Well known is that water is a natural resource of limited supply, leading to what history and current events illustrate to be epic “water wars.” What is less known is when or how use of water is regulated by the State of California. A common-sense approach in California is to assume that some regulatory oversight likely exists. From the legal perspective, that approach has proven true illustrated by the recent adoption on April 2, 2019 by the State Water Resources Control Board (SWRCB) with defining “wetlands,” which creates broad implications for public and private interests around the state.
‘Waters of the State’
While the federal definition of “waters of the United States” has ebbed and flowed in recent years as the political pendulum swings on the federal landscape, and notwithstanding California’s long-standing definition of “waters of the State” as codified in Water Code § 13050(e), the state has been focused for over one decade to address declining acreage of wetlands premised upon the ecosystem benefits that wetlands provide to enhancing water quality and environments for aquatic and riparian habitats.
The Water Code defines waters of the state to include any surface or groundwater, including saline waters. While that definition leaves some room for interpretation, what has been unclear is what is meant by “wetlands.” Clarity to that term is important for at least two reasons: 1) to conform to public policy set forth by California Executive Order (W-59-93) dating back to Governor Pete Wilson calling for “no net loss” of wetlands; and 2) to understand what permitting is required under the federal Clean Water Act, namely section 404.
Defining What is a ‘Wetland’
By way of brief background, common examples of California wetlands include rivers, lakes and the ocean. Well-found scientific benefits of wetlands consist of flood control during storm events, provision of fish and wildlife habitat and public enjoyment for touring around wetlands.
The SWRCB’s efforts to defining “wetlands” traces back to its 2008 Resolution in which the SWRCB set its Wetland Riparian Area Protection Policy. The SWRCB’s rationale was: 1) to strengthen protection no longer covered by the federal Clean Water Act, coupled with approximately 95 percent of historical wetlands eliminated; 2) to create consistency amongst the state’s nine Regional Water Quality Control Boards (RWQCBs); and 3) to clarify new procedures for certain discharges, namely dredged or fill material, to all water of the state, not just wetlands.
Resulting from the SWRCB’s decade-long effort is the adoption on April 2 of the “State Wetland Definition” and “Procedures for Dischargers of Dredge or Fill Material,” summarily called here “The Procedures.”
In light of the new definition, “wetland” consists of: 1) an area with continuous saturation from groundwater or surface water; 2) conditions in which duration of saturation is sufficient to cause anaerobic conditions (or water quality problems); and 3) an area‘s vegetation is dominated by hydrophytes (aquatic plants). In contrast to the federal definition, California’s new definition allows a wetland to exist even if vegetation is not supported, thus providing a broader scope for determining what is a “wetland.”
Ultimately, stakeholders and practitioners servicing those with projects involving wetlands will need to determine if “waters of the state” are involved, and if so, is a “wetland” involved with the project. If so, then an application must be adequately completed pursuant to California Code of Regulations title 23, § 3856. Various tiers exist for projects depending on the size of the project, thus dictating the level of environmental impact analysis necessary as well as the extent of related mitigation measures, including potential compensatory mitigation measures.
Exemptions
Under limited circumstances a stakeholder might be eligible for an exemption to either The Procedures altogether or the extent of environmental analysis under The Procedures. As to the former, exemptions exist under the federal Clean Water Act, § 404, subsection (f), which generally relate to farming practices and maintenance of drainage or irrigation ditches and stock ponds. Exemptions to some of The Procedure’s environmental analysis requirements relate generally to project discharges that are already covered by a SWRCB or U.S. Army Corp of Engineers General Permit. The key qualification factor to an exemption from the environmental analysis is that the subject project activities cannot be new use of water that would result in a reduction of flow or circulation.
Conclusion and Implications
The SWRCB’s April 2 adoption of The Procedures imposes broad implications for stakeholders, namely for land developers and stakeholders with dredging or fill operations. While providing a definition of “wetland” theoretically provides the scope of what is or is not subject to The Procedures, stakeholders should expect additional complications with permitting as often happens as regulations expand or merely evolve, either or both of which occurred here. For instance, might federal or state endangered species requirements be heightened by species now deemed to be in a “wetland,” and thus entitled to additional mitigation measures to limit adverse impacts to the species. Another unknown variable currently is to what extent the SWRCB might seek to impose more mitigation requirements when issuing new permits under the new regulations. Only time will answer these questions, and the ultimate question of whether any of these regulatory requirements and subsequent efforts achieve the nearly 25-year old goal of achieving “no net loss” of wetlands.
(Wesley A. Miliband)
