Lawmaker Seeks Change in Wetlands Definition

Hoping to end the sweeping effects of a recent appeals court decision over Orange County’s Bolsa Chica wetlands, a San Diego lawmaker plans to introduce a bill next week that would override the decision’s strict interpretation of laws protecting wetlands and sensitive habitats.

The court decision has altered or stopped developments up and down the coast, and experts say it could eventually threaten projects ranging from the Foothill South toll road to previously negotiated arrangements setting aside land to compensate for coastal development.

Assemblywoman Denise Ducheny (D-San Diego) said the court’s strict interpretation is hurting crucial projects and long-term conservation planning.

“It’s to provide consistency and to ensure that we have the ability to move projects forward” in ways that include compensation for environmental harm, she said.

Environmentalists, however, are outraged by the proposed law, which they say would unravel the state’s landmark 1972 Coastal Act and redefine wetlands so that many, especially in Southern California, would no longer be protected.

Activists say Ducheny and others who support the measure will be forever branded as promoting destruction of the coast.

“For the environmental and coastal protection community, this is the No. 1 most important piece of legislation,” said Mark Massara, a Sierra Club attorney. “It threatens the coast and the wetlands more than any other bill that could be introduced.”

Under the Coastal Act, wetlands can be filled for eight reasons, including wetlands restoration. For years developers have used this exception for projects that destroy wetlands on a construction site but finance restoration or creation of wetlands elsewhere--an arrangement that environmentalists say ignores the act’s intent.

That view was affirmed by an April 1999 state appeals court decision against development on the Bolsa Chica wetlands. The ruling also prohibited development in two “environmentally sensitive habitat areas,” which also are protected by the Coastal Act. In all three areas, the court ruling prohibited deals allowing development in exchange for creation of similar habitats elsewhere.

In addition to the Bolsa Chica project, the decision could affect--or already is affecting--development on the Dana Point Headlands, Hellman Ranch in Seal Beach, a housing tract in Huntington Beach and the planned Foothill South toll road in South County.

Elsewhere, the decision has stalled the completion of California 56, a highway considered crucial to relieving congestion in San Diego, and killed a Goleta Union School District deal to sell $1.2 million worth of land in Santa Barbara County.

Under Ducheny’s bill, degraded wetlands and sensitive habitats could be destroyed for recreational, residential, commercial and transportation purposes as long as larger similar habitats are created or restored elsewhere.

Coastal Commission Chairwoman Sara Wan said her agency will strongly oppose the bill. “This could, in effect, undo the Coastal Act,” she said. “This is very serious.”

The bill also would alter the state definition of wetlands to coincide with that of the U.S. Army Corps of Engineers. The federal government requires wetlands to have three components: water, certain soils and specific plants. California only requires one of these components for land to be classified as a wetland.

Wan said the change would have serious implications, especially for Southern California, where many wetlands are dry part of the year and therefore would no longer be protected.

Ducheny said her intent was not to eliminate wetlands, but to create consistency between state and federal definitions.

She said her bill was also driven by concerns that the Bolsa Chica court decision could upset Natural Communities Conservation Plans. Under these plans, developers set aside large protected reserves of land and, in exchange, are allowed to build on smaller parcels that contain protected species.

In central Orange County, 37,000 acres have been set aside through this process, which county officials say provides balance between development and preservation. In San Diego County, 177,000 acres have been set aside.

However, Orange and San Diego county officials say the court ruling has not affected their conservation easement programs.

Officials from the California Building Industry Assn. and Orange County’s Transportation Corridor Agencies say they strongly support the legislation.

Many cities and counties also back the bill out of concern for public works projects.

If not voided by legislation, the Bolsa Chica court ruling “would be a disaster for the city of San Diego and any other local agency trying to accommodate growth,” said Tom Story, a San Diego planning official.