HomeMy WebLinkAboutMINUTES - 03161993 - 1.72 ✓ 1 . 7-2-
STATE OF CALIFORNIA—THE RESOURCES AGENCY PETE WILSON, Governor
DEPARTMENT OF FISH AND GAME
1416 NINTH STREET E m
P.O. BOX 944209 '
SACRAMENTO, CA 94244-2090
(916) 653-4875
March 3, 1993 RECEIVE®
MAR - 81993
Mr. Tom Torlakson, Chief
Contra Costa Board of Supervisors CLERK BOARD OF SUPERVISORS
. 651 Pine Street, Room 106 CONTRA COSTA CO.
Martinez, California 94553
Dear Mr. Torlakson:
Your letter concerning wetlands regulatory activities has
been referred to me for reply. Your letter indicates that Contra
Costa County is considering implementation of a wetland
regulatory mechanism at the local level and requests information
regarding the feasibility of a coordinated Contra Costa County,
State, and Federal regulatory methodology. We believe that such
an arrangement is both feasible and desirable, that consistently
applied mitigation measures for unavoidable wetland impacts would
clearly be of benefit to fish and wildlife resources, and that
such an approach to mitigation would also be of benefit to the
.development community in terms of enabling them to understand
from the outset just what sort of mitigation obligation and
mitigation costs would result from a given prospective project.
The Department of Fish and Game has repeatedly indicated its
strong support for the use of the U.S. Fish and Wildlife Service
wetland definition as contained in the document entitled
"Classification of Wetlands and Deepwater Habitats of the United
States" (Cowardin et al. 1979) . As you likely know, we supported
the incorporation of that wetland definition into the Contra
Costa County general plan in 1991. Now that Contra Costa County
and the Department identify wetlands in the same way, it .becomes
possible to .discuss, and hopefully achieve, adequate wetland
impact compensation on an individual project basis.
The Department's wetland resources policy, as contained in
the Fish and Game Code, may be summarized as follows:
1. Consistent with requirements of State and Federal law, as
well as common sense, impacts to wetlands should be avoided
where feasible. Avoidance of impact is, after all, the
finest form of mitigation.
2 . To the extent that wetland impacts may not be feasibly
avoided, they should be minimized.
Cc
Mr. Tom Torlakson
March 3, 1993
Page Two
3 . Unavoidable impacts to wetlands should be offset such that
no net loss of either wetland acreage or wetland habitat
values would result from project implementation.
Our recommended means of offsetting unavoidable project
impacts to wetlands requires the maintenance of both preproject
wetland acreage and preproject habitat values. The attached
Department report discusses this mitigation methodology in some
detail. However, the main thrust of the methodology is the
creation (through conversion of nonsensitive uplands) of no less
wetland acreage of no less habitat value than that acreage and
those values unavoidably lost to project implementation. We also
prefer in-kind compensation (i.e. , creation of the same type of
wetland as that unavoidably impacted) , and we prefer on-site
rather than off-site mitigation in order to provide the greatest
utility to that group of fish and wildlife species impacted.
You have also requested information regarding the potential
establishment of a wetland mitigation bank in Contra Costa
County. Please find attached the "Department of Fish and Game
Guidelines for the Establishment and Use of Wetland Mitigation
Banks" . This document discusses, in some detail, the
Department's recommendations regarding wetland mitigation banks.
However, as will be seen upon reading the Guidelines, at the
heart of the methodology discussed is the need to maintain both
preimpact wetland acreage and preimpact wetland habitat values
consistent with our wetland resources policy. For your
information, Placer County is in the process of developing
wetland mitigation bank ordinances which are highly compatible
with the Department's guidelines, and we suggest that Contra
Costa County contact Placer County regarding these ordinances.
The Department's Environmental Services Division is in the
process of completing two reports which Contra Costa County may
find useful, and we will forward copies to you upon completion.
The first report translates the sometimes somewhat cumbersome
wetland classification language contained in the U.S. Fish and
Wildlife Service's wetland classification system into a more
easily and widely understood wetland type terminology, while
simultaneously retaining complete agreement with the wetland
definition contained in the "Cowardin" document. The second
report discusses long- and short-term costs associated with
wetland mitigation banks, the funding of maintenance of
mitigation areas in perpetuity, and other economic considerations
necessary to assure that all fish and wildlife habitat loss
mitigation costs are borne by project proponents.
Mr. Tom Torlakson
March 3, 1993
Page Three
In .conclusion, thank you for the opportunity to provide. this
input to Contra Costa County. Should you, other supervisors, or
Contra Costa County planning staff have questions regarding this
response, or any of the attached documents, please contact
Mr. Bob Radovich, Environmental Specialist, Department of Fish
and Game, 1416 Ninth Street, Sacramento, California 95814,
telephone (916) 753-9757.
Sincerely,
J L. Turnr, Chief
n ronment 1 Services Division
Attachments -ON FIL-E W"rH GLF9A
cc: Mr. Bob Radovich
Department of Fish and Game
Sacramento, California
Mr. Boyd Gibbons
Department of Fish and Game
Sacramento, California
January 9, 1987
WETLANDS RESOURCES POLICY
The Fish and Game Commission finds that:
I. California's remaining wetlands provide significant and essential
habitat for a wide variety of important resident and migratory fish and
wildlife species.
II. The quantity and quality of the wetlands habitat remaining in
California have been significantly reduced; thus, maintenance and
restoration are essential to meet the needs of the public for fish and
wildlife resources and related beneficial uses. In addition, the
protection, preservation, restoration, enhancement and expansion of
wetlands as migratory bird breeding and wintering habitat are ,justly
. recognized as being critical. to the long-term.*survival of such species.
Wetland habitat is also recognized as providing habitat for over half of
the listed endangered and threatened species in California.
III. - Projects which impact wetlands are damaging to fish and. wildlife
resources if they result in a net loss of wetland acreage or wetland
habitat value.
IV. Through the passage of Senate Concurrent Resolution 28
(January 1, 1983) , the Legislature,. in recognition of the importance of
wetlands, indicated its "intent to .preserve, protect, restore and enhance
California's wetlands and the multiple resources which depend upon them for
the benefit of the people of the state% The Legislature further declared
its desire that wetland habitat acreage be increased by 50 percent by the
year 2000.
Therefore, it is the policy of the Fish and Game Commission to seek to
provide for the protection, preservation, restoration, enhancement and
expansion of wetland habitat in. California.
Further, it is the policy of the Fish and Game Commission to strongly
discourage development in or conversion of wetlands. It opposes,
consistent with its legal authority, any development or conversion which
would result in a reduction of wetland acreage or wetland habitat values.
To that end, the Commission opposes wetland development proposals unless, .
at a minimum, project mitigation assures there will be "no net loss" of
either wetland habitat values or acreage.
The Commission strongly prefers mitigation which would achieve
expansion of wetland acreage and enhancement of wetland habitat values.
Furthermore, to make recommendations to the Commission on
implementation of this policy, a tempore" Worki n^ rnf;n sh;0 l be
established. It. shall make recommendations concerning ti:e following:
A. Long-range planning, prioritization and implementation of a
comprehensive program to protect, enhance and expand wetlands;
_55—
B. Enhancing public* awareness of and mobilizing public support for
the need to protect wetlands;
C. Cooperative mechanisms and coordination with local government and
private. sector interests to achieve A. and B.; and
0. Needed legislation, regulations, staffing and/or funding necessary
to accomplish A., B. and C.
The Working Group shall include the Commission's Subcommittee on
waterfowl and one representative, selected by the Commission, from each
of the following: local goverment; environmental group; sportsmen/ .
conservation group; and wetlands developers/converters. Additionally,
it shall include one representative of the Department of Fish and Game as
designated by the Director. The group's work shall be coordinated by
the Executive Secretary of the Commission who shall present its
recommendations, which shall include gui del i rtes for the Departsent's
implementation of this policy including an appropriate wetland definition,
to the Commission no later than June 30, 2987.
—56—
i
THE STATUS OF WETLAND HABITAT
AND ITS PROTECTION, ENHANCEMENT, AND EXPANSION
w
DEPARTMENT OF FISH AND GAa�iE
Jack C. Parnell
Director
Prepared by
Environmental Services Division
Don Lollock , Chief
Presented before the .Fish and Game Commission on March 9 , 1987
by Glenn Rollins , Environmental Services Supervisor , Environmental
Services Division.
313TORI C WE t'LAAWS
The lack of authentic records makes the precise quantification of
historic wetland habitat in California quite difficult. For this
reason, substantial differences exist in the estimates of the total
acreage of wetlands occurring in California prior to settlement by
Europeans in the 19th century. Six million acres of wetlands were
estimated by Horn and Glasgow ( Linduska 1964 ) and five million
acres were reported in waterfowl of California ( Kozlik 1974 ) . A
report prepared by the U. S . Fish and wildlife Service in 1978
estimates the total historic wetland area at between 4 . 1 million
and 5 . 0 million acres (Appendix 1 ) .
The State originally contained an estimated 500 , 000 acres of
permanent freshwater marshes ( Kahrl 1979 ) . The majority of this
habitat occurred as tidal and nontidal marshes along the borders, of
Grizzly and Suisun bays and the Delta, Tulare and Kern lakes, and
in basins along the Sacramento and San Joaquin rivers ( Mittel
1863 ) . These vast permanently flooded marshes consisted primarily
of cattails , several species of bulrushes , and pondweeds .
Each winter millions of additional acres of seasonal wetland were
created as rivers and streams throughout the Central valley and
elsewhere in the State, swollen by rainfall and melting snow,
overflowed their banks and inundated adjacent grassland and wetla.nc
riparian forests . vast flocks of waterfowl , which reportedly
darkened the sky , for several minutes as they passed, eagerly sought
the temporary abundance of grass seed and terrestrial insects .
Coastal estuarine wetlands are believed to have totaled _
approximately 381 , 000 acres in the mid-1800s . They too supported
vast numbers of wintering waterfowl and, in addition , were
particularly important as a wintering area for millions of
shorebirds .
