about us explore the wetlands research contact
Jump to section:

Clean Water Act

Endangered Species Act

California Coastal Act

What laws affect the wetlands?

The four major laws that affect the wetlands are: the U.S Clean Water Act (CWA) section 402 and 404, the U.S Endangered Species Act (ESA), the California Coastal Act (CCA) and the Public Trust Doctrine. Additional laws that also offer some protection are: the Migratory Bird Treaty Act (MBTA) 1918, and the CWA sections 303, 319, and 316.

U.S. Clean Water Act (CWA) Sections 402, 404, 303, 319, 316

To read the Clean Water Act in full, go to the following site www.epa.gov/owow/laws.html

Does the Federal CWA pertain to these local wetlands?
The first thing that must be decided is whether or not the Clean Water Act applies to the Los Cerritos Wetlands. It must be determined what parts of the wetlands, if any, are regulated by federal law. The Constitution of the United States of America gives certain powers to the federal government, and the rights not mentioned in the Constitution are left up to the state governments. Over the years, this has allowed Congress to regulate “navigable waters” under the commerce clause (Article I, Section 8). If the waterways are not taken care of, it can negatively affect interstate commerce. Over the years, there have been various court cases that have debated how Congress’s laws should be interpreted. A lot of these cases have been centered on what is included under the terms “navigable waters” and “the Waters of the U.S.” If it is ruled that the Los Cerritos Wetlands are adjacent to “navigable waters,” or are themselves navigable, the CWA will apply to them. The CWA in this case can interfere with land use regulations established by a state or city¹.

CWA Section 402
The CWA was passed in 1972 with the goal of cleaning up the nation’s grossly polluted waters. The CWA section 402 is enforced by the Environmental Protection Agency (EPA); this is an independent agency within the Executive branch bureaucracy. If approved by the EPA, individual states may take over the responsibility of implementing section 402; which sets up a permitting program, the National Pollutant Discharge Elimination System (NPDES). It is illegal to discharge into waterways without a permit. This protects all waterways from excessive pollution, in this case the Los Cerritos Wetlands. Some specifics on this law include: “Discharge of a pollutant” is “any addition of any pollutant from any point source.” “Point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged”³ Basically, you can’t allow bad things to directly enter the waterway. There are two main types of point source polluters Publically Owned Treatment Plants (POTWs), and point source polluters other than POTWs. POTWs are only required to use a specific level of technology. Point source polluters other than POTWs must meet technology based effluent standards. There are three main types of pollutants and each one has a different standard it must meet. The three pollutant types and their associated standards are listed as follows: toxic pollutants must use Best Available Technology Economically Achievable (BAT) to establish effluent limitations, conventional pollutants must use Best Conventional Pollutant Control Technology (BCT), and non-conventional pollutants usually use BAT as well³.

CWA Section 303
As a back up to these technology standards, section 303 of the CWA lays out water quality standards. The first step in establishing these standards is for each state to “designate specific beneficial uses for each of its waterways”³. To see what the 2007 ESP team came up with for beneficial uses for different sites in the Los Cerritos Wetlands you can click this link:(coming soon). Once the beneficial uses are established, the states determine what water quality standards are needed to protect the beneficial uses. Next the states determine if a waterway does not meet the standards even with the technology-based standards under the NPDES. For each impaired waterway, total maximum daily loads (TMDLs) must be set, determining how many pollutants can be discharged into a waterway in a given day. The Los Cerritos Wetlands are impaired for ammonia, metals [copper (in tissue, from brakes, tires), lead (in sediment, from jet fuel), zinc (in sediment, from brakes)] chlordane (in sediment, from past use), and coliform. Although TMDL’s were originally to be set and implemented in 2010, new data seems to indicate that they should be set and implemented by 2019.

CWA Section 404
Section 404 of the CWA is specific to wetlands. It states that no one can discharge materials that would dredge or fill a wetland without a permit from the Army Corp of Engineers. The Army Corps of Engineers defines a wetland as: surface areas saturated or inundated with water long enough during the year to support hydrophilic vegetation. In order to receive a permit from the Army Corps of Engineers, one must meet several standards. The first standard is that there can be no practical alternative to the proposed activity that would have a lesser impact on the aquatic ecosystem. Secondly there can be no significant adverse impacts on aquatic resources; all “appropriate and practical” mitigation is required. The activity being proposed must comply with other laws such as the ESA. The activity must not be “contrary to public interest” affecting such things as fish, wildlife, recreation, and water quality¹.

