Wavecrest is still seeking permit from Army Corps of Engineers

Wavecrest is continuing its headlong plunge into the murky mysteries of wetlands mitigation. This is a little complicated, but stay with me.

The developers are have applied for a permit from US Army Corps of Engineers, in order to avoid a slower permit process with the US Fish and Wildlife Service. However, it is still not certain that the Corps will decide it has jurisdiction over Wavecrest.

The challenge is that the Corps has jurisdiction only over U.S. waterways, such as wetlands, but Wavecrest wants to develop on the non-wetlands portion of the site. They plan to mitigate any federally endangered California Red-Legged Frog habitat damage in the developed non-wetlands with frog breeding ponds in the wetlands.

How do you get the Corps to assert jurisdiction over non-wetlands? It’s called a "but-for". That’s right, a "but-for". If development of the non-wetlands could not take place but for the construction of ponds in the wetlands, a case can be made for the Corps having jurisdiction over the entire property.

A couple of weeks ago, the Corps told me that they thought the application was only for the wetlands, and not for the entire site. It turns out that, as I had originally written, Wavecrest’s developers are seeking a permit under Section 404 of the Clean Water Act, which would allow them to build on the non-wetlands portion of the property and mitigate this with California Red-legged Frog breeding ponds within the wetlands portion.

The Corps has not decided whether it has jurisdiction.

The first step in the process will be a new delineation of wetlands on the property. According to Holly Costa, Regulatory Project Manager with the Corps, the delineation is scheduled for April 5 and 6. This will involve walking the entire property and taking core samples, to determine what portion of the site is wetlands. The highly contentious original delineation, which was approved in 1999 by the Corps and expired in August, is at the heart of the five-year Wavecrest controversy and central to issues raised at the California Coastal Commission. After the delineation, the Corps will decide if it has jurisdiction. This will be done in consultation with the applicant and the US Fish and Wildlife Service.

If the Corps determines that it has jurisdiction, the process would 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.

According to Costa, while this process will require just as much work as developing a Habitat Conservation Plan with the USFWS, the time to completion would be shorter.

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.