Building on an earlier case, the Fourth District Court of Appeal has expanded protection of low-quality coastal wetlands. Overturning a trial judge, the court ruled that all wetlands in California's coastal zone — even those not located in "environmentally sensitive habitat areas," (ESHAs) — should receive the same level of legal protection whether they are pristine or degraded. Last year, the same court ruled that coastal wetlands' quality could not be taken into account in determining whether wetlands should be protected if they are located inside ESHAs, which are designated by the Coastal Commission. (Bolsa Chica Land Trust v. Superior Court, 71 Cal.App.4th 493; see CP&DR Legal Digest, May 1999.) The new decision extends the same rule outside of ESHAs. "The same reasoning applies here, as the statutory scheme protecting wetlands in this regard does not differ in any meaningful fashion from that protecting ESHAs," wrote Justice Don Work for a unanimous Division One of the Fourth District. "…[A]s we explained in Bolsa, the failure to protect the low-quality wetlands would encourage developers to find threats and hazards to all wetlands located in economically inconvenient locations." The Fourth District concluded that the record did contain substantial evidence that wetlands exist on flood-prone property along the Encinitas River owned by horse ranchers Christopher and Gregory Kirkorowicz. The Coastal Commission had used this finding to overturn a decision by the Encinitas City Council that would have permitted the Kirkorowiczes to expand their stables even though 0.44 acres of apparent wetlands would be filled in. The court ruled that biologist Vincent N. Scheidt, of Dudek & Associates, who was retained by the City of Encinitas, correctly used both the Coastal Commission's Interpretive Guideline and the U.S. Fish & Wildlife Service's 1989 wetlands delineation manual in determining that wetlands existed. The property owners claimed that even though some indicators of wetlands existed — and even though the property floods on a regular basis — Scheidt had not correctly measured the property's characteristics against the Service's classification system. But the court rejected the property owners' assertion that the wetlands were not worthy of protection because they are degraded and not located in a Coastal Commission-designated ESHA. Justice Work concluded: "[S]ection 30233 [of the Public Resources Code, a portion of the Coastal Act] limits development of all wetlands regardless of their quality." Work also noted that Encinitas's coastal land use policies (contained in the city's Local Coastal Program and approved by the Coastal Commission) declare that there shall be no net loss of wetlands acreage or resource value. In fact, the policies encourage a net gain without distinguishing among the quality of resources. "Simply stated," Work wrote, "in determining whether a wetland is protected under the Coastal Act and the LCP, the quality of the wetland is essentially irrelevant." Work also noted that in this particular case, the small, degraded wetlands holds the potential to help buffer the larger and higher-quality wetlands around the adjacent San Elijo Lagoon Preserve. The case began when the Kirkorowicz brothers, who already board horses on their flood-prone 21-acre property along the river, sought to add new facilities, including a stable, storage areas, and a driveway. The project required 8,700 cubic feet of fill. In a report to the city, biologist Scheidt determined that the project would result in a direct loss of 0.44 acres of jurisdictional wetlands, though he stated that wetland hydrology "is absent" from the part of the site where the fill was proposed. He also described the wetlands as degraded because of its traditional use for grazing. In a series of hearings before the Planning Commission, the City Council and the Coastal Commission, the Kirkorowiczes agreed to revamp the protect and reduce the fill area to 0.35 acres of wetlands. However, the Coastal Commission turned the project down as inconsistent with the city's certified LCP and claimed other alternatives had not been explored. The Kirkorowiczes then sued, petitioning for a writ of administrative mandamus on several grounds. After the Bolsa Chica decision was handed down, however, the parties agreed to narrow the case to the question of whether the project would affect jurisdictional wetlands. San Diego Court Superior Court Judge Vincent DiFiglia ruled in favor of the Kirkorowiczes, concluding that while the Coastal Commission had presumed that wetlands existed on the property, "the Court finds that there is not substantial evidence that the Kirkorowicz' property is a protected wetland" under either the Coastal Act or the Encinitas LCP. The Coastal Commission then appealed to the Fourth District. The Kirkorowiczes's main argument on appeal was that Scheidt, the biologist, had not found that the property contained the characteristics required to make the wetlands finding. Scheidt had found "hydrophytes" (water-oriented species), but they represented only 43% of the species on the site (18 of 42) and he had concluded that wetlands hydrology did not exist on the fill portion of the site. However, in rejecting the property owners' argument, the Fourth District noted that Scheidt had filed a second report in which he detailed his adherence to the Unified Federal Method for wetlands delineation. "There is no evidence," the court wrote, that Scheidt failed to follow those procedures. The court also rejected the property owners' argument that the area was not deserving of protection because the wetlands were in a degraded state. Quoting its own ruling in Bolsa Chica, the court wrote that wetlands "whether they are pristine or growing or fouled and threatened receive uniform treatment and protection." The Case: Kirkorowicz v. California Coastal Commission, No. D034287, 00 C.D.O.S. 7856 (issued September 21, 2000). The Lawyers: For Kirkorowicz: Donald Robert Worley, Worley, Garratt, Schwartz, Garfield, and Prairie, (619) 696-3500. For California Coastal Commission: Daniel L. Siegel and Lisa Trankley, California Attorney General's Office, (916) 445-9555.