CWA Sections 316 and 319 Section 316 deals with thermal discharges. This is relevant to the Los Cerritos Wetlands because the wetlands are located next to two power plants: the AES Power Plant and the Haynes Power Plant. Section 319 is about non-point sources. For more information on section 316 and 319 the whole CWA can be viewed at: www.epa.gov/owow/laws.html

U.S. Endangered Species Act (ESA) of 1973

This law states that no species listed on the endangered species list may be “taken”, meaning killed or physically harmed. This also means there can be no “significant” habitat modification. The two governmental agencies that administer the ESA are the Interior Department’s U.S. Fish and Wildlife Service (FWS), and the Commerce Department’s National Marine Fisheries Service (NMFS). This law is applicable to the Los Cerritos Wetlands because several endangered bird species use these wetlands including: the brown Pelican (not listed as endangered on the U.S. Atlantic coast, FL and AL), the Plover (western snowy Pacific coastal population), California Least Tern, and Belding’s Savannah Sparrow. In order to see what bird species the 2007 Environmental Science and Policy biology team observed and the laws that protect them you can click on this link:(coming soon).
For more information on the ESA and to view the whole Act you can visit: www.fws.gov/endangered/pubs/

California Coastal Act (CCA)

The CCA was passed in 1972 as Proposition 20. Its purpose was to protect, restore and enhance the environment. The CCA designates a coastal zone which extends 3 miles seaward and 500 yards to 5 miles inland. In order to build in this zone you must have a permit which you may obtain from the California Coastal Commission (CCC). Some city’s have a Coastal Development Plan approved by the CCC which allows them to build without first obtaining a permit. However some zones are mapped as Environmentally Sensitive Areas (ESAs), and these areas receive additional protection and may not be approved in a city’s Coastal Development Plan. The law also has Wetland Standards and its own definition of what a wetland is. The Los Cerritos Wetlands are classified as wetlands under this definition (see Specific Definitions below). This law applies directly to the Los Cerritos Wetlands because The City of Long Beach has a Coastal Development Plan but the Los Cerritos Wetlands are not included in it because they are an ESA. If the city wants to build in this area they have to go to the CCC to get a permit. Currently a Home Depot has been proposed in the coastal zone very near the Los Cerritos Wetlands but the CCC denied them a permit to build there. For more information on the CCA and to read the whole Act you can visit: www.coastal.ca.gov/ccatc.html

Public Trust Doctrine

According to the Public Trust Doctrine, there are certain resources that are for the public and can not be owned by any individual. The government holds these resources in trust for the people as a whole. These resources include things such as the ocean and its shores, running water and air. Wetlands are included because they fall under the category of the shores of the oceans. If you wanted to pursue protection for the Los Cerritos Wetlands under this law you would have to be able to prove that it is a wetland. The verdict would be left up to the courts and the judges; depending on the level of protection they interpret the Public Trust Doctrine as providing. Different states apply different interpretations of it.
For a brief history on the Public Trust Doctrine you can visit: www.nrpa.com/public_trust.htm

Migratory Bird Treaty Act (MBTA) 1918

Article II of the Constitution gives the President the power to make international treaties if 2/3 of Congress ratifies it. The unique thing about international treaties is that they take precedence over federal law. Some of the same birds that are protected under the ESA are also protected under the MBTA, providing them with double protection. If for some reason the U.S. Fish and Wildlife Services decided to take one of these birds off of the endangered species list they would still be protected under the MBTA¹.

Differences in Definitions of Wetlands

The definition of a wetland is of significant importance, and yet there are so many different definitions. In essence there are two types of definitions: scientific and legal. The scientific definitions are used by wetland scientists who research and classify different types of wetlands. The legal definitions are for managers and regulators who deal with the enforcement of laws as they relate to wetlands². You would think that there would be one legal definition of what a wetland is for all regulating agencies, but that is not the case. A lot of the different laws/agencies have their own definitions of what a wetland is. This means that the Los Cerritos Wetlands may be protected under one law but not under another law because they fail to meet the second laws definition of a wetland.

Specific Definitions
In the CWA section 404 the EPA and the Army Corps of Engineers definition is: The term “wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas².

Fish and Wildlife Services (FWS) define a wetland as: "Wetlands are lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. For purposes of this classification wetlands must have one or more of the following three attributes: (1) at least periodically, the land supports predominantly hydrophytes; (2) the substrate is predominantly un-drained hydric soil; and (3) the substrate is non soil and is saturated with water or covered by shallow water at some time during the growing season of the year (Service Wetlands Definition, 1979)."

Under the California Coastal Act (CCA) the California Coastal Commission (CCC) along with the Department of Fish and Game (DFG) determine what a wetland is. They essentially use the FWS wetland definition but make it clear that only one of the qualifiers (hydrology, hydric soils, or hydrophytic vegetation) needs to be present in order for the area to be a wetland. The Los Cerritos Wetlands falls under this definition¹.

One of the main differences between these definitions is that under the CCA the definition only requires the presence of one of the qualifiers where as the CWA requires the presence of all three.

The research that the Biology and Chemistry teams from the Environmental Science and Policy 400 course can be really beneficial in determining what wetland definitions the Los Cerritos Wetlands meet. In order to view some of the raw data that these two groups have collected follow this link: (Coming soon).

References
¹Dr. Hall’s Lecture notes from ESP 400. 2008.
²Gosselink, James G. and William J. Mitsch. Wetlands. 3rd ed. John Wiley & Sons Inc., 2000.
³Salzman, James and Barton H. Thompson, Jr. Environmental Law and Policy. New York: Foundation Press, 2003.
“Service Wetlands Definition.” National Wetlands Inventory. Dec. 1979. U.S Fish and Wildlife Services. 30 April 2008. <http://www.fws.gov/nwi/definition.htm>