Wavecrest applies for permit from US Army Corps of Engineers

Posted by on Tue, February 8, 2005

Wavecrest’s developers have applied with the US Army Corps of Engineers for a permit to build on their property, which has been found to include wetlands and habitat for the endangered California Red-Legged Frog.

The application for a permit under Section 404 of the Clean Water Act proposes the construction of a couple of California Red-legged Frog breeding ponds within the delineated wetlands on the Wavecrest site. A recreational trail is also proposed.

The Corps has not yet reviewed the application, according to Holly Costa, Regulatory Project Manager with the Corps.

The first step in the process would be a new delineation of wetlands on the property. The last delineation was approved in 1999 and expired after five years. According to Costa, the earliest this could begin would be April.

The process would also require the Corps to consult with the US Fish and Wildlife Service under Section 7 of the Endangered Species Act for potential effects on Red-Legged Frogs and San Francisco Garter Snakes.

A section 404 permit also requires a 401 Water Quality Certification, which is issued by the State Water Quality Control Board, via a Regional Water Quality Control Board; and, for projects such as Wavecrest that fall within the Coastal Zone, California Coastal Commission approval.  Without either of these, the Section 404 authorization is invalid.

CORRECTION: The original version of this story said that Wavecrest’s developers were seeking the Corps’ OK for the mitigation of the development. That’s not correct. They’re seeking the Corps’ OK to build the ponds. A correction with more detail is now online.

Comment 1
Tue, February 8, 2005 2:35pm
All my comments

I don’t know how they intend to get around the Bolsa Chica court ruling in Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal. App. 4th 493

from http://www.procopio.com/publications/pdfs/HI_august_2000.pdf

“The court in Bolsa Chica held that development-related impacts on ESHAs cannot be mitigated through off-site restoration —  even when the restoration project promises to create “better” habitat than that in the affected ESHA.  Instead, the ESHA itself must be protected and preserved.”

ESHA = Environmentally Sensitive Habitat Area

I have two questions: are the proposed ponds to be onsite or offsite?  If they are on Wavecrest property, the Bolsa Chica decision wouldn’t apply.

And second, how do the developers propose that a recreational trail will mitigate for habitat loss?

Comment 3
Tue, February 8, 2005 4:28pm
Barry Parr
All my comments

The breeding ponds will be within the delineated wetlands on the Wavecrest site.

I have been waiting for the answer, and I just got it from the Corps. I’ve updated the story to reflect it.

Comment 4
Tue, February 8, 2005 4:30pm
All my comments

I don’t see anything in that PDF to indicate onsite somehow escapes the requirement to protect an ESHA.  Do you have a reference?

Does anyone know if the Corps permitting process allows for community comment and involvement?

Comment 6
Tue, February 8, 2005 4:39pm
Barry Parr
All my comments

I don’t think we have enough information to say one way or the other.

One interesting thing to note is that Wavecrest is proposing to build ponds as mitigation for Red Legged Frog habitat lost, but the area has been designated as habitat for both the frogs and for the San Francisco Garter Snake.  Also, I seem to remember that in the USFWS’s letter about the disking they noted that dry grassland areas near to wetlands were important for snake burrows.  Ponds don’t seem to offer mitigation for snake habitat.

Comment 8
Thu, February 10, 2005 2:22pm
Barry Parr
All my comments

I was told this by Holly Costa of the Corps of Engineers:

To answer Mr. LaGuardia’s question: Yes, the Corps does consider community comments.  All letters should be sent to:

Attn: Regulatory Branch
US Army Corps of Engineers
333 Market Street, 8th Floor
San Francisco, CA 94105

and please reference file number 29405S

Will drainage from developed areas will not impact the proposed ‘constructed red-legged habitat’?  No sense in mitigating a polluted pond.

Will this habitat be suitable for the Garter Snake also?

file number: 29405s