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Saturday, September 6, 2008

State Board to Decide Fate of Imperiled Wetlands and Wildlife

news from the Defenders of Wildlife,

Time is running out -- the California State Water Resources Control Board is only accepting comments until noon on Monday, September 8th, so please speak out now! Water is the lifeblood of California. Right now, the State Water Board is deciding the fate of our state’s wetlands and riparian areas -- and with it the fate of the endangered amphibians, birds, salmon and other species that depend on these areas to survive. We need your help to speak out for our wetlands and wildlife. Tell the State Water Board that you support strong protections for our wetlands and riparian areas -- and the plants and animals that depend on them to survive. Wetlands and riparian areas -- the vital habitat that can be found along streams and rivers -- provide essential habitat for California wildlife. They also help protect against flooding, provide clean water to our communities and replenish our groundwater reserves. Take action now to help us tell the State Water Board to protect the one resource none of us can do without: water. Well over 200 species of birds, mammals, reptiles, and amphibians depend on California’s wetlands, riparian areas and vernal pools. Vernal pools are temporary pools of water that, despite being dry at times, teem with life. Because they have no fish, they allow amphibians, insects and other creatures -- including the imperiled tiger salamander, giant garter snake, and fairy shrimp -- to develop safely into adults. But these special places could be lost without strong protections. Shockingly, California has already lost more than 90% of its wetlands and riparian areas. We can’t afford to lose more. That’s why it’s so important that we take action now to protect these critically important areas before it’s too late. Stand up for California’s precious wetlands and riparian areas -- and the wildlife that depends on them. Take action now to make your voice heard on this important issue. The federal government isn’t protecting our waters -- and the U.S. Supreme Court has recently handed down several decisions that have removed crucial protections from many of California's wetlands, riparian areas and waters. That’s why the State needs to step up its efforts to protect these vulnerable -- and irreplaceable -- areas and do what it does best: set the example for the rest of the nation. But we’ll need your help to make it happen. Take action to urge the State Water Board to adopt strong policies that will protect our wetlands and riparian areas, and our wildlife.

All written scoping comments must be received by 12 p.m. on September 8, 2008 and should be addressed to:

Jeanine Townsend, Clerk to the Board
State Water Resources Control Board
1001 I Street, 24th Floor
Sacramento, CA 95814

Comment letters may be submitted by email to (if less than 15 megabytes in total size) or by fax at (916) 341-5620. For email submittals, please indicate in the subject line: Comment Letter – “Policy to Protect Wetlands and Riparian Areas"


A project discussion paper for the workshop/scoping meetings may be obtained via the Internet on the State Water Board Web site at:

Interested parties may subscribe to an email list serve for future notices about the Policy at: Choose: Wetland and Riparian Area Protection Policy

Sample Letter from the Sierra Club California,

Jeanine Townsend, Clerk to the Board
State Water Resources Control Board
1001 I Street, 24th Floor
Sacramento, CA 95814

submitted by email to:
subject line: Comment Letter – “Policy to Protect Wetlands and Riparian Areas.”

The co-signers of this letter are pleased to respond to your request for scoping comments regarding the State Water Resource Control Board’s (Water Board’s) development of a State Wetland and Riparian Areas Protection Policy (WRAPP). The need for the WRAPP has been admirably described by your staff. Our federal government’s retreat from protecting our nation’s wetlands and streams is unprecedented, and the impacts to California’s environmental health will be disastrous unless the state takes its own actions to protect its wetlands and streams. Loss of those streams and wetlands no longer protected by the federal government will result in significant declines in water quality and biodiversity as well as flood control, carbon sequestration and the many other functions these small, intermittent and ephemeral streams and isolated wetlands provide to our state. For this reason, the proposed Wetland and Riparian Area Protection Policy (WRAPP) should be as expansive as possible in definition and rigorous in regulation so as to provide true protection to all the waters of the State. In Phase I of the WRAPP, you propose to regulate only dredge and fill impacts to wetlands and streams. However, there are many other ways in which our state’s streams and wetlands are destroyed, such as draining, mechanical excavation and deep-disking. In order to achieve the state policy (Executive Order W-59-93) of “no net loss of wetlands,” these practices must also be regulated. To fully protect the state’s wetlands and streams from all the means of destruction and degradation described above, the State Water Board should adopt a policy in WRAPP Phase I stating that any action that results in the alteration of the physical state or the hydrologic regime of a wetland or stream is a regulated activity. As the WRAPP Scoping Discussion Paper states, “[T]he Policy is to include “a wetland definition that would reliably define the diverse array of California wetlands….” We believe that the one-parameter (Cowardin) definition developed by U.S. Fish and Wildlife Service and used by the California Department of Fish and Game is the most comprehensive wetland definition, and thus the most capable of defining “…the diverse array of California wetlands….”