PRESENT STATUS OF WETLANDS
Wetlands have suffered greatly as a result of modern man' s
presence . The quantity and quality of wetland habitat in
California have decreased dramatically in the face of our
burgeoning population ( Appendix la . Statewide , wetlands have beer
reduced in area to less than 10 percent of historic levels .
Coastal estuarine wetlands have been reduced to approximately Z5
percent of historic levels .
The major factors responsible for the loss of wetlands have been
the construction of thousands of miles of flood control levees an
subsequent conversion of natural wetlands to agricultural
production and urban development , the dredging and filling of
estuarine habitat for urban, industrial and port development , the
construction of flood control and water storage reservoirs ; and
channelizaticn of . thousands _of miles of natural water-�Fays . ,many
the surviving wetlands and the `i-sh` and �i :dlie -ee our:ces they
s:spport are being degraded by pollutants such as persistent
pesticides and herbicides ; heavy metals and toxic chemicals from
urban, industrial , and agricultural sources ; and petrochemical
Spills from land based facilities , ships , and pleasure craft.
Still other wetlands are succumbing to increased salinity, and the
unavailability of adequate quantities of water at appropriate times
of the year as a result of upstream water storage and diversions .
One of the best barometers with which to monitor the status of
. wetlands throughout California are those plant and animal species
dependent upon wetland habitat for their continued survival .
Fifty-five percent of the animal species designated as threatened
or endangered by the State are dependent upon wetland habitat for
their survival . Familiar examples of this group include :
California freshwater shrimp ( endangered) ; giant garter. snake
( endangered) ; California clapper rail , Yuma clapper rail , and
light-footed rail ( all endangered) , least Bell ' s vireo
( endangered ) , greater sandhill crane ( threatened) , western
yellow-killed cuckoo ( threatened) , southern bald eagle
( endangered) , salt-marsh harvest mouse ( endangered) , desert and
Owens pupfish ( endangered) , and the Little Kern golden trout
( threatened) . in addition, one out of four plants listed by the
State as threatened or endangered requires wetland conditions for
survival .
Perhaps the most highly publicized barometers of the status of
wetlands are our migratory waterfowl . The numbers of ducks and
geese wintering in California has plummeted since the turn of this
century. Although some of . this precipitous decline can be
attributed to the drainage and conversion of their ancestral
breeding grounds in Canada , the loss of 40 percent of the historic
wetlands in California must also be a contributing factor to the
decline in the waterfowl population of the Pacific Flyway . The
results of studies conducted by resource agencies indicate that
waterfowl recruitment is significantly affected by the body
condition of hens .returning to their northern breeding grounds to
nest.
Obviously, as wintering habitat diminishes. in size , waterfowl are
crowded into smaller and smaller areas . Not only does such
crowding increase. the level of competition for available feed , but
study results additionally indicate that a relatively high
percentage of hens returning to their breeding groctnd are in
moderate to poor condition and can be expected to achieve less than
optimum reproductive success . Crowding also increases the
vulnerability of waterfowl to disease and environmental pollution .
Each year thousands of birds succumb to botulism, fowl cholera , oil
spills , and/or contaminants such as selenium and pesticides .
Now, more than ever before , our wetland resources need an
aggressive ; comprehensive program of wetland protection ,
. enhancement , and expansion. we ' believe that through .the
conscientious application of the Commission' s wetland Folicy and
the implementation of a well-planned and creative program of
wetland enhancement and expansion , that the Department will be able
-4-
t o
4rto halt the loss of wetland habitat and begin the process of _
restoring and expanding the wetland resources of the State to
healthy levels .
WETLAND PROTZCTION
DFG Position and Commission Policy
Regarding the Protection of wetlands
The Department' s position regarding the protection of wetlands is
that projects should not result in a net loss of either wetland
acreage or wetland habitat value . This Department position has
been consistently applied during project review analysis and in
attempting to resolve our concerns regarding adverse impacts to
wetland resources during negotiations with various agencies and
private individuals . The mitigation and compensation of project
impacts through acquisitions and restoration has been the
responsibility of project beneficiaries . we believe that the
Department' s position regarding wetlands is wholly consistent with
the recently adopted Fish and Game Commission wetland protection
policy.
Among the specific wetland impact minimization techniques which
have been employed by the Department in carrying out its wetland
position as well as the Commission wetland policy are :
1 . Elimination- or minimization of adverse Rroiect impacts to
This wetlands . T s tec nique involves the identification o the
Least environmentally-damaging alternative project design and
location which may feasibly be employed, and an assessment of
wetland acreage and/or wetland habitat value which cannot
feasibly be protected .
2 . Assuring no net loss of wetland acreage . This technique
involves the creation of no less wet and acreage than that
acreage which cannot be feasibly protected from loss through
adoption of the least environmentally-damaging feasible
project design and location criteria previously discussed.
For example , if a project resulted in 2 acres of wetland fill ,
then the Department' s position regarding retention of wetland
acreage, with . respect to this hypothetical project, would be
that no less than 2 acres of wetland must be created in an
area which is not presently wetland in character . Given this
compensation strategy it is. of fundamental importance to
locate a compensation site which is both non-wetland in
character , and does not presently provide significant habitat
value to of er fish or wildlife resources : Failure to
properly consider the existing value of a potential
compensation area could result in adverse impacts to important
non-wetland- areas and destroy one vital area while attempting
to compensate foe' adverse impacts to another . Compensation
sites must also be selected such that wetland acreage and
values lost may be reasonably expected to be fully compensated
i . e . , replaced for the lime of the project . : t is also
essential that post-project monitoring be performed to insure
that mitigation and compensation measures are working -
satisfactorily. If artificial measures are needed to sustain
the replacement habitat, the operation and maintenance costs
must be included as part of the project cost.
3 . Preventin2 the loss of wetland habitat values due to direct
oss is requirement of botht e Commission' s policy an
the Department' s position is somewhat more subjective in
nature than is the retention of wetland acreage discussed
above . In order to retain wetland habitat values through
compensation, it follows that we must either resort to
exhaustive analysis of existing resources at the project site
and potential resources at the compensation site ; or that we
must develop an ecologically-based general assumption
regarding the habitat values associated with any given wetland
area. The Department generally utilizes the latter
alternative . Our assumption is , and has been, that fish and
wildlife use of a given wetland area is a function of its
location, size, and physical - makeup in terms of hydrology,
salinity, soil characteristics and vegetation. we also
assume, . based. upon sound inference , that the vegetational
component of a given wetland area is directly related to the
physical characteristics of that wetland area . Therefore , we
have concluded that if a compensation wetland area is at least
as large as the wetland area to be impacted, and if, following
restoration, it possesses essentially identical physical
characteristics such as water depth, periodicity of inundation
and/or substrate saturation, salinity, and soil type , then it
is highly probable that the wetland compensation area will
develop a vegetative component functionally equivalent to the
wetland area to be impacted . Logically, then , the fish and
wildlife use , and, therefore , the "habitat value" of these
areas will also be functionally equivalent . Therefore , we
believe that the application of the general principal of
in-kind compensation leads to a supportable assumption of no
net loss of wetland habitat values .
4 . Prevention of indirect im acts to wetland habitat values . It
o en arises t at , even though a given wetland area wilT not
be reduced in acreage as a result of a given project , a net
loss of habitat value nonetheless would result from project
implementation. The most obvious , and common , source of such
indirect impacts to wetland habitat values occurs when
activities proposed within a given development area would
result in increasing disturbance levels within an adjacent
wetland . Such factors as increased noise levels and increased
levels of visual disturbance have been demonstrated to have a
negative effect upon wildlife use and , therefore , upon the
habitat values associated with wetland areas . Therefore , it
is necessary to assure that such indirect effects are either
eliminated or adequately ;mi_tigated to assure that the indirect
impacts do not result in the redu'c-tion of wetland habitat
values . in this regard, the Deoartment .gas insisted upon the
placement of buffer zones of sufficient width and character :o
eliminate indirect adverse impacts associated with noise and
visual disturbance , between proposed development and wetland
areas . The Department also recommends the inclusion of such
buffer zones , when appropriate , at both the project site and
the compensation site, when we are dealing with wetland
loss/wetland compensation scenarios such as those which we
have previously discussed.
A less obvious source of indirect impact arises from the
simplification of an ecosystem when a component of such a
systers is eliminated through development. Often the -fish and
wildlife value of a wetland area is significantly influenced
by adjacent non-wetland habitat. For example, the removal of,
. an upland area through development may result in significant
adverse indirect impacts to an adjacent upland wetland area.
Such impacts include interruption of the flow of nutrients,
predator/prey imbalances, elimination of all species which
depend upon both wetland and adjacent habitat, and increased
sedimentation rates within the wetland area. In attempting to
address this issue, the Department at times recommends the
inclusion of an upland component within a compensation area,
or retention of important upland areas in initial project
review through changes in project location and/or design
criteria. However, because biologically important non-wetland
areas are not generally protected by various laws to the same
extent as is the case with wetlands, the Department has found
that proper compensation for the subtle effects of ecosystem
simplication is extremely difficult to achieve .
Jurisdictions
Zn attempting to carry out our position regarding protection
of wetlands as well as the Commission ' s wetland policy, the
Department deals with a multitude of agencies operating under
State and Federal lags and policies related to the protection
of fish and wildlife resources . We also deal with numerous
local decision-making bodies such as planning commissions ,.
city councils , and county boards of supervisors as well as
semi-autonomous flood coat.oi districts , and mosquito
abatement districts .
From a wetland protection standpoint , the primary State and
Federal permit processes are those of the U. S . Army Corps of
Engineers which operates under permit guidelines promulgated
in response to Section 404 ( b ) ( 1 ) of the Federal Clean water
Act and the permit requirements of Section 10 of the Federal
River and Harbor Act ; the California Coastal Commission which
is charged with applying the wetland protection policies
contained in the California Coastal Act ; and the San Francisca
Say Conservation and Development Commission ( SCDC ) which is
charged with applying the wetland= protection -, poli,c.ies. of the
McAteer-Petri.s Act and the Suisun marsh Preservation Act .
