failures of implementing. This is known as an “adaptive management” method (Zedler, 1996). There are a number of components that must be incorporated into a mitigation and monitoring plan along with considering watershed management (Josselyn & Zedler 1989). Josselyn and Zedler suggest that a mitigation and monitoring plan should be incorporated into the permit application. Information including specific project goals with a measurable timeframe, should be provided (1989). According to Josselyn and Zedler (1989), additional elements to be addressed in a monitoring mitigation plan include: • Description of existing conditions including information on site history, topography, hydrology, sedimentation, soil types, presence of existing wetlands and wildlife, and adjacent land uses; • Description of proposed hydrologic conditions as related to the specific requirements of wetland vegetation and habitat desired; • Means by which the mitigation site constraints such as subsidence, excessive sedimentation, and poor substrate are to be ameliorated; 60 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. • Planting procedures, especially within tidal sites with poor soils. If planting is not required, the period of time after implementation during which full plant estahlishment is expected should be determined and justified in light of the habitat lost; • Determination of appropriate buffers providing wetland protection; • Enforceable procedures to provide construction project oversight by qualified engineers and hydrologists; • Monitoring programs to allow enforcement of permit requirements and provide further information on the effectiveness of mitigation projects as a means to increase wetland resources rather than to simply offset losses. Although these elements do not address how water quality functions will be measured directly, the concept of these measures can help answer the water quality function determination. For example, the history and status of hydrology, enforcement, and monitoring of wetlands to be filled/ altered will provide some baseline information on the functions of the natural wetlands. Once additional components are added to actually measure water quality functions, for example data for pollutant removal efficiency, a broader picture of the water quality functions may be understood. And with this information available, there will be a better attempt to recreate the natural wetlands with a mitigated wetland that will achieve the same water quality functions as the original. An example of a comprehensive mitigation plan is the mitigation guidelines and monitoring requirements the USACOE, Los Angeles District, has developed for projects that require compensatory mitigation. The development of the Plan is divided into four parts. The first component of the Mitigation Guidelines consists of requiring the applicant to fully disclose information in several categories related to project and compensatory site impacts. Such information would include project site impact 61 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. assessment, compensatory mitigation site selection, design and construction, and long term maintenance and monitoring of the mitigation site (USACOE, 2003). The second component is the Monitoring Requirements. This includes detailed project and mitigation information with photographs and maps, list of approved success criteria, remedial actions of mitigation fails, and records of any significant events that were observed during the monitoring period. The third part addresses the Completion of the Compensatory Mitigation, informing the USACOE when all success criteria has been met. The fourth part of the plan identifies contingency measures that will be activated should the proposed mitigation fail to perform optimally (ACOE, 2003). Using a model like this one would require that the water quality function of a wetland be the primary focus of the mitigation in order to see if the function is actually being protected. Ultimately, a compensatory mitigation project should be required to have a substantial amount of detailed information to ensure wetland functions are being replaced. Such requirements should become part of the permit and include: • Long-term management and maintenance program; • Scheduled reporting periods; • Identified monitoring and maintenance contractor; • Identified responsible parties; • Defined and detailed contingency plans; • Identified financial obligations dedicated to the success of the mitigated wetland (successful watersheds 2002). Overall, Josselyn and Zedler (1989) recommend that monitoring needs to be improved and become more consistent. This responsibility should fall on the shoulders of the project applicants. 62 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Utilizing Volunteer Monitoring Groups Wetlands are complex and require a wide range of monitoring methods because of its complex ecosystem and interface between water and land (EPA, 2001). There are a number of ways to monitor wetlands, including (1) functional assessments; (2) habitat assessments; (3) biological assessments; and (4) inventories and characterizations (Danielson, 1998). All of these assessments would need to be done on a natural wetland prior to it being impacted. Then the mitigated wetland will have measures upon which to be compared. Yet, when monitoring to ensure a wetland has maintained its water quality function, biological assessments would help determine the quality of water present, but a detailed functional assessment of the mitigated wetland would be able to produce the effectiveness of the replicated function. These monitoring methods could be quite costly in both methodology and agency resources dedicated to monitoring mitigation sites. But the use of carefully trained volunteer groups could avoid the cost of staff resources by utilizing them to check on the success of mitigation sites. These volunteer groups would not be given any enforcement authority over projects that are not in compliance with a permit. They would act as a “neighborhood watch” and keep the agencies informed of any applicants that could potentially be in violation of a permit. However, in order to have an effective program, detailed and consistent compliance measures, based on functions, should be developed to ensure a wetlands’ “success.” This type of program would require agency staff to carry out a monitoring program, not citizen monitors. 63 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Citizen Enforcement Citizen enforcement of several of the environmental laws that govern compensatory wetland mitigation also provides an alternative avenue to ensure that the “no-net-loss” of water quality function mandate is met. Section 505 of the Clean Water Act allows for any citizen to sue a person in violation of the CWA or a permit (Washburn, 2003). A violation can only be brought against a person when (1) the violator and federal or state agency have been notified of the violation 60 days prior to taking suit; and (2) the federal or state agency has failed to act on the violation (Washburn, 2003). But it must be noted that a “government’s power is discretionary, not mandatory” (Washburn, 2003). Suits may also be brought if CEQA is not followed and if there is a failure to disclose all potential environmental impacts, reasonable alternatives or plans for mitigation. Most legal actions are brought against violations in wetland filling, not for failure to comply with mitigation requirements. However, knowing the power the citizens have, and if mitigation measures are written into a permit, specifying that wetland functions must be replaced, a citizen could actually enforce the permit upon following proper procedures. Thus, enforcement could be left in the hands of the community to ensure compensatory wetland mitigation is in compliance with permit requirements. Environmental groups have been known to act as watch-dogs in a variety of environmental issues. This may be another venue to pursue to ensure that mitigation compliance is being enforced. Agencies could work in conjunction with reputable and trained environmental groups to monitor that mitigation is in compliance. In cases where sites are out of compliance, agencies could address those issues, enforcing the tenets of 64 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. the permit. This approach will reduce the amount of staff time agencies will need to dedicate on monitoring mitigation compliance. Addressing Enforcement, Science. Resources & Economics In order to have a sound monitoring plan that effectively checks on the accuracy of replicating a wetlands water quality functions, more baseline data is needed. The data will he utilized to compare pollutant removal rates between the naturally occurring wetland and the compensatory mitigated wetland to determine if in fact the water quality function is being upheld. However, in order to obtain these data, resources are needed to fund projects and staff that will go out and obtain such information. In the current fiscal climate, the resources are not available to fund on-going projects. However, the Southern California Wetlands Recovery Project (SCWRP) is in the process of working with the Southern California Coastal Water Research Project (SCCWRP) on mapping the coastal wetlands and determining the functions and values that define them. However, this is still in the design phase, and development of wetlands is an ongoing problem in the state. Josselyn and Zedler (1989) suggest that the mitigation sites be constructed either prior to or concurrently with the permitted project in order to minimize a compensatory mitigation project falling out of compliance. Additionally, less wetland functional time is lost while waiting for the compensatory wetland to be completed. Conclusion Based on the literature presented, there appears to be a lack of sufficient data to assess wetlands. Additionally, there is a shortage of funds to have agencies that require data collection readily monitor mitigation sites. Perhaps a new law, similar to AB 3180, 65 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. may be necessary, requiring all developers disturbing wetlands to collect baseline and post construction data to ensure the water quality functions are being maintained at the mitigation site. Additionally, this law would need to address sources of funding that would allow permitting agencies to monitor the success of the mitigation sites to ensure compliance. In the following chapter, case studies will be examined to see if in fact the deficiencies that have been addressed here explain why a wetland’s water quality functions may not be upheld at mitigation sites. 