San Diego County Riparian Systems

Current Threats and Statutory Protection Efforts^[1]

Gary P. Wheeler and Jack M. Fancher^[2]

Abstract.—The effectiveness of present laws in conserving San Diego County riparian systems is examined. Agencies are more effective when several laws apply, when credible statutory authority and enforcement exists, and when public support is generated. Recommendations are made for improvement.

Introduction

The Mediterranean climate of coastal southern California has induced some obvious and distinct contrasts between mesic and xeric vegetation-types. Coastal sage scrub, chaparral, oak woodland, or California grassland vegetation often ends abruptly at a narrow corridor of riparian vegetation. Woody, perennial wetland vegetation is usually confined to a relatively narrow corridor bordering the enduring, year-round, low-volume water flows and is not directly correlated with the mean annual or ephemeral high-volume storm flows. Consequently, unmodified floodplains in southern California are often relatively wide when compared with the narrow strip of riparian vegetation which frequently occurs only along the path of low flow.

The Mediterranean climate may, in part, have promoted human occupancy of southern California floodplains by fostering the false impression, for decades at a time, that riparian growth delimited the floodplain. Following the rare but inevitable devastating flood, the typical human response has been to "improve" the floodplain to accommodate this rare flood. In doing so, headwaters are dammed, and the natural floodplain usually is constricted into a channelized floodway in order to provide protection for floodplain developments. To maximize hydraulic efficiency, riparian vegetation is typically removed. The trapezoidal, concrete channel of the Los Angeles River is a famous example of such maximized hydraulic efficiency.

Since more than half of all Californians live in the four coastal counties of southern California (Ventura, Los Angeles, Orange, and San Diego), unmodified riparian corridors have largely been obliterated. Some significant areas of riparian vegetation do exist, particularly in San Diego County. In some San Diego County rivers, such as the Mission Valley region of the San Diego River, historic sand mining has brought riverbottom elevations nearer to the water table, which facilitated marsh and riparian woodland establishment once mining ceased. Also, the reestablishment of perennial freshwater flows by irrigation and wastewater returns encouraged wetlands redevelopment. However, riparian wetlands continue to be threatened by human actions. Using actual case histories, we will attempt to document the major threats to coastal San Diego County's riparian resources and the effectiveness of agencies in protecting these resources; and we will offer some general observations as to what factors influence the effectiveness of attempts to protect riparian systems.

The Riparian Resource

San Diego, the southwesternmost county in the mainland United States, encompasses approximately 1.1 million hectares (2.7 million acres) of land ranging from coastal beaches and plains to foothills, mountains, and desert. Riparian systems are extremely limited within the county, occupying somewhere between 0.2% (2,000 ha. [5,000 ac.]) (California Department of Fish and Game 1965) and 0.5% (5,300 ha. [13,000 ac.]) (Oberbauer 1977) of the county's land area.

Riparian vegetation to some degree can be found along most of the coastal region streams; however, the most prominent locations include the mouth of San Mateo Creek, Las Pulgas Creek, the Santa Margarita River, the San Luis Rey River, Las Penasquitos Creek in Sorrento Valley, San Clemente and Rose canyons, the San Diego River, the Sweetwater River, Jamul Creek, Campo Creek,

[1] Paper presented at the California Riparian Systems Conference. [University of California, Davis, September 17–19, 1981].

[2] Gary P. Wheeler and Jack M. Fancher are Biologists with the USDI Fish and Wildlife Service, Laguna Niguel, Calif. The opinions and recommendations offered in this paper are solely those of the authors and do not necessarily reflect the views of the USDI Fish and Wildlife Service.

and the Otay River (Goldwasser 1978). Willows (Salix spp.) tend to dominate the riparian vegetation in most areas; however, cottonwoods (Populusfremontii and P . trichocarpa ), California sycamore (Platanus racemosa ), and white alder (Alnusrhombifolia ) are also major components in various areas. Understory vegetation commonly includes mugwort (Artemesiadouglasiana ), mulefat (Baccharisviminea ), stinging nettles (Urticaholosericea ), and wild cucumber (Marahmacrocarpus ). Oak woodlands dominated by coast live oak (Quercusagrifolia ) and canyon live oak (Q . chrysolepis ) in several areas border or intermix with riparian systems, particularly in the more inland canyons (Oberbauer unpublished).

