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HomeMy WebLinkAboutCDP 11-10; El Camino Real Southbound Widening; Coastal Development Permit (CDP) (5)GLENN LUKOS ASSOCIATES May 17, 2011 Teresa Sousa Rancho Costera, LLC 8383 Wilshire Boulevard, Suite 700 Beverly Hills, California 90211 Regulatory Services SUBJECT: Southem Widening ofEl Camino ReaL City of Carlsbad, San Diego County, Califomia. Dear Ms. Sousa: This letter report swnmarizes our preliminary findings of U.S. Army Corps of Engineers (Corps), Califomia Department of Fish and Game (CDFG) jurisdiction, and Califomia Coastal Commission (CCC) jurisdiction for the above-referenced Project. The existing alignment ofEl Camino Real will be widened to the south from Kelly DriYe on the west to Cannon Road on the east. The subject portion ofEl Camino Real is located in the City of Carlsbad, San Diego County [Exhibit 1 ], and contains a blue-line drainage (as depicted on the U.S. Geological Survey {USGS) topographic map San Luis Rey, Califomia [dated 1968 and photorevised in 1975]) [Exhibit 2]. On March 3, 2011 regulatory specialists of Glenn Lukos Associates, Inc. (GLA) examined the Project area to detennine the limits of {1) Corps jurisdiction pursuant to Section 404 of the Clean Water Act, and {2) CDFG jurisdiction pursuant to Division 2, Chapter 6, Section 1600 of the Fish and Game Code, and (3) the limits of any "wetlands" as defined by the Califomia Coastal Act regulations and interpretive guidelines. Enclosed is a 200-scale map [Exhibit 3) that depicts the areas of Corps and CDFG jurisdiction {and CCC wetlands). Photographs to document the topography, vegetative communities, and general widths of each of the waters are provided as Exhibit 4. The proposed southern widening will pennanently impact 0.042 acre of Corps jurisdiction (including 0.018 acre of wetlands), 0.090 acre of CDFG jurisdiction {all of\\'ruch support riparian vegetation), and 0.090 acre of CCC wetlands. The widening will temporarily impact 0.019 acre of Corps jurisdiction (including 0.007 acre of\\:etlands), 0.05 acre ofCDFG jurisdiction (all of which is riparian), and 0.05 acre of CCC wetlands. 29 Orchard • Lake Forest Telephone: (949) 837-0404 • California 92630-8300 Facsimile: (949) 837-5834 Teresa Sousa Rancho Costera, LLC May 17,2011 Page 2 I. :METHODOLOGY Prior to beginning the field delineation a 200-scale color aerial photograph, a 200-scale topographic base map of the property, and the previously cited USGS topographic map were examined to detemune the locations of potential areas of Corps/CDFG jurisdiction. Suspected jurisdictional areas were field checked for the presence of defmable channels and/or wetland vegetation, soils and hydrology. Suspected wetland habitats on the site were evaluated using the methodology set forth in the U.S. Anny Corps of Engineers 1987 \Vetland Delineation Manual1 (Wetland J\1anual) and the 2006 Interim Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Supplement (Arid West Supplement).2. While in the field the limits of CDFG jurisdiction were recorded onto a 200-scale color aerial photograph using visible landmarks. II. JURISDICTION A. ArmY Corps of Engineers Pursuant to Section 404 of the Clean Water Act, the Corps regulates the discharge of dredged and/or fill material into waters of the United States. The term "waters of the United States" is defined in Corps regulations at 33 CFR Part 328.3(a) as: (J} All waters which are currently used. or were used in the past. or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and.flov,• of the tide; (2) All inTerstate waters including interstate l1·etlands: (3} All other waters such as inn·astate Jakes. rivers, streams (including intermittent streams), mudflats. sand.flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect foreign commerce including any such waters: 1 Environmental Laboratory. 1987. Corps ofEne.ineers Wetlands Delineation Manual, Technical Report Y-87-1, U.S. Anny Engineer \Vatem·ays Experimental Station, Vicksburg, Mississippi. 2 U.S. Anny Corps of Engineers. 