A wetland by any other name - would lack protection

Court creates little loophole; Bush administration drives bulldozer through it

Do you know a small marsh where you like to watch your favorite ducks or shorebirds? A vernal pool colored with flowers in the springtime? A headwaters stream racing through the hills to the Bay? Look again, because your favorite spot may soon be a parking lot, the ninth green of a golf course, or a supermarket.

Perhaps you're a more practical sort. You worry about wetlands and streams for their critical roles in protecting water quality, and as buffers against flooding, sources for replenishing groundwater, and habitat for plants and animals. You know that filling, contaminating, or diverting these special aquatic sites threatens the livability of the land.

Yet even in the Bay Area, we can no longer count on federal regulations and agencies to help preserve our dwindling inventory of seasonal wetlands and small streams.

The Supreme Court's 5 - 4 decision in January 2001 in Solid Waste Agency of Northern Cook County versus U.S. Army Corps of Engineers (SWANCC) actually held only that the Corps of Engineers has no authority under section 404 of the Clean Water Act to protect a small pond based solely on its use as habitat by migratory birds. But in a move that many consider an invitation to developers and other polluters, the Bush administration has stretched the decision to eliminate federal jurisdiction over a wide array of so-called "isolated" waters. The federal government has issued "guidance" telling the Corps and the federal Environmental Protection Agency (EPA) to discontinue protection of small streams and seasonal wetlands that are considered to be "isolated", i.e. not adjacent to or having a direct surface connection with a navigable waterway.

Protecting wetlands in California

California has no independent wetland permitting program and has historically relied on the federal Clean Water Act to protect wetlands, streams, and other state waters. Before SWANCC the San Francisco Bay Regional Water Quality Control Board, a state agency, protected all waters in the Bay Area, including isolated ones, through powers delegated to it to implement the federal Clean Water Act. Now the entire burden of saving wetlands must now fall on state and local agencies which lack funds, staff, and a clear legal mandate.

After SWANCC the state legislature asked the state Water Resources Control Board to study the impacts of the decision in California and to report on steps needed to protect state wetlands. The Board found that California's climate and hydrological regime result in a large inventory of potentially affected waters, including swales (shallow wet depressions in the landscape), vernal pools (pools which fill with water during rainy season and dry out through the spring), ephemeral and intermittent headwater streams, and "non-adjacent" seasonal wetlands.

The report recognized the difficulty and expense of creating a state program to replace the lost federal protections. It suggested a number of necessary measures that would require adoption of new state policies and laws. Unfortunately, legislative efforts last year to specifically protect wetlands through a new state regulatory system failed in the face of opposition from agricultural and development interests.

The state Water Board, in the absence of specific legislation, has taken steps to fill this intolerable gap in wetland and stream protection by using an existing statute and regulations to limit destruction of isolated waters under its "waste discharge" authority. The board has issued guidance that when the Corps declines to assert Clean Water Act jurisdiction over isolated waters, the appropriate Regional Water Quality Control Board should consider protection of such waters under its power to regulate waste discharges. The boards, however, lack staff and funding for this new role. Prospects of improvement in today's gubernatorial atmosphere are not encouraging.

Effects in the Bay Area

The effects of the new federal guidelines for the Bay Area are worrisome. For example, privately owned seasonal wetlands within diked Baylands in the North San Francisco Bay may be deemed not to be adjacent to the Bay and could lose protection. This area, now mostly farmed, is under pressure for development. Deregulation would result in loss of habitat, an increase in unhealthy runoff into the Bay, and escalation of the cost of acquiring these wetlands for protection and restoration.

In one case involving vernal pools in the Santa Rosa area, it was contended that a waterway diverted through a conduit was an "isolated" water and therefore beyond federal jurisdiction. The argument was rejected by the Corps, but that was before the present federal guidance, and the result could be different today.

In another more recent Sonoma County case, a federal district court decided that the city of Healdsburg must have a permit to discharge to a pond next to the Russian River and refused to defer to an agency action declining jurisdiction under the Clean Water Act. The case is being appealed to the Ninth Circuit Court of Appeals. New judges likely to be appointed to this and other courts may not be so sympathetic to regulatory protections.

Perhaps the most alarming result of the Bush attack on the Clean Water Act is the prospective loss or contamination of streams that are ephemeral (i.e. flowing only briefly after storms) or intermittent (flowing several months during the year). These small waterways are common throughout California including the Bay Area. In the Bay Area, developers have attempted to fill in and divert such streams to make way for golf courses, residences, and other projects.

A September 2003 report of scientists convened by the Sierra Club and American Rivers issued a report titled "Where Rivers Are Born: The Scientific Imperative for Defending Small Streams and Wetlands". The report emphasizes that these waters play an important role in maintaining the integrity of downstream waters. While emphasizing the abundance and importance of threatened streams, the report points out that topographic maps, the most commonly used resource for tracing stream networks, do not show most of the nation's headwater streams and wetlands. Thus, such maps do not serve as a basis for stream protection and management. Nonetheless the survival of small streams around the Bay is critical to downstream water quality, flood protection, groundwater recharge, and biological diversity.

The SWANCC decision and ensuing weakening of federal regulation did not apply to tidal wetlands or areas adjacent to them. We hope that the Corps of Engineers will continue to assert jurisdiction over all seasonal wetlands in diked areas such as the "diked historic Baylands" at the north end of the Bay. But forces are at work which will facilitate development even in these categories.

The Corps has recently proposed guidelines that would further ease the already weak requirements for developers to avoid or mitigate impacts to wetlands. It has long been the position of the Sierra Club and many other organizations that developers should be required to make maximum efforts to avoid impacts to wetlands and to mitigate all impacts in a way that replaces lost wetlands "in kind" and close to where the impacts have occurred. The Corp's proposed new guidelines would permit mitigation to occur at a site nominated by the developer, possibly far from the development site in a "mitigation bank" that will not replace lost habitat or other functions. We can therefore look forward to mitigation banks for Bayside projects even as far away as Santa Rosa. Not long ago the Corps approved the creation of a mitigation bank in Marin County which can be used to compensate for wetland destruction as far away as Napa, Solano, and Contra Costa Counties.

Recent Corps guidelines would also allow mitigation for damage to streams and riparian areas to be located in adjacent areas that are rarely if ever subject to saturation, i.e. that do not have wetland characteristics.

Is there any good news? Yes, but not on the regulatory front. In recent years much wetland around the Bay has been acquired and will be permanently protected by public or nonprofit agencies. Individual efforts and many private organizations have played key roles on purchases. Most notable has been the acquisition from Cargill Corp. of 16,500 acres of salt ponds in the South and North Bay. Other recent significant acquisitions include the Dickinson Ranch and the former proposed casino site in Southern Sonoma County (together 2,327 acres) and Bahia in Novato (632 acres).

Tot Heffelfinger