Threats

Current threats to San Diego County riparian systems can generally be tied to population pressures and/or pressure for development. Just within the past 10 years, the county's population has increased by approximately 0.5 million people, a 37% increase. The county General Plan Conservation Element (San Diego County 1980) states that vegetation removal is the single most important human action impacting local wildlife. Vegetation removal is not subject to the county environmental review process, and large areas are sometimes cleared for agricultural purposes or residential development prior to filing an environmental impact report. Stream channelization, floodplain filling, and sand and gravel extraction are occurring at a particularly rapid rate along the San Luis Rey River near Oceanside and along the upper San Diego River, and have resulted in major losses of riparian resources along these streams. The proposed construction of two dams and reservoirs on the Santa Margarita River near Fallbrook threatens to inundate over 400 ha. (1,000 ac.) of riparian and oak woodlands.

Tools for Protection

Several means for countering these threats are available to concerned citizens and public agencies. The National Environmental Policy Act (NEPA)^[3] and California Environmental Quality Act (CEQA)^[4] constitute disclosure laws which, in themselves, do not directly protect riparian resources, but do require identification of alternatives and assessment of project impacts. Similarly, the Fish and Wildlife Coordination Act (FWCA)^[5] mandates consideration of fish and wildlife values in the planning of federal water development projects and issuance of US Army Corps of Engineers (CE) permits, but has no enforcement or implementation provisions. Presidential executive orders such as E.O. 11988, Floodplain Management, and E.O. 11990, Protection of Wetlands, provide guidance in project planning to federal agencies. State, county, or municipal ordinances and policies generally also provide guidance, but rarely include significant enforcement features. Regrettably, the parochial attitude of most southern California city and county governments has usually resulted in the encouragement of developments which increase the tax base but may result in significant environmental losses.

Two state and two federal laws include enforcement provisions. Because of varying legislative intents and jurisdictions, these laws differ in their effectiveness for protecting riparian resource values.

The California Coastal Act of 1976^[6] (CCA) provides emphatic and effective protection of riparian wetlands as environmentally sensitive habitat. Under the CCA, environmentally sensitive habitats are to be protected against any disruption of habitat values which could occur from development within or adjacent to that habitat. Furthermore, only uses dependent upon the sensitive resource are allowed within the area. Removal of riparian vegetation and streambed materials is also controlled by the act. However, the geographic extent of the protection afforded by this strong habitat protection law is severely limited when related to the distribution of riparian systems. The CCA permit process includes public hearing and California Coastal Commission deliberation steps.

Division 2, Chapter 6 of the California Fish and Game Code (California Fish and Game Commission 1979) states: "The protection and conservation of the fish and wildlife resources of this State are hereby declared to be of utmost public interest." The subsequent Fish and Game Code sections 1601 through 1603 have a very broad geographic applicability, covering virtually all streams within the state. These code sections require a Streambed Alteration Agreement between the California Department of Fish and Game (DFG) and any party proposing to alter or modify a streambed, channel, or bank. The major weakness of this regulation, aside from the manpower and time constraints placed upon the DFG, is that an arrangement agreeable to both parties must be reached between the DFG and the developer. The discretion to deny a project which would cause significant damage is not available. In order to reach an agreement, a compromise is normally required, and the existing resource is seldom preserved intact. If agreement is not reached, a three-member arbitration panel is formed to resolve any differences. For various reasons, it is apparently the unstated policy of DFG to refrain from entering arbitration, since fewer than 0.02% of the streambed alteration notifications have been taken to that level of consideration.