66 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter IV: Case Studies The objective of this chapter is to determine the extent of implementation of the laws identified in Chapter 2 that protect wetlands in coastal watersheds of California. This chapter also examines whether compensatory mitigation that has been undertaken is monitored effectively for replacement of water quality functions. The case studies form a basis to assess theories pointed out in Chapter 3. Two distinct types of case studies will be analyzed. First, the study looks at three different projects that required wetland mitigation. Those case studies will briefly present the project, address the impacts that occurred to the wetlands, measure how they were mitigated, and analyze whether the mitigation upheld the goal of “no-net-loss” in water quality functions. In each of these cases, laws governing mitigation were implemented primarily by the Santa Anna Regional Water Quality Control Board (SARWQCB). The SARWQCB is one of nine regional boards in the state of Califomia, where state agency jurisdiction for protecting coastal waters is not necessarily divided by major watersheds along the coast. The second type of case study explores mitigation monitoring and/or reporting programs. In these case studies, the primary responsibility for implementation rests with local (county) governments. Three counties will be evaluated for the programs they have initiated to enforce and track required mitigation. 67 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Regional Water Quality Control Boards Overview In order to choose projects for the first set of case studies, a broad yet informal survey was conducted with several of the major regional water quality control boards that have jurisdiction along the coast. Regional board staff persons with primary responsibility for with issuing CWA 401 certifications were contacted. These officials are directly involved with wetland mitigation requirements. The San Francisco Regional Board, Region 2, assess each wetland impact on a case-by-case basis. They typically require a 1:1 acre mitigation replacement (Breaux, 2003). When taking “temporal loss” into consideration, half an acre to an acre may be added to the required mitigation ratio^ (Breaux, 2003). Staff does require the applicant to submit baseline data on the impacted wetland, but there are no guidelines that must be followed when doing so. Usually water quality functions of the wetland are not measured, as it is generally assumed that the wetlands provide water quality benefits (Breaux, 2003). The main reason for not having water quality baseline data is the high cost. The staff in Region 2 has had the opportunity to do some wetland compliance monitoring. They have recently visited 20 mitigation sites to ensure they were under compliance and ecologically functioning. They found that all were in compliance and functioning. This was able to be done through a grant funded by the Coastal Conservancy. Region 2, in collaboration with the USACOE and some consultants, are in the process of creating and implementing a wetlands rapid assessment (i.e., within 2 to 4 hours). This study gave them the opportunity to do the compliance monitoring. 68 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. However, checking water quality functions is not part of the assessment. The assessment primarily relies on observing habitat and species to determine success of a wetland (Breaux, 2003). Water quality is not part of the assessment because it can not be done in a “rapid” timeframe. Region 3, the Central Coast Regional Board, indicated that each staff person who works on compensatory wetlands mitigation issues has his or her own interpretation of how to assess wetland impacts. Thus, each requires mitigation differently. Some may require mitigation at a 3:1 acreage ratio or greater (Huckaby, 2003), or some may require a 1:1 acre replacement ratio across the board (Bern, 2003). This Regional Board does not do compliance monitoring primarily because they do not have the resources to do so (Bern & Huckaby, 2003). Upon speaking to the key person responsible for 401 water quality certifications at the Los Angeles Regional Board, Region 4, she explained that they usually require a 3:1 or even up to a 5:1 acre of compensation for impacts to wetlands depending on the quality of the wetland being impacted (Carrillo, 2003). The more pristine the wetland, the higher the mitigation ratio. Region 4 requires the applicant to submit a mitigation plan. Mitigation is preferred on-site. However, if there is not enough space, they allow the use of mitigation banks and in-lieu fees (Carrillo, 2003). This Region also does not have the resources to perform mitigation compliance monitoring. However, they do inspect sites to audit people they know failed to comply with permit requirements in the past. Moreover, Region 4 does have a database flagging when submission of mitigation monitoring reports are to be received by staff from the project applicant. ’ Temporal loss is defined as the time lapse between the destruction o f a (natural wetland) and the construction and fully functioning mitigated (wetland), whereby there is a net loss o f function. 69 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The Santa Ana Regional Board, Region 8, generally requires compensation for impacts to wetlands at a 3:1 ratio (Fischer, 2003). Staff indicated that although water quality functions are measurable, this is not usually performed due to opposition from the applicant. Region 8 does not have the resources to perform mitigation compliance monitoring. Unlike the Los Angeles Region, they do not have a database flagging when submission of mitigation monitoring reports are due. However, they do require that all reports be submitted by September 30 of the year designated in one’s 401 water quality certification. It is quite evident that requirements for specific mitigation ratios for various impacts to wetlands are inconsistent across regional jurisdictions. Additionally, aside from the specially-funded project in Region 2, there are no wetland mitigation compliance monitoring programs within the Regional Boards. In Region 2, no water quality assessments are being performed. Some Regional Boards have databases to flag mitigation reporting due dates, but with the limited resources, the databases do only that. There are no resources to follow- up when reports are overdue or missing. The underlying message here is that each Regional Board addresses wetland impacts in various ways and does not perform compliance monitoring. Moreover, not many of the Regional Boards require or are able to obtain necessary baseline water quality data to ensure that the water quality function of the impacted wetlands are being replicated at the mitigated wetlands site. With this in mind, and since there were so many variables to compare projects between Regional Boards, since no common guidelines are followed, the selection of the case studies was drawn from one Regional Board to focus in on how compliance of wetland mitigation is 70 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. being addressed. Three projects were selected, one from 1999, 2000, and 2001. The projects were selected to represent whether monitoring occurred at created wetlands or when in-lieu fee programs were accepted as a form of compensatory mitigation. 4.1 Projects Requiring Wetland Mitigation Three case studies will be evaluated to determine if water quality functions are being upheld at the mitigation site. Two of the case studies will address created wetlands as a means to satisfying compensatory mitigation requirements. The third case study will look at addressing compensatory mitigation through in-lieu fees. The three cases will be evaluated to determine if there is an attempt to replace the water quality functions provided by the natural wetland at the mitigation sites. The cases will also look at the agency’s attempts to follow-up with compliance monitoring at these mitigation sites. 4.1(a) Bison MacArthur Retail Center The proposed project, the Bison MacArthur Retail Center, consisted of constructing a retail center on 5.5 acres of parcel located in the City of Newport Beach on the northwest comer of Bison Avenue and MacArthur Boulevard. The constmction of this retail center would impact a total of 0.49 acres of waters of the United States, of which 0.45 acres consist of an artificial isolated depressional wetland. The remaining 0.05 acres impacted a natural ephemeral drainage. The isolated wetland (and unnamed ephemeral drainage) is tributary to Bonita Creek. Bonita Creek is tributary to San Diego Creek, ultimately flowing into Upper Newport Bay, an ecological reserve. 