2006. Interim Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Supplement. Ed. J.S. Wakeley, R.W. Lichevar, and C.V. Noble. ERDC/EL TR-06- 16. Vicksburg, MS: U.S. Army Engineer Research and Development Center. Teresa Sousa Rancho Costera, LLC Mav 17.2011 .. ' Page 3 (f) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or (if) From which fish or shellfish are or could be taken and sold in interstate orforeign commerce: or (iii) Tft11ich are used or could be used for industrial purpose by industries in interstate commerce ... (4) All impoundments o.fwaters otheni'ise defined as waters o.fthe United States under the definition: (5) Tributaries o.fwaters ident(fied in paragraphs (a) (1)-(4) of this section; (6j The territorial seas; (7) Wetlands adjacent to waters (other than v.:aters that are themselves wetlands) identified in paragraphs (a) (1)-(6) o.fthis section. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements o.fCTE4 (other than cooling ponds as defined in 40 CFR 123.11 (m) which also meet the criteria of this de_{inition) are not v.,aters of the United Stares. (8) \Vaters of the United States do not include prior converted cropland.3 Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains \Vith the EPA. In the absence of \Vetlands, the limits of Corps jurisdiction in non-tidal \Vaters, such as intermittent streams, extend to the OHWM which is defined at 33 CFR 328.3(e) as: ... that line on the shore established by the fluctuation o.fwater and indicated by physical characteristics such as clear, natura/line impressed on the bank. shelving. changes in the character o.fsoil, destruction o.fterrestrialvegetation, the presence o.flitter and debris, or other appropriate means That consider the characteristics o.f the surrounding areas. :The tenn ··prior converted cropland" is defmed in the Corps' Regulatory Guidance Lener 90-7 (dated September 26, 1990) as "wetlands which were both manipulated (drained or othen,·ise physically altered to remove excess water from the land) and cropped before 23 December 1985, to the extenr that they no longer exhibit important wetland values. Specifically, prior converted cropland is inundated for no more than 14 consecutive days during the growing season .... " [Emphasis added.] Teresa Sousa Rancho Costera, LLC May 17, 2011 Page 4 I. Solid \Vaste Agency of Northern Cook County v. United States Army Corps of Engineers, et al. Pursuant to Article I, Section 8 of the U.S. Constitution, federal regulatory authority extends only to activities that affect interstate conunerce. In the early 1980s the Corps interpreted the interstate conunerce requirement in a manner that restricted Corps jurisdiction on isolated (intrastate) waters. On September 12, 1985, EPA asserted that Corps jurisdiction extended to isolated waters that are used or could be used by migratory birds or endangered species, and the definition of",vaters of the United States" in Corps regulations \\'as modified as quoted above from 33 CFR 328.3(a). On January 9, 2001, the Supreme Court of the United States issued a ruling on Solid Waste Agency of Northern Cook County i'. United Stares Army Cmps of Engineers, eta!. (SW A..~CC). In this case the Court was asked whether use of an isolated, intrastate pond by migratory birds is a sufficient interstate commerce cmmection to bring the pond into federal jurisdiction of Section 404 ofthe Clean Water Act. The \\Titten opinion notes that the court's previous support of the Corps' expansion of jurisdiction beyond navigable waters (United States v. Riverside Bayview Homes. Inc.) was for a wetland that abutted a navigable water and that the court did not express any opinion on the question of the authority of the Corps to regulate wetlands that are not adjacent to bodies of open water. The current opinion goes on to state: In order to rule for the respondems here. we would have to hold tharthe jurisdiction of the Cmps extends to ponds that are not adjacent to open water. Jfle conclude rhm the text of the statute will not allow this. Therefore, we believe that the court's opinion goes beyond the migratory bird issue and says that no isolated, intrastate water is subject to the provisions of Section 404(a) of the Clean Water Act (regardless of any interstate conm1erce cmmection). However, the Corps and EPA have issued a joint memorandum which states that they are interpreting the ruling to address only the migratory bird issue and leaving the other interstate conunerce clause