[3] 42 U.S.C. 4321–4337; 83 Stat. 852.

[4] PRC Section 21000–21151.

[5] 16 U.S.C. 661–666(c); 48 Stat. 401 (as amended).

[6] PRC Section 30000–30900.

The federal Endangered Species Act (ESA)^[7] as amended, stringently guards listed species against adverse impacts caused by federal actions. However, this act applies only when a listed species and a federal action are involved. Currently there are no federally listed riparian woodland-dwelling species in San Diego County; therefore, the ESA is rarely invoked when riparian woodlands are to be affected. Activities involving certain vernal pools, a rare and unusual riparian system, have been restricted under the ESA due to the presence of the San Diego mesa mint (Pogogyne ambramsii ), a federally listed Endangered species.

The federal law most frequently invoked in the protection of riparian resources is the Clean Water Act.^[8] Section 404 of the act calls for regulation of the discharge of dredge or fill material into waters of the United States. The permit process, administered by the CE, includes distribution of a public notice and a broad public interest consideration. The Clean Water Act does not restrict excavation within wetlands or clearing of wetland vegetation when no discharge occurs. Jurisdiction requiring individual permits is limited to watercourses, and their adjacent wetlands, conveying an average annual flow of 0.14 cu. m. (5 cu. ft.) per second or greater. Consequently, only major rivers or perennial streams are included, as shown in table 1.

Case Histories

The following four case histories are presented as examples of the threats posed to San Diego County riparian systems and to demonstrate the effectiveness of our current laws in protecting them.

San Diego River

In the fall of 1980, a private developer began to clear and fill an area of riparian woodland within the San Diego River floodplain in the city of San Diego. Approxmately 0.5 ha. (1.2 ac.) of large-stature black willow (Salixgooddingii )-dominated woodland had been leveled, and filling had begun when a DFG warden stopped the work. The developer had obtained neither a streambed alteration agreement with the DFG nor a Section 404 permit from the CE.

The CE would not consider prosecution of this unauthorized act and, instead, expressed a willingness to accept an after-the-fact permit application. The DFG considered prosecution for failure to notify under the Fish and Game Code, but due to limited state resources available for litigation, chose to prosecute an unrelated but similar violation upstream.

As the threat of state and federal prosecution disappeared, the developer's negotiating position significantly improved. The mitigation proposals initially forwarded to the agencies by the developer were minimal and did not offset the loss in riparian values. In the negotiation process, it was revealed that the city had not only required the developer to complete a dedicated street through the subject wetland, but also that the city owned the wetland property. Further, the unauthorized roadway clearing and filling had isolated another 0.4-ha. (l.l-ac.) parcel of wooded wetland owned by the city, which the city ultimately wanted to fill and sell for development. The developer, acting as the city's agent, initiated the agreement procedure with DFG. Apparently because of the time requirements of the agreement procedure, the lack of prosecution, and the unwillingness of the developer to remove the fill, DFG reached an agreement with the developer at a time when the USDI Fish and Wildlife Service (FWS) was still seeking an acceptable mitigation plan.

The city and the developer considered unacceptable any plan which did not allow them to complete 0.9 ha. (2.3 ac.) of fill in the wooded wetland. Under the streambed alteration agreement, the DFG had agreed to this fill provided that 1.9 ha. (4.6 ac.) of adjacent land owned by the city of San Diego were excavated to create wetlands and then revegetated.

The FWS contended that even though 2 ha. of wetland were to be gained for each hectare lost, a loss of habitat values would result. This position was based upon the premise that 1 ha. of mature riparian woodland provides greater habitat

[7] 16 U.S.C. 1531–1543; 87 Stat. 884.