71 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The applicant, The Irvine Company, included a Conceptual Mitigation Plan, prepared by their consultants, to address the impacts the retail center would have upon the project site. The Conceptual Mitigation Plan identified the project location, briefly summarized the project, and identified the responsible parties (Lukos, 2000). The Conceptual Mitigation Plan also addressed the jurisdictional issues of the land proposed for development, specifically noting and discussing the USACOE and CDFG jurisdictions. The applicant utilized the hydrogeomorphic (HGM) approach to assess the wetlands functions (Lukos, 2000). The HGM approach requires the assessment to be compared to reference wetlands that have been evaluated previously within the same regional watershed. However, no such assessment had been done in Southern California for that particular system of wetlands (Lukos, 2000). Therefore data were gathered for the impacted wetlands, using procedures outlined in the HGM method*. Upon assessing the functions of the wetland, the applicant devised a mitigation plan to ensure that there would be “no-net-loss” of the wetlands functions. The baseline assessment revealed that water quality functions that the isolated wetland served were water storage, dissipation of water energy, and nutrient cycling. However, because the wetland is not connected to urban areas, it does not receive urban pollutants, and direct precipitation is the hydrological input (Lukos, 2000). Mitigation for the proposed project activities, taking into consideration the total impacts to both the wetlands and ephemeral drainages, included the implementation of the following mitigation program with a goal of “no-net-loss” of wetland function and values (as specified in the Conceptual Mitigation Plan): ’ The data collected from this impacted wetland following the HGM method can be used as a reference 72 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. • Creation of 1.0 acre of depressional wetland on an 8.0 acre site, located in an urban area, near the southeast comer of Bison and MacArthur, in the vicinity of the proposed project (Lukos, 2000). The proposed wetland would support alkali marsh and mulefat scrub. The wetland habitat would result in preservation and enhancement of functions associated with alkali marsh and mulefat scrub. The created wetland would: 1. Provide for storage of surface water and nuisance flows from adjacent landscaped areas; 2. Provide habitat for varieties of vertebrates and invertebrates; 3. Support planting of native hydrophytes; 4. Exhibit nutrient cycling consistent with the habitat being removed; 5. Exhibit wetland vegetation, soils, and hydrology (SARWQCB 401 permit, 2000). • The design of the wetland would follow the implementation, maintenance, and monitoring plans as outlined in the Conceptual Mitigation Plan. Additionally, the consultant for the applicant that prepared the Conceptual Mitigation Plan also prepared the paperwork and applications necessary to obtain permits from the U.S. Tkrmy Corps of Engineers (USACOE), California Department of Fish and Game (CDFG), and the Santa Ana Regional Water Quality Control Board (SARWQCB). In the permit application, the consultant noted that the wetland was not assigned any beneficial uses, according to the SARWQCB Basin Plan. However the consultant did identify the heneficial uses associated with the waterbody, San Diego Creek that the wetland was tributary to. The heneficial uses included REC-1, REC-2, WARM, and WILD, none of wetland data in the future. 73 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. which should he jeopardized as a result of the proposed project since the existing wetland had no outlet (Lukos, 2000 SARWQCB App). The Conceptual Mitigation Plan also details the implementation, maintenance, monitoring, and contingency plans for the mitigation site, including report submittals addressing performance criterion and project completion notification. The monitoring portion of the Conceptual Mitigation Plan identifies that it will monitor the success of the percent density and cover of the vegetation and establishment of the wetland and hydrology. However, the majority of the plan focuses on vegetative monitoring, specifying tests for soil saturation for the hydrology functions. The Conceptual Mitigation Plan states that it is the responsibility of the applicant, in this case the Irvine Company, not the consultant preparing The Conceptual Mitigation Plan, to fund, implement, maintain, monitor, and put into place any contingency measures of the mitigation project (Lukos, 2000). Should the applicant contract out any of the above responsibilities, the applicant still remains the responsible party. Overall, the preparation of this Conceptual Mitigation Plan appears very thorough. However, although the functions of the original wetland will be restored through design of the mitigated wetland, a question about this process comes to mind. The evaluation of the wetland indicated that it did not show evidence of capacity to eliminate imported elements or compounds or retain particulates because it was not adjacent to urban areas (Lukos, 2000). However, the mitigated wetland will now be located adjacent to an urban area, thus it could have the potential to receive pollutants associated with urban run-off. Thus, the question arrives as to whether this newly mitigated wetland will be able to sustain water quality in a new environment when it was 74 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. created based on the inputs of its former environment. Additionally, the proposed project and mitigated wetland could contribute pollutants to the tributary waterbody, San Diego Creek, impacting its designated beneficial uses. Upon speaking to the consultant, it was indicated that the wetland was designed in an area that would not receive runoff from the surrounding development. It does, however, receive runoff from the road, which it is capable of handling. To determine if this mitigation site was in compliance, staff from the Santa Ana Regional Board were contacted. Regional Board staff had not done any follow-up compliance monitoring on the mitigation site. However, staff had received an “As-built” report from the applicant indicating that the wetland had been developed and the monitoring stage would now begin. This was also confirmed through conversations with the project consultant and the project applicant. 4.1(b) Crystal Cove Phases IV-3 & IV-4 In this case, the proposed project consists of developing 681 acres of a 980 acre parcel within the unincorporated area of Orange County. The project would encompass the entire Muddy Canyon watershed, associated drainages within Upper Wishbone, small tributaries along the slopes of Los Trancos Canyon, and the upper end of Moro Canyon (SARWQCB permit, 1999). The project will entail the development of single family residential housing, recreation facilities, roadways, open space, modifications to the drainage channel, and a detention basin (SARWQCB permit, 1999). Of the 681 acres that are proposed to be developed, 2.49 acres of the property are in jurisdictional waters 75 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. in addition to 0.23 acres of wetland that will be permanently filled (SARWQCB permit, 1999). The mitigation to compensate for the filling of the wetland would consist of on site mitigation at a ratio of 3:1 for impacts associated with the 0.1 acres of seasonal wetlands and onsite mitigation within the proposed Muddy Canyon detention basin at a 2:1 ratio to compensate for the impacts to 0.13 acres of riparian wetland habitat (SARWQCB permit, 1999). The additional filling of 2.49 acres of jurisdictional waters would be compensated off-site. Installation of the proposed project will drastically change the natural landscape and natural drainage patterns of the Los Trancos and Muddy Canton Creeks, affecting the water quality of the naturally occurring runoff from the site. This water enters the Pacific Ocean at a site designated as an area of special biological significance (ASBS). Although Los Trancos and Muddy Canyon Creeks are not listed in the SARWQCBs Basin Plan with designated beneficial uses, the ocean, the ultimate receiving waterbody of the creeks, has beneficial uses assigned to it that should not be compromised. The beneficial uses include Navigation, REC-1, REC-2, RARE, SPWN, MAR, and SHEL (SARWQCB denial 1999). Based on the SARWQCB staffs interpretation of the 1997 California Ocean Plan (Ocean Plan), the proposed project could potentially violate the Ocean Plan by discharging into an ASBS site. The Ocean Plan, Chapter V, addresses discharges to ASBS in the following manner waste shall not be discharged to areas designated as being areas of special biological significance. Discharges shall be located a sufficient distance from such designated areas to assure maintenance of natural water quality conditions in these areas (SARWQCB denial, 1999). As a result, staff of the SARWQCB recommended denial of a 401 Water Quality certification. 