‘If It’s Wet, It’s Probably Water’

Wednesday, June 6, 2007 | For the past few years, the San Diego City Council has been forced to focus on such dry topics as the finer points of securities law and the inner workings of its pension system.

Now its attention is turning to a more esoteric question: What is water?

“I would define water as anything you can go fishing in,” says City Councilwoman Donna Frye, who is seeking to clarify the city’s definition of “water” to include wetlands.

“I would define water as defined under the Clean Water Act,” she says. “I would call the middle of a river water. I’m fairly simple. If it’s wet, it’s probably water. It’s sort of like you know it when you see it. If you fall in it, you get wet.”

Two weeks have passed since the San Diego City Council postponed a decision that could have clarified the definition of what areas are considered water in Mission Bay Park. The definition is important because a ballot proposition voters approved in 1987 allows the city to lease out only 25 percent of the park’s land to hotels and other businesses, such as SeaWorld. If water or wetlands are counted as land, it increases the space that can be leased — at the expense of public parkland.

Frye wants the definition of water to include “wetlands, navigable waters and all ‘waters of the United States’ as that term is used or defined under the Clean Water Act.”

The park is full of wetlands, but they’ve disappeared in city surveys.

In 1968, surveyors used an aerial survey to create the first definitive outline of Mission Bay Park’s size. The results spelled out the park’s acreage of land, water and wetlands. The surveyors found 133 acres of wetlands.

In 2000, another survey team measured the park to create a definitive record of its size. But it used different standards. The survey detailed only the park’s acres of land and water. Some wetlands were included as land — even though developing wetlands is strictly regulated by the federal government. Parts of the San Diego River channel above the high water mark were counted as land, Frye said.

That survey boosted the park’s land mass by 49 acres. And that added 12 acres to the amount of parkland that could be leased out.

“They created land out of water,” Frye says. “How did they grow land? It was a miracle.”

Frye wants to ensure that the mystery wetlands — which are protected under federal law — won’t artificially inflate the park’s total acreage and allow the city to lease out more land than it should.

As long as wetlands are counted as land, the cash-strapped city could boost its revenues by leasing out more land in Mission Bay Park than city voters have approved.

The attempt to define water underlies a more complex issue that stretches beyond whether the emphasis in the word “wetland” should be on the first syllable or the second. Those who argue about water’s meaning aren’t arguing so much about the legal definition of two hydrogen atoms and one oxygen atom as they are about the future of Mission Bay Park and who has its best interests in mind.

Clarifying the definition of water was poised to be approved by the City Council May 15. The item was sandwiched between a no-smoking ordinance and a construction contract on the council’s consent agenda, which allows the group to approve multiple items without discussion.

The office of Mayor Jerry Sanders pulled the clarification. Mayoral aide Jeff Gattas explained that the city wanted to conduct a more thorough analysis. Frye objected, saying the clarification had gone through seven years of public hearings.

During the ensuing discussion, Bill Evans, who represents the Mission Bay Lessees Association, endorsed the deeper analysis. Evans is general manager of Evans Hotels. The company owns the Bahia Resort Hotel, which leases land in the park, and the Catamaran Resort Hotel, which leases dock space.

Evans told council members to first evaluate how clarifying the definition would affect leaseholders.

“Incrementally they’re trying to take [the land] for the reason of stopping all development,” he says in an interview. “It’s a numerator-denominator question.”

This is where the simple issue splits into two sides, with each advocating for differing views of what they see as city residents’ and the park’s best interests.

There is Frye: “It’s a public park. We don’t mind if they’re going to have some commercial leases. We’ll agree to that — but we put a limit on it.”

And there is Evans: “They truly would like to see Mission Bay go back to its feral state, mudflats where you could walk across the bay at low tide. I do not believe a majority of the citizens of San Diego share that view.”

Last year, the city reaped more than $24 million from Mission Bay Park leases, which include SeaWorld and five hotels. The leases were originally created to offset the costs of buying the land that became the 4,248-acre park. (Or the 4,235-acre park, depending on which survey you read.)

In 1987, San Diego voters approved an amendment to the city charter that required 75 percent of Mission Bay parkland to remain as open space. Though 25 percent of the land can be leased, the park’s guiding plan does not intend to reach that ceiling.

Frye worries that commercial development will test that 25 percent limit. If history is a guide, she has reason for concern. In July 2000, the city ran out of copies of the park’s master plan, the blueprint for its future growth. When it was reprinted, the plan contained changes that hadn’t been approved by the City Council or the California Coastal Commission.

The old version — the approved version — called for a maximum of 450 acres of leases in Mission Bay Park.

The reprinted version — the unapproved version — boosted the maximum lease area by 22 acres with no explanation.

A 2001 memo from former deputy city manager George Loveland said when the reports were reprinted, city staff made “administrative corrections.” Without acknowledging the mistake, Loveland said city staff would retrieve all the reprinted copies.

Frye still keeps a copy in her office. Hidden, she says, so no one will take it.

Evans says he does not want new leaseholds in Mission Bay Park. He holds the rights to expand by one acre, and acknowledges that he wants to “intensify” his leases — building more rooms on existing leased land — but he says he knows of no one trying to build a new resort.

A SeaWorld spokesman says the 189-acre amusement park has no expansion plans.

Evans says he asked for the delay on May 15 to have an “honest accounting” of the park’s acreage. For example, he asks: Should riprap, the erosion-proofing stones along the shoreline, be counted as land? He does not disagree that wetlands are wet. But if the council had approved the clarification, he says, “then there will be no incentive for those other things to be addressed, if there’s no looming boogeyman. It’s a good rallying cry to insist that these issues are addressed.”

Bob Ottilie, chairman of the city’s Mission Bay Park Committee, questions Evans’ motives.

“I think there’s more profit to be made by the existing lessees if they can bring in more hotels, more things of that nature,” Ottilie says. “And that makes more money for the city. But it comes at the expense of the parkland. It’s a trade-off.”

Fred Sainz, a spokesman for Mayor Jerry Sanders, says the Mayor’s Office did not seek the 60-day deferral because of any hidden desire to increase commercial development in the park.

“I don’t know where people are getting it from,” he says. “It is certainly not the case with this administration. The only reason we asked for it to be pulled is because we don’t know what we don’t know.”

The issue returns to City Council on July 16. The city’s parks and recreation department and real estate assets division will study the issue and first report to the Mission Bay Park Committee.

Ottilie has an idea for the meeting.

“We’ll set up chairs in the river and marshlands,” he says, “and see if it really feels like land.”

Please contact Rob Davis directly with your thoughts, ideas, personal stories or tips. Or send a letter to the editor.