[8] 33 U.S.C. 1251–1265, 1281–1292, 1311–1328, 1341–1345, 1361–1376; 86 Stat. 816, 91 Stat. 1566.

values than 2 ha. of open water and early successional wetlands characterized by herbaceous hydrophytes and sapling willows and cottonwoods. Also, because of the uncertainties of transplant survival, the modified hydraulic regime of the river, and the unpredictability of seasonal storm flows, FWS incorporated a safety factor in its mitigation recommendations and suggested that 1.6 ha. (4 ac.) of wetlands be created for each 0.4 ha. (1 ac.) of riparian wetland to be filled.

The developers then hired a biological consultant who contradicted the FWS habitat assessment. They also lobbied the CE, as well as the FWS Washington office, charging that the FWS recommendations were excessive and unreasonable, since they went beyond those which had satisfied the DFG. When the FWS held firm, the developer and the city recognized that project delays could result.

Since delay was contrary to the developer's interests, the developer encouraged the city to become directly involved and to consider guarantees for the compensating wetlands. Eventually a mitigation plan was agreed upon which assured long-term protection of wetland habitat values.

The elements of the mitigation plan, which offset the loss of 0.9 ha. of forested wetland included: a) creating 1.9 ha. of wetland by excavating a sparsely vegetated upland down to riverbottom elevations; b) revegetating the newly created wetland with a variety of native riparian plant species, with maximized edge effect, foliage height diversity, and wildlife cover and food values given special considerations; c) assurance by the developer, through a letter of credit, that for five years the 1.9 ha. transplant effort will succeed (wetland re-creation success will be evaluated over the five-year period using avifauna and vegetation monitoring studies); d) an agreement by the city with FWS, using a deed restriction instrument, to preserve the fish and wildlife resource values of 4.5 ha. (11 ac.) of city-owned San Diego River wetlands (1.9 ha. of compensation area plus an additional 2.6 ha. [6.4 ac.] of contiguous forested wetland); and e) an agreement whereby the city will not propose any work in another 2.6-ha. (6.5-ac.) parcel of contiguous forested wetland until a management plan for preserving San Diego River wetland values is implemented.

San Luis Rey River #1

A housing development proposed for construction adjacent to the San Luis Rey River in northern San Diego County included a street which was to encroach upon a riparian wetland composed mainly of giant reed (Arundodonax ) and a single row of large cottonwoods (Populus sp.). Prior to the public comment period required under Section 404 of the CWA, a streambed alteration agreement requiring no extensive mitigation was signed by the developer and DFG.

Upon distribution of the CE public notice on the project, the FWS, DFG, and Environmental Protection Agency (EPA) objected to the issuance of the permit unless the loss of riparian resource values would be mitigated. The FWS encouraged the developer to find an alternative route for the encroaching roadway, but was informed that a City-designated street corridor and safety criteria prohibited relocation. At this point the developer offered to create a new riparian wetland by lowering the elevation of a nearby upland area of equal size.

Prior to removing its objections to the issuance of the Section 404 permit, the FWS requested that the developer prepare a satisfactory revegetation plan. A consulting firm was employed to develop the plan, which consists of grading the plot to varying heights above the riverbed and planting native willows, cottonwoods, sycamores, and a variety of understory species. A hedgerow of armed vines and shrubs was included to prevent excessive human intrusion. Irrigation was to be provided if necessary, and a planting survival rate of 80% after two years will be considered a successful transplanting effort.

San Luis Rey River #2

On the San Luis Rey River near the city of Oceanside, there is an isolated business and several residences which could only be reached by traversing a low, culverted river crossing. This crossing would typically wash out with any significant floodflows in the river, thereby further isolating the business and the residents. Consequently, the business owners and area residents decided to build a bridge across the river. The bridge was begun prior to notifying Oceanside city authorities, DFG, or CE to obtain necessary permits. In the construction process approximately 0.4 ha. (1 ac.) of riparian woodlands were cleared and filled.

The DFG filed suit against the owner/builder for failure to notify DFG under Fish and Game Code Section 1603. In deciding the case, the judge ruled against the DFG, stating that there was no substantial alteration of the streambed or bank and that, in the absence of a definable riverbank, the ordinary citizen could not be expected to know that the bank extended to the outward edge of the riparian vegetation.