nexuses intact. Teresa Sousa Rancho Costera LLC May 17,2011 Page 5 2. Rapanos v. United States and Carabell v. United States On June 5, 2007, the U.S. Environmental Protection Agency (EPA) and Corps issued joint guidance that addresses the scope of jurisdiction pursuant to the Clean Water Act in light of the Supreme Court's decision in the consolidated cases Rapanos v. United States and Carabell r. UniTed Srates ("Rapanos"). The chart below was provided in the joint EP A!Corps guidance. For project sites that include waters other than Traditional Navigable Waters (TNWs) and/or their adjacent wetlands or Relatively Pennanent Waters (RPMs) tributary to TN\Vs and/or their adjacent \Vetlands as set forth in the chm1 belmv, the Corps must apply the significant nexus standard, that includes the data set forth in the Approved Jurisdictional Determination Form included as Appendix A. For "isolated" \Vaters or '"'etlands, the joint guidance also requires an evaluation by the Corps and EPA to detennine whether other interstate conunerce clause nexuses, not addressed in the SWANCC decision are associated with isolated features on project sites for which a jurisdictional detem1ination is being sought from the Corps. The information pertaining to isolated waters is also included on the Approved Jurisdictional DeterminaTion Form included as Appendix A. The agencies will assert jurisdiction over the following waters: • Traditional navigable waters • Wetlands adjacent to traditional navigable waters • Non-navigable tributaries of traditional navigable waters that are relatively pem1anent where the tributaries typically flow year-round or have continuous flow at least seasonally (e.g., typically three months) • Wetlands that directly abut such tributaries The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether they have a significant nexus with a traditional navigable water: • Non-navigable tributaries that are not relatively pem1anent • Wetlands adjacent to non-navigable tributaries that are not relatively pennanent • Wetlands adjacent to but that do not directly abut a relatively pennanent non- navigable tributary The agencies generally will not assert jurisdiction over the following features: • Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent or sh011 duration flow) • Ditches (including roadside ditches) excavated wholly in and draining only uplands Teresa Sousa Rancho Costera, LLC May17,2011 Page 6 and that do not carry a relatively permanent flow of water The agencies v.ill apply the signiticant nexus standard as follows: • A significant nexus analysis \Vill assess the flow characteristics and functions of the tributary itself and the functions performed by all wetlands a4,iacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of do\\nstream traditional navigable waters • Significant nexus includes consideration of hydrologic and ecologic factors 3. 'Vetland Definition Pursuant to Section 404 of the Clean 'Vater Act The term "'vetlands" (a subset of"waters of the United States") is defined at 33 CFR 328.3(b) as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support ... a prevalence of vegetation typically adapted for life in saturated soil eonditions." In 1987 the Corps published a manual to guide its field pers01mel in determining jurisdictional \\'etland boundaries. The methodology set forth in the 1987 Wetland Delineation Manual and the A.rid West Supplement generally require that, in order to be considered a wetland, the vegetation, soils, and hydrology of an area exhibit at least minimal hydric characteristics. While the manual and Supplement provide great detail in methodology and allo\\' for varying special conditions, a wetland should nom1ally meet each of the following three criteria: • more than 50 pereent of the dominant plant species at the site must be typical of wetlands (i.e., rated as facultative or \\'etter in the National List of Plant Species that Occur in \Vet1ands4); • soils must exhibit physical and/or chemical characteristics indicative ofpennanent or periodic saturation (e.g., a gleyed color, or mottles with a matrix oflow chroma indicating a relatively consistent fluctuation between aerobic and anaerobic conditions); and • \Vhereas the 1987 Manual requires that hydrologic