.Additionally , local entities generaily require the issuance of
building permits for all projects including those which take
place within wetlands. These local entities ( cities and
counties ) typically function as lead agencies pursuant to the
California Environmental Quality Act ( CEQA) and are,
therefore, charged with responsibility for the preparation of
Environmental Impact Reports and Negative Declarations of
Project Impact pursuant to CEQA requirements .
Because of the frequent occurrence of threatened and
endangered species in wetlands , the provisions of the Federal
Endangered Species Act are often activated when projects
incorporate adverse impacts to wetlands . Consequently, in
attempting to protect wetland resources the Department often
works closely with the U. S . Fish and wildlife which is
responsible for carrying out the provisions of the Federal
Endangered Species Act. Additionally when the lead Agency .
( the agency responsible for carrying out or permitting a given
project) is a State agency, then if adverse impacts to
endangered species could result from project implementation,
the provisions of the State Endangered Species Act are
activated. The Department utilizes these provisions to assure
that the species in question is not negatively affected. our
dealings with federal agencies typically involve the
requirements of the Fish and wildlife Coordination Act and
often involve the requirements of the National Environmental
Policy Act, as well .
The role of the Department of Fish and Game in permit
processes affecting wetlands is primarily advisory and
consultative in nature . The Department has no permit
authority. over uses proposed within wetland areas . However.,
Fish and Game Code Sections 1600-1606 require streambed
alteration agreements to be executed prior to construction of
projects which would impact wetlands associated with rivers ,
streams , and Lakes . Fish and Game Code Sections 5650-5654
pertain to the protection of water quality in waters of the
State , but are not generally related to construction fill
deposition or dredging activities within wetlands .
Definitions .
In order for the Department to uniformly apply its wetland
position as well as the Commission ' s Policy on a consistent
basis across the wide spectrum of wetland types present within
the entirety of the State of California , it follows that we
must be able to consistently identify wetl-and areas . In order .
to identify wetlands , it also follows that we must be able to
consistently and uniformly differentiate between wetlands ,
uplands , and non-wetland aquatic habitats . This requirement ,
in turn, calls . for the consistent application of a thoroughly
adequate wetland definition sufficiently broad to include all
wetland types occurring in California .
From a practical standpoint :there are , at ores-enc ,- three
distinct wetland definitions extant in California . These.
definitions , in addition to that contained in ?residential
Executive Order 11990 , appear in their entirety in Appendix II
of our presentation. These extant wetland definitions are: . -
1 ) that which appears in the California Coastal Act; ( 2 ) that
which appears in the U. S . Army Corps of Engineers Section
404 ( b ) ( 1 ) guidelines ; and 3 ) that which is contained in the
U. S . Fish and Wildlife Service publication "Classification of
Wetlands and Deepwater Habitats of the United States"
( Cowardin, et.al . , December 1979 ) . Since the Coastal
Commission has adopted Interpretive Guidelines which indicate
virtual identity between the Coastal Act definition and the
U. S . Fish and Wildlife Service definition, and since these
guidelines indicate that the U. S. Fish and wildlife Service
definition and classification system are to be used in the
field identification of wetland resources within the Coastal
Zone, therefore, for all intents and purposes , there are ,only
two wetland definitions presently in use .
The wetland definitions used by the Corps and the Fish and
Wildlife Service differ substantially in terms of their
interpretation. The Corps of Engineers has repeatedly found
that wetlands must, ( 1 ) exhibit hydric (wetland indicator)
soils and, ( 2 ) evidence of periodic inundation .or soil
saturation, and ( 3 ) a prevalence of hydrophytic (wetland
indicator ) plants . while it is true that areas which exhibit
all three of these characteristics are definitely wetlands , it
is also true that not all wetlands exhibit all three
characteristics . For this reason, the Corps definition
( and/or its interpretation by the Corps of Engineers ) does not
include all those areas which the Department considers to be
wetlands . For example , the Corps , definition ( if strictly
interpreted pursuant to Corps wetland recognition criteria)
might exclude periodically inundated, non-vegetated intertidal
mudflats from being recognized as wetlands ; further ,
periodically inundated non-vegetated salt flat areas could be
excluded from being recognized as wetlands as well . In order
to regulate salt flats which are important to migratory
waterfowl , the Corps has recently begun to regulate uses
within these areas by referring to these wetlands as "other
waters of the United states which are important to interstate
commerce . "
The USFWS definition , :n the other hand is intended to include
all wetland types and :aerefore all fish and wildlife
resources therein. This definition requires that a given area
satisfy at least one of three criteria in order to be
definable as a wetland . These criteria are similar to those
three criteria utilized --y the Corps of Engineers . The
criteria are : 1 ) the presence of at least periodic
predominance of hydrophyt:. z vegetation ; Z ) predominately
hydric soils; and 3 ) periodic inundation . Inasmuch as only
one of these ,_characterisz: cs must be present in order to
define an ' area is a wetland , and using the example discussed
above , the USFWS definition would correctly recognize
intertidal mudflats and periodically inundated salt flats as
-9-
wetland areas . This ability of the USFWS definition to -
include all wetland types has resulted in claims from the
development community that the USFWS definition is overly
broad, and that this definition could lead to absurd
conclusion regarding wetland identification. A freeway, some
respondents to the Commission' s Policy have argued, would be
defined as a wetland by virtue of its periodic inundation by
extremely shallow water during winter rains . The fact of the
matter is, however , that the USFWS definition clearly states
that at least one of the three criteria must be present.
Implicit i�his wording is that in some cases more than one
of the criteria must be present and that some areas exhibiting
only one of the three criteria ( such as freeways ) are not
necessarily definable as wetlands . obviously, it is not the
Department' s intent to pursue the protection of areas devoid
Of fish or wildlife values .
The Department has used the USFWS wetland definition and
classification system on a statewide basis in wetland
identification efforts . We have found this definition to be
adequately broad to include all areas which the Department
believes . to be wetlands . We have found the USFWS definition
to be scientifically elegant in that it includes a systematic
application of the same physical and biological criteria on a
case—by—case basis . Inaddition, we have found the wetland
classification system, which is also contained in _the USFWS
publication referenced previously, to be uniformly applicable
to wetlands within the State of California. Although it may
be argued, with some merit , that no classification system is
completely infallible , we have found that the the USFWS
definition and classification system thoroughly adequate to
encompass all of those areas which the Department considers to
be wetlands . The Corps ' definition ( and/or Corps
interpretation of that definition ) , however contains several
significant inconsistencies and at times has resulted in what
the Department considers to be erroneous findings regarding
the non—existence of wetland habitat .
For all of the reasons previously addressed, the Department
has been using- the USFWS definition and classification system
in the identification of wetland resources within the State of
California for the last 8 to 9 years and Intends to continue
to do so .
We would again remind the Commission that the Department ' s
role relative to various permit programs is advisory and that
the identification of wetland habitat on the site of a
proposed project does not , in and of itself , prevent project
construction . The decision to permit a project or to impose
mitigation measures as permit conditions rests entirely with
permitting 'agencies n accordance with applicable laws .
-10-
Long Range Protection
The State of California incorporates widely divergent climatic
patterns and geological settings within its nearly 160 , 000 square
mile area. California' s wetlands reflect this diversity in terms
of their physical character . They range from extensive salt
marshes to desert washes , and from small vernal pools to huge
estuaries . Additionally, threats to the continued viability of
California' s remaining wetlands vary significantly from area to
area. whereas residential, commercial and industrial development;
water quality problems; and channelization/flood control projects
are threats which are, more or less , universal in nature, these .
problems vary in intensity from area to area throughout the State.
Further , some pressing problems related to wetland protection are
unique to specific geographic regions of the State . Because of
the variety of wetland types involved, and because problems
associated with wetland protection vary significantly from area to
area throughout the State; the Department believes that in
addition to the measures previously described for the review of
projects , the greatest opportunity for wetland protection in
California consists of devising problem resolution strategies
which are customized to specific problems which occur in each
geographic area of the State .
Although the State may be divided into numerous distinct subareas
along climatic , geographic, wetland types , and wetland protection
problem criteria, the Department has found that the following .six
general geographic areas contain the most pressing wetland
protection problems ; and that these areas are distinct from one
another regarding wetland protection problems . Therefore , we find
that these six areas should receive priority emphasis from a
problem resolution standpoint , and that each of these six areas
will require an individualized approach to resolve its unique
wetland protection problems .
I . North Coast - This area is currently experiencing economic
problems associated with the faltering lumber industry. it is
sparsely populated compared to other areas in which pressing
wetland protection problems exist . North Coast wetland
protection problems are mainly centered in and around Humboldt
Bay which is the second largest estuarine environment in
California . Primary wetland problems are related to urban and
industrial expansion; the most serious arising from potential
coastal-dependent industrial development around Humboldt Bay
and the attendant potential resultant need for harbor
improvements and infrastructure expansion .
Z . San Francisco Sav - "his area ( together with San Pablo and
Suisun ays ) contains approximately 80 percent . of all
remaining estuarine wetland habitat in California . Protection
of the Say and its associated wetlands is of vital importance
from a biological standpoint : :'he overall population of the
Say area is in excess of fire million people . Development
pressure upon remaining wet'_dnd resources is severe . Among
the most pressing wetland protection problems associated with
the San Francisco Bay area are : development of marinas and -
water-front marina oriented housing; light-industrial
development particularly in the South Say; the need the for
disposal of solid waste; general industrial development;
port-related development; and widespread unregulated discing
of wetland areas purportedly for agricultural purposes .
3 . South Coastal ( Santa Barbara County Soutli) - Remaining coastal
wetlands in southern California are generally small compared
to the estuarine wetlands associated with San Francisco Bay
' and Bunbol.dt Bay. For the most part, these coastal wetlands
were,-fo*maILy ice-age river valleys bordered by small hills ,
and occur at the mouths of south coastal streams and rivers .