Fortunately, this portion of the San Luis Rey River is also under CE Section 404 jurisdiction. Although the CE would not prosecute the owner/builder for failure to obtain a permit prior to construction, it appears that, based upon recommendations by DFG, FWS, and EPA, the builder will be required to revegetate the riverbank in order to obtain a CE permit for retaining the bridge approach fills. The city permit required no mitigation of adverse impacts to San Luis Rey River riparian resources.

San Luis Rey River #3

In 1966, an industrial manufacturer constructed a plant within the floodplain and an historic channel of the San Luis Rey River. Apparently, his action was based upon the belief that the CE would soon implement a proposed channelization and flood control project along the river. This has not yet occurred, and since construction, floodflows have inundated the facility five times. Due to the delay in construction of the CE flood control project, the developer himself has attempted to protect his plant by rerouting the river north of his plant, constructing a levee along the south bank of the river, clearing the river channel of riparian vegetation, and constructing a ring levee around his plant. With each inundation, greater flood control measures have been implemented and more riparian wetlands have been adversely impacted. On several occasions fill material was placed in wetlands prior to obtaining a CE permit or DFG agreement. The CE has been reluctant to prosecute the developer under the provisions of the CWA, and the developer considers his actions justified, claiming that all actions he has taken have been either under an emergency situation to protect lives and property or have been in the public interest to protect the jobs of his many employees.

The DFG has filed suit against the developer under Section 1603 of the Fish and Game Code for failure to notify the agency prior to altering the stream. This suit is pending and, as yet, no court date has been set.

The developer has indicated his intention to construct a major industrial complex adjacent to his plant in an area currently supporting a lush riparian woodland. His initial step will be to clear and farm this area. Provided there is no addition of fill material, the Clean Water Act does not require a permit for farming of wetlands. It remains to be seen if Section 1603 of the Fish and Game Code will offer any degree of protection for this area. The future of this riparian woodland, however, does not appear to be very promising.

Discussion

Several general points should be considered as one evaluates the relative degree of protection achieved in these cases.

The greatest degree of protection occurs when several agencies have authority for project review under different statutes with similar objectives. This was demonstrated in the San Diego River case and in San Luis Rey #1 and #2. In each of these examples a weaker streambed alteration agreement was backed up by more stringent conditions requested by the DFG, FWS, and EPA on the Section 404 permit. Even though Fish and Game Code sections have protection and conservation of fish and wildlife resources as their purpose, implementation by DFG is debilitated by the impotent statutory vehicle. Had these actions occurred within the jurisdiction of the California Coastal Commission, it is suggested that wetland values might have been even better conserved.

A greater degree of protection seems to result when opportunity for public review and comment is provided. We have seen on several occasions where public comments provided to the CE have influenced the issuance of a Section 404 permit. The influence of public involvement on private projects, however, can perhaps best be seen in observing the public hearing process of the California Coastal Commission where a multitude of opportunities are provided for meaningful public input.

The effectiveness of protection efforts depends greatly upon the degree of threat which a project sponsor feels the public and an agency posed to his project. In the San Diego River case, the developer initially attempted to weaken the FWS mitigation recommendations and encouraged the CE to issue the Section 404 permit over the agency's objections. The developer had the advantage of knowing prosecution was not likely and that much of the damage to the wetlands had already been accomplished. However, once the developer realized that even if the CE issued the permit over FWS objections costly project delays could still result. The developer and the city were then willing to offer more meaningful mitigation measures.

In the San Luis Rey #3 case the developer has generally ignored the threats of the permit-issuing agencies and simply refused to recognize the authority of the DFG and the CE in regulating his activities in the wetlands on his private property. In addition, he feels that all his actions have been in the public interest; if the DFG and/or the CE don't agree and decide to prosecute, he will be happy to litigate. Fortunately, such flagrant and intentional violations are rare, but they are likely to become more frequent when enforcement is absent or largely bluff.