characteristics indicate that the ground is saturated to \Vi thin 1 2 inches of the surface for at least five percent of the grO\\ing <Reed, P.B., Jr. 1988. National List of Plant Species that Occur in Wetlands. U.S. Fish and Wildlife Service Biological Report 88(26.1 0). Teresa Sousa Rancho Coster~ LLC May 17, 2011 Page 7 season during a normal rainfall year, the Arid \Vest Supplement does not include a quantitative criteria with the exception for areas with "problematic hydroph)1ic Yegetation'', which require a minimum of 14 days ofponding to be considered a wetland. B. Regional \Vater Qualitv Control Board Subsequent to the SW A....l\fCC decision, the Chief Counsel for the State Water Resources Control Board issued a memorandum that addressed the effects of the SW ANCC decision on the Section 401 Water Quality Certification Program.5 The memorandum states: Cal((ornia 's right and duty to evaluate cert{fication requests under section 401 is pendant to (or dependent upon; a valid application for a section 404 permit from the Corps, or another applicationfor afederallicense or permit. Thus if the Corps determines that the water body in question is nor subject to regulation under the COE 's 404 program. for instance, no application for 401 cert{ficaTion will be required ... The SWAl,rcc decision does not affect the Porter Cologne authorities to regulate discharges To isolated, non-navigable waters of the states .... WaTer Code secTion 13260 requires "any person discharging waste, or proposing to discharge waste, within any region that could affect the waters o_(The stale to .file a report of discharge (an application for waste discharge requirements) ... (Water Code§ 1 3260(a){l) (emphasis added).) The term "waters of the state" is de.fined as ''any surface water or groundwater, including saline waters, within the boundaries of the sTaTe .. , (Water Code§ 1 3050(e}.) TI1e US. Supreme Court's ruling in SWAl,'CC has no bearing on the Porter-Cologne de.finition. While all waters of the United States that are within the borders o..fCal((ornia are also waters of the state, The converse is not true-waters of the United Stares is a subset o..f waters of the state. Thus, since Porter-Cologne was enacted California always had and retains authority to regulate discharges of waste into any waters of the state, regardless of whether the COE has concurrent jurisdiction under secTion 404. The fact that often Regional Boards opted to regulate discharges to. e.g., vernal pools, through the 401 program in lieu o..f or in addition to issuing waste discharge requirements (or waivers thereo..O does not preclude the regions ~Wilson, Craig M. January 25, 2001. Memorandum addressed to State Board Members and Regional Board Executive Officers. Teresa Sousa Rancho Costera, LLC May 17,2011 Page 8 from issuing WDRs {or waivers o.fWDRs) in the absence of a request for 401 certification .... In this memorandum the SWRCB's Chief Counsel has made the clear assumption that fill material to be discharged into isolated waters of the United States is to be considered equivalent to "waste" and therefore subject to the authority of the Porter Cologne Water Quality Act. However, while providing a recounting of the Act's definition oh\·aters of the United States, tllis memorandum fails to also reference the Act's own definition of waste: "Waste" includes sewage and any and all other waste substances, liquid, solid, gaseous, or radioactive, associated with human habitation, or of human or animal origin, or from any producing, manufacturing, or processing operation, including waste placed within containers ofwhatever nature prior to, and for purposes of, disposal. The lack of inclusion of a reference to "fill material," "dirt," "earth'' or other similar tenns in the Act's definition of "waste," or elsewhere in the Act, suggests that no such association was intended. Thus, the Cllief Counsers memorandum signals that the S\VRCB is attempting to retain jurisdiction over discharge of fill material into isolated waters of the United States by administratively expanding the definition of "waste" to include "fill material" without actually seeking amendment of the Act's definition of waste (an amendment would require action by the state legislature). Consequently, discharge of fill material into waters of the State not subject to the jurisdiction of the Corps pursuant to Section 404 of the Clean \\' ater Act !!!.