Seventy percent of California' s population is located south of
the Tehachapi ' s and over SO percent of southern California' s
population is concentrated along the coastal shelf within ZS
to 30 miles of the Pacific Ocean. Consequently, development
pressure upon remaining southern California coastal wetlands
is intense, and opportunities to compensate for adverse
impacts to these wetlands while retaining wetland acreage, are
limited. in addition to direct problems related to competing
potential land uses such as industry, energy production,
water-front housing, port-gelated development, high-density
residential development, and commercial development, problems
associated with sedimentation within the remaining coastal
wetlands of southern California are of extreme concern. As
previously indicated, most of these wetlands occur at the
mouths of small streams . These streams generally are
associated with rather small watersheds composed primarily of
highly erodible sandy substrate . The watersheds are being
subjected to development on a grand scale as Orange and San
Diego counties continue to increase in population at
prodigious rates . The result of large-scale development in
coastal wetland watersheds .is that the process of
sedimentation within these wetlands has drastically increased.
Consequently, future survival of many of these wetlands will
hinge upon our ability to minimize indirect sedimentation
impacts and to remove sediment from these wetlands at least as
East as it is deposited.
4 . San Die o County vernal Pool Assemblage .- This unique wetland
type lias already been reduced by over 90 percent . Remaining
pools are located on undeveloped mesas in the coastal shelf
portion of southern San Diego County just outside the Coastal
"one . Factors which limit our ability to protect these
sensitive areas are that these mesas are relatively flat and
are therefore quite easily developed ; that there is only
limited regulatory control over development of these vernal
pools ; and that the pool areas are designated for large-scale
_ development by the various responsible local .governments .
Southern California Interior - A considerable per'ceacage of
sour ern California ' s fiture population growth will be within
presently undeveloped portions of southern and eastern Orange
County, Riverside County, and San Bernardino County. Each of
these counties contains significant wetland areas associated
with the floodplains of rivers and streams . San Bernardino
and Riverside counties also contain desert and "near-desert"
areas which, in turn, contain springs which are vital to
maintenance of fish and wildlife resources in the and
environment. Future stream channelization, flood control, and
urban expansion projects threaten the maintenance of existing
wetlands in these counties .
6 . Central valley
( a) Sacramento valley - The single most profound .impact upon
the vast historic wetlands of the Sacramento valley was their
conversion to agricultural production, mainly orchards, row
crops, corn and rice. This widespread conversion was
accomplished by a combination of levee construction, stream
and river channelization, and the construction of flood
control/water storage reservoirs .
Although waste grain is eagerly sought after by waterfowl in
the burned and flooded rice fields , it is high in starch and
provides insufficient protein to maintain bird vigor
throughout the winter and pre-breeding period. Thus , a very
real need exists to provide a more diversified winter food
supply. Natural wetland habitat supports a variety of plant
species and invertebrates which are very high in nutritional
value and are •thus capable of supplying the dietary elements
necessary to maintain a healthy waterfowl population.
Therefore , a primary goal of the resources agencies is the
acquisition of non-wetland area� and their conversion to high
quality marsh habitat .
Same of the primary limiting factors for wetland creation and
enhancement in this region are the cost of water , its priority
of use , and its timely availability. Present wetland
management is dependent upon the delivery of water by local
irrigation districts and groundwater pumping. Pumping costs
are prohibitive for most private duck clubs , and surface
deliveries are timed primarily fat rice culture . Although the
cost of flooding duck clubs in the fall does not seem to be a
serious problem, many clubs are unable to afford the delivery
of water in the spring when it is most critical from a habitat
management standpoint. Developed water from the Federal
Central valley Project is available only on a second priority
basis for refuges below that for municipal , industrial , and
agricultural uses .
The widespread use of persistent herbicides and pesticides can
represent a hazard to wet+and associated wildlife ,
particularly species of waterfowl that nest in the valley . In
the last two years we have investigated several cases o.4
waterfowl mortality which have cesulted from use of
carbofuran, a pesticide widely used to control the rice leaf
-13-
miner . In addition, there is increasing concern regarding the
use of agricultural wastewater , bearing even minute amounts of "
contaminants, for fear of concentrating these substances in
the receiving wetlands as has occurred in the case of
Kesterson wildlife Area. .
An ongoing problem, which continues -to result in severe
impacts to wetland habitat and associated wildlife species , is
the channelization of natural rivers and streams and the
removal of wetland vegetation growing along the banks . The
removal of vegetation and the prevention of seasonal flooding
are direct impacts which can be easily observed. Less obvious
are the significant deleterious effects upon young salmon and
steelhead, and other fish which require streamside wetland
habitat for escape cover and as a source of food both directly
in the form of terrestrial insects and indirectly in the form
of nutrients necessary for the production of zooplankton. .
Residential and industrial development of valley and foothill
communities is a threat to wetlands which will continue to
worsen. The filling of vernal pools . and seasonally flooded
low areas , coupled with increased levels of flood protection
achieved through the channelization of waterways and improved
regional drainage facilities , can be expected to severely
challenge our ability to maintain wetland acreage and habitat
values in this section of the State .
( b ) San Joaquin valley - The wetlands present in the San Joaquin
Valley and adjacent . foothills are subject to the same threats
posed by residential and industrial development ,
channelization, the removal of streamside wetland vegetation ,
and widespread use of persistent herbicides and pesticides , as
described for the Sacramento valley.
Due to its drier climate and its reliance on expensive
imported water supplies , the problems associated with the cast
of water , its secondary priority to other uses , and its timely
availability in sufficient quantities for the purpose of
wetland habitat management are. even more acute than those of
the Sacramento valley.
A problem unique to the San Joaquin valley is its inability to
safely dispose of wastewater . The use of relatively
inexpensive agricultural drain water has proven disastrous to
wetland resources in certain portions of the valley . We are
not sure at this point just how widespread the problem of
selenium and heavy metal contamination is , and we will have to
await the results of oncoing studies . The identification of
sources of good quality water available for the Grasslands
duck clubs and State and Federal wildlife refuges on an equal
priority basis will require the concerted efforts of a variety
of agencies , ,as well as private organizations and individuals .
In order to successfully resolve problems associated with
wetland protection in t.;e above areas as well as throughout
the remainder of the State , the Department intends to apply
the following protective measures .
-14-
1 . Attempt to avoid adverse impacts to wetlands through review of
and comment upon proposed projects , land use plans , and `
community plans during the public permit and planning
consideration process, and seek no less than acre-for-acre,
in-kind compensation for unavoidable adverse impacts to
wetlands;
2 . Identify specific wetland areas subject to intensive
development pressure , and develop conflict solution strategies
for these areas consistent with Commission policy regarding no
net. losa of either wetland acreage or wetland habitat value ;
3 . Compile a prioritized list of wetlands for public acquisition
through purchase , gifts, land exchanges , and other forms of
public acquisition;
4 . Intensify efforts to assure adequate water quality and supply;
S . Seek to preserve privately-owned wetlands through the creation.
of economic and other incentives ;
6 . Increase public awareness of wetland protection problem
through intensified educational . programs ; and
7 . Maintain close coordination with appropriate local, State, and
Federal agencies .
EXPANSION AND ENHANCEMENT OF WETLANDS
The Department is supportive of the goals of Senate Concurrent
Resolution 28 regarding the expansion of the States wetland area
by 50 percent by the year 2000 . Toward this end , the Department
intends to pursue each of the following means of wetland expansion
and enhancement .
1 . Evaluate the potential for creating additional wetlands , and
of enhancing existing wetlands , on Department-owned lands ;
2 . Evaluate the potential for creating wetlands on other
State-owned lands ;
3 . Seek the expansion and enhancement of privately-owned wetlands
through the application of economic and other incentives ;-
4 . Identify potential existing and possible future sources of
funds which could be used to enhance , restore , and create
wetlands ;
5 . Evaluate the Feasibility of creating , restoring, and enhancing
wetlands an, federally-owned lands , such as those of the Bureau
_ � of Land management and U . S.-' Forest Serv�.ce ;
6 . Encourage the creation, restoration, and enhancement of
wetlands by federal agencies ; and
7 . Maintain and intensify Department extension and advisory
efforts related to wetland management practices on private
lands .
CURRENT WETLAND ACTION PROGRAMS
- Suisun Marsh Protection Program - We are very pleased to
announce that the Department of Fish and Game, Department of
water Resources, the U. S . Bureau of Reclamation, and the Suisun
Resource Conservation District executed several interagency
agreements last Monday, March 2 . These agreements authorise the
construction of water distribution facilities throughout the
Suisun Marsh; guarantee adequate water quality for wetlands
management, provide for ongoing post-project monitoring; and
assure implementation of mitigation needed to offset wetland
losses due to the construction. of water control - and distribution
' facilities in the Marsh. The signing ceremonies concluded over
25 years of research and 17 years of, negotiations.
State Duck Stamp Program ( 1971 ) - The sale of State duck stamps
is presently generating approximately $750 , 000 per year .
Two-thirds percent of these funds are spent in California on
wetland habitat maintenance , development, and enhancement
activities designed to benefit waterfowl , although many other
wetland dependent species also benefit from the program.
X.A.R. S .H. Program - , The Matching Aid to Restore State' s Habitat
Program is sponsored by Ducks Unlimited. The program is funded
ny earmarking 7 1/2 percent of the revenue generated by fund
raisers . About $300 , 000 is generated in California each year
and is spent on the development and enhancement of waterfowl
habitat.
- Proposition 19 - This Bond Act provided at total of $85 million
of which $70 million is earmarked of which $70 is earmarked for
the acquisition, restoration, and enhancement of inland and
coastal wetlands .
- Federal Waterbank Program - The current funding level is
$575 , 000 per year . Private land owners in designated areas of
the State receive payments in return for entering into wetland
management agreements which guarantee the presence of winter
habitat and/or the retention of water on the properties in the
spring to provide breeding habitat .
- Federal wetland Easement Program - ,Current funding is $5 million
per year . These funds provide for a one-time , per-acre payment
to the owners of wetlands provided that t.hey agree to maintain
their property as wetland habitat in perpetuity . This program
is presently centered around the Grasslands Butte Sink , willow
Creek , and Colusa areas and is intended to preserve existing
wetlands .
- Cal Marsh Program - The California waterfowl Association
sponsors this program. Funding amounts to $50 , 000 a year and is
derived from fund raisers . The purpose of the program is to
fund waterfowl research and the development of waterfowl
wintering and breeding habitat.