76 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. However, upon additional review of the proposed project, legal counsel for the SARWQCB indicated that the Ocean Plan applies to direct discharges into the ocean, not discharges by means of tributaries (which ultimately end up in the ocean). As a result of the determination, staff of the SARWQCB withdrew the recommendation to deny certification of the proposed project. However, in addition to certifying the proposed project, staff of the SARWQCB issued a California Water Code Section 13267 letter requiring the submittal of a plan and schedule to monitor and assess impacts upon the receiving waters (Los Trancos Creek, Muddy Canyon Creek, and the Pacific Ocean) and its designated beneficial uses, and to demonstrate that the SARWQCBs Basin Plan’s numeric and narrative water quality objectives are being met (SARWQCB permit, 1999). The monitoring plans must include collection of data for pre-project, long-term, and build-out/post-project conditions under both non-storm and storm events (SARWQCB monitor, req., 1999). The monitoring plan for the coastal waters has been submitted and approved by staff of the SARWQCB, with the provision that staff of the SARWQCB can request changes to the monitoring and reporting as deemed necessary. The plan included diversions of runoff at Muddy Canyon and Los Trancos Creeks to prevent any pollutants coming down the creek from reaching the ocean. Evaluations of the changes to the marine environment are also being required. The water quality functions of the mitigated wetland are not a part of the monitoring plan. Also, the loss of water quality functions in the original wetlands is not being monitored under this monitoring plan. This project raises questions pertaining to the 1997 Califomia Ocean Plan, and its most recent 2001 Califomia Ocean Plan. The protection of ASBS sites, and more 77 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. largely, the ocean, only applies as discharges directly entering the ocean. It is unclear why the tributaries that are destined to discharge into the Ocean do not necessitate prohibitions of discharge, especially in ASBS. The Regional Board has actively been involved with the applicant and its consultants regarding the mitigation. The active involvement is due in large part to the discharge point of the project, an area of special biological significance, which is designated as a no discharge area. The impacts to the wetland were being mitigated by means of providing wetland habitat in the retarding basin that was designed to treat runoff from the project site. Again, the entire project is being monitored closely, not to see if the water quality functions have been replaced, but rather to check that the development is not contributing to the degradation of the ASBS. 4.1 (c) Amerige Heights Project The proposed Amerige Heights project consisted of developing 293 acres on the former Hughes Aircraft Company site in the City of Fullerton. The development utilized 194.6 acres for residential development, and 82.5 acres for mixed use development (with the potential for a 15-acre area to be designed for elder care facilities). Construction of the proposed project would impact the two ephemeral drainages on-site totaling 0.89 acres, of which 0.35 acres are under the jurisdiction of the U. S. Army Corps of Engineers (USACOE), and 0.73 acres under the jurisdiction of the Califomia Department of Fish and Game (CDFG). There will be 0.09 acre permanent impacts to wetlands. The receiving waters are Brea Creek, tributary to Coyote Creek, which is tributary to the San Gabriel River. 78 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The mitigation that was agreed upon between the USACOE, SARWQCB, and the applicant incorporated the total acreage impacts to the wetlands (0.09 acre), ephemeral drainages (0.30 acre), and riparian hahitat (0.50 acre). The 0.89 acre of impact were to be mitigated by providing $250,000 to the City of Fullerton’s proposed Laguna Lake Restoration project. Part of the money would he utilized to create 0.18 acre wetland at the Laguna Lake site to compensate for the 0.09 acres being filled at the project site. Part of the Laguna Lake Restoration would include the creation of fringe wetlands for water quality purposes. These fringe wetlands would provide greater water quality functions than the wetlands that would he impacted. As a condition of issuance of the CWA Section 401 Water Quality Certification, SARWQCB also required the applicant to submit as a part of the compensatory mitigation a finalized mitigation plan indicating that the off-site biological value of the mitigation area, when created, will exceed the impacted value at a ratio of no less than 2:1. No formal Mitigation Plan was prepared because the exact details for the Laguna Lake project had not been finalized by the city. Thus, the applicant provided a plan that theorized the functions that the proposed mitigation would serve at the Laguna Lake Restoration project site. Moreover, a contingency mitigation plan was required should the mitigation plan for the Laguna Lakes project not meet the approval of the USACOE, SARWQCB, and the CDFG. The contingency plan identified an alternate off-site mitigation site in order to comply with the required 2:1 ratio for habitat replacement purposes. However, it was indicated that the alternative site for the contingency mitigation would provide less wetland water quality functions than the initially proposed mitigation site. 79 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Staff of the SARWQCB, who issued the 401 Water Quality Certification requiring mitigation, have not actively pursued follow-up on the project which the in-lieu fees were intended to support. However, when the proposed project for the Laguna Lake Restoration was submitted to the SARWQCB, the compensatory mitigation was in fact “verified” (i.e., the project was getting underway). It must be pointed out, that there is no mention or requirement of water quality functions to be measured, just merely to add wetlands, which will have a water quality benefit, to the project design. 4.1(d) Overview In all three projects analyzed above, the Regional Board has not made a proactive effort to ensure mitigation compliance. Upon speaking to staff, it was indicated that with limited resources, they have only enough time to get the project permitted under strict timelines dictated by state and federal laws. Much of the available resources are spent in this phase of the project ensuring that essential mitigation requirements are written into the permit. Staff typically relies on the applicant (and consultant) to submit the required reports. Additionally, staff relies on the USACOE to ensure the 401 is being upheld since it is essentially a condition of obtaining a 404 permit fi"om the USACOE. For these projects, both the applicant and consultants were contacted to inquire about the progress and success of the mitigation. As mentioned in the preceding sections, the mitigation is in the ground but not expected to be monitored for water quality functions. Although the Regional Board is supervising the mitigation, it is not to ensure the water quality functions are being replaced but rather to ensure there is no degradation of the ASBS. 80 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Thus, the water quality functions of the impacted wetlands are not being monitored in any of these three projects requiring wetland mitigation. 4.2 Mitigation Monitoring and/or Reporting Programs The following case studies will look at the role of local governments in mitigation compliance monitoring. These case studies will examine the County of Orange, Monterey County, and Santa Barbara County’s attempts at monitoring mitigation compliance. These counties have either adopted ordinances or merely required mitigation compliance to be a condition of project approval. Collectively, these counties have resources dedicated to monitoring, tracking, and enforcing required mitigation. This case study will present an option as to how the deficiencies in the above case studies can be addressed through oversight by the county in which the project is occurring. 4.2(a) County of Orange The County of Orange requires a Mitigation Monitoring Reporting Program (MMRP) of all applicants when a project results in a Mitigated/Negative Declaration or an Environmental Impact Report. The MMRP seeks to ensure that all required mitigation, through the various permits required from all agencies addressing the project, are carried into conditions of approval for the permit issued by the County (Tippets 2003). The County requires that all mitigation be satisfied prior to the development of the project. This also applies to wetlands to ensure there is no-net-loss of function or value (Tippets 2003). The County keeps a database of all projects and required mitigation. All of their databases are linked, so if an applicant is attempting to pursue a 81 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. grading permit, but the additional permits required for the project at large have yet to be retained, such information will be easily flagged (Tippets 2003). The County of Orange has enforcement staff who are responsible for mitigation compliance monitoring. If it should be discovered that a mitigation project is not following the conditions of the permit, then the enforcement officer has the authority to shut down the project and halt all activities until the conditions are met (Tippets, 2003). Each case is reviewed individually, so the reasons for why conditions are not being met would have to be justified prior to immediately halting the project (Tippets, 2003). Overall, the County of Orange has a viable MMRP in place to ensure mitigation compliance. The County’s program requires all mitigation to be a condition of overall project approval; they have staff responsible for monitoring and enforcing mitigation compliance; and they have a database connected to all planning and development related departments to ensure tbere is no skirting around obtaining permits or meeting conditions. One point to make is that the County monitors the mitigation of the permitting agencies. They do not do additional monitoring. Thus, there is no requirement by any of the permitting agencies to monitor baseline water quality conditions of an existing wetlands nor are there requirements to monitor for water quality functions in the mitigated wetlands. Although the mitigation is being monitored, this does not ensure that water quality functions are being addressed. 