[t require authorization pursuant to the Porter Cologne Act through application for waste discharge requirements (\\tTIRs) or through waiver of WDRs, despite the lack of a clear regulatory imperative. C. California Department of Fish and Game Pursuant to Division 2, Chapter 6, Sections 1600-1603 of the Califomia Fish and Game Code, the CDFG regulates all diversions, obstructions, or changes to the natural flow or bed, channeL or bank of any riYer, stream, or lake, which suppmts fish or wildlife. CDFG defines a "stream" (including creeks and rivers) as "a body of water that flows at least periodically or intennittently through a bed or charmel having banks and supports fish or other aquatic life. This includes watercourses having surface or subsurface flow that supports or has suppmted riparian vegetation." CDFG's definition of"lake" includes "natural lakes or man-made reservoirs." Teresa Sousa Rancho Costera, LLC May 17,2011 Page 9 CDFG jurisdiction \~ithin altered or artificial waterways is based upon the value of those waterways to fish and wildlife. CDFG Legal Advisor has prepared the following opinion: • Natural waterways that have been subsequently modified and which have the potential to contain fish, aquatic insects and riparian vegetation will be treated like natural \Vatenvays ... • Artificial waten~·ays that have acquired the physical attributes of natural stream courses and which have been viewed by the community as natural stream courses, should be treated by [CDFG] as natural \Vatenvays ... • Artificial waten\'ays without the attributes of natural watenvays should generally not be subject to Fish and Game Code provisions ... Thus, CDFG jurisdictional limits closely mirror those of the Corps. Exceptions are CDFG's exclusion of isolated wetlands (those not associated with a river, stream, or lake), the addition of artificial stock ponds and irrigation ditches constructed on uplands, and the addition of riparian habitat supported by a river, stream, or lake regardless of the riparian area's federal wetland status. D. California Coastal Commission The California Coastal Act (California Public Resources Code Division 20, Section 30240) restricts land uses within or adjacent to enviromnentally sensitive habitat areas (ESHAs). The Coastal Act Section 30107.5 defines an ESHA as: ... any area in which plant or animal l(fe or their habitats are either rare or especially valuable because of rheir special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments. Included \\'ithin tlus definition are wetlands, estuaries, streams, riparian habitats, lakes, and portions of open coastal waters, \vhich meet the rare or valuable habitat criteria. The CCC regulates the diking, filling, or dredging of wetlands \Vithin the coastal zone. The Coastal Act Section 30121 defines "wetlands" as land .. which maJ' be covered periodically or permanently with shallow water." The 1998 CCC Statewide Interpretive Guidelines state that hydric soils and hydroph)1ic vegetation "are useful indicators o.fwetland conditions, but the presence or absence o.f hydric soils and/or hydrophytes alone are not necessarily determinative when the Commission ident((ies wetlands under the Coastal Act. In the past. the Commission Teresa Sousa Rancho Costera, LLC May 17,2011 Page 10 has considered all relevant informaTion in making such deTerminations and relied upon the adrice and judgment of e:>.perts before reaching its own independent conclusion as to whether a particular area will be considered wetland under the Coastal AcT. The Commission intends To conTinue to follow This policy." .Areas regulated by the Corps, CDFG and CCC are often not coincident due to the different goals of the respective regulatory programs as well as because these agencies use different definitions for detennining the extent of wetland areas. The Corps requires that under nom1al circumstances, all three wetland parameters (i.e., hydrophytic vegetation, hydric soils, and wetland hydrology) be present for an area to be considered as a jurisdictional wetland; whereas, the CCC policy provides for a positive