- Federal Food Security Act of 1985 - This Act in part attempts to
prevent the destruction of wetlands as a result of agricultural
practices by denying farm subsidies to farmers who drain, fill
or otherwise destroy wetland habitat on their property. .
- San Joaquin valley Drainage Program - This program is composed
of two State and three Federal agencies and is funded on a joint
( State/Federal ) basis . The program is intended to solve the
problems which have arisen from the presence of selenium and 13
other trace elements in agricultural drain water . Some possible
solutions which the interagency team is evaluating are :
a . A substantial reduction in the volume of drain water through
the application of modified irrigation practices .
b. The development of treatment techniques which would remove
the contaminants prior to entry into the environment.
c. Studies which are directed at determining safe levels of the
contaminants , and which would then lead to regulated water
quality standards .
d . Alternative methods of drain water disposal .
e . Beneficial uses of adequately treated wastewater .
r
t
HWORJCAL.LQS,,;,S 4F
LN
CALIMRAKA
s �
1850
..... .^. 9 3.7 • .. acre�Ot hYltfs,..._
gar19 rf w _"'r.^moi
t � 4a2.
Qp acres qE w°ids
i
r
onor to t qW,, tri A.i to 3
�o3p reap IS7Q roo0 logo 1900
rS�ygw r��v � r 9io r 9sp 91"ar� r 9 0 �
S--ft
t
Source: U. S.
CaQeQFish attd Wi2dli�e
P=eservatioa (Haa Setvi a
(may. 19' fowl Maceriaq Ha►bi
ac
�l$r
APPENDIX 11
WETLAND DEFINITIONS
President Carter' s E. O . 11990 ( dated may 24 , 1977 ) defines
wetlands as follows : T e term wetlands means those areas that
are inundated by surface or ground water with a frequency
sufficient to support and under normal circumstances do or would
support a prevalence of vegetative or aquatic life that requires
saturated or seasonally saturated soil conditions for growth and
reproduction. Wetlands generally include swamps , marshes , bogs ,
and similar areas such as sloughs ,, potholes , wet meadows, river
overflows , mudflats, and natural ponds . "
The ;oint 404 ( b ) permit regulations ( dated July 19 ,
e ine wetlands as o ows ; "The term. wetlands means 'those
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 . Wetlands
generally include swamps , marshes , bogs and similar areas . "
The Fish and Wildlife Service' s wetland classification system
( dateZI December defines wet an s as follows : "Wetlands are
lands transitionsbetween ter-restriai and aquatic systems where
the water table is usually at or near the surface or the land is
covered by shallow water. for purposes of this classification
wetlands must have one or more of the following attributes : ( 1 )
at least periodically, the land supports predominantly
hydrophytes ; ( 2 ) the substrate is predominantly undrained hydric
soil ; and ( 3 ) the substrate is non-soil and is saturated with
water or covered by shallow water at some time during the growing
season of each year . "
The California Coastal Act defines wetlands as follows : "Land
which may be covered periodically or permanently wit shallow
water and include saltwater marshes , freshwater marshes , open or
closed brackish water marshes , swamps , mudflats , and fens . "
i
a .
T
DEPARTMENT OF FISH AND GAME
RECOMMENDED WETLAND DEFINITION,
MITIGATION STRATEGIES, AND HABITAT VALUE
ASSESSMENT METHODOLOGY
DEPARTMENT OF FISH AND GAME
Prepared by
Environmental 'Services Division
Presented by Glenn Rollins, Environmental Services Supervisor in
public workshop to the Fish and Game Commission, on June 24, 1987,
Sacramento
INTRODUCTION
At the Match 9, 1987 Fish and Game Commission hearing during which
the Commission adopted a wetlands policy, the Commission assigned
the Department two tasks. These tasks were: 1) - to recommend a
wetland definition for use in the implementation of the
Commission's adopted policy, and 2) to recommend a means by which
retention of wetland habitat values may be assured when it becomes
necessary to compensate for.the loss of wetland acreage and/or
wetland habitat values resulting from the implementation of
projects or other activities. This report is intended to respond
to the Commission's request.
The Commission's wetland policy is not a regulatory program. The
Department and the Commission possess only limited regulatory
authority over potential uses within remaining wetlands not
currently, owned by the Department. Our role in. wetland
protection, as we have explained in our March 9, 1987 report to
the Commission, is primarily advisory in nature. Therefore, this
report identifies a wetland definition and . an implementable
procedure by which wetland acreage and habitat values will be
retained when it has been determined that projects, plans or other
activities will occupy or otherwise adversely impact wetlands.
2
WETLAND DEFINITION
It is apparent that the adequacy of the Commission's wetland
policy is directly related to the adequacy of the wetland
definition to which the policy relates. As we indicated in our
previous report to the Commission, the Department has found the
U.S. Fish and Wildlife Service (USFWS) wetland definition and
classification system to be the most biologically valid of those
definitions and classification systems presently utilized in
California.
The USFWS definition utilizes hydric soils'/1 saturation or
inundation, and vegetative criteria, and requires the presence of
at least one of these criteria (rather than all three) in order to
classify an area as a wetland. The USFWS definition has been
employed in project review nationwide for over 8 years.
It has been well tested and proven to be adequate. Further,
because it requires the application of the same array of
biological and physical parameters, it exhibits a degree of
consistency and uniformity which is advantageous to biological and
developmental planners alike. The Department's use of the USFWS
wetland definition as the principal means of wetland
identification, combined with on-site inspections to establish
actual wetland acreage and habitat values, will substantially
1/Hydric soils are those soils identified as such by the U. S.
Soil Conservation Service criteria.
3
increase the consistency of our wetland determinations. This
improved level of consistency should subsequently alleviate the
past uncertainties and frustrations experienced by the development
community. Lastly, and as will be explained in greater detail
later, if a wetland compensation site is to be located within or
adjacent to the project site, assurances regarding the
establishment and long-term retention of fish and .wildlife habitat
values must be provided.
The USFWS 'definition is as follows:
"Wetlands are lands transitional between terrestrial and
aquatic systems where the water table is usually at or near
the surface or the land is covered by shallow water. For
purposes of this classification, wetlands must have one or
more of the following three attributes: (1) at least
periodically, the land supports predominantly hydrophytes2/;
(2) the substrate is predominantly undrained hydric soil; and
(3) the substrate is non-soil and is saturated with water. or
covered by shallow water at some time during the growing
season of each year. " (Classification of Wetlands and
Deepwater Habitats of the United States" ; FWS/OBS 79/31;
December 1979) .
2/Pursuant to the USFWS document "List of Plant Species that Occur
in Wetlands - Region 0" - Region 0 is California.
4
The USFWS wetland classification publication also describes the
upper (landward) and lower (waterward) limits of wetlands. These
limits are described as follows:
"The upland limit of wetland is designated as (1) the
boundary between land with predominantly hydrophytic cover
and land with predominantly mesophytic or xerophytic cover;
(2) the boundary between. soil that is predominantly hydric
and soil that is predominantly non-hydric; or (3) in the case
of wetlands without vegetation or soil, the boundary between
land that is flooded or saturated at some time each year and
land that is not. " (Ibid, page 4) .
The lower limit of wetlands in estuarine or marine areas (i.e. ,
those wetlands which are subject to the ebb and flow of the tide)
is established as coincident with the extreme low spring tide.
The lower limit of wetlands in an inland setting (i.e. , those
wetlands associated with lakes, rivers, ponds, vernal pools, etc. )
is established at a depth of two meters (6. 6 feet) below low
water; however, if emergents, shrubs, or trees grow beyond this
depth at any time, then the deepwater edge of such vegetation is
the boundary.
The USFWS definition includes, swamps; freshwater, brackish water,
and saltwater marshes; bogs; vernal pools; periodically inundated
saltflats; intertidal mudflats; wet meadows; wet pastures; springs
and seeps; portions of lakes, ponds, rivers . and streams; and all
other areas which are periodically or permanently covered by
5
shallow water, or dominated by hydrophytic vegetation, or in which
the soils are predominantly hydric in nature.
Therefore, for all of the reasons set forth above,. the Department
recommends the USFWS definition as its .principal means of wetland
identification in conjunction with on-site inspections for
implementation of the Fish and Game Commission's policy.
RETENTION OF WETLAND ACREAGE AND HABITAT VALUES
The Commission's wetland policy contains essentially two
considerations for offsetting adverse impacts to wetland
resources. The policy stresses the need to compensate for the
loss of wetland habitat on an acre-for-acre basi6. That is, for
every acre of wetland lost, no less than an acre of wetland must
be created from non-wetland habitat. Compensation for the loss of
wetland habitat values to fish and wildlife resources requires the
creation of habitat values at the the compensation site which at
least duplicate those habitat values which are lost to project
implementation. Requisite assurance that habitat values will, in
fact, be at least retained shall be the subject of the remainder
of this discussion.
Mitigation for habitat values lost to the implementation of a
project may be accomplished in four ways taking into consideration
mitigation .site location and wetland type to be created. The term
"out-of-kind" as used in mitigation scenarios 3 and 4 refers to
different types of wetlands and does not include the replacement
of wetland habitat with nonwetland habitat. These mitigation
alternatives, in descending order of general acceptability are:
1. "In-kind, On-site". This form of mitigation would seek to
duplicate the physical nature of the wetland area to be
negatively impacted within or adjacent to a project site.
This Mitigation technique, if properly applied, would tend to
assure that the habitat derived from wetland creation is
essentially identical to that which was lost to development;
would concentrate on benefiting those fish and wildlife
species and local populations adversely impacted by
development; and would tend to provide a greater degree of
certainty that the benefits provided by the impacted wetland
to associated plant and animal communities in the project
vicinity are retained.
2. "In-kind, Off-site". This form of mitigation would be
selected when "in-kind, on-site" mitigation would result in
the creation of wetlands of demonstrably inferior quality to,
those which could be created elsewhere. In general, "in-kind,
off-site" mitigation should be located as near to the impact
site as is feasible. The advantage of in-kind, off site
mitigation is that it would, through duplication of the
physical nature of the wetland area to be negatively impacted,
tend to benefit those fish and wildlife species which would be
adversely impacted at the project site and would also tend to
maintain their population levels. This form of mitigation
7.
does not necessarily assure retention of the local fish and
wildlife populations affected by the project.