82 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 4.2(b) County of Monterey The County of Monterey made the mitigation monitoring and/or reporting program (MMRP) requirements, adopted into CEQA (AB 3180), part of their county ordinance effective January 5, 2001 (Monterey, 2001). The goal is to ensure that project compliance includes a project’s mitigation, including monitoring, reporting, and enforcement (Monterey, 2001). The ordinance addresses implementation responsibilities, including delegating primary responsibility of this program to the Planning and Building Inspection (P&BI) Department, assisted by an MMRP supervisor. Additionally, any departments involved in reviewing land-use projects requiring a mitigated negative declaration (MND) or environmental impact report (EIR) shall assist the director of P&BI to implement the program. Upon approval of the Board of Supervisors, the County may impose fees for implementing the program to compensate for the costs associated with inspecting, enforcing, and reporting the mitigation measures (Monterey, 2001). The ordinance addresses procedures to ensure that required mitigation resulting from an MND or EIR become an enforceable condition during project approval, and the conditions are completely and consistently enforced (Monterey, 2001). The Program requires the project applicant to sign an Agreement to Implement a Mitigation and Monitoring and/or Reporting Plan. The Program also details every mitigation measure adopted, devises a schedule to meet each measure, standards to measure the effectiveness of the mitigation, identification of responsible parties, and qualified personnel or consultants with specialties to effectively implement the required mitigation (Monterey, 2001). 83 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Should the applicant fail to comply with any of the required mitigation, a Verification of Condition Compliance/Non-compliance form must be completed hy the P&BI identifying how compliance can be achieved. However, should there be refusal to comply, the P&BI may issue a “Stop Work Order,” a “Notice of Violation,” or an intent for the County to pursue a Code Enforcement action notification (Monterey, 2001). Overall, the County of Monterey’s ordinance addresses the need to ensure compliance with the required mitigation and/or monitoring under CEQA. The program addresses enforcement, monitoring, and resources and economics. However, the program does not address baseline conditions and comparison of those conditions to the final mitigated conditions. 4.2(c) County of Santa Barbara Santa Barbara’s Environmental Quality Assurance Program (EQAP) was established before the passage of AB3I80 (Grissom, 1996). The EQAP launched a monitoring program to oversee large-scale environmentally sensitive projects. The EQAP clearly identifies the responsibilities of all parties associated with a mitigation project and its monitoring component. It also identifies performance standards and penalties when the standards are not met. Upon passage of AB3I80, Santa Barbara County adopted a “Permit Compliance Procedure Manual” (Grissom, 1996). The Manual addressed a variety of issues, including; • Guaranteeing compliance with mitigation measures and conditions of approval; • Enforcement procedures; 84 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. • Development of a systematic tracking tool to monitor consistently mitigation measures; • Upholding the mitigation monitoring and reporting requirements throughout all departments; • Creating a reporting system to measure mitigation effectiveness and implementing feedback into future planning policies; and • Requiring a formal process for small projects to be exempt from monitoring (Grissom, 1996). The Manual also described the roles staff and utilization of consultants in monitoring mitigation, just as the EQAP provided. Moreover, Santa Barbara County developed a computerized tracking system, DataBase, which allows the tracking of a project from the initial application all the way through final compliance (Grissom, 1996). Overall, the County of Santa Barbara’s EQAP is viable. The collection of baseline data is still lacking as well as the means to recoup resources spent on this program. 4.3 Overview of Case Studies It appears that each of the three Counties identified above hold the responsibility for ensuring compliance in compensatory mitigation under CEQA. In the County of Orange, the County is actually making sure compliance is being met where the Regional Board does not have the resources to do so. All three counties. Orange, Monterey, and Santa Barbara’s mitigation monitoring programs may prove to be effective means by which to measure compliance with wetland mitigation and the retention of the water quality functions associated with wetlands. However, the County of Orange, like the counties of Monterey and Santa Barbara, is monitoring mitigation as it appears in the water quality control board’s permits. The counties do not require additional baseline 85 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. data from the applicant, nor do they require assurance that the water quality benefits are being replaced in the mitigated wetland. In the case of each county’s MMRP program, the collection of “pre- and post project” wetland data still must be strengthened. Data collection could be written as a condition of approval as a mitigation measure in an MND or an EIR by a reviewing agency, or required by a permitting agency and subsequently written into the projects condition of approval by the County. These actions could produce the needed science to effectively measure wetlands pre- and post water quality functions. The key here seems to be forging a partnership between the regional boards and local governments. It is evident that the permitting agencies, particularly the Regional Water Quality Control Boards, are not communicating effectively with the applicants or the County. If the Regional Boards were to require baseline data to be obtained and measured against the data collected from the mitigated wetland, then the question of whether water quality functions are being replicated could start to be answered. Like the County, the applicants will only monitor for what is prescribed in the permits. If the Regional Board is not going to make this requirement, due to opposition of the applicant, primarily based on cost, then the Regional Boards need to start communicating with the County to ensure that projects are not permitted without such requirements, leaving the burden on the County to incorporate such conditions into a project’s approval. 86 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Chapter V: Conclusion There are three underlying themes running through this study, each addressing the over-arching question whether the loss of wetlands water quality functions is avoided through the development of compensatory mitigated wetlands (pursuant to the “no-net- loss of a wetlands function or value” rule). First is the question of the role CEQA plays in the process, specifically whether it ensures that compensatory wetland mitigation replicates all water quality functions of a wetland. Second is the question of determining if other laws are sufficient to require wetland mitigation when wetlands will be disturbed. Third is whether the compensatory mitigation programs for wetlands in coastal watersheds in the state of Califomia are actually accomplishing the no-net-loss goal. It is well known, and increasingly better understood, that wetlands naturally serve a water quality function. As a result, the study provides evidence as to whether the compensatory mitigated wetlands are replacing this valuable function. Regulatorv Framework This study reviews many sources of legal and regulatory authority over wetlands. The U.S. Army Corps of Engineers (USACOE) has authority under the Clean Water Act and Rivers and Harbors Act to regulate waters of the U.S., which includes wetland activities and mitigation requirements when there will be unavoidable impacts to wetlands. Moreover, the Los Angeles District of the UASCOE has recently created mitigation and monitoring requirements. These regulations are to ensure all mitigation projects are complying to permit conditions. 