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California State Water Resources Control Board Publishes Final Draft for Proposed Rule Regarding New Wetlands Regulations, Permitting Procedures

On July 21, 2017, as part of its ongoing efforts to “increas[e] the quantity, quality, and diversity of wetlands that qualify as waters of the state,” the State Water Resources Control Board (SWRCB) released its proposed rule entitled “State Wetland Definition and Procedures for Discharges of Dredged or Fill Materials to Waters of the State” (Proposed Rule). Among other actions, the Proposed Rule establishes a definition of “wetlands” that is broader than the federal definition of waters of the United States under the federal Clean Water Act (CWA), thereby expanding the reach of the SWRCB’s regulatory authority, and creating a new permitting process designed to restrict the discharge of dredge and fill materials into the state’s wetlands. While much of the Proposed Rule mirrors the corresponding sections of the CWA, there are several sections, which distinguish California requirements from federal mandates.

 

Background

Pursuant to state law, the SWRCB’s mission is to preserve, enhance, and restore the quality of California’s water resources in order to protect the environment and all beneficial uses for the benefit of present and future generations. Pursuant to its authority under the Porter-Cologne Water Quality Control Act, the SWRCB and Regional Water Quality Control Boards (RWQCBs) are authorized to regulate discharges of waste that may affect the quality of waterbodies designated as “waters of the state.” In a culmination of efforts started several years ago, the SWRCB recently released a preliminary draft of a final rule that will establish a regulatory guide for the SWRCB’s jurisdiction over wetlands in the state. The Proposed Rule is aimed “to ensure no overall net loss and long-term net gain in the quantity, quality, and permanence of wetlands acreage and values.” This rulemaking, which is still ongoing, has the potential to significantly impact the SWRCB’s regulatory authority, development, and agricultural interests throughout the state.

 

The Final Draft of the Proposed Rule

Under the Final Draft, the SWRCB proposes a new definition of “wetland.” According to the SWRCB, “an area is wetland if, under normal circumstances: 1) the area has continuous or recurrent saturation of the upper substrate caused by groundwater, or shallow surface water, or both; 2) the duration of such saturation is sufficient to cause anaerobic conditions in the upper substrate; and 3) the area’s vegetation is dominated by hydrophytes or the area lacks vegetation.” This definition expands upon prior iterations and has the potential to substantially increase the areas over which the SWRCB exercises authority. Moreover, it differs slightly from definitions of similar terms propounded by the U.S. Army Corps of Engineers in ways that may result in one piece of land being labeled “wetland” under California law but not under federal law.

In addition to the above, the Proposed Rule modifies the current permitting system for dredge and fill activities in wetland areas. The SWRCB and RWQCBs may still issue general permits for certain classes of dredge and fill activities and individual permits for specific projects. However, under the standards set forth in the Proposed Rule, the parties applying for individual permits must also include an alternatives analysis unless covered by an exemption. This alternatives analysis would require the parties to prove that there is no practicable alternative to discharging the dredged and fill material into the wetlands—basically, that the proposed discharge of dredge and fill materials is the “least environmentally damaging practical alternative.” Additionally, the Proposed Rule adopts a tiered framework for determining the standard for “least environmentally damaging practical alternative,” with Tier 3 being the highest and Tier 1 being the lowest, based on the size of the project and the type of habitat threatened. This framework would only apply to state permitting processes, so there is the possibility of federal and California agencies using different standards to judge the same analyses.

 

Conclusion and Implications

While it remains uncertain how the Proposed Rule may be modified during the regulatory process, the State Water Resources Control Board’s objectives in its Proposed Rule are clear—to protect and preserve California’s wetlands by expanding the state’s regulatory scope and further regulating development in sensitive aquatic areas. However, various sectors have voiced concerns about how the conflicting state and federal requirements and new permitting restrictions will affect the wetlands themselves, the economic value of the land, and California’s economy as a whole. At the same time, in light of the federal government’s withdrawal of the Waters of the United States rule, there may be some impetus to move along the Proposed Rule as quickly as possible. The SWRCB is accepting public comments until Sept. 7, 2017 and plans to respond to comments received in Fall 2017. Adoption of the Final Rule is expected in Winter 2017. For more information, see: http://www.waterboards.ca.gov/water_issues/programs/cwa401/docs/official_Doc_timeline/procedures_clean.pdf

(Matt Collins, Holland Stewart, Steve Anderson)