3 . "Out-of-kind, On-site". It is conceivable that situations
could exist where fish and wildlife resources would be better
served from a regional standpoint if creation of wetlands of a
different type than those adversely impacted through
development were selected as mitigation. For example, it
could be that, from a management perspective, a freshwater
marsh is more valuable to fish and wildlife resources in a
given region than an equivalent area of saltmarsh. In such a
situation, the Department believes that an alternative to
mandatory in-kind replacement of habitat values can be
desirable. . However, out-of-kind mitigation is generally
inferior to in-kind mitigation, since it does little to
provide assured benefit to those species which would be
negatively impacted as a result of development. Therefore,
only if a compelling biologically-based rationale exists for
acceptance of out-of-kind mitigation should such a form of
mitigation be employed. Application of out-of-kind
compensation on site would generally provide values which
relate geographically to those values lost through
development, .and would generally result in benefiting that
ecosystem, or collection of communities, with which the
developed wetland was associated.
4 . "Out-of-kind,. Off-site" - This form of mitigation would not
result in the maintenance of those fish and wildlife values
8
lost through development nor would it necessarily have any
bearing upon the ecosystem involved at the project site. For
these reasons, "out-of-kind, off-site mitigation" is a less
acceptable means of compensating for adverse impacts to
wetlands. However, if mitigation approaches 1, 2, and 3
cannot be employed, and if the choice is retention of wetland
acreage through out-of-kind, off-site compensation or a net
loss of wetland acreage, then, and only then, would the
Department accept out-of-kind, off-site compensation.
For the reasons explained above, the Department will normally seek
to compensate for adverse impacts to wetland through in-kind
compensation. The controlling assumptions involved in this
mitigation approach are: (1) Given duplication of the physical
features associated with wetlands to be impacted, the vegetative
component of the wetland to be impacted can also be duplicated
either through a planting program or through natural colonization
and (2) If the physical features and the vegetational components
of the impacted area are duplicated, then fish and wildlife
resources should become established at the mitigation site at
levels which compensate for losses sustained at the project site.
Physical features include substrate contours, water depth,
duration of inundation, periodicity of inundations, salinity, and
soil type.
When dealing with in-kind compensation, it is essential to
consider each of the representative species or species groups
present at a project site and to assure that those representative
9
species or species groups will not be negatively affected. This
can be accomplished by taking into consideration existing values
provided at the project site and comparing those to the values
which would be provided at the compensation site. A habitat
evaluation procedure, such as that used by the USFWS, could be
used to assure no reduction in habitat value for any of the
representative species or species groups present at the project
site, provided that such a procedure presumes that there shall be
no net loss of wetland acreage. When dealing with out-of-kind
compensation, it .is neither desirable nor reasonable to attempt to
show equivalency between values foregone at the project site and
those different values to be generated at the compensation site.
As we have previously indicated, the rationale for acceptance of
out-of-kind compensation shall be based upon a biological
determination that, from a regional perspective, out-of-kind
compensation is demonstrably superior to in-kind compensation.
Buffers between existing or proposed development and existing
wetlands or wetland compensation sites should be included as an
integral component of all mitigation plans in order to assure the
attainment and maintenance of habitat values sufficient to .
compensate for project impacts. Buffers should be of sufficient
width and should be designed to eliminate
potential disturbance of
fish and wildlife resources from noise, human activity, feral
animal intrusion, and any other potential sources of disturbance.
The size and character of buffers shall ultimately be determined
by the requirements of the affected species most sensitive to such
disturbances. When feasible, buffers should be designed in a
10
manner which compliments the habitat values associated with
adjacent wetland. For example, a buffer located near freshwater
ponds could be planted with those grasses and forbes known to
support high density nesting by waterfowl. In no case -shall such
buffers be credited as wetland acreage necessary to achieve
compliance with the requirements of the Commission's policy .
regarding retention of wetland acreage.
The loss of wetland acreage and habitat values to project
implementation is permanent. Therefore, it is necessary to
maintain the mitigation area in perpetuity in order to compensate
for the permanent effects of development. It follows then that
the project sponsor and his successor(s) must be responsible for
the acquisition, development, and permanent maintenance of the
compensation site in a manner which fully mitigates the projects
impacts to fish and wildlife resources. For this reason, the
Department recommends that permanent maintenance of compensation
sites be required as a condition of the granting of any permits
which might be required for project construction.
As was pointed out by several public speakers at the Commission's
March 9, 1987 hearing, the art of wetland creation and enhancement
is not yet a science. The Department is confident that wetlands
can be created in such a manner as to duplicate or exceed that
acreage and those habitat values associated with wetland .areas
which may, in the future, be developed. However, we are also
aware of the possibility that wetland creation sites may not
develop all of those fish and wildlife values which were projected
11
at their inception. Therefore, the Department recommends the
universal application of requirements that fish and wildlife
values at compensation sites shall be thoroughly assessed after
their construction pursuant to appropriate permit conditions; that
these values be compared to the values which were lost through
project development; and that the project sponsor or his
successor(s) be required to take such actions as may be necessary
to offset any habitat value shortfall which may be discovered as a
result of followup studies.
The foregoing discussion relates primarily to individual project
review, and provides a framework for assuring retention of wetland
habitat values lost through project implementation. However, a
related, but somewhat less obvious, problem threatens the
preservation of wetland habitat values on a statewide basis. This
problem involves the direct impacts of large-scale urban expansion
upon upland plant communities, and the indirect impacts of such
upland development upon wetland habitat values. The problem
revolves around the fact that wetlands generally exist as
biologically valuable components of larger aggregations of
biological communities including a variety of upland communities.
Wetlands and associated uplands complement one another. Numerous
animals found in wetland areas are, nevertheless, at least
partially dependent upon associated uplands. For example,
waterfowl, which rest and forage in wetlands, are also, at times,
dependent upon associated upland areas for nesting. If, in this
example, we protected the wetland but lost the associated upland
to development, then the wetland would provide reduced habitat
12
values for waterfowl. So it is with many animals. In spite of
the fact that elimination of the ecological bond between wetlands
and associated uplands often reduces the value of wetlands to fish
and wildlife resources, relatively little regulatory authority
exists for, dealing with this issue on a project review, or permit
review, basis. It seems that the most effective means of
addressing this ongoing problem is to place increased emphasis
upon the future review of county general plans in an attempt to
steer unavoidable future urban expansion into patterns which
provide for retention of upland/wetland relationships. Failure to
retain this ecological bond between wetland and associated uplands
will result in the creation of isolated wetland enclaves scattered
throughout highly urbanized areas, and will result in indirect
loss of wetland habitat values. The Commission should be aware
that no universal regulatory framework exists for effectively
dealing with this issue. Nevertheless, the Department shall
attempt to address this issue through county general plan review
and the review of other long-range planning documents and actions
by local, state, and federal agencies. .
The Department believes that a concerted effort to protect
California's remaining wetlands can result in achieving compliance
with. the Commission's wetland policy. : In order to retain and to
expand California's wetland acreage and wetland habitat values, it
Will be necessary, in light of the non-regulatory nature of the
Commission's .policy, to work closely with the development
community and various local, state, and federal governmental
entities. Given a mutual commitment on the part of all concerned
13
parties, maintenance of wetland acreage and attendant fish and
wildlife values is possible. Through a combination of such
cooperation and a continuation of ongoing wetland acquisition,
enhancement, and creation activities by local, state, and federal
agencies as well as similar efforts by various sportsmen's groups
and other conservation organizations, the Department is optimistic
that expansion of California's wetland acreage and considerable
increases in attendant wetland habitat values are both achievable.
The Department wishes to thank the Commission for the opportunity
to recommend a comprehensive. wetland definition and identification
process, and to recommend the means by which the Commission's
wetland policy may be implemented.
14
Department of Fish and Game
GUIDELINES
for the
ESTABLISHMENT and USE
Of.
WETLAND MITIGATION BANKS
STATE OF CALIFORNIA
THE RESOURCES AGENCY
CALIFORNIA DEPARTMENT OF FISH AND GAME
November 1990
i
S ,
r .
TABLE OF CONTE"$
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Qualified Watland Mitigation Bank.. . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
BankDeveloper. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . 4
ProjectProponent. . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . y . . . . . . . . . . . . 4
Mitigation Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . • . . . 4
BufferZone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Bank Establishment. . . . . . . . . . . • . . . . . . . . . . . . . . . . . • . . . . . • . . . . . . . . . . . . . . . . . • • • . . . 5
BankTermination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . 4
Bank Financial Qualifications. . . . . . . . . . . . . . . . . . • . . . . . • . . . . . . . . . . . . . . . . . . . y . . .10
ProjectQualification. . . .f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . .11
Useof Bank• . . , • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . , . . . . . . . . . , . . . • . . , • .12
GeneralConditions. . . Jy . . : • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Cost of Credits in W*tland Mitigation Banks
Ownedby the DFG. . ... . . . . . . . . • . . . . . . . . . . , . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Administration. . . . . . . . . . . . . . . . . . . . . . .
INTRODUCTION
In January 1987 the Fish and Gam .Commission adopted the wetlands Resources
Policy which states that the Commission (and therefore the Department of Fish
and Game [DFG]) shall seek to provide for the protection, preservation,
restoration, enhancement and expansion of wetland habitats (as defined in the
U.S Fish and Wildlife Service report entitled Classification of Wetlands and
Deep Water Habitats of the United States [December 1979]) . The policy further
states that the DFG shall strongly discourage development in or conversion of
wetlands to non-wetlands and oppose those actions which would result in a not
loss of either wetland acreage or wetland habitat values. Mitigation measures
for unavoidable impacts to wetlands must therefore result in no net loss of
either wetland acreage or wetland habitat values.