87 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Additionally, the Califomia Coastal Commission has authority over wetlands in the coastal zone under the Califomia Coastal Act. The CCC has developed a guidance addressing the review of wetland projects and the mitigation that must accompany such projects. The Coastal Act also calls for the mitigation of disturbed wetlands. The State Water Resources Control Board (SWRCB) and its Regional Water Quality Control Boards (Regional Boards) have authority through the Clean Water Act and the Califomia Water Code (Porter-Cologne) to regulate the discharge of waste into waters of the U.S. and State. This gives the SWRCB cind Regional Boards authority to regulate wetland activities. However, unlike the USACOE and CCC, the SWRCB has yet to create guidance to address mitigation and monitoring requirements. In the past, the SWRCB was awarded a grant to define wetlands and identify them formally with beneficial use and narrative water quality objectives. This should have led all Regional Boards to include the language uniformly in their Water Quality Control Plans (Basin Plans). However, due to the “sensitive” nature of the wetland issue, the language was never adopted by the SWRCB. As a result, only some of the Regional Boards have adopted and identified beneficial uses and water quality objectives for wetlands under their jurisdiction into their Basin Plans. Still, no guidance toward specific mitigation and monitoring measures has been developed formally by the SWRCB, even as guidance for Regional Board staffs. Technical Information in Monitoring Programs The brief review of scientific literature in Chapter 2 leads to the conclusion that compensatory mitigated wetlands are not being monitored for water quality functions. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Wetlands are usually monitored for their habitat value. Such monitoring does not clearly quantify water quality functions. Additionally, the literature shows that in very few cases wetlands are properly assessed prior to altering them. Thus, when evaluating the success of a compensatory mitigated wetland, there is no baseline data to compare it to. Without clever technical criteria and adequate data, there is no assurance that the water quality function of a wetland is being maintained through the creation of the compensatory mitigated wetland. Theories of Program Failures Chapter 3 advances competing theories as to why compensatory wetland mitigation is often not successful. The literature points to several reasons: (1) enforcement; (2) monitoring; (3) science; and (4) resources and economics. The lack of resources for enforcement is the key reason why compensatory wetlands are not meeting objectives. Agencies that require compensatory wetland mitigation do not have the resources to have staff regularly check on a project’s status or the actions required for the mitigation. Agencies rely on the applicant to submit mitigation monitoring reports and letters of project and mitigation completion. Specifically, the Regional Boards do not have “extra” resources to do routine mitigation checks to ensure compliance with permit requirements are being upheld. Some of the Regional Boards have attempted to accomplish these tasks with student interns assigned with the responsibility of assessing the mitigation sites. However, resources for even this level of enforcement are limited and will not be replenished as a result of the current fiscal dilemma. Thus, the students earmarked for this task are being utilized for “higher priority” projects since the funding 89 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to retain the student interns is diminishing. Without the resources to verify that mitigation is successfully being accomplished, no enforcement of permits occurs, and mitigation compliance is ensured solely by self-reporting of the project applicant. In addition to a lack of resources for enforcement, the lack of monitoring at mitigation sites brings additional problems. The project applicant, or the consultants they hire, may be monitoring the success or failure of the mitigation. However, without reference data of the wetland that was altered, there are no data for comparison to ensure the water quality function is being replicated. Thus, it is essential that detailed information be provided from the project site, or a reference wetland in the same area, to determine if the compensatory mitigated wetland is yielding the proper functional efficiency. Moreover, the literature repeatedly states that it is extremely difficult to reproduce natural wetlands because of the many complexities tied into wetlands and their naturally occurring ecosystems. Without the proper monitoring and essential science needed to compare the mitigated wetland and the lack of resources to fund staff to ensure that the mitigation required under a permit is being enforced, it is no wonder that there are few indicators that wetland mitigation is a working practice. Case Studies The case studies identified the deficiencies in accomplishing the required compensatory wetland mitigation in practice. Review of the Bison MacArthur and the Crystal Cove projects demonstrates that there has been no attempt on the side of the Regional Board to follow-up on the progress of the required mitigation (or the project 90 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. itself, for that matter) in response to terms laid out under the Clean Water Act Section 401 Water Quality Certification. Additionally, the Amerige Heights project included hoth compensatory mitigation and provided in-lieu fees for some mitigation to he performed on another project within the same watershed. However, there has been no oversight from the Regional Board nor has the project for which the in-lieu fee is dedicated been approved. These cases demonstrate the lack of monitoring and enforcement. The final set of case studies addressed mitigation monitoring and reporting programs (MMRP) from three counties, Orange, Monterey, and Santa Barbara. The MMRP is a condition for project approval. The Counties also have designated staff to monitor the mitigation sites and enforce the tenets of the permit if the project applicant is not in compliance. Although the counties are conducting monitoring at the mitigation sites, they are only monitoring for requirements contained in the permit. Without prescribing the collection of baseline and post construction data in a permit, the counties performing inspections will not be able to determine whether the water quality functions are being upheld. These MMRPs may act as a model for other counties to ensure that mitigation is being upheld, while still maintaining that the burden of the mitigation rests with the project applicant. However, it would be essential to require monitoring to ensure wetland water quality functions are being maintained and the “no-net-loss” policy is upheld. The Regional Boards could require each county to adopt such a program, and the Regional Boards could then hold each county responsible for mitigation and replication of a wetlands water quality functions (a feasible option since policy exists addressing the “no- 91 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. net-loss” of functions and values). Counties then could work to ensure project compliance to avoid penalties. However, there are some shortcomings that are already evident with requiring compensatory mitigated wetlands. Looking at the CEQA alone, it provides no direct language protecting wetland resources. It merely addresses it as a “significant impact,” triggering mitigation. Moreover, the CEQA calls for monitoring and/or reporting programs for projects requiring mitigation as a condition of project approval, per Section 15097. However, it does not give specific directive as to how the mitigation will be tracked and enforced, nor does it require replication of specific functions. As previously mentioned, the required monitoring and/or reporting program applies to all projects requiring any type of mitigation, and thus it does not detail the protection of a wetland’s water quality fimetions. Another shortcoming is the lack of consistency from the SWRCB and Regional Boards in (1) identifying wetlands and (2) requiring mitigation of project impacted wetlands. An agency that should be taking the lead in protecting water quality functions is by no means taking initiative to address the issue at large. Additionally, there is a lack of communication between the Regional Boards and the counties they have jurisdiction over. Conversations need to be held addressing the importance of maintaining a wetland’s functions at a mitigation site. Moreover, there is no consistent enforcement and monitoring of the required compensatory mitigated wetlands. And above all, there is not enough understanding of the complex wetland ecosystem to replicate its functions accurately. 92 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Recommendations A few key recommendations can be made from the findings of this study. First, there should be an agency identified to take the responsibility for monitoring the compensatory mitigated wetlands. Given the importance of protecting wetland water quality functions, it makes sense that the SWRCB and the Regional Boards be assigned this task. However, SWRCB should continue in their attempt to identify all wetlands and their beneficial uses and water quality objectives so Regional Boards can adopt them in their Basin Plans. Additionally, money should be directed toward developing mitigation monitoring and reporting guidance so all applicants and staff are familiar with wetland mitigation requirements. Furthermore, staff should be funded to monitor the mitigation sites to ensure compliance with the permit and the “no-net-loss of functions or values” policy adopted in 1993. Perhaps the application fees should be increased to obtain a 401 Water Quality Certification to allow for the funding of a staff person to monitor and enforce the mitigation site. A second option on monitoring mitigation compliance is to develop, train, and utilize volunteer monitoring groups. Such groups already exist in Califomia, and the SWRCB has staff that act as liaisons to these groups. The use of these groups can reduce the need for resources and provide the needed monitoring. Staff at the Regional Board level would need to provide rigorous training programs in compliance monitoring protocols. These groups can make the agencies aware of projects that