detennination for the presence oh'>'etlands based on the presence of any one of the three criteria. III. RESULTS A. Corps Jurisdiction The footprint for the south em widening of El Camino Real contains a drainage that feature ultimately connects to a water of the United States (Agua Hedionda), and therefore is considered to be a water of the United States itself. Corps jurisdiction associated with Project footprint totals approximately 0.061 acre of '"'ater of the United States, of whieh 0.031 acre consists of wetlands. The boundaries of the waters of the United States are depicted on the enclosed maps. Jurisdictional wetlands. The jurisdictional drainage originates offsite to the north, extends south through the Robe1tson Ranch property (north ofEl Camino Real), and the flows under El Camino Real through an existing culvert. South ofEl Camino Real, the drainage consists of a low-flow channel and adjacent wetland terrace. The ordinary high water mark (OH\VM) is approximately 30 feet wide. Vegetation occurring within the southem widening footprint includes arroyo willow (Salix lasiolepis), mule fat (Baccharis salic(folia), giant reed (Arundo donax), pampas grass (Cortaderia selloana), curly dock (Rumex crispus), Bennuda grass (Cynodon dactylon), and castor bean (Ricinus communis). B. Regional \Vater Qualitv Control Board Jurisdiction The drainage feature within the southem widening footprint is not an intrastate/isolated water outside Corps jurisdiction. The drainage is considered to be a water of the United States subject Teresa Sousa Rancho Costera, LLC May17,2011 Page 11 to the jurisdiction of the Corps, as \Vell as water of the State subject to the jurisdiction of the Regional Board. C. CDFG Jurisdiction CDFG jurisdiction associated with the southern \Videning footprint totals approximately 0.14 acre, all ofwhich consists of riparian vegetation, \Vhich as noted above includes arroyo willow and mule fat. D. CCC Jurisdiction Coastal wetlands associated \Vith the southern widening footprint total approximately 0.14 acre. This area supports at a minimum one ofthe following: 1) a predominance ofhydrophytic vegetation, 2) hydric soils, or 3) wetland hydrology. Hydrophytic vegetation occurring \\~thin the widening footprint includes arroyo willow, mule fat, curly dock, and Bernmda grass. IV. DISCUSSION A. Impact Analnis Based on project files provided by O'Day Consultants and Plamung Systems, the proposed southern widening will pern1anently impact 0.042 acre of Corps jurisdiction (including 0.018 acre of wetlands), 0.090 acre of CDFG jurisdiction (all of which support riparian vegetation), and 0.090 acre of CCC wetlands. The widening will temporarily impact 0.019 acre of Corps jurisdiction (including 0.007 acre of wetlands), 0.05 acre ofCDFG jurisdiction (all ofwhich is riparian), and 0.05 acre of CCC wetlands. Teresa Sousa Rancho Costera, LLC May17,2011 Page 12 If you have any questions about this lener report please contact either Glenn Lukos or David Moskovitz at (949) 83 7-0404. Sincerely, GLEN"N LUKOS ASSOCL<\ TES, INC. David F. Moskovitz Regulatory Specialist s:0260-22a.ECR.rpt.doc (/) () (:! m z :: ;= m (/) GLENN LUKOS ASSOC IATES EXHIBIT 1 0 ...... 0 0 0 'TI N m -m 8 -t o w 0 0 0 )> a.. Q) '"0 -ctl a.. a- 3 c (j) (j) (j) (j) Q) :::J r c c;;· :::0 <D ':< (') )> .a c Q) a.. Q) :::J <C <D GLENN LUKOS ASSOCIATES EXHIBIT2 Legend --Project Limits -Corps Non-wetland Waters 0 -Corps Wetlands CDFG Riparian/CCC Wetlands N A 100 200 Feet 1 inch = 200 feet 400 GLENN LUKOS ASSOCIATES X:'DO • 0362 ONL YI0260-22·RANCI260-22GISIDolineationECRSouthi260·22DolinoaUonECRSouth.mxd April 25, 2011 Photograph 1. View of jurisdictional drainage looking south from the southern edge of El Camino Real. Photograph 2. View of the southern edge of El Camino Real looking north. The photo depicts the existing crossing of the jurisdictional drainage located immediately west of Kelly Drive. (f) w ._ <( u 0 (f) (/) <( (f) 0 ~ ::) _J z z w _J (.!) v -:0 .c. )( w Photograph 3. View of open channel and adjacent riparian habitat immediately south of El Camino Real, west of Kelly Drive. Photograph 4. View of vegetated terrace located adjacent to the open channel. Cf) w 1--.:t <( -:0 u ..c )( 0 w Cf) Cf) <( Cl) 0 ~ ~ ......J z z UJ _, (.!)