It should be pointed out here that these.guidelines do not represent
regulations. The DFG has only limited authority over land. uses except on
property owned by the Department of Fish and Case. However, in its role as
trustee for the welfare of the State's fish, wildlife and plant resources, the
DFG is authorized to comment on the adequacy of measures required to protect
these-resources from project impacts by the California Environmental Quality
Act, the California Endangered Species Act, the California Coastal Act and the
California Fish and Game Code. Comments and recomsendations provided to
permitting agencies by the DFG are to be given great weight in the decision
making process. In addition, the DFG is mandated by the Fish and Wildlife
Coordination Act to comment upon and make recommendations concerning projects
which require federal permits or in which there is a federal interest.
The DFG prefers and consistently recomends the avoidance of project impacts
to wetlands. Whenever possible, projects should be designed such that they do
not impact wetlands. When avoidance of such impacts is not feasible, project
impacts to wetland habitat should be minimized. However, the DFG recognizes
that in the case of some projects it is not always possible to avoid impacting
wetland habitat and, further, that on-site mitigation is at times either
infeasible or undesirable from a biological perspective.
Although the DFG will continue its policy of seeking on-site mitigation for
unavoidable project impacts to wetlands, it has determined 'that in sone cases
impacts to wetland resources can be better mitigated off-site. Piecemeal
urban development often results in the loss of and encroachment upon seasonal
and permanent wetlands and riparian corridors. Obviously. thoughtful regional
planning prior to the commencement of urban expansion can minimize wetland
impacts and is, from a wetland resource perspective, far superior to the
conwn practice of providing mitigation only as individual impacts occur. It
is unlikely; hovever, that impacts to wetlands will be completely eliminated
and thus the need for providing adequate mitigation for relatively small,
isolated wetland impacts will continue.
The concept of vetland mitigation banking is not a new one and has been
applied in a number of states ranging from Florida to Oregon. To maintain
consistency with the DFG's Wetlands Resources Policy, a mitigation bank must
be established by converting an upland area to wetland habitat. This can be
achieved by reconfiguring the area through excavation and/or by the
construction of levees such that the area remains inundated long enough each
year that it, assumes the characteristics of a wetland. Such characteristics
may include permanent or periodic inundation, the presence of hydrophytic
vegetation, the. presence of saturated or hydric soils. and/or the production
of aquatic invertebrates. The precise character of wetlands present in a
wetland mitigation bank can, to a large extent, be controlled through the
management practices applied to the area. Once established, the vetland
2
habitat values present in the bank are determined by a team of wtland experts
on a unit area basis. At this point. project proponents, whose projects
.qualify, may mitigate the wetland impacts of their projects by merely
purchasing an appropriate number of mitigation credits from the owner of the
bank. This process relieves the project proponent from having to locate a
suitable mitigation site to compensate unavoidable wetland impacts and from
having to create the required wetland acreage. From a resource perspective it
assures the long-term maintenance of high quality vetland habitat to replace
that lost to project development.
Most mitigation banking in California has been limited to compensating the
.loss of deep-nater marine embayment habitat through the creation of shallow, .
subtidal estuarine areas. This program appears to possess a high probability
of success because of the relative ease of creating shallow subtidal habitat
for nearshore marine fishes. "There does not appear to be. any reason, however,
why the saw banking principles can not be successfully employed to compensate
the loss of wetland habitat provided that the conditions for wetland
mitigation bank establishment defined in these guidelines are implemented.
These guidelines do not apply to the process of mitigating impacts to vernal
pools.
The use of wetland mitigation banks, for qualifying projects, is one of many
options open to project proponents to accomplish wetland mitigation required
by permitting authorities, These guidelines have been formulated in an effort
to achieve a high degree of uniformity and consistency in the establishment
and use of such banks throughout the State. DFC employees who become involved
with wetland mitigation banks must adhere to these guidelines. Any deviations
3
from these guidelines by DFC employees shall require prior authorization from
the Director. The DFG shall apply these guidelines to all future wetland
mitigation banks.
Qualifigd Wetland Mitigation Bank - A single contiguous parcel of land
consisting of upland habitat which has undergone those physical changes
necessary to create wetland acreage and optimise the quality of wetland
habitat on the site for the express purpose of providing mitigation credits to
offset the adverse impacts to wetlands from approved projects elsewhere. To be
*qualified' such banks must have received the review and approval of the DFG.
Bak Developer, - A legal entity empowered to acquire land, to create or
restore and maintain wetland habitat upon that land and to operate said land
as a qualified wetland mitigation banjo pursuant to the conditions of an
operations agreement with the DFG. the Banjo Developer may employ an agent(s)
to actually operate the mitigation bank provided that said agents) has been
approved by the DFG.
.Project Proponent - Public or private entity acting on its proprietary or
management capacity which seeks to implement a project which would unavoidably
and adversely impact wetlands and which seeks to compensate for the loss of
the wetland acreage and/or vetland habitat values through participation in a
" mitigation bank. ,
Mitigation Credit, - A unit of measured area supporting wetland habitat and
wetland habitat values not preexisting at the bank site prior to bank
development. Each such unit shall have been assigned a habitat value by the
DFG in consultation with other appropriate resource agencies.
4
Buffer Zone - As used herein, a buffer zone is normally a strip of land which
lies immediately adjacent to a wetland mitigation bank for the purpose of
protecting the wetland habitat and wildlife within the bank from the
deleterious impacts of current or future activities occurring outside the
zone. The character of buffer zones may vary widely depending on a variety of
site specific circumstances. Buffer zones say be composed primarily of water
or include fences, 'walls or unbroken screens of vegetation. Regardless of
their design, buffer zones must be of sufficient width and character to
protect the wetland resource values supported within a mitigation bank from
any diminishment due to land uses occurring outside the bank. In this regard
buffer zones shall be designed to preclude disturbance associated impacts to
the most sensitive species inhabiting the mitigation bank site.
BANK
The following conditions must bi met .during the establishment of new wetland
mitigation banks:
1. Mitigation bank sites shall be located near areas of expectedfuture
wetland impacts to assure that those wetland resources being impacted
will benefit from bank establishment.
2. Mitigation banks shall be sited in locations which minimise the
probability of potential conflicts with present.and future adjacent land
uses.
3. The establishment of wetland mitigation banks shall not result in the
loss of upland habitat which is especially valuable to wildlife in and of
itself. Further, the establishment, operation and maintenance of wetland
mitigation banks shall .not result in any uncompensated adverse impacts to
existing wetlands.
5
4. Mitigation banks shall include buffer zones determined by DFG to be of
appropriate width and character to protect wetland resource values from
the effects of foreseeable future adjacent land uses.- The buffer zones
will be designed to preclude disturbance to the most sensitive species
inhabiting the bank. No wetland mitigation credits of any kind shall
accrue from such buffer zones.
5. No uses shall be permitted kthin the bank sites that reduce the wetland
acreages or significantly reduce habitat values within the bank sites.
In addition, the DFC shall make every effort to limit land uses adjacent
to established mitigation banks to those uses which are compatible with
bank operations and, failing that, the DFC shall seek the provision of
expanded buffer zones and other mitigation actions to assure that future
noncompatible land uses do not result in a diminishment of wetland
acreage or wetland habitat values in the bank.
6. Vetland mitigation banks shall contain. no less than 54 acres of newly
created wetland habitat unless special circumstances varrant otherwise
and then, following review by the affected region and the Environmental
Services and Wildlife Management divisions, only with the Director's
concurrence. The DFC strongly favors and shall encourage the
establishment of a few relatively large banks to service an area rather
than the development'of many small banks.
7. Following planning consultations with DFG personnel, the Bank- Developer
of a proposed mitigation bank shall submit detailed construction and*
management plans for the bank to the DPC . for review and approval.
Rejected plans may be resubmitted following appropriate modification
consistent with DFC recommendations.
.6
S. Prior to any mitigation transactions, the -Bank Developer shall have
entered into a management and operations agreement with the DFD which
shall fully describe the specific requirements of bank management,
operations, maintenance, and monitoring, including the intended habitat
to be established on the bank site.
9. Wetland mitigation banks shall not be qualified to engage in any
mitigation transactions until DFC personnel have determined that the
planned vetland habitat, as specified in the management and operations
agreement, has become established on at least 50 contiguous acres of the
bank or throughout the entire bank if the bank is less than 50 acres in
size.
10. The DFC shall evaluate existing, if any, wetland acreage and habitat
values present on each bank site prior to the initiation of vetland
creation efforts. The DFC shall monitor the construction of each bank to
assure adherence to design specifications. Following the establishment .
of wetland habitat, the DFC shall inspect each bank site to determine the
net increases in.vetland acreage and wetland habitat values which have
resulted from these efforts. The net increase in wetland acreage and
wetland habitat values, shall be available to compensate for unavoidable
negative impacts to wetland resources only in so far as such use is
consistent with the other requirements set forth in these guidelines.
The habitat evaluation process used by the DFC to determine habitat
values shall be a modified version of the: Habitat Evaluation Procedure
developed by the U.S. Fish and Wildlife Service except that the process
will not employ species models and will include assumptions designed to
ensure compatibility with these guidelines. The bank developer, lead
agency and appropriate federal agencies may be represented during the
bank site habitat evaluation processes described above.
11. The DFG shall accept the use of only those mitigation banks which it has
first inspected in the field and for which it has calculated the net
acreage and habitat value credits available for use, established that
maintenance, operation and monitoring are adequate to achieve and
maintain optimum habitat quality, and determined that funding and other
factors necessary to ensure operation and maintenance in perpetuity are in
place.
12. Prior to the initiation of bank transactions involving Project
Proponents, title to privately held mitigation bank land shall be
encumbered by a permanent conservation easement, in favor of the DFG, or
a non-profit conservation organization acceptable to the DFG, that runs
with the property in perpetuity and is senior to all other liens or
encumbrances.
13. The bank must be supplied with a firm (guaranteed) and permanent source
of water of adequate quantity and quality necessary to permanently
support continuance of optimum wetland acreage and maximized habitat
values.