It is much more difficult to obtain replacement of riparian or wetland values from the developer if a project has been completed by circumventing the permit process than if proper channels are followed from the outset. Obtaining mitigation once the project is completed generally requires the CE or a state agency to litigate against the developer for a violation of Section 404 or the Fish and Game Code.

Because the FWS and the DFG are reviewing agencies under Section 404 and are not the permitting agency, their effectiveness in protecting riparian resources is limited by the actions of the CE. In the past, one of the wildlife agencies' strongest criticisms of the CE regulatory program has been failure to initiate prosecution of violators of Section 404. The apparent low priority of such prosecutions or the insufficient

staff in the US Attorney's office are said to contribute to feeble Section 404 enforcement. It is evident that without enforcement the law loses its credibility and offers little protection for the public fish and wildlife values of our nation's waters and wetlands.

The local government level appears, in the authors' opinion, to be the best level at which to protect riparian systems. However, in San Diego County, at this time, the exact opposite seems to be true. Cities and county agencies have promoted the development of riparian areas in fostering the economic growth of their communities. To date, there has been no incentive for local governments to protect their riparian resources.

Under the California Coastal Act, local governments are provided incentives to implement plans and ordinances consistent with the mutually beneficial uses of the coastal zone. The conservation of riparian systems seems clearly in the public interest regardless of whether or not they are found within the coastal zone. Action analogous to the California Coastal Act, i.e., statewide goals implemented at local government levels, for conservation of riparian systems, therefore, seems appropriate.

Recommendations

With the intention of protecting and conserving the fish and wildlife resources that riparian systems provide, the following actions should be considered.

1. The state should enact a "California Riparian Systems Conservation Act," analagous to the California Coastal Act.

2. Any statutory enactments should have unambiguous statements of purpose, jurisdiction, definitions, and enforcement provisions.

3. Public and private conservation organizations should increase their efforts to foster public awareness of the values of riparian systems.

Other interim or lesser measures could include the following.

4. The state should enact legislation modifying Fish and Game Code Sections 1601–1603 to empower DFG with discretionary permit authority.

5. The three-party arbitration panel outlined in the Fish and Game Code Chapter 6 should be replaced by the existing Fish and Game Commission.

6. To ensure statewide consistency, DFG should produce mitigation guidelines applicable to streambed alteration projects and criteria for referring projects to arbitration.

7. DFG should be allowed to assess an administrative fee for the streambed alteration agreement. Also, the monetary penalty for failure to notify DFG under these code sections should be substantially increased and penalties for noncompliance should be implemented.

8. The state should assume Clean Water Act Section 404 jurisdiction, with DFG or the Resources Agency as the permit-issuing authority, in the event federal authority is abrogated.

9. The opportunity for public comment should be provided in any permitting process established for the conservation of riparian systems.

Literature Cited

California Department of Fish and Game. 1965. California Fish and Wildlife Plan, Vol. III, Part C. 370 p. California Department of Fish and Game, Sacramento.

California Fish and Game Commission. 1979. California Fish and Game Code. 319 p. State of California, Sacramento.

Goldwasser, S. 1978. Distribution, reproductive success and impact of nest parasitism by brown-headed cowbirds on Least Bell's Vireos. Final report to California Department of Fish and Game, Sacramento. 27 p.

Oberbauer, T. 1977. Vegetation communities in San Diego County. Unpublished report for San Diego County Planning Department, San Diego, Calif.

San Diego County. 1980. San Diego County General Plan. Section 1, Part X—Conservation Element. 91 p.

US Army Corps of Engineers. 1978. Revised public notice No. 404 and amendments. Notice of exercise of Section 404 jurisdiction over certain streams and wetlands in California. Department of the Army, Los Angeles District, Corps of Engineers (July 15, 1978).