The California Coastal Commission has used this definition in a regulatory framework for decades. The fact that the Coastal Commission uses this definition in its regulatory framework and that this use has survived for so long indicates its functionality and legality as the tool to define California’s wetlands. Other tools such as the “Arid West” regional supplement to the Army Corps’ Wetland Delineation Manual, combined with a functionality test based on the functions of riparian areas, may also prove useful adjuncts to a one-parameter definition. The Discussion Paper asked for comments on the Avoidance Requirements and Alternative Analysis components of the federal 404(b)(1) Guidelines. These guidelines provide the regulatory structure for the federal wetlands protection program. However, the “avoidance” mandate of the 404(b)(1) Guidelines, “… no discharge of dredge or fill material shall be permitted if there is a practicable alternative to the proposed discharge…(USC §230.10(a)).” is completely ineffective since the Army Corps approves over 99% of its §404 permit applications. Under the 404(b)(1) Guidelines, wetland-destroying projects can be approved only if the applicant can demonstrate that there is no alternative upland location available for the “basic purpose” of the project. For special aquatic sites, including wetlands, the guidelines further state that there is a presumption that there are alternate upland sites for the project, as long as the projects are not water dependent. Because headwater, intermittent and ephemeral streams are so important to the State, we believe they should be added to the category of “special aquatic sites” if that classification is retained in the WRAPP as part of the avoidance regulatory process. Even with this added presumption, however, applicants always convince the Army Corps that there is no alternate site for their project, even though wetlands occupy only 5-7% of the State’s land area. Applicants do this by creating very narrow definitions of their projects. For example, they define “projects” as a housing project plus a golf course, or a restaurant on the waterfront. In reality, the projects are housing and feeding people. The golf course and waterfront location are amenities, and are not necessary for the basic purpose of the project. The State Water Board must improve upon the “Alternatives Analysis” process so that applicants cannot narrowly describe a project simply to defeat the Alternatives Analysis. In the WRAPP analog of the 404(b)(1) guidelines, applicants must define a project’s “basic purpose” as the generic function of the project. The WRAPP regulatory process also must empirically test each applicant’s economic claims by examining comparable past projects. For example, are housing projects without golf courses providing sufficient returns in the proposed geographic area to make a housing project financially feasible? Additionally, the WRAPP should include guidance that clarifies that an applicant cannot define the proposed geographic location of the project so narrowly that no alternate site can be available. Avoidance must consider the hydrologic and ecological needs of the wetland or stream system and require avoidance of those upland areas necessary for the continued functioning of the wetland or stream’s hydrologic and ecological systems. For some aquatic features such as streams and vernal pools, adjacent uplands play critical roles in providing both the hydrology that sustains the streams and wetlands and the upland habitat essential for species that depend on both habitat types to survive.

Mitigation must include appropriate upland surrounding habitat in order to provide protection for complex aquatic and upland ecological systems such as vernal pool complexes whose habitat value is in part dependent upon the interplay of uplands and pools. Species that migrate between pools but spend much of their time on uplands, such as the California Tiger Salamander, are dependent upon such complexes. Recent studies have shown that wetland and stream mitigation usually fails to recreate all the functions provided by the destroyed wetlands and streams. For that reason, the WRAPP should require high mitigation ratios at the minimum rate of at least three, five or ten acres of mitigation wetlands or streams for every acre of wetland or stream destroyed depending on functional value lost. The National Research Council in 1992 recommended these ratios in Restoration of Aquatic Ecosystems. All mitigation sites should be protected and preserved in perpetuity through appropriate deeding instruments. Applicants should be held responsible for remediating failed mitigation efforts. To ensure their capability to take such actions, applicants should be required to create financial instruments, such as bonds, to fund future remediation efforts. When considering mitigation, neither preservation nor enhancement should be considered adequate compensatory mitigation tools. Preservation and enhancement both result in net loss of wetland acreage. Because mitigation banks suffer the same flaws as individual mitigation projects, and because studies have shown that banks result in the movement of wetlands from high- priced urban areas to cheap-land rural areas, we urge a limited role for mitigation banks in the WRAPP. These banks should only to be used to mitigate small fills for applicants who cannot otherwise afford mitigation requirements. Mitigation banks also have been a useful tool for agencies, such as Caltrans, that make repeated small wetland fills as a result of their agency responsibilities. Banks, however, should not be used by those agencies for individual projects that have large, significant wetland or stream impacts. Finally, a watershed perspective is an essential component of a fully effective WRAPP. However, watershed planning is an intensive and costly process. Most existing watershed plans are designed to solve specific problems, such as flood control, and are not appropriate for use in the WRAPP. Where applicable, the state board should encourage applicants to draw up watershed plans that fully consider wetlands effects. Thank you for your attention to our suggestions. Yours,

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