are out-of- compliance so the agencies can allocate their time on enforcement issues as needed. Moreover, these volunteers would also be educating themselves on wetlands, water quality, as well as the laws and policies pertaining to the two. The State Water Resources 93 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Control Board has a division called the Clean Water Team. Staff is located throughout the state to regularly meet with volunteer monitoring groups to provide training and give assignments to interested and qualified groups. With this already in place, volunteer monitoring of wetlands to ensure mitigation compliance is quite feasible. A third recommendation, to ensure a wetlands water quality function is being replicated, is proper development of a detailed mitigation monitoring plan. Additionally, a mitigation guidance, consistent with all affected ageneies, should be developed so all agencies are striving to meet wetland compliance goals. Putting all of these useful tools together, an ageney can start tracking mitigation compliance without having to spend vast amounts of money. However, time will he needed to initiate this program between Regional Boards and counties. But once all volunteer and environmental groups are properly trained, compliance monitoring can begin and compensatory mitigated wetlands may be closer to replicating functions. Before continuing to permit wetland developments, there needs to be baseline data collected and analyzed on the naturally occurring wetlands. This could either be done on a project-by-project basis or at a watershed level. Currently, the Southern Califomia Wetlands Reeovery Project is developing a plan and model to assess all wetlands along the coast. They work in conjunction with the Southem Califomia Coastal Water Research Project (SCCWRP), an organization dedicated to researching coastal water quality. This is a project that is in its early stages, but it may provide cmeial information about naturally occurring wetlands. 94 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Conclusion This study shows that the California Environmental Quality Act does not protect the replication of wetland functions implicitly. After 1998, CEQA required an MMRP when compensatory mitigation was undertaken. However, the CEQA language addressing how it should be tracked and enforced is vague, and funding has been inadequate to enforce the MMRP requirement. Yet, taken together, the laws and policies in place that require mitigation of impacted wetlands are sufficient. These federal and state laws and policies should be used creatively to address wetland mitigation. There is insufficient monitoring of the compensatory mitigated wetlands to ensure the water quality functions are being upheld. Additionally, without resources for enforcement, monitoring of mitigation does not occur. Moreover, baseline technical data are lacking on the naturally occurring wetlands. Without such data, it is unknown whether wetland water quality functions are truly being replicated. These key factors need to be taken into consideration and addressed if the over-arching mandate of “no-net- loss of functions and values” is to be achieved. 95 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. References Abbott & Kindermann, LLP. “Impact Fee Programs as Effective Tools for CEQA Mitigation.” 01 September 2002 <http://www.aklandlaw.com/news/impactfee.html>. Adams, Lowell W. and Leedy, Daniel L., editors. “Integrating Man and Nature in the Metropolitan Environment: Proceedings of a National Symposium on Urban Wildlife.” Columbia, Maryland: National Institute for Urban Wildlife, 1986. Adelson, Mark. “Waters of the State” presentation. APWA Workshop on “Wetlands Requirements and your Stormwater Permit.” 20 November 2002. Association of Environmental Professionals Mitigation Practices Task Force, The. “Environmental Mitigation and Monitoring Under the California Environmental Quality Act (CEQA).” 15 December 2000. 01 September 2002. <http://www.califaer>.org/legislation/mmrp.pdf>. Azous, Amanda L. and Homer, Richard R., editors. Wetlands and Urbanization Implications for the Future. Washington, D.C.: Lewis Publishers, 2001. Bass, Ronald E. and Herson, Albert I. Successful CEQA Compliance: A Step- bv-Step Approach. Point Arena, California: Solano Press Books 1992. Blum, Steven H., Cobb, Ted, and Stevens, Tim. “Making CEQA Your Friend” (PowerPoint presentation). CEQA and 401 Training: March 2, 2000. Braddock, Theda. Wetlands An Introduction to Ecologv, the Law, and Permitting. Maryland: Government Institutes Inc., 1995. Bem, Amanda.. Califomia Regional Water Quality Control Board, Region 3. Personal Communication. June II, 2003. Bomkamp, Tony. Glen Lucos & Associates Consultants. Personal Communication. June 11, 2003. Breaux, Andre. Califomia Regional Water Quality Control Board, Region 2. Personal Communication. June 11, 2003. Brinson, M. M., F. R. Hauer, L. C. Lee, W. L. Nutter, R. D. Rheinhardt, R. D. Smith, andD. Whigham. 1995. A Guidebook for Application ofHydrogeomorphic Assessment to Riverine Wetlands. U.S. Army Corps of Engineers, Waterways Experiment Station, Vicksburg, MS, USA. Technical Report WRP-DE-11. Califomia Coastal Act. Public Resources Code, Division 20. January 2002. 96 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Califomia Coastal Commission. “Legislation Directly Affecting Coastal Commission.” 25 September 2002. <http://www.coastal .ca. gov/lcgi n fo/1999/frames/sum 1 .html>. Califomia Coastal Commission. “Legislative Report For December 1999.” 08 December 1999. 25 September 2002. <http://ceres.ca.gov/coastalcomm/index.html>. Califomia Coastal Commission. “Procedural Guidance For Evaluating Wetland Mitigation Projects In Califomia's Coastal Zone.” September 1995. 01 September 2002. <http://www.coastal.ca.gov/web/weteval/wetc.html> . Califomia Coastal Commission. “Procedural Guidance For The Review Of Wetland Projects In Califomia's Coastal Zone.” 15 June 1994. 01 September 2002. <http://www.coastal.ca.gov/wetrev/wettitle.html>. Califomia Coastal Commission. “Procedural Guidance Manual: Addressing Polluted Runoff In The California Coastal Zone." 01 September 2002. <http://www.coastal.ca.gov/nonpoint/pgm-begn.html>. Califomia Coastal Commission. Public Resources Code, Division 20. January 2002. 25 September 2002. Califomia Coastal Commission (Doss, Troy Alan and Friend, Susan P.). “Restoration of Unpermitted Development within the Califomia Coastal Zone.” September 1995. 01 September 2002. <http://www.coastal.ca.gov/fire/restore.html>. Califomia Coastal Commission (CCC/Statewide). “Statewide Interpretive Guidelines.” San Francisco: June 13, 2000. Califomia Coastal Commission. “Statewide Interpretive Guidelines for Wetlands and Other Wet Environmentally Sensitive Habitat Areas.” San Francisco: May 22, 2000. Califomia Department of Fish and Game. “Coastal Wetlands - Emergent Marshes.” December 2001. 01 September 2002. <http://www.dfg.ca.gov/mrd/status/coastal wetland cmcrgent.pdf>. Califomia Department of Fish and Game. 2003. <http://www.dfg.ca.gov/hcpb/ceqacesayAeqacesa.shtml>. Califomia Regional Water Quality Control Board, Santa Ana Region. Water Oualitv Control Plan Santa Ana River Basin (81. 1995. Califomia Regional Water Quality Control Board, Lahontan Region. Water Oualitv Control Plan Santa North and South Basins. 1994. 97 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. “Califomia Wetlands Conservation Policy.” 23 August 1993. 24 October 2002. <http://cerec.ca. gov/wetlands/policies/go vernor.html>. Carrillo, Valerie. Califomia Regional Water Quality Control Board, Region 4. Personal Communication. June 11, 2003. “CEQA and Section 401” Workshop. San Diego: April 16, 1996. “CEQA Monitoring.” 11 September 2002. <http://wW'^'.ecoscan.ch/maquettes/niveau 4/siiivi/l 1 6 lCalif2.html>. Christie, Donna R. and Hildreth, Richard G. Coastal and Ocean Management law. St. Paul, Minnisota: West Group, 1999. Clean Water Act. Code of Federal Regulations. January 24, 1994. “Coastal and Estuarine Land Protection Act.” 11 June 2002. 25 September 2002. <http://thomas.loc.gOv/cgi-bin/query/z2cl07:S.2068:>. Coastlines. “Coastal Restoration Through Wetland Mitigation Banking.” 11 September 2002. <htttt://www.epa.gov7owow/estuaries/coastlines/feb01/coastalrestoration.html>. “Committee Approves Coastal and Estuarine Land Protection Act.” 19 September 2002. 25 September 2002. <http://hollings.senste.gov/~hollings/r)ress/2Q02919A59.html>. Committee on Environment and Public Works. “Reauthorizing the Coastal Wetlands Planning, Protection and Restoration Act.” Washington D.C.: U.S. G.P.O., 1999. Committee on Mitigating Wetland Loses. Compensating for Wetland Loses Under the Clean Water Act. National Academy Press: Washington, 2000. <http://www.ecoscan.ch/maquettes/niveau 4/suivi/l 1 6 lCalif2.html>. Council on Environmental Quality (CEQ). “Annual Report of the Council on Environmental Quality.” 1993. 30 December 2002. <http://clinton4.nara.gov/CEO/reports/1993/chap3.html>. County of Monterey. “County of Monterey Mitigation Monitoring and/or Reporting Program.” 09 October 2001. 01 September 2002. <http://www.co.monterev.ca.us/pbi/cuiTent/MMRP 100901 .pdl> . County of Santa Barbara Mitigation and Monitoring Program. 11 September 2002. <http://www.ecoscan.ch/maquettes/niveau 4/suivi/l 1 6 lCalif3.html>. 98 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Cylinder, Paul D., Bogdan, Kenneth M., et al. Wetlands Regulation. Point Arena, Califomia: Solano Press, 1995. Danielson, Tom. “Monitoring Wetlands: Deciding What to Measure.” 