14. The DFG shall monitor and evaluate the effectiveness of the management
program based upon the habitat objectives defined in the operations
agreement specified in item 8 above in order to assure that these
objectives are achieved. Such monitoring shall occur annually for the
first five years following bank qualification and periodically
thereafter. These assessments can result in adjustments being made to
the number of credits left in a bank and/or operational changes. The
Bank Developer or his successor(s) shall be responsible for implementing
recommended operational changes to the satisfaction of the DFG.
i
15. The establishment of all mitigation banks shall be consistent with State
and federal laws and DFG policies.
16. The Bank Developer shall reimburse the DFG for all costs incurred during
the establishment of a wetland mitigation bank, the annual monitoring
required during the first five years following bank establishment, and
the periodic monitoring thereafter.
RANK TERNIMT12l
1. - At the time all of the mitigation -credits in the bank are expended or in
the case of failure to operate and maintain the bank pursuant to the
operations and maintenance agreement with the DF+C, title to the entire
bank property shall be conveyed to tho DFC or another natural
resource oriented agency or nonprofit conservation organisation acceptable
r .
to the DFG. Subsequent owners shall be subject to the same land use
constraints involving the bank property as the Bank Developer.
2. A Bank Developer may withdraw his property as a mitigation bank at any
time within a two-year period following the initial introduction of water
onto the bank site even if wetland vegetation has become established
thereon, and return it to its prior use provided that: (a) no mitigation
credits developed in the bank have been used to compensate the loss of
wetland habitat; (b) the wetland acreage and habitat values of any wetland
habitat existing on the bank site prior to.the initiation-of effotts• to
develop the site shall be preserved in a condition at least equal to that
prior to initiation of bank establishment efforts;* (c) all costs incurred
by the DFG during the bank establishment, qualification and monitoring
processes shall be paid to the DFG by the Bank Developer prior to his
9
release from the operations and maintenance agreement with the DFG; and
(d) such bank termination and subsequent habitat conversion, if any, are
consistent with local, State and federal laws and regulations.
3. A Bank Developer say withdraw his property as a mitigation bank at any
time after the two-year initial period described in item 2 above.
However, after the two-year initial period, all four conditions (a through
d) specified in item 2 above must be met and additionally the Bank
Developer must offer to sell the mitigation bank property to the DFG and
other conservation oriented agencies and organizations acceptable to the
DFG. In the event that all appropriate conservation agencies and
organizations decline to purchase the mitigation bank property, the Bank
Developer may return the mitigation bank property to its former use.
RANK EMETAL QUALIFICATIONS
All mitigation banks and their lands must be prequalified in order to engage
in bank transactions with the DFG. The following requirements have been
established to ensure the proper development, operation and maintenance in
perpetuity of replacement wetland habitat.
1. All qualified Bank Developers must be either a legal public or private
entity duly empowered to engage in mitigation bank activities.
2. All private developers of qualified mitigation banks must provide
sufficient endo+nuent funds (cash, letters of credit or other acceptable,
means) to the DFG or its designees to fully ensure the perpetual operation
and maintenance of bank lands transferred to thea as a result of bank
termination or default. If the Bank Developer is a public entity, that
entity will provide the DFG with sufficient assurances to enable the DFG
to conclude that the entity will discharge its operation and maintenance
responsibilities in perpetuity.
PROJECT QUALIFICATION
Project impacts upon wetland habitat may be offset at a qualified wetland
mitigation bank only if all of the following conditions have been met:
• 1. The DFG has concluded, based upon the final project.design, that the
project design has incorporated adequate environmental safeguards.
2. The DFC has determined that on-site mitigation is either infeasible.or
undesirable. from a resource protection perspective.
3. The Project Proponent has provided evidence to the satisfaction of the DFG
that there is no feasible or suitable mitigation site closer to the point
of impact than the subject bank and that there is no feasible mitigation
option superior. to the use of the bank,
4. The project is located no more than 40 aerial miles from the bank site and
the DFG has concluded that a lesser distance is not needed to assure
effective compensation for affected species. However, consistent with the
DFG's position regarding the mitigation of impacts to wetlands located in
the San Francisco Bay Area, all impacts to wetlands located south of the
Bay Bridge must be mitigated south of that bridge and all impacts to
wetlands north of the Bay Bridge must be mitigated north of that bridge.
5. The Project Proponent has received written statements from all permitting
agencies that use of the selected mitigation bank is acceptable to each
and the DFG has received copies thereof. In those instances where
authorization is required pursuant to the Federal Clean Water Act, the DFG
shall coordinate with the O.S. Fish and Wildlife Service and other
appropriate federal agencies before committing to accept the use of a
mitigation bank to offset project impacts.
I1
{
6. In determining the eligibility of a project to utilize a mitigation bank
and in determining the required acreage and habitat credits necessary to
compensate project impacts, the DFG shall consult with all involved
resource conservation agencies and permitting authorities.
USE OF SAN[
The following criteria shall be complied with when a mitigation bank is used
to offset project impacts to wetlands:
General Conditions
1. Use of a aitigation bank out be consistent with State and. federal laws
and DFG policies.
2. Mitigation shall be in-kind wetland habitat unless the Director
determines, on a case-by-case basis, that the resource is better served by
out-of-kind wetland habitat.
3. Project Proponents shall be required to purchase from the bank not less
than 200 percent of the wetland acreage and votland habitat values being
lost to the project. The wetland acreage expended to offset project
impacts together with all current and future habitat values associated
therewith shall be immediately and permanently retired and no longer
available for mitigation purposes.
4. Prior to the purchase of mitigation credits by a Project Proponent, the
wetland acreage, wetland habitat values and wetland habitat type{s} which
will be lost or degraded as a result of the project, based upon the
permitted project design, shall be determined to the satisfaction of the
DFG through the use of the habitat evaluation methodology described in
12
item 10 under the Bank Establishment section. The Project Proponent, the
lead agency and appropriate federal agencies may be represented during
this evaluation process.
S. No wetland acreage or wetland habitat values present on the bank site
prior to the creation of additional wetland habitat on the site shall be
counted as mitigation credits available for offsetting project losses, nor
shall any mitigation credits be derived from incidental increases in
habitat valise occurring on lands adjacent to the bank, nor wetland
mitigation credits from buffer zones required to protect vetland habitat
values pursuant to item 4 under the Bank Establishment section of those
guidelines.
6. The DFC shall maintain a current account of all available and expended
wetland habitat credits in each bank.
7. The DFC shall not be responsible ,for conducting the actual administration,
operation or maintenance on mitigation banks established by any other
entities except as may result from actions taken pursuant to item 12 under
the Bank Establishment section of these guidelines.
E
S. The DFC shall not permit (in the_ case of DFC-owned banks) or accept the
use of a mitigation bank to compensate the wetland impacts resulting from
a project: for which the DFC has officially recommended the denial of
requisite permits.
13
Cost of Credits -in Wetland Mitigation Banks Owned by the DFG
The purchase price of the mitigation credits shall be at least sufficient to
offset all of the prorate costs associated with bank establishment, perpetual
operation and maintenance of the acreage and habitat values purchased and
shall include but not be limited to the following:
a. Fair-market value of the mitigation bank land based .upon either its
use prior to its conversion to wetland habitat or its current value
whichever is greater.
b. Cost of wetland acquisition process, planning, engineering design and
development adjusted to reflect the effect of inflation on
labor-intensive construction activities which has occurred between the
year in which the wetland acreage and wetland habitat values were
created at the bank and the year in which they are sold to the Project
Proponent.
c. Accvaulated administration, operation and maintenance costs between
the year in which the wetland acreage and wetland habitat values were
created and the year in which resulting credits are sold to the
Project Proponent.
d. The cost of perpetual administration, operation and maintenance of the
wetland acreage and wetland habitat values purchased adjusted to
account for the effect of inflation.
14
e. Accumulated and projected future costs of taxes, assessments,
insurance, water supplies and other such expenses as say bo necessary
to operate and maintain the mitigation bank. All costs, adjusted to
reflect the effect of, inflation, associated with initial and ongoing
periodic bank site habitat evaluations and monitoring.
f. Any other costs relevant to a determination of the cost of preserving
the wetlands in perpetuity.
ADMINISTRATION
The establishment and use of wetland mitigation banks will be closely
coordinated among the involved Region, the Bnvironmental Services Division.
(ESD) , the Wildlife Management Division MM) , the Natural Heritage Division
(NHD) , the Legal Advisor and the Directorate. Some situations may occur where
coordination may also be required with other DFG units and the Wildlife
Conservation Board (WCB) . The Department unit which first becomes- involved in
the establishment of a mitigation bank shall immediately notify the other
responsible units. All units will maintain close communications during the
site selection, design, and management and operations agreement preparation
stages of bank development. Prior to seeking the Director's approval for a
given bank, the Regional Manager, Chief ESD and Chief %(D must concur with all
aspects of the proposed bank.
The following is a delegation of responsibility to the principal Department
units involved:
1. Inspection of bank site and determination of existing wetland acreage and
habitat values • Region (lead) , ESD, WMD.
1 S
2. Inspection of completed bank for compliance with approved design
plan - Region (lead) , ESD. WM.
3. Inspection of completed boric and determination of newly created wetland
acreage and habitat values - Region (lead) , ESD. WMD.
4. Formulation of operations agreement - ESD (co-lead) , WMD (co-lead).
Region, Legal Advisor, Contract Section.
5. The securing of performance letters of credit - Region (lead) , ESD,
Legal Advisor, MM.
6. Establisbment and operation of computer database for bank transactions - NHD.
7. Review of project impacts and determination of acreage and habitat units
in the bank needed to. offset wetland losses - Region (lead) , ESD.
S. Communication of bank transactions to MW - ESD.
9. Seai-annual field inspections of banks to assure compliance with these
guidelines and the operating agreement and to communicate results to
computer database in WM - Region (lead) , MSD.
10. Coordination throughout the process with State and federal permitting and
resource agencies - Region (lead) , ESD.
11. Coordination throughout the process with the local permitting agencies .
Region (lead) . ESD. _ ._ -.
12. The transfer of bank land title to DFC.et al. - WMD (lead) , Region, ESD,
MM, Legal Advisor, WCB.
13. The DFG shall consult with the WCB concerning banks involving property
right transfers and the State Lands Commission for determination of State
Public Trust interests - Legal Advisor (lead) , WCB.