Wetlands have long been a sensitive issue along the Coastside - not to mention a source of contention between environmentalists and property owners nationwide as far back as anyone can remember.
Yet surprisingly, as the future of much of the country's designated wetland area will be decided by the court's decision, it's likely that neither case will significantly endanger the protected areas around Half Moon Bay.
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"From our perspective, thank goodness we have that extra level of protection," said Chris Kern, district manager for the California Coastal Commission. "It will be tragic if the worst-case scenario comes true. As (the federal government's power) gets weakened we're going to lose a lot of wetlands in this nation."
Historically, the federal designation of wetlands - defined under the 1972 Clean Water Act and administered by the U.S. Army Corps of Engineers - is less inclusive than the one used by the state and the city's Local Coastal Program. As a result, there are no wetlands on the Coastside that qualify for the federal designation without additional state or local protection.
The federal government contends that its power to regulate interstate commerce allows it to rule over wetlands under the Clean Water Act. But in the case of John A. Rapanos, a developer who filled in designated wetland which sits miles from the nearest navigable waterway, developers have found a situation that could test that broad definition of the law.
According to Reed Hopper, a lawyer with the Pacific Legal Foundation and one of the attorneys representing Rapanos, the court's ruling could have national influence but he said it seems unlikely it will significantly affect local battles over wetland areas aside from possibly changing the way in which developers deal with the federal regulations.
But while local conservationists are relieved to have the Coastal Act to fall back on, should the authority of the federal government be altered in the cases before the court, it could have some impact on locally designated wetlands.
That's not only because of the protection under state law. When the Army Corps of Engineers considers an application needed by a developer to ensure a critical habitat is not being destroyed, it consults the U.S. Fish and Wildlife Service if a protected species may inhabit the area.
But according to Alex Pitts, the assistant manager for external affairs for Fish and Wildlife's California and Nevada Operations Office, a critical habitat may be protected under the Endangered Species Act even if the Clean Water Act no longer applies.
"In wetland areas where there are endangered species there are still 'take' prohibitions in place, so landowners who want to do things on that land will still have to consult directly with us," Pitts said.
The Supreme Court's decision, therefore, wouldn't necessarily impact even the federal involvement on the Coastside as the Fish and Wildlife does not need the Clean Water Act to protect the habitats of species such as the San Francisco garter snake or the California red-legged frog. Much of local wetland area is protected under such a provision.
The city of Half Moon Bay is currently in the process of updating the Local Coastal Program, which has been in place since 1996. Part of that update includes an effort to distinguish between constructed wetlands and natural wetlands.
The distinction, said Planning Director Jack Liebster, would allow the city to go into areas such as drainage swales and stormwater detention basins in order to clear it of pollutants. If the plan receives the approval of the Coastal Commission it would be the first such distinction in the state.
"With something like a stormwater detention basin, the idea is to be able to go into the area and clear it of silt before the next storm season comes," Liebster said.
Currently the lack of such a distinction makes the two types of wetland areas indistinguishable, meaning the city has difficulty going into the so-called constructed wetlands.
Regardless of the outcome of either case, many familiar with the California coastal area said that the scope of protection here is sufficient to ensure that a decision against the government in either case won't effect local wetlands as it will in states without coastal areas.
Cases before the Supreme Court:
Rapanos vs. United States
John Rapanos, a wealthy Michigan developer, was convicted in 1995 of violating the Clean Water Act. Rapanos had filled in federally designated wetland because, he said, the land was too far from a navigable waterway to fall under the interstate commerce law. After a district court overturned the decision the appellate court sided with the government.
Carabell vs. U.S. Army Corps of Engineers
In this case justices will decide whether the federal agency had the right to prevent the construction of a condominium development. Water cannot flow from the wetland area at the proposed development site because of a manmade barrier, but a lower court said the Army Corps of Engineers had authority over the land nonetheless.
- Marc Longpre
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