28 October 2002. <http://librarv.marist.edu/diglib/envsci/archives/signhabi/danielsn/danielson-monitoring- wetlands>. Dennis, Nona B. and Marcus, Mary Laurel. Status and Trends of Califomia Wetlands. Sacramento: Charles Warren and Associates 1984. Dermison, Mark S. and Berry, James F. Wetlands Guide to Science. Law, and Technology. Park Ridge, New Jersey: Noyes Publications, 1993. Environmental Protection Agency. Volunteer Wetland Monitoring: An Introduction and Resource Guide. Washington DC: Office of Water, Office of Wetlands, and Office of Watersheds 2001. Fischer, Adam. Califomia Regional Water Quality Control Board, Region 8. E- mail correspondence. June 10, 2003. Gaddie, Ronald Keith and Regens, James L. Regulating Wetlands Protection Environmental Federalism and the States. New York: State University of New York Press, 2000. Glenn Lukos Associates. “Conceptual Mitigation Plan For Impacts To Areas Within The Jurisdiction of the United States Army Corps Of Engineers Pursuant to Section 404 of the Clean Water Act and the Califomia Department of Fish and Game Pursuant to Section 1603 id the Califomia Fish and Game Code Bison/Macarthur Retail Center Site Orange County, Califomia.” Laguna Hills, CA.: 2000. Glenn Lukos Associates. “Request for Waiver of Section 401 Water Quality Certification Associated with Bison/Macarthur Retail Center, Newport Beach, Califomia.” Laguna Hills, CA: 2000. Govemor’s Office of Planning and Research. “Califomia Planners’ Book of Lists 2001.” 11 September 2002. <http://www.calpin.ca. gov/archives/pdf/2001 bol.pdf >. (Grissom) Govemors Office of Planning and Research. “Tracking CEQA Mitigation Measures Under AB3180.” March 1996. 01 September 2002. <http://ceres.ca.gov/topic/env law/ceqa/more/tas/CEQA Mitigation/CEQA Mit.html> . Heilprin, John. Associated Pres. “ Government faulted on Wetlands.” June 2001. 18 December 2002. <http://www.vernalpools.org/discussion/ discl/arc00078.htm>. 99 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Hey, Donald L and Philippi, Nancy S. A Case for Wetland Restoration. New York: Wiley, 1999. Hopey, Don. Post Gazette. “Replacement Wetlands are Usually Inferior to Originals.” November 1999. 28 October 2002. <bttp://www.post- gazette.com/regionstate/19991114Replace7.asp>. Huckaby, Corinne. Califomia Regional Water Quality Control Board, Region 3. Personal Communication. June 11, 2003. Jay, Raymond. “Section 401 Water Quality Certification Program” presentation. American Public Works Association. 20 November 2002. Josselyn, Michael and Zedler, Joy and Griswald. “Wetland Mitigation Along the Pacific Coast of the United States.” 1989. Kaiser, Jocelyn. Science Now. “Wetlands Policy is All Wet.” June 2001. 31 October 2002. <http://bric.postech.ac.kr/science/97now/01 6now/010626c.btml> Kalo, Joseph J., et al.. Coastal and Ocean Law Cases and Materials. St. Paul Minnisota: West Group, 2002. Kentula, Mary E., et al. Wetlands An Approach to Improving Decision Making in Wetland Restoration and Creation. Washington, D.C.: Island Press, 1992. Lee, L. C., M. C. Rains, J. A. Mason, and J. W. Kleindl. Peer Review Draft Guidebook to the Hvdrogeomorphic Functional Assessment of Riverine Waters/Wetlands in the Santa Margarita Watershed. U.S. Environmental Protection Agency, Seattle: WA, 1997 Los Angeles & San Gabriel Rivers Watershed Council. Minutes from Stakeholder meeting. Febmary 19, 2003. <'w^"W'.lasgrw'c.org>. Mears, Dwayne, S. AlCP. “Seven Tests for Mitigation Measures.” 01 September 2002. <http://www.planningcenter.com/pdf/7tests.pdf> . Mitsch, William J. and Gosselink, James G. Wetlands. New York: John Wiley & Sons, Inc., 2000. Monahan, Michael, A., Denney, Richard J., Murler, John C. Editors. Califomia Environmental Law Handbook. Maryland: Government Institutes, 1995. too Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. National Research Council. Compensating for Wetland losses Under the Clean Water Act. Washington, D.C.: National Academy Press, 2001. National Research Council. Environmental Science in the Coastal Zone: Issues for Further Research. Washington: National Academy Press, 1994. (Turner, R. Eugene. “Landscapes and the Coastal Zone”; Zedler, Joy B. “Coastal Wetlands: Multiple Management Problems in Southern Califomia”). National Research Council. New Strategies for America’s Watersheds. Washington D.C., National Academy Press, 1999. National Research Council. Wetlands Characteristics and Boundaries. Washington, D.C.: National Academy Press, 1995. Novotny, Vladimir, Olem Harvey. Water Qualitv Prevention, Identification, and Management of Diffuse Pollution. New York, Van Nostrand Reinhold: 1994. Office of Technology Assessment. Wetlands: Their Use and Regulation. Washington, D.C.: U.S. Government Printing Office, 1984. P&D Environmental Services. “Planning Area 26 (Bonita Canyon) Zone Change FinalEnvironmentallmpactReport.” Orange, Ca.: 1996. PCR. Laguna Beach Restoration Plan. 2003. Protecting Wetlands. Managing Watersheds. Washington, D.C.: International City/County Management Association, 1999. Remy, Michael H., et al. Guide to the Califomia Environmental Oualitv Act (CEOA). Solano Press, 1993. Richardson, Dan. K. The Cost of Environmental Protection. New Jersey: Center for Urban Policy Research, 1976. Sabatier, Paul A. and Mazmanian, Daniel A. Can Regulation Work: The Implementation of the 1972 Califomia Coastal Initiative. New York, Plenum Press, 1983. Schmoker, Kelly. “Protecting Califomia’s Aquatic Ecosystems.” 2003. Secretary of the Interior. “The Impact of Federal Programs on Wetlands.” March 1994. 25 September 2002. <http://www.doi.gov7oepc/wetlands2/index.himl>. Sierra Club. “Clean Water and Wetlands; Mitigation Banking.” 11 September 2002. <http://www.sieiTaclub.org/wctlands/factshects/banking.asp>. 101 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Southern Califomia Wetland Recovery Project. “Southem Califomia Coastal Wetlands.” 2000. <http://wvvvv.coastalconservancy.ca.gov/scwm/>. State of Califomia. CEQA The Califomia Environmental Quality Act. Sacramento, Califomia: Office of Planning and Research, 1986. State Water Resources Control Board. Porter-Cologne Water Oualitv control Act with additions and amendments effective January 1, 2001. Office of Legislative and Public Affairs, 2001. Stevens, Tim. State Water Resources Control Board. E-mail correspondence. November 1, 2002. Successful Watersheds. “Successful Mitigation.” 28 October 2002. <http://h2osparc.wq.ncsu.edu/info/wetlands/mitsucc.html>. Sutula, Martha, PhD. “Improving Regional Planning of Wetland Ecosystem Restoration and Management in Southem Califomia: Southem Califomia Wetlands Recovery Project Science Panel Recommendations.” May 2002. <http://www.coastalconservancv.ca.gov/scwrp/>. Tippets, Ron. County of Orange. Personal Communication. June 18,2003. Tools for Coastal Zone Management: Proceedings of the Conference. Washington, D.C.: Marine technology Society, 1972. U.S. Army Corps of Engineers (a). Mitigation Guidelines and Monitoring Requirements (Special Public Notice). Los Angeles District, January 2003. <http://www.sp1.usace.armv.mil/regulatorv/mmg.pdf>. U.S. Army Corps of Engineers (b). Corps of Engineers Wetlands Delineation Manual. Wetlands Research Program Technical Report Y-87-1 (on-line edition). 02 December 2002. <http://www.wetlands.com/regs/sec404fc.htm>. United States General Accounting Office. “Wetlands Protection: Assessments Needed to Determine Effectiveness of In-Lieu-Fee Mitigation.” May 2001. U.S. Environmental Protection Agency. Water Oualitv Standards for Wetlands: National Guidance. Washington, D.C.: U.S. Department of Commerce, 1990. U.S. Environmental Protection Agency. “Wetlands Mitigation Banking.” 25 September 2002. <http://www.cpa.gov/owow/wctlands/facts/factl6.html>. U.S. Fish & Wildlife Service. “Report to Congress on the Status and Trends of Wetlands in the Conterminous United States 1986 to 1997.” 25 September 2002. <http://wctlands.fws. go v/bha/'SandT/SandTRcport.html>. 102 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Washburn, Edgar B. “Califomia Wetlands Civil and Criminal Strategies.” 11 May 2003. <http://www.stoel.com/resources/articles/environment/env 013.shtm>. Watersheds. “Value of Wetlands.” 2003. <http://h2osparc.wq.ncsu.edu/info/wetlands/values.html>. Whigham, Dennis. “Failures of Replacement Wetlands.” 28 October 2002. <http ://biolo gykenvon. edv/fenness v/AMN%20 W etland%2QW ebpage/Comps%20 W ebpa gc>. Whigham, D. F., Brinson, M.M., et al. Progress in Development of the Hydrogeomorphic Approach for Assessing the Functioning of Wetlands. Australia: Gleneagles Publishing, 1999. Zedler, Joy. “Coastal Mitigation in Southem Califomia: The Need for a Regional Restoration Strategy.” Ecological Applications, 6 (1), 1996. Ecological Society of America: Febmary 1996. 103 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.

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Asset Metadata

Creator Gasca, Stephanie M. (author)

Core Title Coastal watershed wetlands compensatory mitigation policy: Moving from loss to no-net-loss of water quality functions

School Graduate School

Degree Master of Arts

Degree Program Environmental Studies

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag environmental sciences,OAI-PMH Harvest

Language English

Contributor Digitized by ProQuest (provenance)

Advisor Vos, Robert O. (committee chair)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c16-314907

Unique identifier UC11336869

Identifier 1421768.pdf (filename),usctheses-c16-314907 (legacy record id)

Legacy Identifier 1421768.pdf

Dmrecord 314907

Document Type Thesis

Rights Gasca, Stephanie M.

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the au...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus, Los Angeles, California 90089, USA